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[2024] ZAKZPHC 29
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Mtshali and Another v S (2498/2024P) [2024] ZAKZPHC 29 (28 March 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NO: 2498/2024P
In
the matter between:
SIPHAMANDLA
MTSHALI
FIRST APPELLANT
MDUDUZI
DLAMINI
SECOND APPELLANT
and
THE
STATE
RESPONDENT
ORDER
The
following order is granted:
a)
The appeal is dismissed.
JUDGMENT
Veerasamy AJ
[1]
This is an appeal against the refusal of
bail by the Uthukela Magistrates’ Court. Both appellants were
charged with two counts
of the theft of stock or produce read with
sections 1, 11, 12, 14 and 15 of the Stock Theft Act 57 of 1959.
[2]
On
30 November 2023, at approximately 03h00, and along the N3 freeway,
the South African Police Services (‘SAPS’) visible
policing officers stopped a Quantum with an NT registration number.
The appellants, together with another individual, were the
occupants
of the vehicle. Inside the vehicle, the SAPS found four cattle, one
of which had died.
[1]
[3]
In the bail application, the first
appellant submitted an affidavit in support of his bail application
and from the record it appears
that affidavit was placed before the
court and his personal circumstance were read into the record. No
oral evidence was thus led
by the appellants. The State led the oral
evidence of Constable Mitchell Anthony, who is employed by the SAPS
Estcourt Stock Theft
Unit, and Mr Noah Francis Dlangalala, the
chairperson of the Amangwe Forum and a chairperson of the CPF for the
area wherein the
arrests were made.
[4]
In summary, the magistrate found as
follows:
(a)
The appellants are confronted with the
serious offence of stock theft, which carries a possible term of
imprisonment. The first
appellant, in particular, is confronted with
the possibility of a long-term imprisonment since he had previously
been convicted
of similar offences.
(b)
In effecting the arrest of the appellants,
the SAPS had pursued them with blue lights and sirens for
approximately 15kms before
the appellants eventually stopped.
(c)
It was clear that the appellants were
trying to evade the police during this chase.
(d)
This pointed to them being a flight risk.
(e)
The evidence of Mr Dlangalala was evident
of the public interest in the case.
(f)
In the event that the appellants were given
bail, they would be a flight risk and there was indeed a likelihood
that they would
evade their trial.
(g)
It was in the interests of justice that
they were not to be released on bail.
[5]
The statutory framework for determining an appeal relating to bail is
set out in section 65(4) of the Criminal Procedure Act 51 of 1977
(‘CPA’), which provides that:
‘
The
court or judge hearing the appeal shall not set aside the decision
against which the appeal is brought, unless such court or
judge is
satisfied that the decision was wrong, in which event the court or
judge shall give the decision which in its or his opinion
the lower
court should have given.’
[6]
In
order to interfere on appeal, it is necessary to find that the
magistrate misdirected him or herself in some material way in
relation to either the facts or law.
[2]
[7]
If
a misdirection is established, then the appeal court may consider
whether bail ought, in the particular circumstances of the
case, to
have been refused or granted. However, absent a finding that the
magistrate misdirected him or herself, the appeal must
fail.
[3]
[8]
In
S
v Baber
,
[4]
the
court held that:
‘
It
is well known that the powers of this Court are largely limited where
the matter comes before it on appeal and not as a substantive
application for bail. This Court has to be persuaded that the
magistrate exercised the discretion which he has wrongly.
Accordingly,
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 the magistrate who had the discretion to grant
bail
exercised that discretion wrongly.
’
[5]
[9]
The
grant or refusal of bail is a discretionary decision, and judicial
officers have the ultimate decision as to whether or not
in the
particular circumstances bail should be granted.
[6]
[10]
The offence with which the first appellant is charged falls within
the ambit of Schedule
5 of the CPA, since he has been charged with an
offence which falls under Schedule 1 of the CPA and he has previous
convictions.
