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[2023] ZAKZPHC 81
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Khanyile v S (Bail Appeal) (1022/2023P) [2023] ZAKZPHC 81 (11 August 2023)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: 10022/2023P
In
the matter between:
KHULEKANI
KHANYILE
APPELLANT
and
THE
STATE
RESPONDENT
ORDER
On
appeal from:
Mzinyathi Magistrate's court, Msinga (H N Zondo
sitting as court of first instance):
1.
The appeal is dismissed.
BAIL
APPEAL JUDGMENT
Delivered
on:
Mngadi
J
[1]
The appellant appeals against the decision of the Msinga Magistrate's
court (Ms Zonda)
refusing an application for the release of the
appellant on bail pending trail.
[2]
The appellant, an adult male aged 31 years, was arrested on 7
November 2022 on a charge
of murder read with the provisions of
section 51 (1) part 1 of schedule 2 of Act 105 of 1997 and with
Attempted murder committed
on 8 September 2022. Other two charges he
was charged with were a contravention of
s 120
(7) of the
Firearms
Control Act 60 of 2000
to wit discharging a firearm in a built-up
area, and a charge of pointing a firearm.
[3]
The charge of attempted murder was alleged to have been committed
during the same
time as the charge of murder. The charge of
discharging firearm in a built-up area and the charge of pointing a
firearm were allegedly
committed on 17 October 2021. These two latter
charges, in my view, played or ought to have played no role in the
decision not
to release the appellant on bail pending trial.
[4]
The magistrate heard the application for the release on bail on 23
November 2022.
She in a judgment delivered on 07 January 2023 refused
the application for the release of the appellant on bail.
[5]
The magistrate indicated that both the appellant and the state agreed
that the application
for the release on bail of the appellant fell
under the provisions of schedule 6.
Section 60(11)
(a) of thew
Criminal Procedure Act 51 of 1977 (the CPA) provides that where the
accused is charged with an offence referred to
in Schedule 6, the
court shall order that the accuses be detained in custody unless
having been given a reasonable opportunity
to do so, he adduces
evidence which satisfies the court that exceptional circumstances
exist which in the interest of justice permit
his release.
[6]
The appellant testified before the magistrate. He did not call
any witnesses.
He testified as follows: He was 30 years old. He
resides at Ezingulubeni at Msinga at his parental home, with his
parents, and
siblings, having been born in that area. He had five (5)
children from different mothers, the oldest child was 3 years old and
the youngest was two (2) years old. The mothers of the children
received child grant. He was not married but he had a fiancee.
[7]
The appellant testified that he was employed by the Municipality as a
contract worker
earning R12 000 per month. His contract was for five
(5) years. He worked as a security guard for a mayor of Msinga
Municipality.
The mayor was on suspension. He travelled around with a
mayor, opening a door for his motor vehicle and ensuring that
everything
was in order. He supported his family and his children.
[8]
The appellant testified that he had no previous convictions. He had
one pending case
against him. The case related to an incident when he
was selling in tavern and the police found a firearm and charged him
with
unlawful possession of a firearm. He was appearing in
Johannesburg for that case since 2015. It was once withdrawn and
later reinstated.
He was arrested at his home. His phones were
confiscated. He was taken to the police station. After he was
arrested, he attended
an 1.0 parade but his legal representative was
not present on the day the I.0 parade was held. He had nothing to say
relating to
the murder and attempted murder charges and in that there
are eyewitnesses that saw him at the crime scene committing the
crimes.
He will not comment that the witnesses who saw him committing
the two crimes identified him in the I.D parade. He would not comment
that the evidence of the cell phone records of his phone indicate
that at the time and date the crimes were committed his cell
phone
was in the area where the crimes were committed.
[9]
The appellant testified that the complainant in the attempted murder
charge who is
also a witness to the murder charge is known to him, he
is councillor Ntuli, a municipal ward councillor, and they worked
together
in the municipality of Msinga. He stated that he would not
interfere with witnesses, and he had never interfered with them. His
level of education is matric. He has furnished an alternative address
being 2[...] C[...] S[...], Greytown where the mayor who
is on
suspension whom he guards resides.
