About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2023
>>
[2023] ZAFSHC 410
|
|
Seeng v S - Appeal (A143/2023) [2023] ZAFSHC 410 (26 October 2023)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case No:
A143/2023
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the bail appeal between:
VUSIMUSE
SEENG
Appellant
and
THE
STATE
Respondent
CORAM:
HEFER AJ
HEARD
ON
:
20 OCTOBER 2023
DELIVERED
ON:
This judgment was handed down
electronically by circulation to the parties’ representatives
by email, and
release to SAFLII. The date and time for
hand-down is deemed to be 16:00 on 26 OCTOBER 2023.
[1]
This is an appeal in terms of Section 65 of the Criminal Procedure
Act, Act 51 of 1977.
[2] The
Appellant appeared in the Bethlehem Magistrates Court in an
application to be released on bail. The Appellant
was charged with
the crime of murder in that on or about 30 March 2023 at or near
Bethlehem, Free State Province the Accused did
unlawfully and
intentionally assault one Katleho Makgoa by stabbing him with a knife
and did then and there inflict fatal wound(s)
and/or injuries by
inflicting such wound(s) and/or injuries unlawfully and intentionally
causing the death of the deceased.
[3] On
a second charge, the Appellant was charged with assault with intent
to do grievous bodily harm in that
the Accused on the same date as
above, and at the same place unlawfully and intentionally assaulted
one Fufe Isaac Makgao by stabbing
him with a knife twice with the
intent of causing him grievous bodily harm.
[4]
During the bail application the Appellant, who was legally
represented, placed the following information on
record through his
own testimony:
[5] The
Appellant is 21 years old and he has a child of 18 months. The child
is currently staying with her biological
mother who is still
attending school. The Appellant’s only means of employment and
income is “
touting for taxis”
from which he earns
an income of R200.00 per day. The Appellant testified that he does
not have any pending cases against him.
[6] The
Appellant indicated that he was applying for bail in order to
generate money to help his mother and to
maintain the child referred
to. He also has two calves which need to be fed.
[7] The
Appellant testified that he took himself to the police station and
surrendered himself after the incident.
He also indicated that he did
not attempt to escape or flee.
[8]
Without going into the merits, the Appellant indicated that his
defence to the incident will be that he acted
in self-defence in
regards to both the murder charge as well as the charge of assault.
According to the Appellant, he was injured
during the incident on his
neck as well as his leg. According to him, the police has taken
photographs of the injuries after the
incident.
[9]
During cross-examination by the prosecutor, it was put to the
Appellant that he has made a confession to a
certain Captain Mokwena.
According to this confession, the Appellant contradicted himself in
that in such a confession it was indicated
that the murder was
premeditated. According to the statement with which the Appellant was
confronted during cross-examination,
it appeared that the Appellant
first attacked the complainant on the assault charge and thereafter
after the complainant had been
taken to hospital, he attacked the
deceased by stabbing him with the knife in his heart. According to
the prosecution, the Appellant
was before the incident a passenger in
a taxi where an argument has taken place between him and the deceased
because the Appellant
was smoking in the vehicle. A braai was
organised by the Taxi –Association. Upon their arrival at the
braai the Appellant
was dissatisfied with the fact that the deceased
and the complainant had moved to the front of the queue to cook their
meat on
the braai stand. The Appellant first verbally quarrelled and
argued with the complainant on the second charge whereupon he stabbed
the complainant with the knife. After the complainant had been
removed to hospital, when the deceased made enquiries about the
whereabouts of the complainant, the Appellant stabbed the deceased in
his heart once as a result of which the deceased passed away.
Of
importance is the fact that according to the Appellant, the knife
which he used to stab the complainant as well as the deceased,
was a
knife which he had found there at the scene which were used to cut
the meat at the braai stand. As far as it may be relevant,
this to me
shows an absence of premeditation.
