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[2022] ZAFSHC 15
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Mazibuko v S (A3/2022; 20/665/2021) [2022] ZAFSHC 15 (28 January 2022)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case number:
20/665/2021
Appeal Number:
A3/2022
In the matter
of
:
MESHACK KHAHLISO
MAZIBUKO
APPLICANT
versus
THE STATE
RESPONDENT
CORAM:
NAIDOO
J
HEARD
ON:
21 JANUARY 2022
DELIVERED ON:
28 JANUARY 2022
JUDGMENT – BAIL
APPEAL
[1]
The appellant came before me with an urgent application in which he
sought to appeal the refusal of the Bloemfontein
Magistrates Court to
admit him to bail. Adv PG Chaka represented the appellant in this
court and Adv BG Claassens represented the
State. The appellant,
together with seven others, faces the following charges:
1.1 One
count of Robbery with Aggravating Circumstances;
1.2
Three counts of Kidnapping, and
1.3
Two counts of contravening section 36 of the General Law Amendment
Act 62 of 1955 –. Possession
of Property Suspected to be
Stolen.
[2]
The magistrate, regrettably, delivered a 20-line judgment, in which
he said nothing except that the
accused had to prove exceptional
circumstances in order for the court to grant them bail, and that the
court found that no exceptional
circumstances were proved by any of
the (6) accused persons who applied for bail. I should mention that
neither the appellant nor
his co-accused testified, but filed
affidavits in support of their application for bail. It seems to me
that the magistrate’s
comments in respect of the accused
testifying may have played a role in the accused deciding to file
affidavits. He said on page
2 of the record, at lines 20-21: “Ag
moet ons nou al agt roep? Moet al agt getuig? Dit gaan agt jaar vat
om hierdie saak
klaar te maak.” (loosely translated: “
Oh
must we now call all eight? Must all eight testify? It will take
eight years to finalise this case”
) This is unfortunate,
and while it is appreciated that the court rolls in the District
Courts can be quite challenging, this is
a good example of how a
matter should not be dealt with. If it was the wish of the accused
persons to testify, they ought to have
been allowed to do so. The
magistrate, in compliance with section 65(3) of the Criminal
Procedure Act 51 of 1977 (the Act), indicated
that he had no further
reasons to furnish for his judgment.
[3]
The judgment of the court
a quo
was assailed, in essence, on
three grounds, namely that the court erred in:
3.1
failing to place due weight on the appellant’s evidence that he
is the father of two minor children
and the breadwinner of his
family, and in so doing, failed to give effect to the Constitutional
provision enshrined in section
28, that the interests of a child are
paramount in every matter concerning the child. Had the court done
so, it would have found
that the appellant had shown the existence of
exceptional circumstances.
3.2
incorrectly interpreting the onus (on an accused person) provided for
in Schedule 6 (of the Act), in that
the court found that it was
impossible for the appellant to discharge the onus except where the
state’s case was weak or
the state was not opposed to the
appellant’s release on bail.
3.3 not
finding that the state’s case against the appellant is weak or
non-existent, in that the only evidence
against the appellant is the
text messages sent by one of his co-accused to his mobile telephone.
The appellant presented a solid
alibi, there was no evidence of
stolen items being found in his possession or that state witnesses
could identify the appellant
as one of the perpetrators. The
appellant had, therefore, shown that exceptional circumstances exist
to release him on bail.
[4]
The appellant’s personal circumstances placed on record, are
that he is a 34 year old married
man, with two children aged seven
and two years old respectively. He lives in Bloemfontein with his
family and at the time of his
arrest was employed by the South
African Police Service (SAPS), since 2015, as an administration
clerk, earning a salary of R11 000.00
per month. His wife is
unemployed. According to the charge sheet, he was arrested on 13
September 2021, while his bail application
was heard and refused by
the court
a quo
on 29 September 2021. He has no previous
convictions but has two pending cases, where he is charged with
Kidnapping and Robbery
with Aggravating Circumstances. Bail of
R500.00 was fixed in respect of each of those cases. He alleges
further that he has two
motor vehicles, which are currently being
repaired, as well as several movable assets of value, without
specifying what these assets
are. He has very strong ties with his
community and his family and is not a flight risk.