[10]
The appellant testified that he was building a house in his home that
he needed to finish. He
did not own a motor vehicle. He did not have
a driver's licence. He did not have a licence to possess a firearm.
He did not resist
arrest and he co-operated with the police. He had
some training as a security guard. He testified that for the crimes
committed
on 8 September 2022, he had an alibi. He between 11h00 and
12h00 was at a tuckshop. He had witnesses to support his alibi,
namely,
his father and one Malema. He testified that he was present
in the funeral of the deceased in the murder charge. The deceased was
also a councillor of the Msinga municipality. He confirmed that on 8
September 2022 he had at all times his cell phone on him.
He had two
cell phones. At some stage he did a sim swap, he was not certain
whether it was after or before the councillor, the
deceased in the
murder charge died. His brother who did a sim swap for him has since
passed on.
[11]
The appellant testified that tuckshop in which he was, and the scene
of the crimes committed
on 8 September 2022 is near Ndabankulu
Primary and Sakhiseni School, located in kwaMabaso in the area of
Enyadu. He stated that
at the funeral of the deceased the person who
said he saw the perpetrators did not mention his name.
[12]
The appellant testified that he would like to go back to guard the
mayor. The mayor although
not working from the office still attend
other work. He also wanted to attend to the building .of his house
and to be with his
family. He gave the names of his children as
[K....], [V....], [L....], [S....] and [M ]. He disputed that
the police officers
at Msinga Police Station were scarred of him. He
said they had arrested him before.
[13]
The state lead evidence of one witness, the investigating officer,
Sergeant Mokoena. Sgt Mokoena
testified and he submitted his
affidavit. He stated that he had fifteen (15) years' service as a
detective in the South African
Police Service. He stated that the
murder and attempted murder charges the appellant is facing relate to
an incident which took
place on 8 September 2022 at about 11h33. He
said that councillor Magubane was driving his motor vehicle with
councillor Ntuli
as a passenger. They were driving to Tugela Ferry to
attend a mayoral function in the area of Majozi at Pomeroy. They were
driving
along the R33 main road. At Nyadu area where the motor
vehicle had to drive slowly opposite a school they were shot at with
a rifle.
The shooter was in a motor vehicle which drove along their
vehicle. Councillor Magubane was fatally shot and died at the scene.
Councillor Ntuli sustained minor injuries on his head, and he was
taken to hospital for medical treatment. The assailants' motor
vehicle then made a u-turn in front of the deceased vehicle, picked
up one assailant who had alighted, and it drove away.
[14]
Sgt Mokoena gave evidence relating to what happened on 17 October
2021 which pertained to the
other charges. It is not necessary, in my
view, for purposes of this appeal to summarize that evidence. Sgt
Mokoena stated that
both incidents were politically motivated. He
said that the witnesses who attended an I.D parade, they pointed out
the appellant.
The said that the cell phone records of the appellant
relating to the murder and attempted murder charges placed him at the
scene
of the incident.
[15]
Sgt Mokoena testified that he verified that the appellant was
employed by Msinga Municipality.
The appellant had a pending case as
at Primrose in Germiston for unlawful possession of a firearm. He
said that from the past conduct
of the appellant, it is likely that
if released on bail he will commit a schedule 1 offence. He found
that the appellant's mother
and father knew of only one child of the
appellant. He said the state has the strong case against the
appellant, in that the appellant
is linked to the crime scene by
eyewitnesses who pointed him out in the identification parade and
also through the cell phone records.
The appellant is facing very
serious charges. If convicted he could be sentenced to a lengthy
period of imprisonment. He said this
may cause the appellant to evade
trial, and or interfere with witnesses if released on bail. The
witnessed are very fearful of
the appellant. The appellant can find
out of who are the witnesses and their places of residence. The
witnesses are from Msinga
area. The appellant is a well-known person
in the area, and he is regarded as a dangerous person. The witness
who survived the
shooting lives in fear of being killed. The
ballistic evidence established that two firearms were used during the
attack, namely,
a rifle and a pistol.
