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[2022] ZALMPPHC 7
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Mmako v S (BA01/2022) [2022] ZALMPPHC 7 (4 February 2022)
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Certain
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: BA01/2022
REPORTABLE:
YES/NO
OF
INTEREST TO THE JUDGES: YES/NO
REVISED.
DATE:4
FEBRUARY 2022
In
the matter between:
MOKGAETJI
SOPHY MMAKO
APPELLANT
And
THE
STATE
RESPONDENT
JUDGMENT
MANGENA:
AJ
[1] On 10 September 2020
Ms Elizabeth Catherine Deacon and Hester Francina Deacon were
accosted by the intruders in their house
situated in Bendor,
Polokwane. They were bundled into the vehicle and later found dead
with injuries consistent with ligature strangulation
and multiple
stab wounds to the chest, back and arm respectively.
[2] The police embarked
on a manhunt and arrested 4 (four) suspects in relation to this
incident. The suspects were duly charged
with two counts of murder,
robbery with aggravating circumstances, two counts of kidnapping as
well as contravention of the provision
of Section 18 (2) (a) of the
Riotous Assemblies Act. The appellant, Ms Mokgaetji Sophy Mmako is
one of the accused persons.
[3] Subsequent to the
arrest, Ms Mmako instituted bail proceedings in the Polokwane
Magistrate Court and submitted evidence through
the affidavit. In the
affidavit she set out her personal circumstances and informed the
court that she is employed by the Erasmus
family as a house keeper at
E[….] Polokwane, she has three children who are all female and
are dependent on her. She does
not have a passport and no relatives
outside the country. She is therefore not a flight risk and if
admitted to bail, she will
stand the trial. She has a previous
conviction of assault GBH which happened in 2005 and was sentenced to
5 years suspended sentence.
At the time of the application, she had
no pending cases. She further indicated that she intends to plead not
guilty to the charges.
[4] The state opposed the
application and led the evidence of the investigating officer,
Warrant officer Malebana. He confirmed
the existence of the previous
conviction and stated that it happened in 2001 and not 2005. He
opposed to the bail being granted
on the basis that “
it will
be easy for her to leave the country because of the boyfriend and
[that] she has friend like foreigners and we do not have
like……
because sometimes she is in Mookgophong, sometimes in Zebediela,
sometimes in Westernburg”
. He had however verified that her
place of birth is Zebediela and confirmed that he visited her
homestead where he found her mother.
The mother confirmed that the
appellant is her daughter. He further testified that the appellant
was arrested after she was called
to report at the police station for
questioning. In cross –examination he stated that the appellant
has confessed to the
crimes and the state has a prima facie case
against her.
[5] The learned
magistrate refused the application on the basis “that the
state`s case against her is very strong as well
as the fact that she
has several addresses and [that] this court deems her to be a flight
risk as well”. The court further
held that the release of the
applicant on bail will undermine public peace or security as there
was public outcry and demonstrations
since the death of the deceaseds
who were well known in Polokwane. She found that she did not prove
the exceptional circumstances
required by
Section 60
(11) (a) of the
Criminal Procedure Act 51 of 1977
.
[6] Aggrieved by the
refusal, Ms Mmako brought another application purportedly on new
facts and led the evidence of her daughter,
Sheila Lusandra Mmako.
She confirmed that her mother is a South African and that she resides
in Zebediela together her grandmother
and her two sibling. Her
grandmother is suffering from Hypertension and needs the support of
her mother to look after her. She
is unable to do so as she is based
in Pretoria where she worked until her retrenchment due to Covid. She
is currently looking for
a job. This application was also
unsuccessful on the basis that the learned magistrate did not accept
that there were new facts
sufficient to persuade her to consider the
application favorably. She stated that she does not believe that Ms
Mmako has a residence.
She heard that information and she rejected
it. It cannot therefore be a new fact.
