About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2022
>>
[2022] ZAKZPHC 32
|
|
Mthanti v S (8085/2022P) [2022] ZAKZPHC 32 (4 August 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO:
8085/2022P
In
the matter between:
SELBY
MENZI KHULEKANI MTHANTI
Appellant
And
THE
STATE Respondent
Delivered
electronically:
The judgment was
handed down electronically by circulation
to
the
parties' legal representatives
by email. The
date for hand down is deemed to be 4
August 2022.
ORDER
The
appeal against the refusal of bail is dismissed.
JUDGMENT
Delivered
on: 04 August 2022
REDDIAJ
Introduction
[1]
This is an appeal by Selby Menzi Khulakani Mthanti against the Nquthu
Regional Magistrates Court's refusal
to admit him to bail on 18
October 2021.
[2]
The
appellant was arrested on 14 August 2020 and, together with three
coaccused, charged
with
one
count
of
conspiracy
to
commit
murder
and
murder.
The allegation
against
the appellant
was
that
during or about July
and
August
2020, he had used his lover at the time, now a s 204
[1]
state witness, as an intermediary
and
had
hired
his
co-accused
to
kill a
former
induna
in
the area where he lived. The appellant had applied to the Nquthu
Regional Court to be released
on
bail
pending
trial. His application
was
denied
on
11
November
2020.
[3]
On
30
August
2021,
the
appellant
brought
a
renewed
bail
application alleging new facts but was
again unsuccessful when his application was refused on 18 October
2021.
[4]
It
is common cause that the bail application
had
to be made in terms of the provisions of s 60(11
)(a)
of
the Criminal Procedure Act 51 of 1977 (hereafter "the Act").
Thus, the appellant was vested with the onus of proving
on a balance
of probabilities that exceptional circumstances existed that
permitted his release on bail in the interests of justice.
[2]
Meaning
of 'exceptional circumstances'
[5]
The
term 'exceptional circumstances' is not defined in the Act. The
courts have explored the concept of exceptional circumstances
in
several cases involving s 60(1
l)(a)
bail
applications. Two common principles may be deduced from these cases:
first, the list of factors that comprise exceptional circumstances
is
not circumscribed, and secondly, the peculiar circumstances of each
case determine whether exceptional circumstances exist.
Kriegler J's
words in the Constitutional Court's unanimous judgment in S
v
Dlamini;
S
v
Dladla and Others;
S
v
Joubert;
S
v
Schietekat
[3]
:
echo
these conclusions:
'An
applicant is given broad scope to establish the requisite
circumstances, whether they relate to the nature of the crime, the
personal circumstances of the applicant, or anything else that is
particularly cogent.. .In any event, one can hardly expect the
lawgiver to circumscribe that which is inherently incapable of
delineation. If something can be imagined and outlined in advance,
it
is probably because it is not exceptional.'
[6]
Referring
to
Dlamini
et al
above,
Snyders JA in S
v
Rudolph
[4]
interpreted
exceptional circumstances to be 'ordinary circumstances present to an
exceptional degree.' The observations of Van Zyl
Jin
S
v
Petersen
[5]
are
equally instructive:
'Generally
speaking "exceptional" is indicative of something unusual,
extraordinary, remarkable, peculiar or simply different.
There are...
varying degrees of exceptionality, unusualness, extraordinariness,
remarkableness, peculiarity or difference. This
depends on their
context and on the particular circumstances of the case under
consideration.
In
the context of s 60(11
)(a)
the exceptionality of the
circumstances must be such as to persuade a court that it would be in
the interests of justice to order
the release of the accused person.
This
may, of course, mean different things to different people, so that
allowance should be made for a certain measure of flexibility
in the
judicial approach to the question.'
The
court crystallised this statement as requiring the bail court to
exercise a value judgment with regard to all relevant facts,
circumstances and legal criteria.
Ambit
of court's authority in bail appeal
[7]
The approach this court must adopt in
deciding the appeal is long established, central to which is an
analysis of the provisions
of s 65(4) of the Act, which reads:
'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.'