[10] The
prosecution called W/O Shannon to testify on behalf of the State. He
testified that the appellant has made a confession
statement to a
Captain Mokwena. His evidence stemmed from this confession as well as
personal knowledge of the matter. He confirmed
that a braai was held
by the taxi association of Qwa-Qwa and that this is where the
incident had occurred. He confirmed that prior
to the stabbing
incidents, there was already an incident in the taxi as referred to
above. He also confirmed the further events
pertaining to the fight
which first started between the Appellant and the complainant on the
second charge and then later between
the Appellant and the deceased.
According to W/O Shannon, the Appellant made a confession to the
effect that he has taken the knife
from the braai stand. According to
the W/O, after the incident the Appellant did not report to the
police station but he got into
a taxi and went back to Qwa-Qwa. The
police services through the intelligence network went to look for him
and it was then discovered
on the police system that there is also an
assault case pending where the Appellant allegedly stabbed someone
that is also being
investigated in
Qwa-Qwa.
The W/O then sent a message to the house of the Appellant, the
Appellant came by himself to the police station and said
to the W/O
in the other matter, namely W/O Gumede, that he knows that the police
is looking for him and for that reason he was
reporting at the police
station. W/O Shannon then went to Qwa-Qwa to fetch the Appellant and
upon their arrival he booked the Appellant
and he was handed to W/O
Shannon. As they were leaving the police station, the complainant and
his uncle were there and they indicated
to the police services that
they were going to kill the Appellant. The police services prevented
them from fighting, they put the
Appellant in the car and left
Qwa-Qwa.
[11] According to
the statement, the Appellant never said that he was being attacked
and that he was acting in self-defence.
W/O Shannon confirmed that
the Appellant showed him two scratch marks on the neck, on his knees
as well as on his arm but it appeared
that only one of the marks on
the neck could be considered to be a fresh injury.
[12] According to
the witness, the Appellant does not have previous convictions and the
assault case in Qwa-Qwa was struck
from the roll apparently because
of a technicality.
[13] As far as bail
is concerned, it was indicated on behalf of the State that bail is
being opposed because of the seriousness
of the offence and also
because of the fact that it now appears to be premeditated murder.
The evidence was also to the effect
that because the Appellant lives
very close to the family of the deceased, the Appellant may also come
to harm in view of the previous
threats referred to above. According
to the State, the Appellant cannot be regarded as a flight risk but
on the version of W/O
Shannon, because the Appellant might face a
long term of imprisonment, the Appellant might decide to evade his
trial.
[14] On behalf of
the Appellant it was argued that the offence is a Schedule 5 offence
as it stands on the charge sheet and
not Schedule 6 which will
include premeditated murder. According to the defence, the question
of premeditation only appeared during
the time when the Appellant was
being cross-examined by the prosecutor.
[15] The
prosecution on the other hand, argued that the charge sheet stands to
be amended to refer to Schedule 6 and in particular
premediated
murder. The factor of premeditation was however not taken into
consideration in refusing bail.
[16] With reference
to Section 60(4) of the Criminal Procedure Act, and in particular the
factors which the Court needs to
take into account in granting bail,
the safety of the Appellant also needs to considered in view of the
threats referred to above.
This was canvassed during argument. The
defence further argued that it should be taken into account that the
Appellant informed
W\O Gumede that he knew the police were looking
for him and that the Appellant himself went to the police station as
a result of
which the Appellant was then arrested. It was further
argued that there was nothing to show that the Appellant has any
intention
to flee.
[17] During
argument the prosecution persisted in opposing bail on the basis of
the seriousness of the offence and the so-called
premeditation of the
murder. According to the prosecution, the altercation which had taken
place in the taxi prior to the stabbing
incident, are indicative of
the Appellant planning to murder the deceased.
[18] In reply the
defence argued that when he was contacted by the police, the
Appellant had the opportunity to flee which
he did not, but indeed
went to the police station himself.
[19] In his
judgment, the presiding magistrate said
inter alia
as follows:
“
Does
he have a propensity to commit an offence; and he does have a
propensity, simply because we have testimony a formal charge
is not
prerequisite or a determination for a propensity. And we have heard
evidence that he was charged, and the matter was only
removed from
the roll because they needed the J88 to decide what is the story. And
at the time of his arrest, by that time the
prosecutor already made a
decision to enrol the matter. So, he has got a propensity to commit
offences, particularly Schedule 1
offences. Whether acting in
self-defence, acting wilfully, or exceeding the bounds of
self-defence, that is for the trial court.