[7] Unrelenting Ms Mmako
approached this court on appeal in terms of the provision of
Section
65
(4) of the
Criminal Procedure Act to
have the decision of the
magistrate refusing her bail reconsidered and set aside. It is
contended on her behalf that the learned
magistrate misdirected
herself in several respects in her findings. It is submitted that the
findings made were not based on the
objective facts. It was argued
that the fact that the appellant brought herself to the police
station, does not have a passport
and no relatives outside the
Republic, has a residence in the Republic where two of her children
resides are enough to satisfy
the threshold requirement for
exceptional circumstances. It was further argued that the learned
magistrate was biased.
[8] The state,
represented by Adv Mthombeni, contended otherwise and argued that
there was no misdirection on the part of the magistrate.
The
appellant is facing serious charges which upon conviction, she may be
sentenced to life imprisonment. She had made a confession
to the
crime and this is sufficient to satisfy the requirement that the
state needs only to establish a prima facie case against
the accused.
Mr Mthombeni further submitted that the appellant is a flight risk in
that she gave the investigating officer several
addresses which means
that it may be very difficult to find her. He denied that the learned
magistrate was biased on a proper reading
of the record, there are no
facts to support the contention. It may very well be that the words
regarded as offensive were said
with a smile. He urged me to dismiss
the application.
[9] The test for bail on
appeal is well-established. Hefer J (as he then was) explained it in
S v Barber,
1979 (4) SA 218
(D)
as follows:-
“
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.”
[10] In relation to the
exercise of the discretion in the context of the bail proceedings
governed by the provisions of
Section 60
(11) (a) of the
Criminal
Procedure Act, Binns
- Ward AJ (as he then was) eloquently explained
the approach in
S v Porthen,
2004(2) SACR 242 (C).
He
said:
“
[8]
When considering the extent of an appellate court`s power to
interfere with a decision of a lower court entailing
the exercise by
the lower court of a discretion, it is necessary to know whether the
discretion in issue is one in the narrow or
wide sense of the term……”
[9]
Where the lower court has exercised a
discretion in the wide rather than the narrow sense the court of
appeal “
is entitled to substitute
its view for that of the court which heard the matter and is not
precluded from interfering unless it
concludes that the lower court
has not exercised a judicial discretion.”
[14] On
the issue of the existence of extraordinary circumstances within the
meaning of
Section 60
(11) (a) of the
Criminal Procedure Act, there
is a `formal onus` of proof on the applicant for bail. The ordinary
equitable test of the interests of justice determined according
to
the exemplary list of considerations set out in
S 60
(4) - (9) of the
Act has to be applied differently. In my view, a court making the
determination whether or not that onus of proof
has been discharged
exercises a discretionary power in the wide sense of discretion. The
appellate court is, in terms of
Section 65
(4) of the
Criminal
Procedure Act, enjoined
to interfere with the lower court`s
discretion of a bail application if it is satisfied that the lower
court`s decision was wrong.”
[11]
Against the above test, I proceed to
consider whether the learned magistrate was correct in her decision
that the appellant failed
to discharge the onus of proof regarding
the existence of the exceptional circumstances.
[12]
Section 60
of the
Criminal Procedure Act 51 of 1977
provides that an accused person 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. Where
an accused is charged with an offence referred to under schedule 6,
the accused
is required to adduce evidence which satisfies the court
that exceptional circumstances exists which in the interests of
justice
permits his release from custody.
[13] Exceptional
circumstances are not defined but the Supreme Court of Appeal per
Shongwe AJA provided the following guideline
in
S v Bruintjies,
2003 (2) SACR 575
(SCA) at 577
: What is required is that the
court consider all relevant factors and determine whether
individually or cumulatively they warrant
a finding that
circumstances of an exceptional nature exist which justify his or her
release. What is exceptional cannot be defined
in isolation from the
relevant facts, save to say that the legislature clearly had in mind
circumstances which remove the applicant
from the ordinary run and
which serve at least to mitigate the serious limitation of freedom
which the legislature has attached
to the commission of a schedule 6
offence.
