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[2022] ZAECMHC 23
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Bebula v S (CA & R 49/2022) [2022] ZAECMHC 23 (10 August 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION, MTHATHA]
[Not
Reportable]
CASE
NO: CA & R 49/2022
Heard
on: 29/07/2022
Delivered
on: 10/08/2022
SIZWE
BEBULA
Appellant
and
THE
STATE
Respondent
JUDGMENT
NHLANGULELA
DJP
[1]
The appellant has noted an appeal against the judgment of the
District Magistrate
(per Mr Namba) sitting in Libode. The said
judgment was delivered on 08 March 2022. It shows that the bail
application was refused.
[2]
The main ground of the appeal is that the magistrate
erred
in
the manner in which he exercised discretion to grant bail in terms of
the provisions of
s 60
(10) of the
Criminal Procedure Act 51 of 1977
aa (the CPA); in that the evidence of the appellant was not taken
into account, he preferring the version of the respondent resulting
in the finding that exceptional circumstances do not exist which in
the interest of justice permit the release of the appellant
on bail.
[3]
The charges which the appellant is faced with are that he is guilty
of committing
the offences of premeditated murder, possession of a
firearm without a licence, possession of a firearm with intent to
commit an
offence and unlawful possession of ammunition. It is common
cause that these four charges are, both individually and
collectively,
very serious in nature; and that the appellant faces a
sentence of life imprisonment if proved to have indeed committed
them. As
a result, the Legislature has, in terms of
s 60
(11)
(a)
of the
Criminal Procedure Act 51 of 1977
, thrust a duty on the
shoulders of the appellant to adduce evidence which satisfy the court
that not only his right to release
on bail is served, but also that
the interest of justice would have been served if he is released on
bail.
[4]
When the application for bail served before he magistrate the
appellant adduced evidence
on affidavit, which was admitted by the
magistrate. The evidence disclosed the allegations that:
(1)
he was on parole at the time when he allegedly committed the offences
with which he has
been charged;
(2)
he is an adult male aged 41 years;
(3)
he resides in Grabouw, Western Cape;
(4)
he is not married;
(5)
he has one child aged 4 years and he
maintains the child at the cost of R3 000,00 per month;
(6)
he was gainfully employed as a
security guard earning R20 000,00 per month;
(7)
he is at the same time the manager of
Bebula Family Trust, a business trust that is already engaged
in
executing a certain business contract from which he earns R10 000,00
a month;
(8)
he is a breadwinner in his family;
(9)
he has previous convictions for
attempted robbery, dealing in dagga;
(10)
he has a pending case of murder that was committed in Grabouw,
Western Cape in which he does not have
bail;
(11)
he was positively identified at the identification
parade as the killer of the deceased in the murder that
he allegedly
committed in this case;
(12)
he needs private medical attention for chest pains
sustained during torture by the police;
(13)
he has a confession for the Grabouw murder which
he regards as inadmissible in a court of law;
(14)
he is not a violent person;
(15)
he denies all the charges preferred against him in
this jurisdiction and in the Western Cape;
(16)
he is not a flight risk;
(17)
he needs to arrange funds for private legal
representation;
(18)
he will not interfere with state witnesses who are
known to him;
(19)
he needs to attend to the minor child who suffers
from epileptic fits;
(20)
he is a primary caregiver;
(21)
his mother is unemployed and she depends on him
for all her needs.
[5]
It also appears from the record of bail proceedings that the
appellant has a list
of previous convictions for murder, dealing in
drugs; two robberies; and two counts of unlawful possession of
firearms and ammunition.
He was sentenced to custodial punishment of
more than 10 years for these crimes.
[6]
Based on the personal circumstances disclosed in the affidavit, it
was submitted before
the magistrate that the appellant was a suitable
candidate for bail.
[7]
Mr Xolile Mdepha, a Captain in the SAPS and the Investigating Officer
in this case,
testified on behalf of the State. He opposed the
application for bail on the following reasons: The appellant gave
false names
during the investigations; there is strong evidence of an
eye witness (the deceased’s wife) who identified him at the
identification
parade; he is facing two charges of murder which were
committed in Cape Town whilst he was on parole; the claim that the
community
of Grabouw needs him to be freed is false; that he was
tortured by the police was false; that in 2003 he committed attempted
murder
in Cleremont, Cape Town; and that he is a sickly person is not
supported by medical evidence. Mr Mdepha told the Magistrate that
in
view of the evidence that the appellant inclines towards committing
crimes across the Western Cape and Eastern Cape he is a
flight risk.
[8]
The evidence adduced by Mr Mdepha is essentially the facts that he
gathered during
investigation. It was not seriously disputed. The
credibility of Mr Mdepha’s evidence was not impugned during
cross examination.
[9]
The magistrate accepted the evidence that the appellant is facing a
very serious offence
and that he has propensity to commit serious
crimes. The magistrate was satisfied with the evidence of Mr Mdepha.
He took into
account the fact that the appellant’s alleged
illness was not verified, the applicant was a flight risk, and that
appellant’s
knowledge of state witnesses placed them at risk of
interference. He concluded that since the evidence adduced was not of
exceptional
circumstances the bail application did not pass muster in
terms of
s 60
(11)
(a)
of the CPA.
[10]
On appeal this Court was urged to find that the magistrate
misdirected himself on the facts.
I was not persuaded with that
submission because the evidence adduced, and which influenced the
magistrate’s decision to
refuse bail, demonstrates that the
appellant:
(a)
is
facing a very serious offence of murder in which he was positively
identified by the wife of the deceased as the perpetrator;
(b)
is
facing another serious crime of murder in Grabouw;
(c)
he
has a string of previous convictions for serious offences; including
murder;
(d)
he
does not seem to have rehabilitated his criminal behaviour ever since
the first conviction for dealing in drugs in 2002;
(e)
he
has a penchant for committing violent crimes using dangerous weapons;
(f)
he
has no regard for the administration of justice system in that he
violated parole conditions by committing two murders.
[11]
The ground of appeal that the magistrate did not analyse the evidence
adduced by the appellant
properly does not have a merit. I reject it.
[12]
In argument it was submitted on behalf of the appellant that the
magistrate’s acceptance
that the State has a
prima facie
case against the appellant meant that a strong case does not
exist against the appellant. With respect, these submissions are not
supported by the judgment of the magistrate in which the following
was said on page 7 thereof:
“…
but
the state is confident that it has a strong case against the
appellant. It is not in dispute that the identity (
sic
)
parole was done.”
[13]
I am satisfied that the decision of the magistrate was not wrong and,
therefore, the bail application
was properly tested against the
societal interest in terms of
s 60
(4) and
s 60
(8A) of the CPA and
the personal interest of the appellant in terms of
s 60
(9) and
s 60
(10) of the CPA.
[14]
In the result the following order shall issue:
“
The
appeal is dismissed.”
Z
M NHLANGULELA
DEPUTY
JUDGE PRESIDENT OF THE HIGH COURT,
MTHATHA.
Counsel
for the appellant :
Adv. V. Calaza
Instructed
by
: T. Gxumisa Inc
MTHATHA.
Counsel
for the respondent :
Adv. D. Triesch
:
Office of the Director of Public Prosecutions
MTHATHA.