[5]
The appellant denies any involvement in the commission of the crimes
with which he has been charged
in this matter and alleges that he has
an alibi which account for his movements on the day the offences were
committed. He alleges
that all these factors taken cumulatively
constitute exceptional circumstances which were not considered by the
magistrate, thus
amounting to a misdirection on the part of the
magistrate. With regard to his alibi, he alleges, that he visited his
psychologist
between 10h00 and 11h00 on 10 September 2021. Thereafter
he reported to the Kagisanong Police Station at 12h20, in compliance
with
one of his bail conditions in the pending matters. Thereafter,
he went home and remained at his home from around 12h30 to 17h30,
when his brother arrived at his home to take him and his family to
Bethlehem for the weekend.
[6]
It is common cause that the offences with which the appellant has
been charged in this matter fall within
the ambit of Schedule 6 of
the Act. Section 60(11)(a) of the Act provides that:
(11)
Notwithstanding any provision of this Act, where an accused is
charged with an offence referred to—
(a)
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 exceptional
circumstances exist which in the interests of justice permit his or
her release;
[7]
The Constitutional Court found that several sub-sections of section
60 of the Act, including section
60(11)(a), were constitutional when
it dealt with the cases of
S
v
Dlamini; S
v Dladla & others; S v Joubert; S v Schietekat
1999
(2) SACR 51 (CC)
.
With regard to the right to freedom, the learned authors
Du
Toit et al in the Commentary on the
Criminal Procedure Act,
RS
49, 2012 ch9-p26
succinctly summarised the position thus: “
In
S
v Bennett
2000
(1) SACR 406 (W)
408
e
–
g
Willis
J also said that the 'fundamental premise’ is that s 12(1) of
the Constitution confers on everyone the right
to freedom which
includes the right not to be detained without trial, subject to
constitutionally permissible limitations in terms
of s 36 of the
Constitution. See also
S
v Mabapa
2003
(2) SACR 579 (T)
583
h
and
S
v Petersen
2008
(2) SACR 355
(C)
at
[60] where reference was made to s 35(1)
(f)
of
the Constitution”
[8]
I turn to the grounds of appeal, which I summarised earlier in this
judgment. As I mentioned,
it is unfortunate that the magistrate
did not mention the personal circumstances of the appellant, or
specifically say that he
had, in fact, considered those circumstances
and the various factors placed before him in concluding that the
appellant had failed
to discharge the onus placed on him by section
60(11) of the Act. He failed to enlighten this court even when he was
requested
to furnish reasons for his judgment. The starting point for
an appeal court is to accept that the court
a quo
was correct
in its conclusions, unless it can be shown that the court misdirected
itself in the interpretation and application
of the law or the facts.
Even if the court did not specifically set out its analysis of the
law and the facts, based on what evidence
and information was placed
before the magistrate, this court cannot assume that the court
a
quo
did not consider or apply its mind to the facts and the law.
[9]
In the present case, the personal circumstances of the appellant are
unremarkable. He placed great emphasis
on the fact that he is the
breadwinner in his family and that he is the father of two minor
children, whose constitutional rights
as enshrined in section 28 of
the Constitution, are being violated as a result. In this connection,
this court enquired about the
disciplinary action allegedly being
brought against the appellant by SAPS. I was informed by Mr Chaka
that such proceedings have
not yet commenced and that the appellant
is still in receipt of his salary, in spite of being incarcerated.
The appellant’s
wife is unemployed and appears to be the
primary caregiver of the children and takes care of them while being
financially supported
by the appellant. It appears that she continues
to take care of the children in the appellant’s absence. The
impression that
the appellant attempts to create is that his
incarceration has the consequence that his family is left without any
financial means.
This is clearly not so as the appellant is still in
receipt of his salary with which he would continue to support his
family.
[10] When one
considers whether the incarceration of appellant is an infringement
of the constitutional rights
of the appellant’s children,
as he claims, I once again cite the exposition of the learned authors
Du Toit
et
al
, at
RS 63,
2019 ch9-p66
:
“
Where
the circumstances relied on by a bail applicant include the
constitutionally protected interests of a minor child, the court
must
take due cognisance of the child’s right 'to family care or
parental care, or to appropriate alternative care when removed
from
the family environment’, as provided for in s 28(1)
(b)
of
the Constitution. But whilst the best interests of the child are
paramount as determined in s 28(2) of the Constitution,
they cannot
'simply override all other legitimate interests, such as the
interests of justice or the public interest’. See
S
v Petersen
2008
(2) SACR 355
(C)
at
[63]–
[65]
where Van Zyl J, writing for a full bench, also referred to
S
v M (Centre for Child Law as Amicus Curiae
)
2007
(2) SACR 539 (CC)
,
which
dealt with the constitutional best interests of a child where a court
is required to consider incarceration of a parent or
primary
caregiver. In
Petersen
the
full bench was satisfied (at [76]) that on all the available facts
the bail applicant’s minor child was 'in more
than appropriate
alternative care, as envisaged by s 28(1)
(b)
of
the Constitution’ and that her best interests could be served
by permitting her 'regular and unimpeded access to
[her jailed
mother] at all reasonable times’ (at [77]).”
