About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Makhanda
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Makhanda
>>
2022
>>
[2022] ZAECMKHC 68
|
|
Mtshemle and Another v S (CA&R137/2022) [2022] ZAECMKHC 68 (27 September 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE DIVISION
– MAKHANDA)
CASE NO.: CA&R137/2022
Matter heard on: 23
September2022
Judgement delivered
on: 27 September 2022
In the matter between: -
MYOLISI
MTSHEMLE
1
st
Appellant
ZIVELISA
HOWARD
2
nd
Appellant
and
THE
STATE
Respondent
REPORTABLE: NO
OF INTEREST TO OTHER
JUDGES: NO
REVISED.
JUDGMENT
SMITH
J
[1]
The appellants appeal against the refusal of their bail applications
by the East
London
Regional Court on 22 December 2021. They and their co-accused are
awaiting trial on a charge of robbery with aggravating
circumstances
in terms of s. 1 of the Criminal Procedure Act, 51 of 1977 (the Act),
read with the relevant sections of the
Criminal Law Amendment Act,
105 of 1997
. Armed robbery with aggravating circumstances is a
Schedule 6 offence, and the appellants were accordingly required to
prove exceptional
circumstances which justify their release on bail.
Both appellants gave oral testimony in support of their applications
and the
state adduced the evidence of the investigating officer. They
were both legally represented.
[2]
The appellants are charged with cash-in-transit robbery. The state
alleges that on or about 23 August 2021
and at the Pick n Pay Store,
Settlers Way, East London, the appellants unlawfully and
intentionally assaulted two guards and took
by force from them
certain items, namely a 9 mm pistol, 13 life rounds of ammunition as
well as cash, being the property or in
the lawful possession of the
G4S Security company. The state relies on the doctrine of common
purpose.
[3]
It is common cause that on the day a group of armed men robbed the
motor vehicle of the security company in
front of the Pick n Pay
Store. The robbers used a white pickup truck and a silver VW Polo. An
amount of R80 195 was stolen, as
well as a pistol belonging to the
security guards. The investigating officer, Sgt Isaac Peters,
testified that the police viewed
the video footage of the robbery
while they were still at the scene. It revealed that one of the
vehicles used in the commission
of the robbery was a silver Polo with
registration number [....] and a white pickup truck. They were,
however, unable to ascertain
the registration number of the pickup
truck. As a result of their investigations, they were able to trace
the owner of the Polo
in Port Elizabeth. The owner confirmed that the
appellants’ co-accused (accused number one), had hired the
vehicle from him.
He also told the police officers that the Polo had
a vehicle tracking system. After obtaining the details of the tracker
system
from the owner, they managed to track the vehicle and
eventually found it in Kwazulu Natal, close to the Mozambican border.
With
the assistance of their colleagues in KwaZulu Natal, they
arrested the appellants and their co-accused. They were all brought
back
to the Eastern Cape and all of them subsequently confessed to
involvement in the robbery.
[4]
The first appellant testified that he lives in the Cilingca
Administrative Area. He is a carpenter and welder. He
also earned
money from farming. He has no previous convictions and there are no
cases pending against him. He said that he would
plead not guilty to
the charges and would rely on an alibi as a defence. While admitting
that he was with his other two co-accused
in the vehicle when they
were apprehended by the police in KwaZulu Natal, he testified that
they had been to a traditional healer
and he was surprised when they
were arrested.
[5]
The second appellant lives in Bongelwethu, Lady Frere. He owns a
house and a motor vehicle. He lives with his children
and nephews,
and is self-employed, selling clothes and practising subsistence
farming. He utilizes the proceeds from these activities
to support
his family. He also owns livestock, including sheep and goats. He
said that he has no previous convictions and there
are no cases
pending against him. He alleged that was he not in East London on 23
August 2021, but at home in Lady Frere. He admitted,
however, that he
was arrested together with his other two co-accused on 24 August
2021. He said that he will plead not guilty to
the charges and denied
that he had made any statements to the police. He also claimed that
he had been severely tortured and assaulted
by the police and coerced
into signing a statement.
[6]
It appears that the magistrate was of the view that there was nothing
exceptional
in the appellants’ personal circumstances. He
also found that the state has a strong
prima
facie
case
against the appellants. He consequently concluded that ‘the
seriousness of the offence and the possible type of punishment
that
might be imposed in a case of conviction is to be taken into
consideration as well’.
[7]
A court sitting in an appeal in terms of the provisions of s. 65 of
the Act must undertake its own analysis of the
evidence and on the
basis thereof decide whether or not the court
a quo
has made
the correct decision regarding the discharge of the onus in terms of
s. 60(11) of the Act. (See:
S v Pothern and others
2004 (2)
SACR 242
(C).
[8]
Since armed robbery with aggravating circumstances is a Schedule 6
offence, in terms of s. 60(11) (a) of the
Act the court must order
that an accused be detained in custody unless he or she produces
evidence which satisfies the court that
exceptional circumstances
exist which in the interest of justice permit his or her release.
[9]
In deciding whether or not the interests of justice permits the
release of an accused on bail, the court must have
regard to the
considerations mentioned in paragraphs (a) to (e) of s. 60 (4) of the
Act. In terms of that section the interests
of justice would not
permit the release of an accused person on bail if any one of the
grounds mentioned therein are established.
