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[2022] ZAECMHC 35
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Ngozi v S (CA&R32/2022) [2022] ZAECMHC 35 (1 September 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE LOCAL
DIVISION – MTHATHA)
CASE NO.: CA&R32/2022
REPORTABLE: NO
OF INTEREST TO OTHER
JUDGES: NO
REVISED.
In the matter between: -
WANGA
NGOZI
APPELLANT
and
THE
STATE
RESPONDENT
BAIL APPEAL JUDGMENT
SMITH
J:
Introduction
[1]
The appellant was arrested during December 2017 in connection with
two counts of murder,
five counts of attempted murder and several
counts of unlawful possession of firearms and ammunition. The charges
arose from incidents
that occurred at the Lower Mjika Locality,
Tsolo, on the 1
st
and 3
rd
of December 2017,
respectively.
[2]
The appellant and his co-accused subsequently applied for bail and
their application
was heard in the Tsolo Magistrate’s Court on
21 December 2017. On 22 December 2022, the court delivered its
judgment, dismissing
the application. The matter was thereafter
transferred for trial to the Mthatha High Court.
[3]
On 5 May 2022, the appellant
lodged his appeal against the Magistrate’s refusal to
grant
bail. Although his failure to note and prosecute the appeal timeously
was flagrant, he proffered a reasonable explanation
for the delay.
The state also did not oppose his application for condonation, and I
accordingly granted an order condoning his
failure to comply with the
prescribed time periods.
[4]
Mr. Tshitshi, who appeared for
the appellant, accepted that the appeal must be decided
on the
evidence that served before the Magistrate, since no application was
made to admit new evidence. It is common cause that
the trial has
been postponed on several occasions, and that it has now been
provisionally postponed to October 2022. It is also
common cause that
the postponements were variously caused by the state or by the
appellant and his co-accused. Neither of the parties
is therefore
solely to be blamed for the delay in the commencement of the trial.
[5]
In dismissing the bail
application, the magistrate found that: there was a likelihood that
the appellant would interfere with and intimidate state witnesses;
the state’s case against him is strong; and there was
a
likelihood that there would be a disturbance of the public peace if
he were released on bail. The magistrate accordingly concluded
that
the appellant had failed to establish exceptional circumstances that
would allow his release on bail.
[6]
The appellant appeals against
the Magistrate Court’s judgment on the following grounds:
(a)
the magistrate failed
to have proper regard to the appellant’s personal circumstances
and the negative consequences for him
and his family if he were not
released on bail;
(b)
he failed to have
regard to the fact that the appellant stated that he would relocate
to Mount Fletcher in order to avoid any retribution
from the
community; and
(c)
he erred in finding
that the state case is strong; and
(d)
by failing to
have regard to the fact that any admissions which the appellant may
have made were called into doubt by his compelling
allegations of
assault and coercion by police officers.
The
Law
[7]
A court sitting on appeal in terms of s. 65 of the Criminal Procedure
Act, No 51 of
1977 (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).
It is common cause that the appellant had
been charged with Schedule 6 offences. Thus, in terms of s. 60(11)
(a) of the Act, the
court must therefore order that he must be
detained in custody, unless he adduces evidence of exceptional
circumstances, which
in the interests of justice permit his release.
[8]
In deciding whether or not the interests of justice permits the
release of the appellant
on bail, the court must have regard to the
considerations mentioned in paragraphs (a) to (e) of s. 60 (4). 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; or
(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”
[9]
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). (
S v Dlamini; S v
Dladla and others; S v Joubert; S v Schietekat
1999 (4) SACR 623
(CC)
where 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
.”
[10]
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 subsections (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).
The
evidence
[11]
It is with the abovementioned legal principles in
mind that I now turn to analyse the evidence. The appellant
testified
that he was 41 years old at the time of the application. He was
married and has two children. He was self-employed and
owned a
tavern. He was also involved in the taxi industry. His wife was
unemployed and he was the family’s only breadwinner.
He was
aware of the fact that the community had been angered by the incident
and had burned down his home and business. He conceded
that his life
would be in danger if he were released on bail, but said that he
would relocate to Mount Fletcher in order to escape
retribution from
members of the community. However, he refused to divulge the address
in Mount Fletcher where he would be residing.
He undertook to comply
with all conditions imposed by the court if he were allowed on bail.
He also undertook not to interfere
with any state witnesses and would
attend court whenever ordered to do so.
[12]
The investigating officer, Mr. Wayi, testified
that the state has a strong case against the appellant. He
said that
the state would call witnesses who saw the appellant’s vehicle
parked outside the premises where the incident took
place. The
appellant was sitting inside the vehicle. Immediately after the
shooting someone exited the premises and boarded the
appellant’s
vehicle. The vehicle then sped off and drove in the direction of the
appellant’s home. He asserted that
this evidence, in addition
to other evidence which the state will adduce, will present a strong
and compelling case against the
appellant.
