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[2021] ZAGPPHC 687
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Hlongwane v S (A81/2021) [2021] ZAGPPHC 687 (5 May 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO OTHER
JUDGES:
YES
/NO
(3)
REVISED: YES/
NO
5/5/2021
Case number:
A81/2021
In the matter
between:
STEVE
HLONGWANE
Appellant
v
THE
STATE
JUDGMENT
MOSOPA,
J
1.
The appellant brought a
bail application on 12 November 2020 in the Magistrates’ Court
for the district of Tshwane North,
Pretoria before Magistrate Grove,
which was refused on 3 December 2020.
2.
Aggrieved by this
decision, the appellant brought an appeal against this refusal to
grant him bail, in terms of section 65(1)(a)
of the Criminal
Procedure Act 51 of 1977 (“the Act”).
3.
The matter served
before me on 31 March 2021 and after hearing argument on behalf of
the parties, I then reserved judgment in the
matter.
BACKGROUND
4.
The appellant was
arrested and charged with three (3) counts of murder, read with the
provisions of
section 51(1)
of the
Criminal Law Amendment Act 105 of
1997
, in respect of his colleagues, and one (1) count of theft, in
respect of a cellphone belonging to one of the deceased.
5.
It was agreed by the
parties while the matter was still before the below court, that the
charges against the appellant fall under
Schedule 6 of the Act.
6.
The bail application of
the appellant was opposed by the State. Both the appellant and the
respondent filed affidavits in support
of and opposing the bail
application, respectively, and the bail application was determined on
the basis of the affidavits filed.
DISCUSSION
7.
Section 60(11)(a) of
the Act, which deals with offences under Schedule 6 of the Act,
provides;
“
(11)
Notwithstanding any provision of this Act, where an accused is
charged with an offence referred to –
(a)
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 exceptional
circumstances
which in the interest of justice permits his or her release.”
8.
From the above, it is
clear that the bail applicant charged with an offence under Schedule
6, will not be released from custody
until he/she does the following:
8.1.
adduces evidence that
satisfies the court hearing the bail matter, that exceptional
circumstances exist; and
8.2.
shows that the interest
of justice permits his or her release on bail.
9.
It must further be
noted that the concept of “exceptional circumstances” is
not defined in the Act. As a result, the
concept must be given its
ordinary meaning. What a court is expected to do is to examine all
the relevant considerations, as a
whole, in determining whether an
accused person has established something out of the ordinary or
unusual which entitles him or
her to relief under section 60(11)(a).
(See
S v H
1999 (1)
SACR 72
(W)
).
10.
Section 60(4)(a)-(e) of
the Act is also relevant and deserves mention, and provides:
“
(4)
The interests of justice do not permit the release from detention of
an accused where one or more of the following are established:
(a)
where there is a
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 a
likelihood that the accused, if he or she is 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 is released on bail, will
attempt to influence or intimidate witnesses
to conceal or destroy
evidence; or
(d)
where there is a
likelihood that the accused, if he or she is released on bail, will
undermine or jeopardize the objectives or proper
functioning of the
criminal justice system, including the bail system; or
(e)
where in
exceptional circumstances there is the likelihood that the release of
the accused will disturb the public order or undermine
the public
peace or security.”
11.
The below court, when
refusing the appellant bail, considered a number of factors and
concluded that,
“
The
applicant has failed to prove that there is exceptional circumstances
by section 60(4)(a) that he be released on bail, besides
having
failed dismally during the first leg of the enquiry to satisfy the
court that exceptional circumstances exist. He has failed
in respect
of the second leg, and the enquiry to satisfy the court that it would
be in the interest of justice for him to be admitted
to bail.”
(sic)
12.
Despite being arraigned
on charges which fall under Schedule 6 of the Act, the appellant, in
his affidavit in support of the bail
application makes mention of the
provisions of section 60(11)(b) of the Act, which is the incorrect
provision. The appellant does
not specify in his affidavit what the
factors are which constitute “exceptional circumstances”,
save to mention that
it is his employer at FBI Security, Thabo
Hlongwane, who shot at the deceased and he was instructed to dispose
of their bodies,
remove the SIM card from the cellphone of one of the
deceased and destroy both the SIM card and cellphone.
13.
The affidavit of the
investigating officer, which remains unchallenged, reveals that he
obtained the section 205 information in
respect of the cellphone of
one of the deceased, which indicates that the appellant inserted his
own SIM card into the cellphone
of one of the deceased (Bongani
Konang). A further SIM card belonging to Betty Baloyi (the
mother-in-law of the appellant) was
inserted into the cellphone of
another one of the deceased on 5 April 2020 – a day after the
shooting incident – but
she declined to take possession of this
cellphone. On 18 May 2020, the appellant was still using the
cellphone belonging to one
of the deceased and his explanation to the
investigating officer was that he borrowed a cellphone from the
deceased on 31 March
2020, as his own cellphone was no longer
operational. This contradicts what the appellant said in his
affidavit, that he was instructed
by Mr Thabo Hlongwane to destroy
the cellphones.