But he has got a
propensity.”
[20] The Court held
that there was no likelihood that the Appellant will attempt to evade
his trial. There is no evidence
of this, save for the Appellant’s
actions after committing the offence whereas it is a serious offence,
somebody is stabbed
and somebody dies and the Appellant, according to
the presiding magistrate, just went off to Qwa-Qwa and not to the
police station.
[21] The Magistrate
further held that the Accused is a man of straw, he is living with
his mother. The Court did also take
into account that Qwa-Qwa is very
close to Lesotho and according to the Court, “
the Accused
seems to be savvy, up and down. He knows how to move around and get
from town to town particularly from Bethlehem to
Qwa-Qwa as well. He
is street savvy”
.
[22] The Court also
took into account the safety of the Appellant. As far as the
potential harm to the Appellant is concerned,
the Court rejected the
defence’s argument to the effect that because nothing has
happened within the 5-day period, before
his arrest, the threats as
expressed towards the Appellant were not real and will not
materialize. The Court considered such presumption
to be incorrect.
The Court then said the following:
“
What
is clear this is the manner in which it happened. It clearly induces
the sense of shock and outrage in a community. Then the
next question
is will it translate into public disorder or may his safety be
jeopardized. … But the Court simply cannot
ignore when threats
are made to the investing officer. It does not mean nothing happened
in those 4, 5 days prior to his arrest
or that something had to have
happened.”
[23] The Court held
that the factors in Section 60(4)(a) and (e) have been established.
[24] The Court came
to the following conclusion: “
From the factors before me,
suitable bail conditions will not assist in delaying any of the fears
established in section 64(a),
(b), (c)(sic). Furthermore the interest
of justice outweigh his personal circumstances. And I am of the
opinion that in the interest
of justice do not permit his release. He
has got a propensity such Schedule 1 offences. He is flight risk in
the sense of the strength
of the state’s case and the factors
against him is incentive enough for him to flee and thirdly the sense
of outrage that
would be caused if he is subsequently released. Bail
is accordingly denied.”
[25] In terms of
Section 60(1)(a), an accused who is in custody in respect of an
offence shall, subject to the provisions
of Section 50(6) be entitled
to be released on bail at any stage preceding his or her conviction
in respect of such offence, if
the Court is satisfied that the
interest of justice so permits.
[26] In terms of
Section 60(4), interest of justice do not permit the release from
detention of an accused where one or more
of the following grounds
are established:
(a)
Where there is a likelihood that the
accused, if he or she were released on bail, will endanger the safety
of the public or any
particular person or will commit a Schedule 1
offence; or
(b)
Where there is a likelihood that the
accused, if he or she were released on bail, will attempt to evade
his or her trial; or
(c)
Where there is a likelihood that the
accused, if he or she were released on bail, will attempt to
influence or intimidate witnesses
or to conceal or destroy evidence;
or
(d)
Where there is a likelihood that the
accused, if he or she were released on bail, will undermine or
jeopardize the objectors or
the proper functioning of the Criminal
Justice System, including the bail system;
(e)
Where in exceptional circumstances there is
the likelihood that the release of the accused will disturb the
public order or undermine
the public peace or security.
[27] In terms of
Section 60(5), in considering whether the ground in subsection 4(a)
has been established, the Court may,
where applicable, take into
account amongst others:
(i)
Any disposition to violence on the part of
the accused, as is evident from his or her past conduct;
(ii)
Any disposition of the accused to commit
offences referred to in Schedule 1 as is evident from his or her past
conduct; or
(iii)
Any other factor which in the opinion of
the Court should be taken into account.