[14] In
S v Rudolph,
2010 (1) SACR 262
(SCA)
at 266, Snyders JA explained the purpose
of
Section 60
(11) (a) and the requirement for exceptional
circumstances as follows:-
“
[9]
The Section places an onus on the appellant to produce proof, on a
balance of probability, that “exceptional
circumstances exist
which in the interests of justice permit his release.” It
contemplates an exercise in which the balance
between the liberty
interests of the accused and the interests of society in denying the
accused bail, will be resolved in favour
of the denial of bail,
unless, “exceptional circumstances” are shown by the
accused to exist. Exceptional circumstances
do not mean that they
must be circumstances above and beyond, and generally different from
those enumerated in ss (60) (4) - (9).
In fact, ordinary
circumstances present to an exceptional degree, may lead to a finding
that release on bail is justified”.
[15] The appellant was
born in 1969 and her personal circumstances were spelt out in
paragraph 3 above. At the time of the arrest
she was 51 years old
with no pending criminal cases. She handed herself to the police upon
being called to do so. The investigating
officer confirmed that her
mother resides in Zebediela and this is the address she gave to him.
This address was confirmed by the
oral evidence of the daughter
during the second application. The evidence of the daughter was not
contested by the state and therefore
remained unchallenged. Despite
this unchallenged evidence on the crucial aspect of residence in the
Republic, the learned magistrate
without reason stated that she does
not believe that the appellant resides in Zebediela. This despite the
fact that in her earlier
decision when she refused bail, the reason
was that she is a flight risk in that she has several addresses.
[16] The learned
magistrate has in my view failed to bring an objective and impartial
mind in the determination of the issues she
was called upon to
adjudicate. She placed too much weight on the strength of the state`s
case to the total exclusion of other relevant
factors to be taken
into account in the balancing of the equilibrium. In this regard the
magistrate failed to heed the words of
Mohamed AJ (as he then was)
when he said in
S v Acheson,
1991 (2) SA 805
(
NM)
that:
An accused person cannot be kept in detention pending his trial as a
form of anticipatory punishment. The presumption of
the law is that
he is innocent until his guilt has been established in court. The
court will therefore ordinarily grant bail to
an accused unless this
is likely to prejudice the ends of justice.” This principle was
underscored by Chachalia AJ (as he
then was) in
S v Branco
2002
(1) SACR 531
(W)
where he said that the fundamental objective of
the institution of bail in a democratic society based on freedom is
to maximize
personal liberty. The court will always grant bail where
possible, and will lean in favour of and not against the liberty of
the
subject provided that it is clear that the interests of justice
will not be prejudiced thereby. See also
S v Smith,
1969 (4) SA
175
(N).
[17] In my view, the
appellant had discharged the onus required of her and adduced
evidence sufficient to meet the exceptional circumstances
threshold
required by
Section 60
(11) (a). The fact that the offence is
“
heinous”
can never under any circumstances be
used as a sole and determining factor on an issue of bail”. The
learned magistrate had
clearly closed her mind to persuasion and her
remark that counsel
“can pray as much as he likes, she will
not get bail
” confirms the view that she was not objective.
The words of Ponnan JA are opposite and apply with equal force in the
circumstances
of this case. In
S v Le Grange and Others,
2001 (2)
SA
434
(SCA)
the learned judge gave
this advice to presiding officers and I deem it appropriate to quote
him in full, lest I distort the message:-
“
[18]
Let me immediately state that I recognize that presiding
over criminal trials is a difficult task. Where, as here,
the killing
of the deceased quiete clearly served to polarize that community and
there is the added state of acute public interest,
the burden on the
presiding judge would have been all the greater. Furthermore, one
knows all too well how cross-examination can
sometimes appear
protracted and seemingly irrelevant. Impatience, though, is something
which a judicial officer
must,
where possible, avoid and in any event always strictly control. For,
it can impede his perception, blunt his judgment and
create an
impression of enmity or prejudice in the person against whom it is
directed, particularly when such person is an accused
person. It may
serve to undermine the proper course of justice and could lead to a
complete miscarriage of justice. A judicial
officer can only perform
his demanding and socially important duty properly if he also stands
guard over himself, mindful of his
own weakness (such as impatience)
and personal view and whims and controls them”.