They are:
“
(a)
where there is the likelihood that the accused, if he or
she were released on bail will endanger the safety of
the public or
any particular person or will commit a schedule 1 offence or
(b)
where there is the likelihood that the accused, if he or she were
released on bail, will attempt to evade
his or her trial; or
(c)
where there is a likelihood that the accused, if he or she were
released on bail will attempt to influence
or intimidate witnesses or
to conceal or destroy evidence; or
(d)
where there is the likelihood that the accused, if he or she were
released on bail, will undermine or
jeopardize the objectives or the
proper functioning of the criminal justice system, including the bail
system;
(e)
where in exceptional circumstances there is a likelihood that the
release of the accused will disturb the
public order or undermine the
public peace or security”
[10]
After taking into account these broad considerations the court must
do a final weighing up of factors for and against
the granting of
bail as contemplated in ss. 60 (9) and (10) of the Act. In
S v
Dlamini; S v Dladla and others; S v Joubert; S v Schietekat
1999 (4)
SACR 623
(CC)
Kriegler J held that these sections should be read
as:
“
Requiring
of a court hearing the bail application to do what courts had always
had to do, namely to bring a reasoned and balanced
judgment to bear
in an evaluation, where the liberty of the individual and the
interest of justice are given full value according
to the
Constitution.”
[11]
With regard to the meaning of the phrase “exceptional
circumstances” mentioned in s. 60(11) of the
Act, it has been
held in a long line of cases that in order for circumstances to be
exceptional, the subsection does not require
them to be generically
different, or to go above and beyond those numerated in ss. (4)-(9).
(See in this regard
S v Botha and another
2002 (1) 222 (SCA)
also
S v Dlamini
[1999] ZACC 8
;
1999 (4) SA 623
(CC) and
S v Yanta
2000
(1) SACR 237
(Tk).
[12]
However, Viviers AJA in
S v Botha
(
supra
), cautioned
that the requirement of exceptional circumstances means that the
usual considerations for the granting of bail are
no longer enough.
And a mere denial of the likelihood of the occurrence of the
circumstances mentioned in s. 60 (4) to (9) is not
sufficient to
constitute exceptional circumstances.
[13]
Mr
Jokweni
, who appeared for the appellants, submitted that
the magistrate has erred in finding that the state has a strong case
against the
appellants. He argued that the investigating officer’s
testimony evinces that upon viewing the video footage of the robbery,
the police were unable to identify the perpetrators since they were
wearing masks. The assertion that the two appellants could
be
identified by virtue of their physiques is not a convincing one. He
argued, furthermore, that the two appellants have provided
a
reasonable explanation for their presence in the motor vehicle and it
is likely that that explanation will be regarded as being
reasonably
and possibly true at the trial in due course. The appellants have
also indicated their intention to challenge the admissibility
of the
confessions. The magistrate accordingly erred by attaching too much
weight to the fact that they had made the confessions.
He submitted
that these factors, taken together with the appellants’
personal circumstances - which establish that they have
fixed places
of abode, live with their families and undertake activities to
support them, and have no traveling documents - prove
that they are
not a flight risk. He submitted that when considered cumulatively,
those factors constitute exceptional circumstances
justifying their
release on bail. He argued that any doubt regarding their intention
to stand trial can be mitigated by requiring
them to report to the
nearest police station on specified days.
[14]
An applicant for bail who relies on the weakness of the state case to
show exceptional circumstances, faces a daunting
task. He or she must
establish on a balance of probabilities that there will be an
acquittal on the charge. (
S v Mathebula
2010 (1) SACR 55
(SCA), para. 12)
[15]
In my view the appellants have failed to establish this prospect. In
the event, I disagree with the submission
that the state case against
the appellants is weak. As Mr
Mtsila
, who appeared for the
state, correctly submitted, the appellants were arrested in the car
that was conclusively identified in the
video footage as having been
involved in the commission of the robbery and they both made
confessions admitting their complicity
in the crime. Even though the
appellants have indicated their intention to challenge the
admissibility of the confessions, the
compelling circumstantial and
direct evidence against them will no doubt put them on their defence
at the trial and they will be
required to provide a reasonable
explanation to rebut the strong
prima facie
case. It is common
cause that upon conviction they will both face lengthy terms of
imprisonment. I am accordingly of the view that
the magistrate has
correctly found that this formidable prospect will serve as an
incentive for the appellants to evade trial.
[16]
And to my mind there is nothing in the appellants’
personal circumstances that can be regarded as exceptional.
This
fact, when considered in the light of the strong case against them,
means that they were unable to establish exceptional circumstances
justifying their release on bail. In any event, according to Mr
Mtsila
, the matter has been enrolled for hearing on 25 October
2022. It is therefore not in the interest of justice for the
appellants
to be released on bail.
[17]
In terms of s. 60 (5) of the Act I can only set aside the
magistrate’s decision if I am satisfied that it
was wrong. On
the facts before me I am unable to make such a finding. The appeal
must accordingly fail.
[18]
In the result the appeal is dismissed.
J.E.
SMITH
JUDGE
OF THE HIGH COURT
APPEARANCES
Counsel
for the Appellant
:
Mr Ngqeza
:
Zolile Ngqeza Attorneys
C/o Yokwana Attorneys
10 New Street
MAKHANDA
Counsel
for the Respondent :
Mr Mtsila
:
The Director of Public Prosecution
High Street
MAKHANDA