[8]
These
provisions unequivocally assert that the appeal court can justifiably
interfere with the decision of the court
a
quo
only
if it is satisfied that the decision of the judicial officer who had
been seized with the bail application and refused it was
wrong. This
point was iterated
by
McEwan J in S
v
De Abreu
[6]
when
he confirmed that s 65(4) countenances interference only if the judge
or cowt is satisfied that the magistrate was wrong. In
instances
where there has been a material misdirection by the bail comt on
either the facts or the legal principles, or both, which
have a
bearing on the matter, the appeal court may itself consider the issue
of bail anew.
[7]
[9]
In
discussing the ambit of an appeal court's powers with specific
reference to interference with a magistrate's exercise of discretion,
Hefer J said this in S
v
Barber:
[8]
'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. 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 ii can be said that
the
magistrate who had the discretion to grant bail exercised that
discretion wrongly.'
(My emphasis.)
[10]
Ultimately
though, a pivotal issue in bail appeals is the question of the
deprivation of personal liberty. For this reason, 's 65(4)
of the CPA
should be construed in a manner which does not unduly restrict the
ambit of an appeal Court's competence to decide that
the lower
court's decision to refuse bail was "wrong."'
[9]
The
renewed bail application
[11]
I
now revert to the issues at the heart of this appeal. A fundamental
issue
for determination in a renewed bail application is whether, when
viewed in conjunction with the facts placed before the court
in the
initial application, there are new facts that merit bail being
granted in the renewed application.
[10]
In S
v
Petersen,
[11]
the court clarified that the import of presenting new facts is not to
supplement
deficiencies
or
gaps
in
the
evidence
of
the
initial
bail
application.
Steyn
J's statement in
Davis
and Another v
S
[12]
further clarifies that 'new facts should be facts discovered after
the bail application was heard and not merely an elaboration
of facts
presented at the first bail application.'
[12]
Thus the first step facing the bail
court in a renewed bail application is to determine if new facts have
come to light that legitimate
a reconsideration of the bail
application. In the instant matter, the learned magistrate accepted
that the appellant's renewed
application met the new-facts threshold
for reconsidering the bail application.
[13]
It is trite that if new facts are
present, the court must assess the conspectus of evidence adduced at
the initial and renewed bail
applications in considering whether to
grant bail. It is evident from the learned magistrate's judgment in
the renewed application
that he was mindful of this requirement and
bad acted in consonance with it.
[14]
As was his right, the appellant elected
at both his initial and renewed bail applications to file affidavits
instead of testifying
viva voce. The gist of the averments in his
initial application was that:
i.
He was the sole breadwinner in his
family, comprising his wife,
four
children and three nephews.
ii.
He lived his entire Life in
a
house
he owned in Ndindini, Nquthu.
iii.
He
was
a
sergeant
in
the
SAPS
and
feared
that
he
would
lose
his
job
if
he
were
to
be
incarcerated.
iv.
The
deceased
"Terror''
was
very
well
known
to
hjm
as
they
'grew
up
together
in
the same area' and
he 'knew him for a
long time.'
v.
Their relationship became strained when in 2017/2018, be replaced the
deceased as induna in their area and
investigated him for selling
sites without authority at inflated prices.
vi.
He had nothing to do with the deceased's
murder and did not understand how he was arrested in this matter.
vii.
The only State witness he knew
was the s
204 witness
as she was from bis area.
He will not interfere with the witness.
[15]
These
facts
proffered
by
the
appellant,
at
the
initial
application,
to discharge the onus resting on him
failed to achieve their objective. In its assessment of the
appellant's untested
evidence
on affidavit and the oral testimony of the investigating officer
regarding the strength of the State's case, the risk of
abscondment
because of the severity of the likely punishment following
conviction; the attitude of the community towards the murder;
and the
possibility of interference with the state witness, the court a
quo
did not find exceptional
circumstances to justify the appellant's release on bail.
