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[2022] ZAECMKHC 74
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Tailor v S (CA&R 171/2022) [2022] ZAECMKHC 74 (19 October 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
CASE
NO.: CA&R 171/2022
Heard:
14 October 2022
Delivered:
19 October 2022
In
the matter between:
NKULULEKO
TAILOR
Appellant
and
THE
STATE
Respondent
JUDGMENT
MOLONY
AJ:
Introduction
[1]
The appellant appeals (in terms of
section 65
of the
Criminal
Procedure Act 51 of 1977
– ‘the CPA’) against the
decision on 14 July 2022 of the magistrate at Maclear to deny him
bail.
[2]
The appellant faces charges of:
(a)
Unlawful
possession of a firearm (contravening
section 3
[1]
of the
Firearms Control Act 60 of 2000
– ‘the
Firearms
Control Act&rsquo
;). The firearm in question is described in the
charge sheet as ‘an 83 caliber 9mm browning’.
(b)
Unlawful
possession of ammunition (contravening
section 90
[2]
of the
Firearms Control Act). This
relates to four live rounds of
ammunition.
[3]
It is alleged that on 4 June 2022, and at or near Umga Road, Ugie,
the appellant was
found in possession of the above-mentioned firearm
and ammunition, without the requisite licence, permit or
authorization, in contravention
of the
Firearms Control Act.
[4
]
The parties were in agreement that the bail application fell under
Schedule 5 of the
CPA. Mr Ntshengulana (who appeared for the
appellant) confirmed during argument that the reason it fell under
Schedule 5 was that
the appellant had previous convictions for
Schedule 1 offences, and the offences with which he was now charged
also fell under
Schedule 1.
[5]
The appellant has two previous convictions, for fraud (2013) and
robbery (2016). The
offences of robbery and fraud both fall under
Schedule 1 of the CPA.
[3]
[6]
The
bail application was heard over two days (13 and 14 July 2022). The
notice of appeal is dated 6 September 2022. There is a letter
(dated
5 October 2022) inside the court file from Advocate van Heerden at
the office of the Director of Public Prosecutions, stating
that it
had been agreed with the appellant’s attorney of record that
the bail appeal could possibly be heard on 14 or 21
October 2022.
[7]
I
received the file on 10 October 2022, and indicated that I would hear
the matter on 14 October 2022.
[8]
It must be recorded that when reading through the bail appeal record,
it became apparent
that the relevant J15 charge sheet and exhibits
referred to during the bail application were not in the court file. A
request was
made on 13 October 2022 for these to be provided, which
duly occurred the same day, thus allowing the matter to proceed on 14
October
2022.
Relevant
facts
[9]
The appellant testified during the bail hearing, and provided the
following information
in regard to his personal circumstances:
(a)
He was born on
26 May 1985, and is a South African citizen. This means he was at the
time of the bail hearing, and still is, thirty-seven
years of age.
(b)
He arrived in
Ugie in December 2020.
(c)
He was, at the
time of the bail hearing, residing at a rented property at 36 Plain
Street Ugie, where he had resided for a year.
(d)
He owned
vehicles (both of which were registered in his wife’s name), a
television, beds, cupboards, a fridge and wardrobes.
(e)
He was
self-employed, running a ‘Shisa Nyama’ in Ugie with his
wife, known as ‘First Class Shisa Nyama’.
The business
itself was registered under a different name, it only having been
named ‘First Class Shisa Nyama’, it
appears, when they
moved to Ugie. The business was registered in Cape Town in his wife’s
name. The business was registered
with the local municipality in
January 2021 under the name ‘First Class Shisa Nyama’, in
his wife’s name. The
business opened in April 2021.
(f)
The appellant
was responsible for the day to day running of the business.
(g)
His wife,
Nomandla Mqamelo, is permanently wheelchair bound and was, at the
time of the bail application, heavily pregnant. The
baby was due to
be born by way of caesarian section, which was scheduled to occur on
17 June 2022.
(h)
The appellant
and his wife were married on 26 May 2022.
