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[2021] ZAMPMBHC 50
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Shongwe v S (A41/2021) [2021] ZAMPMBHC 50 (29 October 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
Policy
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(MPUMALANGA DIVISION,
MBOMBELA)
CASE
NO: A41/2021
REPORTABLE: NO
OF INTEREST TO OTHER
JUDGES: YES
REVISED: YES
29/10/2021
In
the matter between:
KHOLIZWE
MASINA
SHONGWE
Appellant
and
THE
STATE
Respondent
JUDGMENT
MASHILE
J:
INTRODUCTION
[1]
This bail appeal emanates from Barberton Magistrate’s Court
where the Appellant
is charged with unlawful possession of a firearm
and murder. The appeal follows on the Court
a quo
per
Magistrate Ngcanga’s refusal to admit the Appellant to bail.
The apprehension and subsequent detention of the First Appellant
derived from the factual background that I will describe later below.
GROUNDS
OF APPEAL
[2]
The Court
a quo
is said to have erred in finding that the Appellants has not
discharged the onus to show that:
2.1
There are exceptional circumstances and interest of justice which
permit for his release
on bail more specifically the following:-
2.1.1
that he will not interfere with state
witnesses;
2.1.2
That he will not
jeopardise
the functioning of criminal justice system;
2.1.3
That he will not evade trial.
2.2
The Court
a
quo
erred in finding that there is a
strong case against the Appellant;
2.3
The Court
a
quo
erred in over emphasizing the
previous convictions of the Appellant and using them to deny him
admission to bail;
2.4
The Court
a
quo
erred in paying more attention to
the seriousness of the allegations and downplayed whether or not the
Appellant would attend his
trial until finalized if he were to be
released on bail.
FACTUAL
MATRIX
[3]
The Appellant claimed that he had just finished talking to a friend
when he was suddenly
surrounded by police officers pointing firearms
at him. The police ordered him to lie down and not to look at them.
They informed
him that they were looking for a firearm whereupon they
commanded him to take them to his place of residence where they were
intending
to search for a firearm. No one had the key to his place of
residence consequently the police officers broke down the door,
combed
the place but could not find the firearm that they wanted.
[4]
Upon finding nothing of interest to them, they demanded to see his
vehicle. He advised
them that he did not own one but nonetheless
showed them his wife’s vehicle in which they demonstrated lack
of interest.
They demanded that he accompany them to the place where
he was arrested. On arrival, he noticed that there were other police
officers
surrounding his ‘bakkie’ motor vehicle. The
vehicle was not locked and one of the police officers opened it. A
search
of the vehicle ensued resulting in a discovery of a firearm
inside.
[5]
The Appellant has previous convictions of one murder, six armed
robberies, six possession
of unlicensed firearms and one
housebreaking. He was arrested in 2004, tried, convicted and
sentenced in 2007. He does not have
any pending cases. The Appellant
admitted that he was on parole having been placed thereon by the
Parole Board and deported to
eSwatini. The parole had not been
revoked yet because he has not been tried and found guilty. As such,
he remains on parole.
[6]
The Appellant gave his address in South Africa as Stand Number
[....], Delile Section,
Lehau, Msogwaba Trust. The Appellant also
claimed that he had relatives in eSwatini. He told the Court
a quo
that his father was born in eSwatini. His aunts still live there but
his grandfather has since died. He claimed that he had never
lived in
eSwatini but that he would normally visit. He holds no passport for
either South Africa or eSwatini. On those occasions
that he visited
eSwatini, he did so by applying for a temporary permit at the border,
which has always been granted without difficulty.
[7]
He spent most of his elementary years in eSwatini herding cattle. He
and others would
occasionally cross over to South Africa through
Mashobane for greener pastures for their cattle at Jeppe’s
Reef. He estimated
the population of eSwatini to be approximately
above one million. He was able to name four biggest cities in
eSwatini. He was,
however, unable to name number of national roads
that eSwatini has.
[8]
He claimed that his rights were not read to him when he was arrested.
He did not make
any statement to the police preferring to consult
with his attorneys first. His explanation for his parole and
deportation was
that he deliberately withheld his parents’
address from the authorities because his parents had died and his
siblings were
at each other's throats over matters of inheritance.
Given those circumstances, he thought eSwatini would be the best
option for
him. The Appellant has two surnames
albeit
that he
clarified that his actual surname is not Masina but Shongwe.
