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[2022] ZAFSHC 291
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Radieta v S (A102/2022) [2022] ZAFSHC 291 (24 October 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE PROVINCIAL DIVISION
A102/2022
Reportable:
YES/NO
Of
interest to other Judges: YES/NO
Circulate
to Magistrates: Case No.: A1YES/NO
In
the matter between:
TEBOGO
MAHLEKE RADIETA
Appellant
and
THE
STATE
Respondent
Coram:
Opperman,
J
Date
of hearing:
21
October 2022
Judgment:
24
October
2022.
The reasons for judgment were handed down electronically by
circulation to the parties’ legal representatives by email
and
release to SAFLII on 24 October 2022. The date and time for hand-down
is deemed to be 24 October 2022 at 15h00.
Summary:
Appeal
– Bail
JUDGMENT
[1]
This is an appeal in terms of
section 65
of the
Criminal Procedure
Act 51 of 1977
of a so-called Schedule-6 bail application that stems
from the Magistrate’s Court.
[2]
In terms of
section 60(11)(a)
of the
Criminal Procedure Act 51 of
1977
it was legislated that notwithstanding any provision of this
Act, where an accused is charged with an offence referred to 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.
[3]
The appellant stands accused of robbery with aggravating
circumstances read with
section 1
of the
Criminal Procedure Act 51 of
1977
[1]
and
section 51(2)
of the
Criminal Law Amendment Act 105 of 1997
. The aggravating circumstances
involve the use of a firearm during the perpetration of the robbery.
The minimum sentence applicable
for a first offender is 15 years
imprisonment and further offenders 20- and 25-years imprisonment.
[4]
Section 60(11B)(a)
is clear that in bail proceedings the accused, or
his or her legal adviser,
is compelled to inform the court
whether:
(i)
the
accused has previously been convicted of any offence; and
(ii)
there
are any charges pending against him or her and whether he or she has
been released on bail in respect of those charges.
(b)
Where the legal adviser of an accused on behalf of the accused
submits the information contemplated
in paragraph (a), whether in
writing or orally, the accused shall be required by the court to
declare whether he or she confirms
such information or not.
(c)
…
(d)
An accused who wilfully—
(i)
fails or refuses to comply with the provisions of paragraph (a); or
(ii)
furnishes the court with false information required in terms of
paragraph (a), shall be guilty of an offence and
liable on conviction
to a fine or to imprisonment for a period not exceeding two years.
[5]
Section
65
regulates the appeal to superior courts with regard to bail.
Section
65(1)(a)
states that an accused who considers himself aggrieved by
the refusal by a lower court to admit him to bail or by the
imposition
by such court of a condition of bail, including a
condition relating to the amount of bail money and including an
amendment or
supplementation of a condition of bail, may appeal
against such refusal or the imposition of such condition to the
superior court
having jurisdiction or to any judge of that court if
the court is not then sitting.
[6]
Section 65(4)
provides the test for the court sitting on appeal to
apply:
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.
[7]
The evidence of the investigating officer shows that Mr. Radieta, the
appellant, is
accused three in the case of four accused. On 4
February 2022 they entered Pep Stores in Koppies; Free State and
armed with firearms.
They, with force, took money and cell phones
from the people in the store.
[8]
They fled in a vehicle at high speed and turned onto a gravel road
but lost control
over the vehicle and the vehicle, as the
investigating officer testified: “rolled”. Some farmers
arrived on the scene
of the accident by chance and found the three
accused. The appellant was inside the vehicle. Loose bank notes were
strewn in the
vehicle. The farmers secured the scene and called the
police. The accused were arrested and the money in the vehicle
amounted to
R32 360-00. This to be the money that was robbed at Pep
Stores in Koppies. There was also an unlicensed firearm confiscated
in
the vehicle.
[9]
The appellant was at this stage released on bail pending the trial on
a robbery in
Ermelo. He had to attend the case on 11 February 2022.
[10]
The appellant also has previous convictions. In 2003 he was convicted
of robbery and murder and
sentenced to 17 years imprisonment and life
imprisonment respectively.
[11]
The appellant did not disclose this in his statement to the court
.
He also during cross examination held that he was only sentenced to
13 years imprisonment: “…the robbery was set
aside and
the murder sentence changed to 13 years imprisonment.” This in
stark contrast to the SAP 69 document from which
the investigating
officer obtained the previous convictions of the accused. The
evidence of the investigating officer stands beyond
any doubt. The
evidence of the appellant is a mere affidavit that stands untested.
[12]
In the meanwhile, the case in Ermelo was withdrawn but the reasons
were unknown to everybody.
The fact remains that the accused was
involved in the crime in this case when the robbery case against him
was pending in Ermelo.
He did not then know that the case would be
later withdrawn. He brought an application on this new fact for
release; the withdrawal
of the Ermelo case. The application was again
refused.
[13]
As said; the appellant did not testify but handed in an affidavit in
support of his application.
He maintains that he is innocent of the
crime. He is self -employed as a mechanic and earns a salary of R10
000.00 per month. He
possesses immovable property to the amount of
R700 000.00. He is single with two children of 10 and 5 years old. He
can afford
R2000.00 bail.
[14]
On page 19 of the record he stated unequivocally that: “I have
no previous convictions
and no pending cases”.
[15]
The appellant is a man that blatantly lied in the face of the court
by stating that he does not
have previous convictions. It is a
criminal offence and he is now facing another charge in addition to
the one of the robbery.
His previous convictions are serious. He was
sentenced to life imprisonment for murder and 17 years imprisonment
for robbery.
[16]
It can never be the law of this country that a man with the history
and character of Mr. Radieta,
that was caught with the stolen loot
and an unlicensed firearm shortly after the robbery, may be released
into the community pending
his trial. He is a danger to society and
it will be a travesty of justice if a court should release him. The
sentence he faces
will be at minimum 20 years imprisonment. He is a
real flight risk.
[17]
The decision of the court
a
quo
was
not wrong
.
ORDER
[18]
The appeal is dismissed.
M
OPPERMAN, J
APPEARANCES
For
the appellant
MASHELE
ATTORNEYS
82
Vorster Avenue
Glenanda
JOHANNESBURG
011
056 7228
neo@mashelelaw.co.za
neomasokga@mashelelaw.co.za
c/o
Moroka Attorneys
84
President Reitz Avenue
Westdene
BLOEMFONTEIN
For
the respondent
Advocate
S Giorgi
Office
of the Director of Public Prosecutions:
Free
State, Bloemfontein
[1]
All
references will be in terms of the
Criminal Procedure Act 51 of 1977
except if otherwise indicated.