(i)
The appellant
has three children (he included the unborn child in this
calculation).
(j)
The appellant
confirmed that he would be pleading not guilty to the charges against
him.
(k)
He has a
previous conviction for fraud from 2013, for which he received a
sentence of three years’ imprisonment, which was
suspended (the
conditions of suspension were not disclosed).
(l)
He
has a previous conviction from 2016 for robbery (apparently with
aggravating circumstances)
[4]
.
He received a sentence of five years’ imprisonment. At the time
of the bail hearing he was out on parole in regard to that
conviction. It was his second year of being on parole at the time of
the bail hearing. He was released on parole in July 2020.
(m)
According to
the appellant he had not broken or breached any of the conditions of
his parole, and had not done so previously or
defaulted on any parole
conditions. He confirmed that his parole officer was aware that he
was in custody at the time of the bail
hearing.
[10]
The appellant’s identity document, his wife’s identity
document, proof of address
of the appellant, the appellant and his
wife’s marriage certificate, and an affidavit deposed to by the
appellant’s
wife, dated 11 June 2022, essentially confirming
her circumstances (as testified to by the appellant), were all handed
in as exhibits.
[11]
The prosecutor confirmed not having any objection to any of the
above-mentioned exhibits being
handed in.
[12]
The appellant’s attorney of record indicated an intention to
hand in documentation relating
to the business (a certificate and an
evaluation report), however these were then withdrawn and did not
become exhibits.
[13]
It was, later during the hearing, established that the appellant’s
two minor children (aside
from the third unborn child) were two
daughters, both eight years of age, one of whom lived with the
appellant and his wife, whilst
the second lived in Cape Town with her
mother. The appellant’s wife had been caring for the
eight-year-old daughter who resided
with them whilst the appellant
was in custody.
[14]
The prosecution, when cross-examining the appellant, focused
primarily on the fact that one of
the appellant’s parole
conditions was that he not commit any other offences whilst out on
parole, emphasizing that during
the third year of his three-year
suspended sentence of imprisonment in regard to his fraud conviction,
he was convicted of robbery
(in 2016).
[15]
During questioning from the presiding magistrate, the appellant
referred to another previous
conviction of robbery from 2014, but it
appears that he was acquitted on that charge. The appellant confirmed
earning between ‘seven’
and ‘nine’
(presumably R 7 000 and R 9 000) from his business per month,
although he said it fluctuated. He stated
that he employed two people
in his business.
[16]
The prosecutor, having been invited to address the presiding
magistrate on the facts of the case,
disclosed the following:
(a)
The police (in
Ugie) received information about an unlicenced firearm in the
possession of a male named Nkululeko Tailor (i.e. the
appellant) on
6 June 2022.
(b)
They were
given a description of the model and registration number of the car
in which the person was travelling.
(c)
They were
given a description of what the male person was wearing.
(d)
Having
searched for the vehicle in question, the police found it at Umga
Road, with the appellant inside. The appellant confirmed
owning the
vehicle, and gave them permission to search the vehicle. During the
search they found the relevant firearm and ammunition.
(e)
They asked the
appellant to whom the firearm and ammunition belonged, and he said
that both belonged to him. He was unable to give
the police officials
licences, permits or authorization to possess the firearm and
ammunition. He was then arrested.
(f)
The
State was in possession of documentation relating to the lawful owner
of the firearm. An ‘
enquiry
was made into the system’
and the firearm was reflected as having been reported stolen in Parow
(in the Western Cape) in May 2018.
[5]
[17]
The documentation was never made an exhibit and was not available in
the court file.
[18]
The prosecutor, having received a document from Correctional Services
which contained the appellant’s
parole conditions, read the
parole conditions into the record, and handed in the relevant
document as an exhibit. The appellant’s
attorney had no
objection to this occurring.
[6]
[19]
At no point did the appellant disclose how much he could afford in
regard to bail, if bail was
to be granted. During argument I enquired
about this from Mr Ntshengalana. His response was that he would need
to take instructions
in this regard.