[9]
Subsequent to his arrest, the Appellant was pointed out at an
identification parade
as the perpetrator of the murder with which he
is charged. Furthermore, the State claims that it has recordings of
the Appellant
conspiring to commit murder. The State, through the
investigating officer, asserted that the Appellant knows the State
witnesses
involved in this matter and that he was likely to interfere
with them if admitted to bail.
[10]
The Court
a quo
was alive to the fact that for the Appellant
to succeed with his bail application he had to show the existence of
exceptional circumstances.
Finding that the Appellant had failed to
establish the existence of exceptional circumstances, the Court
a
quo
had the following to say:
“
Then
to determine that the court has to consider one if the accused person
has got pending cases, previous convictions, nature of
the said
previous convictions, he has got a fixed address, employment. And
also consideration in certain circumstances has to be
made to the
effect that if the said accused will stand his trial and also aspects
pertaining to the fact that he will not interfere
with the due
administration of justice which will entail interference with the
investigation. Intimidation of witnesses and all
aspects related to
the due administration of justice.
Coupled
with that important considerations have to be also if the strength of
the state case is there and to what extend the said
strength of the
state case is so viewed that it by the court. That will be determined
obviously from the evidence which the prosecutor
brings through the
investigating officer as we have seen that has been the case.
Now applicant or accused in this case he has
got previous convictions and those previous convictions they involved
violence. It
is alleged that he has got a murder and some robbery
previous convictions and illegal possession of firearms. And evidence
has
been brought before the court that the accused was allegedly seen
by a witness when he was committing the offence. And it has also
been
alleged that accused is further connected to the offence through
cellphone recordings which apparently had to do with the
execution or
even the planning of the offence in question.
Now
evaluating all these aspects which I have mentioned in summary form
and of importance considering the evidence brought forward
that is by
the accused himself and also his witness who is alleged to be his
wife, the state submission also being its evidence
the court is of an
opinion that exceptional circumstances do not exist which will
justify the release of this accused.”
The
above factual background is the essence of what led the Court
a
quo
to refuse to admit the Appellant to bail.
ISSUES
[11]
Since this is a Schedule 6 Offence, the issue becomes one of
determining whether or not the Appellant
has demonstrated exceptional
circumstances warranting that he be admitted to bail. As correctly
pointed out by the Court
a quo
,
a court decides that question by reference to the factors referred to
by the Court
a quo
in the above quoted passage of its judgment. Additionally, I shall
traverse the grounds of appeal to establish whether or not they
constitute valid misdirections as alleged by the Appellant. Before
considering the grounds of appeal however, I need to lay out
the
brief assertions of the parties.
ARGUMENT
[12]
The Appellant contended that his apprehension and subsequent refusal
by the Court
a quo
to admit him to bail constitute some form
of pre-emptive punishment, which was rejected in
S v Acheson
1991
(2) SA 805
(Nm).
The correct position, argued the Appellant, is
that an accused person is presumed innocent until proved guilty. A
natural corollary
is that as a rule, courts will grant bail to
accused persons.
[13]
The Appellant stated that the investigating officer gave inconsistent
testimony in court. The
investigating officer said that the Appellant
had told him that the firearm was locked inside his vehicle and that
the key to the
vehicle was in his possession. Given that information,
the investigating officer chose to go to the Appellant’s place
of
residence where he conducted a search whilst knowing that the item
that he was searching for was inside the Appellant’s vehicle.
[14]
The Appellant argues further that the Court
a quo
could not
have found that the case of the State was strong. The Appellant says
the aforesaid must be so because he was only charged
with murder
subsequent to being singled out at an identification parade. Without
the identification parade, the State would not
have had a strong case
of murder against the Appellant.
[15]
The Appellant also attacks the testimony of the investigating officer
that he has a mobile phone
recording of the Appellant conspiring to
commit murder. The Appellant’s condemnation of that evidence is
incredibly that
that the deceased is not mentioned as the person
against whom the conspiracy was to be executed. It appears that the
Appellant
does not deny that there was a plot to kill someone but he
argues that the State has failed to show that it is the deceased that
he was planning to exterminate.
[16]
The Court
a quo
’s decision is also impugned on the
ground that it put undue weight to the previous convictions of the
Appellant. These previous
convictions played a significant role in
the Court
a quo
refusing bail whereas they should not have
been used to determine whether or not there were exceptional
circumstances suitable
for release. The Court
a quo
has failed
to consider whether or not the Appellant, if admitted to bail, will
attend trial until finalization of the matter.