Section 60(11)
(b)
provides that where an accused
is charged with an offence
‘
referred
to in Schedule 5, but not in Schedule 6,
the court shall order that the accused be detained in custody until
he or she
is dealt with in accordance with the law, unless the
accused, having been given a reasonable opportunity to do so, adduces
evidence
which satisfies the court that the interests of justice
permit his or her release…’
[11]
The
onus was on the first appellant to convince the court, on a balance
of probabilities, that the interests of justice permit his
release on
bail.
[7]
[12]
Section 60(4) of the CPA provides that the
interests of justice do not permit the release from detention of an
accused where one
or more of the grounds enumerated therein are
established. One of the grounds is whether there is a likelihood that
the accused,
if he were to be released on bail, would attempt to
evade his or her trial (section 60(4)
(b)
).
[13]
Section 60(6) of the CPA provides that, in
considering whether the ground in section 60(4)
(b)
has been established, a court may, where applicable, take into
account following factors:
‘
(a)
the emotional, family, community or occupational ties of the accused
to the place at which he or
she is to be tried;
(b)
the assets held by the accused and where
such assets are situated;
(c)
the means, and travel documents held by the
accused, which may enable him or her to leave the country;
(d)
the extent, if any, to which the accused
can afford to forfeit the amount of bail which may be set;
(e)
the question whether the extradition of the
accused could readily be effected should he or she flee across the
borders of the Republic
in an attempt to evade his or her trial;
(f)
the nature and the gravity of the charge on
which the accused is to be tried;
(g)
the strength of the case against the
accused and the incentive that he or she may in consequence have to
attempt to evade his or
her trial;
(h)
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;
(i)
the binding effect and enforceability of
bail conditions which may be imposed and the ease with which such
conditions could be breached;
or
(j)
any other factor which in the opinion of
the court should be taken into account.’
[14]
In these proceedings, the court is confined
to the first appellant’s affidavit where he relied upon the
following personal
circumstances. He is 35 years of age, engaged and
has four minor children aged 15, 14, 11 and 5. He is a self-employed
taxi owner
and resides in the KwaManaka area in Mooi River where he
has resided since his birth. He resides at his house with his sister
and
four brothers. He owns two Toyota Quantum vehicles valued at
approximately R500 000 and a property at which he stores his motor
vehicles, which include two bakkies. He does not have a passport and
he submitted that he has no reason to consider fleeing before
the
trial is complete. He is unaware of any witnesses in the matter and
does not intend to interfere with any witnesses. He contended
that he
is not a flight risk.
[15]
If incarcerated, he submitted that his
business would fail and this would have a ripple effect on the
livelihoods of those he employs,
who are equally dependant on him. It
would also prejudice his children as he is the sole income provider
for them.
[16]
The offence with which the second appellant is charged falls within
the ambit of Schedule
1 of the CPA, since he has been charged
with an offence which falls under Schedule 1 of the CPA.
[17]
Th
e
bail application for first appellant would be governed by section
60(1) of the CPA which reads as follows:
‘
(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 interests
of justice so permit.’
[18]
Section 60(4) of the CPA provides that the
interests of justice do not permit the release from detention of an
accused where one
or more of the grounds enumerated therein are
established. I have already set out the grounds of section 60(4) of
the CPA previously
in this judgment.
[19]
The second appellant submitted that he was 24 years of age, single
and
has
no children. He worked at Top
Carpets as a floor fitter
,
earning
approximately R5 000 a month, with no previous convictions or
pending matters. That was the totality of the evidence
he placed
before the magistrate. The onus was on the State to convince
the court, on a balance of probabilities, that the
interests of
justice did not permit his release on bail
.
[20]
Neither of the appellants tendered any proof of the personal
circumstance
upon which they relied
. Thus
there was no evidence before the court regarding the first
appellant’s business ownership or family ties and there
was no
proof of the second appellant’s employment.