[21]
It must never be forgotten that an impartial judge is a
fundamental prerequisite for a fair trial. The integrity of the
justice
system is anchored in the impartiality of the judiciary. As a
matter of policy it is important that the public should have
confidence
in the courts. Upon this social order and security depend.
Fairness and impartiality must be both subjectively present and
objectively
demonstrated to the informed and reasonable observer.
Impartiality can be described-perhaps somewhat inexactly-as a state
of mind
in which the adjudicator is disinterested in the outcome, and
is open to persuasion by the evidence and submissions. In contrast,
bias denotes a state of mind that is in some way predisposed to a
particular result, or that is closed with regard to particular
issues. Bias in the sense of judicial bias has been said to mean a
departure from the standard of even-handed justice which the
law
requires from those who occupy judicial office. In common usage bias
describes “a leaning, inclination, bent, or predisposition
towards one side or another or a particular result. In its
application to legal proceedings, it represents a predisposition to
decide an issue or cause in a certain way that does not leave the
judicial mind perfectly open to conviction. Bias is a condition
or
state of mind which sways judgment and renders a judicial officer
unable to exercise his or her functions impartially in a particular
case.
[18] In casu the record
is riddled with intermittent interjections from the presiding officer
during cross- examination by the appellant’s
legal
representatives. During the evidence in chief by the daughter of the
appellant, the learned magistrate made unsavoury remarks
on the
plight of the unemployed daughter of the appellant, when she said she
was staying in Pretoria looking for a job. The learned
magistrate
told her that “she is doing nothing there”. I find it
extremely disconcerting for a presiding officer to
equate searching
for a job with “doing nothing”. The remarks were not only
unsavoury but demonstrated lack of empathy
and poor choice of words
on the part of the learned magistrate.
[19] What I say above
should in no way be construed to mean that a presiding officer should
lie supine during the proceedings. As
a matter of fact, Judges and by
extension magistrates are not silent umpires but may and should
participate in the trial proceedings
by asking questions, ensuring
that litigants conduct themselves properly and making rulings on the
admissibility of evidence and
other matters as the trial progresses.
Where litigants or lawyers conduct themselves inappropriately and
judicial censure is required
that should be done in a manner
befitting the judicial office. Indeed a presiding officer should seek
to be measured and courteous
to those appearing before them. See
S
v
Basson,
2007 (3) SA 582
(CC) at para 33-36
and the case
referred to.
[20] In the circumstances
I conclude without equivocation that the learned magistrate failed in
her judicial duties and exercised
her discretion injudiciously. I am
therefore at liberty within the meaning of
Section 65(4)
of the
Criminal Procedure Act to
interfere with her wrong decision to refuse
bail.
[21]
ORDER
1. The
appeal succeeds and the magistrate’s order refusing bail is set
aside.
2.
Bail is fixed in the amount of R1000-00(One thousand rand) subject to
the following conditions”
(a)
The appellant shall report twice per week on Tuesday and Friday at
Magatle SAPS in Zebediela area between the hours 09h00 and
14h00 each
day
(b)
The appellant shall not leave her area of residence, Zebediela
without notifying the investigating officer or his authorised
delegate.
(c)
The appellant shall refrain from communicating with any witness save
with the permission of the investigating officer or his
authorised
delegate.
MANGENA
AJ.
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
COUNSEL
FOR THE APPELLANT
D.E SEABELA
INSTRUCTED
BY
NCHA M.B ATTORNEYS
COUNSEL
FOR THE RESPONDENT
T.J MTHOMBENI
INSTRUCTED
BY
DPP
DATE
OF HEARING
31 JANUARY 2022
DATE
OF JUDGMENT
04 FEBRUARY 2022