The
Magistrate’s finding
[20]
The magistrate, having considered all of the available information,
was of the view that the
appellant,
inter alia
having two
previous convictions and having broken one of his parole conditions,
had not discharged the relevant onus.
[21]
In the magistrate’s view
section 60(4)(a)
of the CPA was of
application, in that there was a likelihood that the appellant, if
released on bail, would commit a Schedule
1 offence.
Grounds
of appeal
[21]
The appellant alleges, in his notice of appeal, that the Magistrate
erred in that she:
(a)
Found that the
appellant had failed to discharge the onus resting upon him to show
that it was in the interests of justice that
he be released on bail.
(b)
Found that the
appellant had broken one of his parole conditions.
(c)
Found that the
aspects contemplated in
section 60(4)(a)
of the CPA were present in
this matter.
(d)
Considered
factors stated in
section 60(5)
of the CPA. I understood this ground
to convey that the magistrate did not adequately consider the factors
set out in
section 60(5)
of the CPA.
The
law
[23]
Section 60(11)(b)
of the CPA provides that:
‘
(11)
Notwithstanding any provision of this Act, where an accused is
charged with an offence referred to—
...
(b)
in Schedule 5, but not 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 the interests of justice permit his or her release.’
[24]
Section 60(4)(a)
of the CPA states that:
‘
The
interests of justice do not permit the release from detention of an
accused where one or more of the following grounds are established:
(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...’
[25]
Section 60(5)
of the CPA provides aspects which the court may take
into account when determining whether
section 60(4)(a)
is of
application. That subsection reads as follows:
‘
(5)
In considering whether the ground in subsection (4)(a) has been
established, the court may, where applicable, take into
account the
following factors, namely—
(a)
the degree of violence towards
others implicit in the charge against the accused;
(b)
any threat of violence which the
accused may have made to any person;
(c)
any resentment the accused is
alleged to harbour against any person;
(d)
any disposition to violence on
the part of the accused, as is evident from his or her past conduct;
(e)
any disposition of the accused to
commit offences referred to in Schedule 1, as is evident from his or
her past conduct;
(f)
the prevalence of a particular
type of offence;
(g)
any evidence that the accused
previously committed an offence referred to in Schedule 1 while
released on bail; or
(h)
any other factor which in the
opinion of the court should be taken into account.’
[26]
Sections 60(9)
and
60
(10) of the CPA provide further that:
‘
(9)
In considering the question in subsection (4) the court shall decide
the matter by weighing the interests of justice against
the right of
the accused to his or her personal freedom and in particular the
prejudice he or she is likely to suffer if he or
she were to be
detained in custody, taking into account, where applicable, the
following factors, namely—
(a)
the period for which the accused has already been in custody since
his or her arrest;
(b)
the probable period of detention until the disposal or conclusion of
the trial if the accused is not released on bail;
(c)
the reason for any delay in the disposal or conclusion of the trial
and any fault on the part of the accused with regard to
such delay;
(d)
any financial loss which the accused may suffer owing to his or her
detention;
(e)
any impediment to the preparation of the accused’s defence
or any delay in obtaining legal representation which may
be brought
about by the detention of the accused;
(f)
the state of health of the accused; or
(g)
any other factor which in the opinion of the court should be taken
into account.
(10)
Notwithstanding the fact that the prosecution does not oppose the
granting of bail, the court has the duty, contemplated in
subsection
(9), to weigh up the personal interests of the accused against the
interests of justice.’
[27]
This court is required to approach the appeal on the assumption that
the decision of the court
a
quo
was correct. This court may only interfere if satisfied that the
decision was wrong. As stated in
S
v Mbele
[7]
:
‘
...the
Court of appeal is required to uphold the order made by the court
below until enough has been done to persuade and satisfy
the Court of
appeal that the order was wrong, and, in the ordinary course, it is
for the appellant to do whatever has to be done
in that regard.'
[28]
Bail applications are
sui
generis
and are neither civil nor criminal proceedings. Consequently the
rules of evidence applied in trial actions are not strictly adhered
to.
