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[2021] ZAGPPHC 304
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Mothapo and Another v S (A226/2020) [2021] ZAGPPHC 304 (6 May 2021)
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION,
PRETORIA
CASE
NO: A226/2020
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
THABISO
MOTHAPO
1
st
Appellant
LUCUS
MOFOKENG 2
nd
Appellant
and
THE
STATE
Respondent
JUDGMENT
MOKOSE
J
[1]
This is an appeal against the judgment of the Magistrate sitting in
the Vereeniging Magistrates' Court handed down on 22 July
2020
refusing to admit the appellants to bail pending the finalisation of
criminal proceedings against them.
[2]
The appellants (two of nine accused) allegedly acted In common
purpose and were charged with six counts namely, two counts of
kidnapping, two counts of robbery with aggravating circumstances and
two counts of possession of an unlicensed firearm and possession
of
ammunition without a licence. The first appellant is further charged
with an offence of falsely impersonating a police officer,
Section
68(1) of the South African Police Services Act 68 of 1995.
[3]
The appellants had applied for their release on bail before a
Magistrate on 28 February 2019 which application was refused on
21
May 2019. The appellants applied for bail on new facts and the
application was refused by the Magistrate on 22 July 2020. The
appellants now approach this court on appeal against the refusal to
bail on the new facts.
[4]
Appeals from the lower court are dealt with in terms of Section
6S(1)(a) of the CPA. The section provides:
"
565
APPEAL
TO
SUPERIOR
C
OURT
WITH REGARD TO
BAIL
(1)(a) An accused who
considers himself aggrieved by the refusal by a lower court to admit
him to bail or by the imposition by such
court of a condition of
bail, including a condition relating to the amount of bail money and
including an amendment or supplementation
of a condition of bail, may
appeal against such refusal or the imposition of such condition to
the superior court having jurisdiction
or to any judge of that court
if the court is not then sitting.
(4)
The court or
judge
hearing
the appeal shall not
set asi
de 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.”
[5]
In terms of section 60(1) of the CPA, an accused is entitled to be
released on bail at any stage preceding his or her conviction
in
respect of such offence, if the court is satisfied that the interests
of justice so permit. Further, Section 60(4) of the Act
provides
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 wit/ commit a Schedule 1 offence; or
(b)
where
there
is
the
likelihood that
the
accused, if he
or
she were
released
on
boil, will attempt
to
evade his or her trial;
or
(c)
where there Is the 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
jeopardise the objectives
or the proper functioning
of
the criminal justice system, Including
the bail
system;
(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".
[6]
It is not in dispute that the offences for which the appellants were
charged fell within the purview of Schedule 6 of Act 51of
1977.
Section 60(11) provides that:
[1] “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
o
r
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
exist
which
in
the
interests
of justice
permit h
i
s
or
her
release.
(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 Jaw, 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
release."
[7]
I
n
terms
of Section 60(1
1
)
the onus falls upon an applicant to adduce evidence which would
sat
i
sfy
the
court that
exceptional circumstances exist
i
n
the
interests of
jus
t
i
ce
which
would
permit
his
or
her
release
on
ball. The
Constitutional
Court
I
n
S v
Dlamini;
S v
Dladla
and Others;
S v
Joubert;
S v
Schietekar
[1]
stated
the
following
pertaini
n
g
to
exceptional
circumstances:
"[75] An applicant
is given broad scope to establish the requisite circumstances,
whether they relate to the nature of the
crime, the personal
circumstances of the applicant or anything else that is particularly
cogent ....
[76]
...
In requiring that the circumstances proved
be
exceptional, the subsection does not say
they must
be circumstances
above
and
beyond
and
generically
different from those
enumerated. Under the subsection, for
instance, an accused charged with a Schedule 6 offence could
establish the requirement by
proving that there are exceptional
circumstances relating to his or her emotional condition that render
it in the interest of justice
that release on bail be ordered
notwithstanding the gravity of the case...".
[8]
It was submitted on behalf of the appellants that the Magistrate
erred in finding that the appellants had not shown that exceptional
circumstances existed in the new facts which were presented to the
court. In particular, the second appellant had not been pointed
out
in the identification parade, has no previous convictions, was not
finked by the cellphone web to any offence and was not arrested
at
the scene of the crime. No evidence was placed before the court that
he was a flight risk.
[9]
Counsel for the first appellant submitted to the court that cellphone
records which had been submitted to court failed to prove
he location
of the parties and as such, demonstrated the weakness in the State's
case, in particular.
[10]
Counsel for the State submitted that evidence showed that the second
appellant had been in communication with the accused.
He conceded
that although the second appellant was not found at the scene of the
crime, he was arrested in the area having alleged
that he was
performing official duties there. He was also pointed in the
identification parade. The first appellant had also been
pointed out
when he was arrested approximately 150 meters away from the crime
scene. Accordingly, they were acting in common purpose
when
committing the offences.
[1
1
]
I
n
terms of Section 60(1
1
){a)
of the CPA the accused bears the onus of adduci
n
g
evidence which satisfies
the court
of the exceptional circumstances which exist. The standard of proof
i
s
a
civil
one,
that
is,
on a
balance
of
probabi
l
i
ties.
The
appellant
must
set
up a
prima
facie case
of the prosecution failing
.
[2]
[
1
2]
This court
can
only
interfere with the decision
to refuse
ba
i
l,
i
f
i
t
i
s
found that
the
dec
i
sion
of the
court
a
quo
was
wrong.
(See
section
65(4)
of
the
Act and
S
v
Barber
1
979
(4)
SA
218
}
.
However, in
5
v
Porthen
and
Others
[3]
the
court
expressed
the
view
that
interference
on
appeal
was
not
confined to
misdirection
in
the
exercise
of
d
i
scretion
in
the
narrow
sense.
The
court
h
eari
n
g
the
appe
a
l
shou
l
d
be
at
l
iberty
to
undertake
i
ts
own
analysis
of
the
evidence in
considering
whether the
appellant
has
discharged
the
onus
resting
upon
him
or
her
in
terms
of
section
60
(11)
(a)
of
the
CPA.
[1
3
]
I
n
S v Botha
en 'n ander
[4]
the court held
that "
i
n
the context
of s 60 (1
1
)
(a) of the CPA, the strength of
the State's
case has been held
to be
relevant
to the existence of
'
exceptional
circumstances'
.
A weak
state case
will not
necessarily
result
in
the
granting
of ba
i
l.
On
the
other
hand, a
strong state case
will not
necessari
l
y
result
i
n
the refusal
of bail.
[14]
Bearing in mind the appellants' right to freedom which should not be
unnecessarily restricted, I am satisfied that the court
a quo
correctly found that the appellants had not shown cause of the
existence of exceptional circumstances justifying their release on
bail in the interest of justice. No evidence has been adduced showing
that the Magistrate who had the discretion to grant bail
on the new
facts exercised that discretion incorrectly.
[15]
Therefore, in view of the fact that no evidence was adduced to show
that the Magistrate had misdirected herself, I am satisfied
that she
had correctly assessed the totality of the evidence on a balance of
probabilities in coming to the decision to deny the
appellants bail.
[16]
Accordingly the appeal should fail.
[17]
In the result, the order I make is that the appeal against the order
of the court
a
quo
to refuse to admit the
appellants to bail is dismissed.
MOKOSE J
Judge
of the High Court
of
South Africa
Gauteng
Division,
Pretoria
For
the First Appellant:
Adv
Mohohlo instructed by
Phehello
Modise Attorneys
For
the Second Appellant:
Adv KN Dhlakama
instructed by
Mtumtum
Inc
For
the Respondent:
Adv
LA More instructed by
The
Director of Public Prosecutions Pretoria
Date
of Hearing: 21 April 2021
Date
of Judgement: 6 May 2021
[1]
1
999
(
4
)
SA 624
(CC) at paragraphs 75 - 76
[2]
S
v
Viljoen
2002 (2) SACR 550
at 561F-G
[3]
2004 (2)
SACR 242
(C)
[4]
2002 (1) SACR 222
at para 21