[13]
He also testified that there was a real likelihood
that there would be further attempts on the lives of
the survivors if
the appellant and his co-accused were granted bail. He said that the
attacks on the 1
st
and 3
rd
of December were
revenge attacks and followed a fight between the appellant and some
of the young men who were targeted in the
attacks. One of the
victims, who was still in hospital at the time, expressed his fear
that an attempt would be made on his life,
since he had been
threatened that the assailants would return ‘to finish him
off’. Mr Wayi also said that the fact
that the second incident
was directed at some of the young men who were present during the
first shooting, clearly justifies the
inference that it was a revenge
shooting. Therefore, whoever had attacked them on 1 December 2017,
was determined to finish the
job.
[14]
He also handed into court a letter from members of
the community wherein they expressed their outrage at
the cruel and
brazen manner in which the attacks were perpetrated. He asserted that
there was a real likelihood that the public
peace would be disturbed
if the appellant and his co-accused were released on bail. He said
that the outrage of the community has
already resulted in two of the
appellant’s properties being destroyed. The fact that the
appellant himself is of the view
that his life would be in danger if
he were released on bail and exposed to the wrath of the community,
supports this contention.
Discussion
and findings
[15]
The appellant’s main contention on appeal
was that the state case against him was weak. That fact,
coupled with
the dire consequences for him and his family if he were not granted
bail, constituted exceptional circumstances. It
was therefore in the
interests of justice that he be granted bail, or so the argument
went.
[16]
In my view the magistrate’s factual findings and
reasoning cannot be faulted. His finding that the state
case against
the appellant was strong, was supported by the evidence of the
investigating officer. The appellant appeared to emphasise
the fact
that the incident had taken place at night and that the state was
unable to produce eyewitnesses who had seen him inside
the premises
where the attack had taken place. It was contended on his behalf that
this presents a lacuna in the state’s
case. I do not agree with
these contentions. As mentioned, the investigating officer testified
that the appellant was positively
identified by witnesses who had
seen him waiting in his vehicle outside the premises where the attack
took place. The assailant
was also seen running away from the
premises and boarding the appellant’s vehicle, which then drove
in the direction of his
house. These compelling circumstantial facts
would, at the very least, present a
prima
facie
case that
will require the appellant to provide an explanation that is
reasonably possibly true. The magistrate’s finding
regarding
the strength of the state case was therefore based on sound
reasoning.
[17]
I am also of the view that the magistrate’s
finding that there was a likelihood that the public peace
would be
disturbed if the appellant were released on bail, was based on facts
which were common cause. The appellant himself testified
that he
feared for his life and that he would relocate to Mount Fletcher in
order to escape retribution from members of the community.
His home
and business had been burned down, and the investigating officer had
introduced a letter from members of the community
expressing their
outrage and anger at the crimes and urging the court not to grant
bail. Although that letter on its own was not
sufficient for the
magistrate to refuse the application, it served to support his fear
that the appellant’s release on bail
may spark public unrest.
[18]
The investigating officer was understandably also
concerned about the fact that the attack on the 1
st
of
December was followed up by another attack on the survivors on the
3
rd
of December. His assertion was that this lends
credence to his view that the attack was motivated by revenge and
that whoever had
perpetrated the first attack was determined to kill
the survivors.
[19]
In any event, apart from his contentions regarding
the strength or weakness of the state’s case, the
appellant has
not been able to proffer any facts that could by any stretch of the
imagination constitute exceptional circumstances
as envisaged by s.
60 (11) (a) of the Act. The contentions regarding the prejudice that
he and his family would suffer if he were
not released on bail are in
themselves not exceptional in nature. It is difficult to conceive of
any circumstances where a detainee
applying for bail would not be
able to point to some economic and other suffering for himself and
his family if he were not granted
bail. My finding in respect of the
strength of the state case thus means that there were no exceptional
circumstances which could
have justified the granting of bail.
[20]
At the outset of the appeal hearing I did raise
with the appellant’s legal representative the wisdom
of
appealing against the refusal of bail five years after the judgment
was delivered. I pointed out to him that the appellant’s
interests may have been better served by making a fresh application
on new facts. Although Mr. Tshitshi agreed with the logic of
such an
approach, he emphasised that he had been instructed not to bring a
new application, but to appeal against the judgment.
[21]
Nevertheless, in determining whether or not the
magistrate was wrong to refuse bail, I am constrained to
consider
only the evidence that was before him in 2017 and his reasoning.
[22]
For the abovementioned reasons I am unable to find
any basis to criticise the magistrate’s findings
and reasoning.
The appeal must accordingly fail.
Order
[24]
In the result the appeal is dismissed.
J.E.
SMITH
Judge
of the High Court
APPEARANCES
Date
of hearing
: 19 August 2022
Date
of delivery
: 1 September 2022
Attorney
for the Appellant
: Mr. Tshitshi
:
Mkata Attorneys
No. 77 Nelson Mandela
Drive
MTHATHA
Counsel
for the Respondent :
Ms. Trietsch
:
The Director of Public Prosecutions
94 Lower Sission Street
MTHATHA