In
my view, it is the position in the present matter that the
appellant’s children are more than appropriately being cared
for by their mother.
[11]
With regard to the court’s utterances that it is impossible to
discharge the onus placed on the appellant,
except if the state did
not oppose the release of the appellant or if state’s case was
weak, I agree that such utterances
are unfortunate and regrettable.
However, I am unable to go so far as to say that such utterances
amounted to a misdirection, as
it must be borne in mind that even
though the state may not oppose the granting of bail, there is still
a duty upon a court hearing
an application for bail to enquire into
the accused person’s circumstances and satisfy itself that the
interests of justice
would not be adversely affected by the release
of the accused on bail. The bail application in this matter was moved
by way of
an affidavit, The court’s “enquiry” would
have been limited to the circumstances contained in the affidavit.
The fact that the court did not ask further questions in respect of
the allegations in the affidavit, does not automatically lead
to the
conclusion that it did not consider the circumstances of the
appellant in determining that the onus placed on him had not
been
discharged.
[12]
I deal now with the alibi proffered by the appellant. In opposing the
application for bail, the state handed up
affidavits by the
investigating officer (I/O). The second affidavit, deposed to by the
I/O deals,
inter alia
, specifically with the timeline of the
alibi defence of the appellant. The I/O avers that the offences were
committed between 13h45
and 18h00 on the day in question. The
appellant informed him during the arrest of the applicant, that he
had reported at the Kagisanong
police station. The he deposited some
money for his brother who was to collect the appellant later that
day. The I/O confirmed
that the appellant had reported to the
Kagisanong police station around 12.20 that day. The state is also
relying on the text message
sent to the appellant’s mobile
telephone by one of the appellant’s co-accused. The goods
stolen form the complainants
in this matter were pointed out by
another of the appellant’s co-accused, who also appears to be
linked by telephone communication
to the offences in this matter.
[13]
The appellant attempted to make much of the fact that when the
appellant was arrested in one of the pending matters
against him, his
cellular telephone was confiscated by the police, hence he could not
have been using that telephone and/or number
when these offences were
committed. Ms Claassens on behalf of the state pointed out that even
if the device is lost, stolen or
confiscated, the number can still be
used as the SIM card is inserted into another device. In any event
the bail application was
heard about two weeks after the appellant’s
arrest. It would not have afforded the I/O sufficient time to obtain
further
cellular evidence from the appellant’s cellular service
provider for the bail hearing.
[14]
There is no indication of the stage to which the investigation has
progressed and whether the appellant was indeed
linked to the
offences in this matter. His arguments that he was not at the scene
of the crimes, nor that any stolen property was
found in his
possession does not advance his defence further, as the state is
relying on common purpose. It is a well known fact
that some of the
people involved in robberies of this nature control and facilitate
the commission of the offences without ever
being present at the
scene of the crime. I am therefore, of the view that the assertion
that the state’s case is weak cannot,
at this stage, be
sustained. That is not to say that there may be the possibility that
there is no evidence linking the appellant
or that such evidence may
be weak or tenuous. The appellant has the option, if this turns out
to be the case, to approach the court
a quo
to reconsider
bail, based on new facts.
[15]
I mention also that the appellant has two pending charges for exactly
the same offences as in tis matter. He is
on bail in those matters,
and all indications are these offences were committed while he was on
bail in those matters. In my view,
this a factor that certainly
weighs against the appellant, and was clearly before the magistrate
in the court
a quo.
I am therefore constrained to find that
the court
a quo
erred or misdirected itself in refusing the
appellant’s application to be released on bail in this matter.
I am satisfied
that the court was correct in concluding that the
appellant had failed to discharge the onus on him to show that
exceptional circumstances
exist that do not adversely affect the
interests of justice and which permit his release on bail.
[16]
In the circumstances, the following order is made:
16.1
The appeal is dismissed.
16.2
The refusal of the Magistrate to release the appellant on bail is
upheld and confirmed
S NAIDOO J
On
behalf of the appellant:
Adv
PG Chaka
Instructed
by:
Matlho
Attorneys
96
Henry Street
Westdene
Bloemfontein
(Ref:
MD Matlho/MAZ1/0003)
On
behalf of the Respondent:
Adv
BG Claassens
Office
of the DPP
Bloemfontein