[8]
[29]
The court, in bail applications, is required to take into account
whatever information is placed
before it in order to form an opinion
in regard to what may occur in the future.
[9]
[30]
Whilst the strength of the State’s case against the appellant
was not specifically placed
in issue in the bail hearing, the
following instructive dictum appears in the matter of
S
v Mathebula
:
[10]
‘
But
a State case supposed in advance to be frail may nevertheless sustain
proof beyond reasonable doubt when put to the test. 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: S v Botha en 'n Ander
2002
(1) SACR 222 (SCA)
(2002)
(2) SA 680
;
[2002] 2 All SA 577)
at 230h, 232c; S v Viljoen
2002
(2) SACR 550
(SCA)
([2002]
4 All SA 10)
at 556c. That is no mean task, the more especially as an
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; as to which see Shabalala and Others
v
Attorney-General, Transvaal, and Another
[1995] ZACC 12
;
1995
(2) SACR 761
(CC)
(1996 (1) SA725;
1995 (12) BCLR 1593).
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 before him.
Thus
it has been held that until an applicant has set up a prima facie
case of the prosecution failing there is no call on the State
to
rebut his evidence to that effect [my emphasis]t
:
S v Viljoen at 561f-g.’
[11]
Assessment
[31]
In a bail application which falls under Schedule 5 of the CPA the
onus is on the applicant to
show that, on a balance of probabilities,
the interests of justice permit his release.
[32]
It does not appear to be in dispute that the firearm allegedly found
in the possession of the
appellant was reported as stolen.
[33]
The allegation against the appellant is that he was found in
possession of the above-mentioned
firearm, and ammunition, without
the requisite licences, permits or authorisation, and was promptly
arrested.
[34]
The appellant, who was legally represented, did nothing more during
his evidence than state that
he was going to plead not guilty.
Neither the appellant nor his legal representative disputed that he
was found in possession of
the above-mentioned firearm and
ammunition.
[12]
[35]
The appellant has two previous convictions for Schedule 1 offences,
with the second conviction
occurring during the final year of
suspension of the sentence of imprisonment imposed in regard to the
first conviction. The existence
of these previous convictions is what
elevated the current matter to the level of Schedule 5 for purposes
of the bail application.
[36]
The appellant was out on parole in regard to one of the
above-mentioned previous convictions
(robbery with aggravating
circumstances – a serious offence involving violence) at the
time of his arrest.
[37]
The charges currently faced by the appellant are self-evidently very
serious.
[38]
The issue of whether or not the appellant had in fact infringed one
of his parole conditions
due to his arrest was in dispute. The
condition in question stated that the appellant was: ‘
Not to
commit any crime or offence of any kind’
.
[39]
The appellant’s legal representative, in the court
a
quo
,
referred to
Twala
v S
,
[13]
which
involved a bail appeal in a matter with similar charges to those
being faced by the appellant, and which fell under Schedule
5 of the
CPA.
[40]
The appellant in the
Twala
matter advanced the argument that
simply because he was on parole at the time of his arrest, did not
mean that he had violated
his parole conditions. He was entitled to
the benefit of the presumption of innocence.
[41]
It was clear in the
Twala
matter that the view adopted was that the question of whether or not
the appellant had infringed one of his parole conditions was
tied to
the strength of the State’s case against the appellant in
regard to the charges the appellant was facing. In the
Twala
matter the State’s case against the appellant was considered to
be weak.
[14]
[42]
The above does not appear to be the case in the present matter, where
the appellant did nothing
more than state that he will plead not
guilty to the charges, and did not question or dispute that he was in
unlawful possession
of the firearm and ammunition. I agree with Mr
Nohiya (who appeared for the State) that simply stating that he would
plead not
guilty would not amount to a
prima
facie
case which would require the State to advance evidence in
rebuttal.