14.
The appellant has a
previous conviction of theft, dating back to 2007. The appellant was
released on bail while awaiting finalization
of the trial matter and
there is no evidence which indicates that he breached his bail
conditions. The issue of the appellant being
a flight risk arose in
the appellant’s bail proceedings in respect of this matter.
What is important is the averment that
the appellant and his wife
reside in an informal settlement, with no house number, but his
mother is willing to accept him at the
address in Winterveld. The
appellant further avers that he fears for his life as his former
employer, Mr Thabo Hlongwane, knows
that he has implicated him in the
murders.
15.
In further denying the
appellant bail, the below court relied on the provisions of section
60(4)(c), where it was found that if
the appellant was released on
bail, he will attempt to influence or intimidate witnesses, or
attempt to conceal or destroy any
evidence. Further, that the
appellant was in possession of one of deceased’s cellphones. In
the affidavit, it was further
mentioned that the appellant knows the
identity of the state witnesses and is also familiar with the type of
evidence which may
be brought against him.
16.
It is important to note
that when the deceased were discovered, they still had their service
firearms, but all their cellphones
were missing, the appellant was
also of assistance in the discovery of the third deceased as it took
some time to find the body
of the third deceased. The appellant’s
version of events is doubtful; if indeed all the deceased were killed
by Mr Thabo
Hlongwane, why would he not take back his property, the
firearms in the possession of the deceased. Further, that the
deceased’s
cellphone was in use for a period of one month after
the death of the deceased and was found in the possession of the
appellant,
with his SIM card in the phone.
17.
The below court, in
denying the appellant bail, further relied on the provisions of
section 60(4)(e), which provides that where
there is a likelihood
that the release of the appellant will disturb the public order and
undermine the public peace and security.
This finding was based on
what the investigating officer averred in his opposing affidavit,
that the community was involved in
the search for all the deceased
and they vowed that when the bodies were found and if the appellant
is released on bail, they would
take the law into their own hands.
This clearly shows that there was outrage from the community
following what the appellant is
now charged with.
18.
Apart from establishing
one of the grounds stated under the provisions of section
60(4)(a)-(e), it is important for the court to
determine whether the
grounds set out under section 60(4)(a)-(e) are probable for the court
to deny the applicant bail. (See
S
v Stanfield
1997 (1) SACR 221
(C)
).
In my considered view, the below court did consider the probability
of the grounds existing, in that, the identity of the witnesses
is
known to the appellant and he was able to possess the two cellphones
belonging to the two deceased for some time without the
police
detecting that. The utterances made by the community remain
unchallenged and taking into account that the appellant resides
in
this same community, thus the possibility of these threats coming to
fruition is likely.
GENERAL
19.
The requirement in
section 60(2)(c) that evidence be adduced in bail proceedings by
either the state or appellant, should not be
interpreted as a demand
for the presentation of oral evidence. The party who is called upon
to adduce evidence, is entitled to
do so, in terms of the normal
“relaxed rules of evidence”, which have traditionally
been applied in bail proceedings
(
S
v Hartslief
2002 (1) SACR 7
(T)
).
Affidavits, in general, should be received. (
S
v Pienaar
1992 (1) SACR 178
(W)
).
20.
The functions and
powers of the court or judge hearing the appeal under section 65 are
similar to those in an appeal against conviction
and sentence. In
S
v Barber
1979 (4) SA 2018
(D)
at
220E-H, Heher J observed;
“
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…”
21.
Section 65(4) of the
Act is more relevant and provides as follows:
“
(4)
The court or judge hearing the
appeal shall not set aside the decision against which the appeal is
brought, unless such court or
judge is satisfied that the decision
was wrong, in which event the court or judge shall give the decision
which in its or his opinion
the lower court should have given.”
22.
I am not persuaded as to how the below court
misdirected itself which empowers this court to interfere with its
decision. The below
court did not err, in my considered view, when
denying the appellant bail and as such, the appeal brought ought not
to succeed.
Moreover, the state has a strong case against the
appellant.
ORDER
23.
As a result, I make the following order;
1.
The appeal against the decision of the
Magistrates’ Court, Pretoria North to deny the appellant bail
is refused.
MJ
MOSOPA
JUDGE OF THE HIGH
COURT, PRETORIA
Appearances:
For
the applicant:
Mr P Sambo
Instructed
by:
Sambo and Makgabutlane Attorneys
For
the respondent:
Adv M Marriott
Instructed
by:
The DPP
Date
of hearing:
24 February 2021
Date
of judgment:
Electronically delivered