[16]
In the appellant's renewed
bail application, the following were
presented as new facts in his founding and supplementary affidavits:
i.
A denial of complicity in the murder
based on an alibi defence;
ii.
A letter of support from the chief of
his area of the appellant's good character;
iii.
Information of the conviction and
sentence imposed of a fine regarding a case of unlawful possession of
unlicensed firearms which
had been pending against the appellant at
the time of the initial bail
application;
iv.
Fraudulent transactions on the
appellant's bank account;
v.
The death of 11 head of livestock due to
being fed the incorrect type of feed;
vi.
An offer of employment which the
appellant hoped to take up; and
vii.
Details of an assault by the police at
the time of the appellant's arrest resulting in him becoming deaf in
one ear. This information
was presented in the appellant's
supplementary affidavit.
[17]
In assessing the conspectus of evidence, including the new facts
raised in the appellant's two new affidavits, the learned
magistrate
correctly concluded that the Jetter of support from the chief was not
new information. The chiefs views of the appellant,
that he was a
good person, is information that would have been available to the
appellant at the time of his initial bail application.
It is
implausible that the chief only concluded as such about the appellant
almost a year after the latter had been in prison,
awaiting trial on
a murder charge. Evidently, the submission of the letter was intended
to bolster the appellant's original bail
application and to fill a
perceived gap. The learned magistrate was, therefore, correct in his
assessment of the weight that should
be given to the letter.
[18]
The denial of complicity in the murder, based as it was on the
untested affidavit evidence of the appellant's wife and
a car
mechanic, was also correctly found to be uninfluential in dislodging
the strength of the State's case against the appellant.
In this
regard, the oral testimony of the investigating officer was
significant when weighed against the untested averments in
the
affidavits, one of which had been deposed to by the appellant's wife.
[19]
The
learned
magistrate
was also not persuaded that the infom1ation
regarding
the
appellant's
conviction
for
the
unlawful
possession
of
firearms could, in the context of this case, be perceived as an
exceptional circumstance. Relying on
Mooi
v S,
[13]
the
appellant's
assertion concerning the conviction was that because he had attended
his trial on every occasion, this proved
that
if released on bail, he would do likewise in the instant matter. I am
of the view that the learned
magistrate
was correct in his assessment of this factor as 'one swallow does not
make a summer, neither does one fine day.'
[14]
Evidence
of regular attendance
at
a
single
trial
where
the
conviction
resulted
in
the
imposition
of
a
sentence of a fine is scarcely proof that a trial involving a
possible punishment of life imprisonment will be attended with the
same level of enthusiasm. Moreover, in
Mooi,
the
accused had been charged and tried on several charges in different
courts, including a charge of murder, and had attended his
trials on
every occasion. The pattern of his conduct confidently spoke of a
person who, if released on bail will be unlikely to
abscond from his
trial.
[20]
The learned magistrate also dealt
appropriately
with
the appellant's
submissions
regarding the fraudulent transactions in his bank account and the
loss of 11 of his livestock. Neither issue was deemed
relevant in the
assessment of exceptional circumstances.
[21]
The appellant
also attempted
to submit an offer of employment
letter in support of his renewed bail
application. However, the learned magistrate was unmoved
by the undated letter of employment from
the operations manager of Ntabayepheza Construction & Other
Services. The letter mentions
that the appellant was successful in
his job application and proposed a meeting with him at the company's
offices on 25 June 2020.
[22]
The appellant raised this offer of
employment as a new fact when, based on the date of the proposed
meeting, this information was
within his knowledge at the time of the
initial bail application in September 2020. This conclusion also
finds support in the appellant's
new affidavit which mentions that he
resigned from his job in the
SAPS
at
some stage before being arrested on 13
August 2020.
[23]
The
fact
that the appellant
was
unemployed
but
had
a
job
offer
at
the
time
of his
initial bail application is an important matter deserving of
consideration
by
the court a
quo.