[16]
Sgt Mokoena testified that the firearms used during the attack
have not yet been recovered.
There are also outstanding suspects. The
offence caused shock and anger in the community. The offences
attracted widespread media
attention. The appellant's life if
released on bail is not guaranteed from those aggrieved by the
attack.
[17]
Sgt Mokoena testified that the deceased was the chairperson of the
municipalities' public account's
committee. There were irregular and
unauthorized expenditure in the municipality being investigated by
the committee. The investigation
related to the involvement of other
councillors of the municipality. The fact that the deceased and his
passenger were followed
and attacked whereon they had to drive slowly
and that nothing was taken from them during the attack indicates that
it was an assassination.
[18]
Sgt Mokoena testified that the appellant was not the sole breadwinner
of his family. His father
operated a taxi business and he conducted
livestock farming. During the adjournment he investigated, and he
interviewed the mothers
of the children named by the appellant and he
also obtained copies of the birth certificates, and only one child
was found to be
the appellant's child. He also learnt from the Human
Resources manager at the municipality that the suspended mayor has
resigned.
The resignation of the mayor meant that the employment
contract of the appellant is terminated. He also found that the
appellant
was not registered with PRISA as a security guard. He
conceded that although the mayor resigned, he is still recognized as
a councillor.
The appellant may be given other job within the
municipality. He conceded that there was nothing in writing in the
docket indicating
that Msinga police officers are afraid of the
appellant.
[19]
Sgt Mokoena testified that the witnesses relating to the murder
charge that identified the appellant
in the 1.0 Parade are not known
to the appellant. He confirmed that during the funeral of the
deceased councillor Ntuli mentioned
one person within the
municipality, involved in their attack, the name of the appellant was
not mentioned. He did not know
whether the outstanding suspects
knew Mr Ntuli or not. He stated that with the evidence that exists
the appellant can be prosecuted.
He said he could not dispute that
the appellant's father had two wives and two homesteads, and nine
siblings. He said it is correct
that the mayor who resigned has
advised that all his security guards employment contracts have been
terminated, but he could not
dispute that a private company may
employ those who were guarding the mayor to continue doing so as its
employees. He said he could
not dispute that councillor Ntuli has
been provided with security guards by the municipality.
[20]
It is trite that section 60(11) (a) of the CPA places an onus to be
discharged on the balance
of probabilities, to show that exceptional
circumstances exist which in the interest of justice permit the
release of the applicant
on bail. A bail application under s 60(11)
(a) of the CPA is more invasive of the accused person's liberty right
than that falling
under the provisions of s 60(10 (b) of the CPA. The
presiding officer bears in mind on the one hand the fundamentals for
the release
of an accused on bail and on the other hand the
requirements to be satisfied for the release on bail in a matter
falling under
s 60(11) (a) of the CPA. The presiding officer, in
particular, bears in mind that the accused has not been tried, he is
presumed
innocent until found guilty and that liberty of a person is
highly valued by the constitution. The accused person cannot
arbitrarily be deprived of his freedom. There must always be good
cogent grounds for a refusal to release on bail an accused person
pending trial. The legislature for the crimes falling under schedule
6 requires that a stricter approach be exercised in applications
for
release on bail. In other words, in such bail applications, the like
hood of fleeing not attending trial, like hood of interfering
with
investigation and or witnesses, the release on bail undermining
administration of justice are taken to exist, and it is for
the
applicant on a balance of probabilities to satisfy the court that
such risks do not exist. In
S v Olamini et al
1999(2) SACR 51
(CC) para 65 the court held:
'This
view is strengthened by a consideration of s 60(11)(b). That
subsection stipulates that an accused must satisfy a magistrate
that
the 'interests of justices' permit his or her release. It clearly
places an onus upon the accused to adduce evidence. However,
apart
from that, the exercise to determine whether bail should be granted
is no different to that provided for in ss 60((4)-(9)
or required bys
35(1)(f). It is clear that an accused on a Sch5 offence will be
granted bail if he or she can show, merely, that
the interests of
justice permit such grant. The additional requirement of 'exceptional
circumstances' imposed by s 60(11)(a) is
absent. A bail application
under s 60(11)(a) is more gravely invasive of the accused person's
liberty right than under s 60(11)(b).