[15]
[43]
It is self-evident that the factors referred to in
section 60(5)(d)
and (e) of the CPA find application in this matter and that it has
been established, in terms of
section 60(4)(a)
, that there is a
likelihood of the appellant committing further Schedule 1 offences if
released on bail. In addition, the appellant
has,
prima facie
,
committed a very serious offence whilst out on parole.
[44]
Having considered the aspects set out in
section 60(9)
and (10), and
with particular regard to the personal circumstances of the
appellant, as well as the interests of justice, I am
not persuaded
that the appellant discharged the
onus
of
satisfying the court of first instance that the interests of justice
permit his release from custody. I am therefore not persuaded
that
the decision of the court
a
quo
was
wrong.
In
the result, the following order is made:
(a)
The bail appeal is dismissed.
N
MOLONY
ACTING
JUDGE OF THE HIGH COURT
Counsel
for the appellant
:
Mr Ntshengulana
Instructed
by
: G. Mapena Attorneys
Mthatha
c/o
Mfundo Ntshwaxa Attorneys
Makhanda
Counsel
for the respondent :
Mr Nohiya of the Office
of the Director of
Public
Prosecutions Makhanda
[1]
Read
with
sections 1
,
103
,
117
,
120
(1)(a) and
section 121
read with
Schedule 4 of the
Firearms Control Act, and
further read with
section 250
of the CPA.
[2]
Read
with
sections 1
,
103
,
117
,
120
(1)(a),
section 121
read with Schedule
4 and
section 151
of the
Firearms Control Act, and
further read with
section 250
of the CPA.
[3]
The
charges faced by the appellant only appear to fall under Schedule 1
in that they amount to: ‘
Any
offence, except the offence of escaping from lawful custody in
circumstances other than the circumstances referred to immediately
hereunder, the punishment wherefor may be a period of imprisonment
exceeding six months without the option of a fine.
’
Schedule
4 to the
Firearms Control Act permits
for a maximum period of
imprisonment of fifteen (15) years to be imposed in regard to each
of the charges being faced by the
appellant.
[4]
The
appellant himself referred to it as ‘robbery’, whilst
his legal representative later referred to it as ‘robbery
with
aggravating’.
[5]
The
appellant’s attorney objected to the submission of the
documentation relating to the allegedly stolen firearm, as he
had
not seen it prior to that moment. The appellant’s attorney and
the presiding Magistrate then engaged on the issue of
the rules of
evidence in relation to bail applications. The matter then stood
down for the appellant’s attorney to examine
the
documentation. It appears that what happened thereafter was that,
based upon the magistrate’s comments about the rules
relating
to documentary evidence in bail matters, the appellant’s
attorney did not object to the documentation being handed
in as an
exhibit.
[6]
The
prosecutor then attempted to hand in the appellant’s SAP69
forms (setting out his previous convictions). It appears
that, in
addressing the court, the prosecutor disclosed that in regard to the
2016 robbery sentence, the appellant had been declared
unfit to
possess a firearm. The magistrate did not feel that the SAP69 forms
should form part of the record in case they were
seen by the
agistrate who would be attending to the trial and they were, in any
event, not in dispute. The SAP69 forms were then
withdrawn by the
prosecutor.
[7]
1996
(1) SACR 212 (W)
at 221h-j.
[8]
S v Dlamini; S v Dladla
and Others; S v Joubert; S v Schietekat
[1999] ZACC 8
;
1999
(4) SA 623
(CC)
at
para 11.
[9]
S
v Yanta
2000 (1) SACR 237
(Tk) at 246 – 247.
[10]
2010
(1) SACR 55
(SCA) at para 12.
[11]
See
further
S
v Kanana
2018 JDR 0459 (ECG).
[12]
There
was, accordingly, no evidence requiring rebuttal (in contrast to the
circumstances in
S
v Jonas
1998 (2) SACR 677
(SE) at 678 to 679).
[13]
(A156/2019)
[2019] ZAGPPHC 1105 (27 June 2019).
[14]
Supra
at
paras 24 – 28.
[15]
See
S
v Viljoen
2002 (2) SACR 550
(SCA) at para 25.