[28] In terms of
Section 60 (6), in considering whether the ground in subsection 4(b)
has been established, the Court may
where applicable, take into
account amongst others the following factors, namely:
(i)
The assets held by the accused and where
some assets are situated;
(ii)
The means and travel documents held by the
accused which may enable him or her to leave the country;
(iii)
The nature and the gravity of the charge on
which the accused is to be tried;
(iv)
The strength of the case against the
accused and the incentive that he or she may in consequence have to
attend to evade his or
her trial;
(v)
The nature and gravity of the punishment
which is likely to be imposed should the accused be convicted of the
charges against him
or her; or
(vi)
Any other factor which in the opinion of
the Court should be taken into account.
[29] In terms of
Section 8 (a), in considering whether the ground in subsection 4(e)
has been established, the Court may where
applicable take into
account the following factors, amongst others namely:
(i)
Whether the nature of the offence or the
circumstances under which the offence was committed is likely to
induce a sense of shock
or outrage in the community where the offence
was committed;
(ii)
Whether the shock or outrage of the
community might lead to public disorder if the accused is released;
(iii)
Whether the safety of the accused might be
jeopardized by his or her release;
(iv)
Whether the sense of peace and security
among members of the public will be undermined or jeopardized by the
release of the accused;
(v)
Whether the release of the accused will
undermine or jeopardize the public confidence in a criminal justice
system; or
(vi)
Any other factor which in the opinion of
the Court should be taken into account.
[30]
In
S
v Barber,
[1]
Hefer J, (as he then was) remarked as follows:
“…
although
this Court may have a different view, it should not substitute its
own view for that of the Magistrate because that would
be an unfair
interference with the Magistrate’s exercise of his discretion.
I think it should be stressed that no matter
what this Court’s
own views are, the real question is whether it can be said that a
Magistrate who has the discretion to
grant bail but exercise that
discretion wrongly … Without saying that the Magistrate’s
view was actually the correct
one, I have not been persuaded to
decide that it is the wrong one.”
[31]
In
S
v Porthen and Other
[2]
,
Binns-Ward AJ said that there can be no quarrel with the correctness
of the observations of Hefer J as a general proposition but
nevertheless considered it necessary to point out that a court
hearing a bail application, i.e. the court
a
quo
,
exercises a wide as opposed to a narrow or strict discretion.
[32]
The test as set out in
S
v Barber (supra)
was also followed in
Attorney-General
of Zimbabwe v Phiri
[3]
.
[33]
In
S
v De Abreu
[4]
,
McEwan J also confirmed that in terms of Section 65(4) interference
can only take place if the Court is satisfied that the Magistrate
was
indeed wrong.
[34] I am not
satisfied that the Magistrate was wrong in concluding that the
Appellant should not be released on bail with
reference in particular
to Section 60(4)(a), (b) and (e). My reasons for confirming that the
interests of justice does not permit
the appellant to be released on
bail, however differs to a certain extent with that of the magistrate
in that, although I agree
that bail should be refused taking into
account the factors as listed in Section 60(4)(a)(b) & (e), I am
of the view that the
following facts are of more importance:
[35] As far as
Section (60) (4)(b) is concerned:
(i)
The nature and gravity of the charge with
which the Appellant is charged,
(ii)
As well as the strength of the State case
against the Appellant is also to be taken into account.
[36] Furthermore, as far
as Section 60(4) is concerned the fact that the safety of the
Appellant might be jeopardised if he is released
on bail is also a
further factor which plays a role in refusal of the Appellants’
bail.
[37] Save for these
differences I cannot, as a whole, say that the Magistrate exercised
his discretion wrongly.
ORDER
:
Therefore, I make the
following order:
The
appeal is dismissed.
J J F HEFER, AJ
On
behalf of the Appellant:
Adv
P. Van der Merwe
Instructed
by:
Legal
Aid South Africa
Bloemfontein
On
behalf of the Respondent:
Adv
Tshefuda
Instructed
by:
Director
of Public Prosecutions
Bloemfontein
[1]
1979 (4) SA 218
(D) at 22E - H
[2]
2004 (2) SACR 242 (C)
[3]
1988 (2) SA 696
(ZAC) at 698C - D
[4]
1980 (4) SA 94
(W) at 96H – 97A