[21]
The evidence of State ( through Constable Anthony) was that the
police had to chase
after the appellants for
approximately 15kms with their sirens blazing and lights flashing
before the appellants eventually
brought the vehicle to a halt.
[22]
The appellants’ singular criticism of this evidence was that it
had been elicited
through the magistrate’s further questions
rather than during evidence in chief or cross examination.
[23]
The conclusion
,
as reached by the
magistrate
,
was that the appellants were
attempting to evade their arrest.
[24]
The
seriousness of
the
offence and the probable sentences militate against the releasing of
the appellants on bail.
[8]
[25]
In
S
v Sibeko
[9]
the court
was
unconvinced
that the appellants would not evade trial
,
when evaluating a strong case against the
m
and taking into account the serious nature of the offence which they
were confronted with, their previous convictions and the likelihood
that they will be convicted and face jail sentences.
[26]
The appellants are charged with two counts of stock theft involving
approximately 12 head
of cattle (four of which were found in the
possession of the appellants).
[27]
The first appellant clearly failed to demonstrate that it was in the
interests of justice
to permit his release.
[28]
The State which attracted the onus in respect of the second
appellant, had demonstrated
that the was a risk that the second
appellant would likely attempt to evade trial if released from
detention.
[29]
Under section 60(4) of the CPA, where there is a likelihood that
either of the appellants,
if they were released on bail, would
attempt to evade their trial, then it
would
not
be
in the interests of justice to
permit their release from detention. The magistrate found accordingly
after considering the factors
as set out in section 60(4)
(b)
.
[30]
I am
thus
of the view that the magistrate
committed no material misdirection o
r
error.
Conclusion
[31]
T
he appeal
accordingly
cannot succeed.
[32]
The
magistrate considered the factors which are ordinarily taken into
account and those which each appellant advanced in their application
for bail. She came to the conclusion on the totality of the evidence
that it was not in the interests of justice to permit their
release
on bail. I am accordingly unable to find that the magistrate was
wrong in doing so.
This
is in accordance with the test to be applied in bail appeals.
[10]
Order
[33]
I therefore make the following order:
a)
The appeal is dismissed.
I VEERASAMY AJ
CASE
INFORMATION
Counsel for the
Appellant:
Mr Mkhize
Attorneys for the
Applicant:
B and M Attorneys
Incorporated
1
st
Floor Pharos House
70 Buckingham
Terrace
Westville
Ref:
B&M/Appeal121/09
c/o Nzimande LV
Attorneys
12 Chief Albert
Luthuli Street
Parkland Centre
Pietermaritzburg
3201
Counsel for the
Respondent:
Adv P T Ntsele
Attorneys for the
Respondent:
DPP
Pietermaritzburg
286 Pietermaritz
Street
Email:
MGula@npa.gov.za
Tel: 033 845 4400
Date
of Hearing:
27
March 2024
Date of Judgment:
28 March 2024
[1]
The record at pages 74–75.
[2]
S v
Ali
2011
(1) SACR 34
(ECP) para 14;
S
v Mpulampula
2007
(2) SACR 133
(E).
[3]
S
v Porthen and others
2004
(2) SACR 242
(C) para 11.
[4]
S
v Barber
1979
(4) SA 218
(D).
[5]
Ibid
at 220E–G.
[6]
S
v Dlamini; S v Dladla and others; S v Joubert; S v
Schietekat
[1999]
ZACC 8
;
1999 (2) SACR 51
(CC) paras 74, 76 and 78.
[7]
S
v Branco
2002
(1) SACR 531
(W) at 532f-g
.
[8]
Ntsiki
and Others v S
[2023]
ZAGPPHC 1681; CC2/2020 (10 March 2023)
[9]
Sibeko
and others v S
[2016] ZAGPPHC 852 paras 19-20.
[10]
S
v Barber
1979
(4) SA 218
(D)
,
S v Porten and others
2004
(2) SACR 242
(C).