However,
for reasons best known to him, the appellant chose not to mention
this
to
the court
at the time. Instead,
he falsely
deposed
the
following
statements
in his affidavit dated 10 September 2020: (i) 'I am employed by the
South African Police Services as a sergeant, VIP
Unit, in Ulundi;
(ii) I have been in the employ of the SAPS since 2008.'
[24]
It seems to me that the appellant
believed the above information would carry greater weight in the
court a
quo's
consideration
of his bail application than would the details of an offer of
employment. When the false information about his employment
status at
the SAPS came to light at the initial bail hearing and, therefore,
failed to have the impact that he had hoped for, the
appellant
changed tack and attempted to raise the old letter of employment as a
new fact. Moreover, the appellant's submission
in his renewed
application that this job was still waiting for him was
unsubstantiated. In the light of the foregoing, the learned
magistrate's refusal to view the offer of employment
to the appellant as influential in the
decision of whether to grant bail was correct.
[25]
I turn now to the appellant's
supplementary
affidavit
filed in support of his renewed
bail
application. In this affidavit dated 23 August 2021, the appellant
makes the following averment under the heading 'Merits':
'During
or about my arrest
of this case
that
I
am
charged with
I was abused
physically by the members of the SAPS during my arrest and was
further abused physically and mentally by members oftbe
SAPS... '.
(My emphasis.)
[26]
The appellant proceeds to state under
the heading 'New Facts'
that
on 22 January 2021 his left ear was examined and assessed by an
audiologist at Charles Johnson Memorial Hospital because he
had been
assaulted by members of the SAPS on Tuesday, 21 January 2021.
However, a barely legible copy of the audiologist's report,
attached
to the affidavit, is dated 23 January 2020 and states that the
patient had reported an assault on
Tuesday, 21
January 2020,
so
implying
that
the
ear injury had happened almost seven
months before
the
appellant's arrest on the current murder
charge.
[27]
In the context of its presentation
as a 'new fact', it seems to me that the
appellant had intentionally tried to mislead the court about his ear
problem in an attempt
to show that this is an exceptional
circumstance warranting his release on bail.
[28]
If one were to give the appellant the
benefit of the doubt by taking his misrepresentation regarding the
date of the ear injury
to be a mere typographical error, then the
details of the ear injury were available to the appellant at the time
of his first bail
application. It does not qualify as a new fact and
was correctly dismissed in
the
lea1ned
magistrate's
assessment of all relevant factors.
[29]
While there is an onus on the court in a
renewed bail application to consider the conspectus of evidence
submitted in both the initial
and renewed applications, it behoves
the applicant who elects to file affidavits in support of his
application instead of testifying
orally to bear in mind that the
evidence in his various affidavits will all be scrutinised.
[30]
In the instant case, several anomalies
are apparent in the affidavits filed by the appellant. For instance,
in the section titled
'Personal Circumstances' in the appellant's new
affidavit, reference is made to him owning three sheep and three
cows. But later,
in the section titled 'New Facts,' he mentions that
11 of his livestock died while he was in custody, due to them not
being in
his care. No reasons are offered to
explain this discrepancy.
[31]
Similarly,
when
refe1Ting
to
the
deceased
in
his
initial
affidavit
the appellant states this: 'The deceased
in this matter, generally known as
"Terror"
is
very
well known to me. We grew up together in the same area and I have
known him for a long time.' However, in the renewed application
affidavit the appellant says this: 'I
did not know the deceased on a personal
level ...
I
further state that the deceased was induna and well known
in
his
area and
that
is how be
was
known
to
me.'
[32]
Another
discrepancy
is evident
in paragraph
11.2
of
the
initial
affidavit where the appellant avers:
'I
am afraid that ifl am incarcerated I may lose my employment as a
Police Sergeant as I will not be able to perform my functions
and I
would lose my source of income.'
There
are two serious problems with this statement. First, when the
affidavit was deposed on 10 September 2020 the appellant had
already
resigned from the employ of the
SAPS.