To the extent, therefore, that
the test for bail established by s 60(11) (a) is more rigorous than
that contemplated by s 35(1)(f)
of the Constitution, it limits the
constitutional right.'
[21]
It is submitted on behalf of the appellant that he has no previous
convictions, he has no pending
cases, he previously showed respect of
the criminal justice and bail system by complying with the bail
conditions. It is argued
that he testified under oath that he would
not interfere with witnesses and/or the investigation.
[22]
The learned magistrate stated that the other crimes were committed in
the presence of the members
of the public. The applicant's behaviour
in the commission of these offences is in line with like hood that if
released on bail,
he will endanger the safety of the public or of
other persons, she held. In my view, the learned magistrate
misdirected herself
in taking it as if the appellant had been
convicted of these crimes whereas he had not been tried. It is
significant that the other
crimes were committed in 2021 and no
urgency was shown in arresting the perpetrator. In any case, there
crimes did not fall under
schedule 6. It is also argued that the
behaviour of Malema contacting state witnesses to negotiate
withdrawing of the charges relating
to the other crimes is an
indication that if the appellant is released on bail he will
interfere with witnesses. In my view, the
possibility that Malema
acted on his own without the knowledge of the appellant was not
negated.
[23]
The learned magistrate regarded the fact that firearms used in the
commission of crimes had not
been recovered as evidence for a like
hood to conceal or destroy evidence by the appellant. In my view,
there was no evidence that
the appellant was playing any part in the
police failing to recover the firearms.
[24]
The learned magistrate held it against the appellant that he
testified under oath that he had
five (5) children which was shown to
be lies. In my view, this was held correctly to have affected
negatively the credibility of
the appellant, but I don't think it can
be regarded as act of undermining the system of justice.
[25]
It is, in my view, significant that the appellant is currently
unemployed. His incarceration
is not depriving him of any income.
Potential employers are not likely to take him whilst he is facing
the criminal charges currently
pending against him. His inability to
contribute to the maintenance of his family is not as a result of his
incarceration but it
is as a result of being unemployed.
[26]
The appellant with no employment has nothing that he is committed to.
He has no immovable assets,
and he has no family home except his
parental home. He is knowledgeable about living away from Msinga as
he previously lived in
Johannesburg. It is correct that the appellant
was not shown to have previously failed to comply with the conditions
for release
on bail, but at stage he faced a charge which was far
less serious than the charge he is facing now.
[27]
As it stands, the legislature has provided that persons who commit
murder in the manner the murder
in the charge of murder was committed
are likely to flee and avoid trial, are likely to interfere with
witnesses, and are likely
to interfere with investigations, are
likely to commit other crimes and their release on bail is likely to
undermine the functioning
of the administration of justice. The
appellant, despite having been given an opportunity to do so, has not
succeed to show in
the balance of probabilities that exceptional
circumstances exist which in the interest of justice permit his
release on bail pending
trial.
[28]
The appeal against the refusal of the bail application on 27 January
2023 falls to be dismissed.
[29]
It is ordered as follows:
1.
The appeal is dismissed
Mngadi
J
APPEARANCES
Case
Number:
10022/22P
For
the Appellant:
D.
Barnard
Instructed
by:
Kunene
Attorneys
PlETERMARITZBURG
For
Respondent:
LDD
Zondi
Instructed
by:
Deputy
Director of Public Prosecutions
PlETERMARITZBURG
Date
of Hearing:
4
August 2023
Date
of Judgment: