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[2021] ZAGPPHC 354
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Mkhatshwa v S (A112/21) [2021] ZAGPPHC 354 (27 May 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO: A112/21
REPORTABLE:NO
OF INTEREST TO OTHER JUDGES:NO
REVISED
27 MAY 2021
In the matter between:
JULY
EMMANUEL
MKHATSHWA
Appellant
and
THE
STATE
Respondent
JUDGMENT
MSIBI, AJ:
(1)
The appellant launched an initial bail application in the Tshwane
South
district Court (the Court a
quo)
on 20 December 2019.
The application was refused by the Magistrate.
(2)
Subsequent to such refusal, the appellant lodged an appeal to this
Court
against the order of the Court a
quo.
The said appeal
was dismissed by the Honourable Madam Justice Mngqibisi-Thusi on 9
April 2020.
(3)
On 17 February 2021, appellant brought a second bail application
before the Magistrate on what he perceived to be new facts. The court
a
quo
found that he had failed to show the existence of new
facts with the result being that the initial decision remained in
force.
(4)
The appellant before me is appealing against the Magistrate's
decision
that was handed down on 17 February 2021, dismissing his
bail application on new facts. Advocate Pistorius who appeared on
behalf
of the appellant challenged the decision of the Magistrate
while Advocate Marriot, who appeared on behalf of the respondent,
opposed
the appeal.
(5)
The background of this appeal is as follows: The appellant and others
were charged with robbery with aggravating circumstances, the
aggravating factor being the use of firearms. The investigating
officer
Captain Muller, stated in her affidavit that on 28 October
2019, employees of the Fidelity Cash Solutions were accosted by a
group
of 10 armed men while they were busy replenishing a Capitec
Bank ATM at Batho Plaza Shopping Centre in Soshanguve.
(6)
Cash amount R580 000.00 was taken during the robbery. From reliable
information
received, Mr Leotlela who was employed by Fidelity Cash
Solutions and part of the Fidelity crew that were replenishing cash
in
the ATM; was involved in the robbery. After his arrest he made a
confession, which led to the arrest of the appellant. The getaway
vehicle that was used during the robbery was found within the
residential premises of the appellant. It was confiscated by the
police. The appellant thereafter made a pointing out which was
challenged by his attorney, Mr Mapekula, as having been obtained
after he was .assaulted by police. It is common cause that the charge
falls within the ambit of
s 60 (a) read with Schedule 6 of the
Criminal Procedure Act 51 of 1977 (the CPA.
(7)
The appellant had to discharge the onus of exceptional circumstances,
which in the interest of justice would have permitted his release on
bail. The Magistrate was not convinced that the appellant
had
succeeded in proving the existence of exceptional circumstances
justifying his release on bail. She dismissed his application.
NEW FACTS BEFORE THE MAGISTRATE
(8)
During the appellant’s second application for bail on new facts
at page 165 of the paginated file, the appellant stated that he had
contracted asthma while in custody and was not receiving proper
medical care.
(9)
He suffers prejudice due to non-completion of investigations or
delays
in setting the matter for trial, which was aggravated by the
addition of more accused persons in the criminal case against him.
(10) The
SAP 69 records show that he has no previous records.
(11) He
is suffering financially since he can no longer generate the income
that he used to make from
selling clothes with his wife. His wife’s
application for social grants for their children is still pending.
(12) In
response to these facts the prosecutor responded as follows: “
Your
worship
I did get in touch with the arresting officer,
basically what she had explained
was
that
after
bail
was
denied,
investigations
were
finalised. The
matter
was transferred to the Regional court and disclosure was
provided to the defence
attorney:
However,
there
were
outstanding
suspects
who
were
eventually arrested and added to the charge. Hence further
investigations were required
being the 205 cell phone
records, completed cell phone mapping and ballistic reports. Most of
these investigations are because of
the two added accused persons
your worship”.
(13) The
prosecutor further added that Covid 19 has had a negative impact on
the investigations, causing
delays that were out of the ordinary. The
magistrate considered these facts and found that the facts brought
before her were not
new facts and did not prove the existence of
exceptional circumstances. The application on new facts was, on that
basis, dismissed.
(14) I
shall now consider all proceedings in deciding upon the success of
this appeal. Section 65(f)
of the CPA provides as follows:
“
The
court or
Judge hearing the appeal shall not set aside the decision against
which 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 opinion the lower court
should have given”.
(15) In
the appellant’s grounds of appeal on new facts, it was stated
that the Magistrate misdirected
herself in holding that bail on new
facts as well as exceptional circumstances were not established in
terms of
section 60 (11) (a)
of the CPA.
(16) It
was further stated that the learned Magistrate misdirected herself
and erred by stating that
appellant said that he had contracted
tuberculosis and sugar diabetes in prison; whereas there is no
evidence on record where the
appellant made such an allegation.
(17) Further that the
learned Magistrate erred and misdirected herself in not considering
the newly submitted SAP 69
record, which proves that he has no
previous convictions. It is contended, on that basis, that he has not
misled the court in terms
of
Section 60(11)(b) of the Act.
It
was argued that that constituted a new fact.
(18)
Further that the learned Magistrate erred by holding that the
appellant could not rely on the
ground of unreasonable delay in the
finalisation of investigations whereas it was clearly a new fact.
(19) It
was further submitted by counsel on behalf of the appellant that
pre-trial proceedings cannot
be instituted in the Regional Court due
to non-completion of investigations. Counsel submitted that there was
an outstanding J88
in respect of the appellant which was not
disclosed by the state (respondent). Further, that despite the
court’s finding
that he was not a flight risk, he was injured
by police upon his arrest, the court erred in finding that he should
remain in custody
while awaiting the finalisation of the case against
him.
(20)
During the bail appeal proceedings, I was referred an affidavit by
the appellant at page 134
of the paginated record, at para 29 where
he states that he was arrested in this matter after he was implicated
by a detainee Papa
Piet Motsepe. The matter against Mr Motsepe was
never placed on the roll (p 135 para 30).
(21) It
was further argued by counsel on behalf of the appellant that the
court of appeal should consider
all facts cumulatively to establish
the presence of new facts that will prove exceptional circumstances
justifying the appellant’s
release on bail.
(22) In
response to the appellant’s submissions, counsel for the
respondent argued that the
only fact that is new is the appellant’s
SAP 69 record, which shows that he has no previous convictions. In
regard to appellant's
request for a J88 from the state in the court a
quo, counsel submitted that she made a follow up with investigating
officer who
informed her that there is no J88 that was compiled or
obtained in respect of the appellant. Further adding that appellant
has
always been at liberty to be examined by a doctor of his choice
and have a J88 be issued by that doctor. Regarding the non-completion
of the state’s investigations and additional accused, who have
since been arrested and necessitated investigations and disclosure;
counsel for the respondent submitted that those are not new facts but
facts that were raised during the initials bail application
and were
dealt with by the court of the first instance and on appeal. Based on
these facts, the appeal on new facts should be dismissed.
(23) Van
Zyl J in
S v Petersen 2008(2) SACR 355 (c) paras [57] & {58]
remarked as follows:
“
[57] When, as in the
present case, the accused relies on
new facts
which came to the fore since the past, or previous bail
application
the court must be satisfied that such facts
were indeed new and secondly, that they are relevant for purposes of
the new bail application.
They must not constitute simply
a
reshuffling
of
old evidence
or
an
embroidering
upon
it.
See
S
v De Villiers
1996(2) SACR T.
The purpose of adducing new facts
is not to address problems encountered in the previous application or
to fill gaps in the previously
presented evidence.
[58] where the evidence was
available to the applicant at the time of the previous application
but, for whatever reason, was not
revealed, it cannot be relied on in
the
later application as
new
evidence.
See
Le
Roux
1995 (2)
SACR 613
(W) at 622A-B.
If
the evidence
is adjudicated
to
be new and relevant, then
it must be considered
in conjunction with all the
facts placed before the
court in
the previous application.
See
S
v Vermaak 1996(1) SACR 528 T.
Comrie AJA held
in
S v
Van
Wyk 2005 (1) SACR
at 42B-D that “
the
function of
the court on
a
bail application is
to prima facie determine the relative strength of the
state’s
case
and not to make
a
finding of guilt or innocence.
In so far as an accused person does
not receive proper medical attention while on detention, he or she is
entitled to other legal
remedies at her disposal and, in general bail
is not the remedy for the actions and omissions of the prison
authorities. What remains
important is in fact that the restrictions
of his or her personal detention and attendance of the trial are not
ideal for a person.
in a weak physical condition. Naturally, the
interference with his or her personal freedom is an important factor
which must be
given much weight when deciding on the interest of
justice, but the medical condition of the accused must be weighed
against other
factors and must not be considered in isolation.”
(24)
Section 12 (1)(a) of the Constitution of the Republic of South
Africa Act 108 of 1996 (the Constitution),
guarantees everyone’s
right to freedom and security of the person, which includes the right
not to be deprived of freedom
arbitrarily or without just cause. The
Constitution does not create an absolute right to personal freedom.
Liberty is qualified
and circumscribed by
Section 35(1)(f)
which reads as follows:
“
Everyone
who
is
arrested
for
allegedly
committing
an offence
has
the
right ....to be released
from detention if the interests of justice permit, subject to
reasonable conditions”.
(25) The
issue to be decided is whether the appellant has shown or proved the
existence of new facts,
which in the interest of justice, would
justify his release on bail.
(26) I am inclined to
agree with counsel for the respondent that the arrest of additional
accused is not a new fact
which has now delayed pre-trial proceedings
and trial readiness.
(27)
This is a development in this matter which was disclosed by the
investigating officer in the
initial bail application. Under cross
examination by the appellant’s attorney at page 43 of the
paginated record, the investigation
officer conceded that section
205 cell phone records, SAP 69 were still outstanding.
In her affidavit at
page 30, the investigating officer stated
that the suspects who executed the robbery were 10(ten) in number.
The applicants in
the initial bail application were 2(two). The
appellant was not caught by surprise when the state arrested and
added more accused
persons.
(28) The
SAP 69 records submitted in the subsequent bail application on new
facts show that the appellant
has no previous convictions. From the
record of proceedings in respect of the initial bail application,
Captain Shuveri testified
under oath that she found information from
case dockets at Loate and Laudium police stations that appellant had
been convicted
in certain cases, namely, house robbery. convicted on
23 October 2008. He was sentenced to 15years imprisonment. The second
conviction
being one of driving a motor vehicle without a driver’s
license in 2009. He paid an admission of guilt fine of R1000.
(29) She
further stated that in addition to these previous convictions there
are five cases of possession
of unlicensed firearms that were not
placed on the roll. She further testified that he had been discharged
on charges of business
robbery house robbery, and car hijacking. Her
evidence was not disputed. What the appellant did in response
to the evidence
was to submit SAP 69 records that do not reflect
previous convictions.
(30)
After a careful consideration of the bail record, my only reasonable
inference is that the SAP
69 records were not updated by the South
African Police Services.
(31) It
was conceded by counsel for the respondent that when the Magistrate
referred to tuberculosis
and diabetes as appellant’s medical
conditions, it was a human error. According to the submission by
counsel for the appellant,
this is indicative of the fact that the
Magistrate did not apply her mind to the appellant’s medical
condition of asthma,
which is one of the comorbidities that might
compromise his health.
(32)
What is of note is that the learned Magistrate referred to case law.
wherein an appellant’s
HIV positive status was found to be
common place, and not unusual, thus not warranting his release as a
new fact or in the interest
of justice. The dictum in
S v Van Wyk
supra
finds application. I am satisfied that the Learned
Magistrate applied her mind to the medical condition of the
appellant. There
are other legal remedies at the appellant's disposal
to secure proper medical attention while in custody.
(33)
Counsel for the appellant further submitted that appellant was
implicated through a pointing
out which was unconstitutionally
obtained, in that it was recorded in the pointing out notes that he
had injuries. This is one
of the issues that were brought to the
attention of the Magistrate in the initial bail application and
considered on appeal thereafter.
The function of the court in a bail
application is to determine the strength of the state's case not to
make a finding of guilt
or innocence
S v Van Wyk
(supra)
(34) The
investigating officer in her affidavit at page 35 of the bail record
indicated that upon
his arrest, the first accused person, Mr Abraham
Lokela implicated himself and other suspects in this matter. She
never mentioned
Mr Motsepe in her affidavit nor during cross
examination by appellant's attorney. Her version in this regard was
never disputed.
(35) As
stated by
Van Zyl J in S v Peterson
supra
the purpose
of adducing new facts is not to address problems encountered in the
previous application or to fill in gaps in the previously
presented
evidence. The evidence presented by the appellant at the first bail
application is important for purposes of determining
whether the
evidence presented at the new application constituted new facts.
(36) I am not satisfied
that the facts raised by the appellant are new. I am also not
persuaded that the Magistrate's
decision dated on 17 February 2021 is
wrong.
(37) In
the result I make the following order;
The
appeal is dismissed.
M J MSIBI
ACTING JUDGE OF THE HIGH COURT
ON BEHALF
OF THE APPELLANT: ADVOCATE P PRETORIUS
INSTRUCTED
BY MAPEKULA ATTORNEYS
ON BEHALF
OF THE RESPONDENT: ADVOCATE M MARRIOT
INSTRUCTED
BY THE DIRECTOR OF PUBLIC PROSECUTIONS