This fact was confirmed
at the initial bail application hearing and in his affidavit in
support of his renewed application. Secondly,
as is evident from his
employment letter, the appellant was already, by June 2020, in the
process of taking up another job outside
the
SAPS.
The fear of
losing his job, as mentioned in his affidavit is, therefore, a lie.
[33]
Since
the
appellant
elected
to
present his evidence
via affidavits,
his averments are untested and must be
judged on the papers. Taken in conjunction with the various anomalies
listed above, the indubitable
conclusion is warranted that the
appellant is an opportunistic liar whose credibility is wanting.
Therefore, his bald claims that
he is not a flight risk; not disposed
to violence; will not evade justice or abscond from his trial; not
communicate with any witness;
or undermine the proper functioning of
the criminal justice system carries little weight in
discharging the onus on him of showing
on a
balance
of probabilities that exceptional circumstances exist that warrant
his release on bail in the interests of justice.
[34]
The appellant's counsel, Ms
Barnard,
submitted that a piece-meal approach
to assessing the renewed application
must be avoided. Instead, the enquiry
should be approached holistically with the com1 considering if bail
conditions would ameliorate
any attendant risks to bail being
granted. Counsel for the respondent, Mr
Truter,
submitted that the jurisdictional
trigger for this holistic appraisal
is
a finding by the court that exceptional circumstances exist that
warrant bail being granted. I agree with this latter argument
and
cannot fault the learned magistrate for not looking at bail
conditions in his assessment of the appellant's application.
[35]
I
also
cannot
fault
the
learned
magistrate
in
his
assessment
of
the
appellant's initial and renewed bail
applications. It is evident from the appeal record that he
painstakingly
weighed
the conspectus of evidence presented at both bail applications before
concluding that there are no exceptional circumstances
present to
justify granting the appellant bail in the interests of justice. The
result is that there has been no misdirection
by the bail court to warrant
interference in the decision to refuse bail to the appellant.
[36]
I accordingly make the
following
order:
The
appeal against the refusal of bail is dismissed.
REDDIAJ
APPEARANCES
DETAILS
Date
of Hearing:
28 July 2022
Date
of Judgment:
04
August 2022
Counsel
for the Appellant:
Ms
D Barnard
Email:
bamard.dalene@gmail.com
Instructed
by:
Hlengiwe Zondi & Associates
Counsel
for the State:
Mr A Truter
Email:atruter@npa.gov.za
Instructed
by:
Director of Public
Prosecutions
[1]
Section 204
of the
Criminal Procedure Act 51 of 1977
.
[2]
S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat
[1999] ZACC 8
;
1999
(2) SACR 51
(CC) para 65.
[3]
S v Dladla and Others: S v Joubert; S v Schietekat
[1999] ZACC 8
;
1999 (2) SACR 51
(CC) paras 75-76.
[4]
S v Rudolph 20 I0 (I) SACR 262 (SCA) at 266H
[5]
S v Petersen
2008 (2) SACR 355
(C) paras 55-56.
[6]
Sv De Abreu
1980 (4) SA 94
(W) paras 96H-97A.
[7]
S v Essop 2018 (I) SACR 99 (GP) paras 34-35; SvJacobs20I I (1) SACR
490 (ECP) para 18; and SvMpulampula
2007 (2) SACR 133
(E) at 136D-E.
[8]
S v Barber
1979 (4) SA 218
(D) at 220E-H
[9]
S v Porthen and Others
2004 (2) SACR 242
(C) para 17. See also S v
Dladla and Others; S v Joubert: S v Schietekat
[1999] ZACC 8
;
1999 (2) SACR 51
(CC)
para 79.
[10]
S v Mpofana
1998 (1) SACR 40
{Tk) at 44
[11]
S v Petersen
2008 (2) SACR 355
(C) para 57
[12]
Davis and Another v S (2888/2015) [2015) ZAKZDHC 41 (8 May 2015)
para 3.
[13]
Mooi v S
[2012] JOL 29148
(SCA) para 12
[14]
Aristotle 'The Nicomachean Ethics'.