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[2022] ZAFSHC 34
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Zwane v S (A4/2022) [2022] ZAFSHC 34 (2 February 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case No: A 4/2022
In
the matter between:
CHARLES
ZWANE
Appellant
and
THE
STATE
Respondent
JUDGMENT
BY:
MOLITSOANE, J
HEARD
ON:
25 FEBRUARY 2022
DELIVERED
ON:
2 MARCH 2022
[1]
The appellant unsuccessfully launched a bail application in the
Regional Court sitting in Frankfort.
The appellant is charged with
one count of robbery with aggravating circumstances, unlawful
possession of a firearm and unlawful
possession of ammunition.
[2]
The following background is relevant to
these proceedings: It is common cause that the first count
falls
within the ambit of s60(11) (a) read with schedule 6 of the Criminal
Procedure Act, 51 of 1977 (the CPA). The onus is thus
on the
appellant to satisfy the court that there are exceptional
circumstances which in the interests of justice permit that he
should
be released on bail.
[3]
The appellant chose not to testify or call
witnesses in support of his bail application. He instead
filed an
affidavit as he is entitled to. The affidavit reveals that he was 41
years of age at the time of the application. He is
a business man and
has four people in his employment. He has resided in Gauteng his
entire life. He is married with two minor children.
He owns property.
He has no previous convictions but has one pending case of robbery
pending in the Gauteng Division of the High
Court, Johannesburg.
He is out on bail. The case dates back to 2015.
[4]
His version is that he and his three other co-accused wanted to buy
sheep in order to sell same.
They set out on foot to go and look for
the farmer who sold the sheep but could not locate him. While walking
they suddenly heard
gun shots. He ran for cover under a bridge. He
was arrested and falsely accused of having committed robbery. He
knows nothing about
the robbery.
[5]
In opposition the state called the investigating officer. He
testified that the version of the
state is that the complainant was
in his house with his two employees. It was around 11h15. The
appellant and his co-accused entered
the house and pointed the
complainant and the employees with firearms. The victims were held
hostage in the house and tied with
ropes. The complainant was robbed
of jewelleries, two firearms, hi-fi’s and TV’s. These
were loaded in a motor vehicle
which left with the alleged robbers
and the property. The police and a security company were alerted of
the robbery who went on
the lookout for the vehicle. The motor
vehicle fitting the description given to the police was spotted on
the N3 highway and a
high speed chase by the police ensued. The
vehicle left the road and fell in the ditch. Three of the alleged
robbers got out of
the vehicle and ran in different directions. One
alleged robber remained next to the vehicle. All four alleged robbers
were arrested.
[6]
The grounds of appeal are set out in six pages in the Notice of
Appeal the essence of which is
that the court a quo erred in finding
that the appellant failed ‘to prove on a balance of
probabilities the existence of
exceptional circumstances which would
justify his release on bail.”
[7]
Section 65(4) of the CPA is paramount in the adjudication of this
appeal and sets out as follows:
“
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 is wrong
(my emphasis), in which event the court or
judge shall give the decision which in its or his opinion the lower
court should have
been given.”
[8]
Section 65(4) limits the powers of the court of appeal. The
interference with the discretion of
the court a quo is only
sanctioned where it appears that to the court exercising the
appellate jurisdiction, that the court a quo
exercised its discretion
wrongly
[1]
.
[9]
The court in
S
v Mathebula
[2]
set out the proper approach in a bail application where the applicant
is charged with a schedule 6 offence. It held as follows:
“
In order
successfully to challenge the merits of such a case in bail
proceedings an applicant needs to go further: he must prove
on a
balance of probability that he will be acquitted of the charge. That
is no mean task, the more especially as innocent person
cannot be
expected to have insight into matters in which he was involved only
on the periphery or perhaps not at all. But the State
is not obliged
to show its hand in advance, at least not before the time when the
contents of the docket must be made available
to the defence. Nor is
an attack on the prosecution case at all necessary to discharge the
onus: the applicant who chooses to follow
that route must make his
own way and not expect to have it cleared. Thus it has been held that
until the applicant has set up a
prima facie case of the prosecution
case failing there is no call on the state to rebut his evidence to
that effect. S v Viljoen
at 561f-g…Despite the weak riposte of
the State, the magistrate was left, after hearing both sides, no
wiser as the strength
or weakness of the State case than he had been
when the application commenced. It follows that the case for
appellant on this aspect
did not contribute anything to establishing
the existence of exceptional circumstances.”
[10]
In his attack on the finding by the court a quo to the effect
that the appellant failed to prove exceptional circumstances,
Mr
Monareng for the appellant relied on the issue of the weakness of the
state case against the appellant. He attacked the case
of the state
by relying on some aspects in the affidavit of a witness of the state
in effecting the arrest of the appellant. This
attack is in my view
unwarranted, firstly, having regard to the caution in
Mathebula
above, to the effect that the attack on the case of the prosecution
is unnecessary in order to discharge the onus.
[11]
Secondly, the investigating officer testifies on the contents of
docket in order to give an overview of the
case for the prosecution
to the court. He did not testify as an eye witness. He will surely
not be able to answer for a deponent
in the docket. The essence of
the argument of the appellant is that the affidavit of one Venter, a
policeman did not establish
that he saw the appellant running away
but was only alerted by one Lt. Col. de Vos of a suspicious person on
the bridge.
[12]
It is common knowledge that the statements written for purposes of
the trial do not generally explain in
detail the testimony as
witnesses who testify in court. It is not up to the investigating
officer to answer for a deponent to a
statement of what made him
believe that the person under the bridge looked suspicious. It is
common cause that the police chased
the people who ran away from the
vehicle towards the bridge. The appellant was incidentally arrested
under the bridge. The over-arching
argument of the appellant seems to
exclude the possibility that an accused person can be convicted on
the basis of circumstantial
evidence. This notion thus cannot be
relied upon to argue that the state’s case is weak.
[13]
The appellant also attacks the finding of the court by relying on the
evidence of identification. It appears
that in a statement one of the
witnesses deposed that she could only identify two alleged robbers
but in the subsequent identification
parade she pointed three people.
This issue is in my view something to be evaluated at the trial. The
Honourable Regional Court
Magistrate correctly found that the
reliability of the identification parade would best be dealt with by
the trial court. The appellant
failed to prove on a balance of
probabilities that the State’s case was weak. In my view the
court a quo correctly found
that the appellant failed to establish
exceptional circumstances and this application ought to fail. I
accordingly make this order:
ORDER
1. The
appeal against the refusal of the appellant on bail is dismissed.
P.E
MOLITSOANE, J
On
behalf of the Applicant:
Adv.
Monareng
Instructed
by:
Paul
T. Leisher & Associates
BASSONIA
On
behalf of the Respondent:
Adv.
Hoffman
Instructed
by:
Director
of the Public Prosecutions
BLOEMFONTEIN
[1]
S
v Barber 1979(4) SA 218(D) at 220 E-H; S v Porthen and Others
2004(2) SACR © para 4.
[2]
2010(1)
SACR 55 (SCA0 at para 12-13.