[17]
On the other hand, the State has contended that the Court
a quo
has considered all the relevant factors, which the Appellant says it
has failed to take into account before refusing the bail.
The Court
a
quo
determined that the State indeed has a strong case against
the Appellant. This is inextricably connected to whether or not the
Appellant will attend his trial until finalized, if released on bail.
Coupled with the aforegoing is the fact that, on the Appellant’s
own version, he commutes between eSwatini and South Africa illegally
and with ease. Overall, the judgment of the Court
a quo
is
unassailable. The Appellant has failed to show how the Court
a quo
erred in law and on the facts placed before it at the time when it
made the decision, concluded the State.
LEGAL POSITION
[18]
To the extent that the Appellant finds himself aggrieved by the
decision of the Court
a quo
to deny him bail,
Section 65(a)
of
the
Criminal Procedure Act, 51 of 1977
, is pertinent and ought to be
the starting point. It provides that:
“
A
n
accused who considers himself aggrieved by the refusal by a lower
court to admit him to bail or by imposition by such court of
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 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.”
[19]
Section 65
(4) provides that:
“
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.”
[20]
Section 60
(11) (a) provides that:
“
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 exist which in the
interests of justice permit his or her release;”
[21]
Section 60(4)
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 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 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; or [sic]
(1)
In considering whether the
ground in subsection (4) (a) has been established, the court may,
where applicable, take into account
the following factors, namely-
(a)
the degree of violence
towards others implicit in the charge against the accused;
(b)
any threat of violence which
the accused may have made to any person;
(c)
any resentment the accused is
alleged to harbour against any person;
(d)
any disposition to violence
on the part of the accused, as is evident from his or her past
conduct;
(e)
any disposition of the
accused to commit offences referred to inSchedule1, as is evident
from his or her past conduct;
(f)
the prevalence of a
particular type of offence;
(g)
any evidence that the accused
previously committed an offence referred to in Schedule 1 while
released on bail; or
(h)
any other factor which in the
opinion of the court should be taken into account.
(2)
In considering whether the
ground in subsection (4) (b) has been established, the court may,
where applicable, take into account
the following factors, namely-
(a)
the emotional, family,
community or occupational ties of the accused to the place at which
he or she is to be tried;
(b)
the assets held by the
accused and where such assets are situated;
(c)
the means, and travel
documents held by the accused, which may enable him or her to leave
the country;
(d)
the extent, if any, to which
the accused can afford to forfeit the amount of bail which may be
set;
(e)
the question whether the
extradition of the accused could readily be effected should he or she
flee across the borders of the Republic
in an attempt to evade his or
her trial;
(f)
the nature and the gravity of
the charge on which the accused is to be tried;
(g)
the strength of the case
against the accused and the incentive that he or she may in
consequence have to attempt to evade his or
her trial;
(h)
the nature and gravity of the
punishment which is likely to be imposed should the accused be
convicted of the charges against him
or her;
(i)
the binding effect and
enforceability of bail conditions which may be imposed and the ease
with which such conditions could be breached;
or
(j)
any other factor which in the
opinion of the court should be taken into account.
(3)
In considering whether the
ground in subsection (4) (c) has been established, the court may,
where applicable, take into account
the following factors, namely-
(a)
the fact that the accused is
familiar with the identity of witnesses and with the evidence which
they may bring against him or her;
(b)
whether the witnesses have
already made statements and agreed to testify;
(c)
whether the investigation
against the accused has already been completed;
(d)
the relationship of the
accused with the various witnesses and the extent to which they could
be influenced or intimidated;
(e)
how effective and enforceable
bail conditions prohibiting communication between the accused and
witnesses are likely to be;
(f)
whether the accused has
access to evidentiary material which is to be presented at his or her
trial;
(g)
the ease with which
evidentiary material could be concealed or destroyed; or
(h)
any other factor which in the
opinion of the court should be taken into account.
(4)
In considering whether the
ground in subsection (4) (d) has been established, the court may,
where applicable, take into account
the following factors, namely-
(a)
the fact that the accused,
knowing it to be false, supplied false information at the time of his
or her arrest or during the bail
proceedings;
(b)
whether the accused is in
custody on another charge or whether the accused is on parole;
(c)
any previous failure on the
part of the accused to comply with bail conditions or any indication
that he or she will not comply
with any bail conditions; or
(d)
any other factor which in the
opinion of the court should be taken into account.
(8A) In considering
whether the ground in subsection (4) (e) has been established, the
court may, where applicable, take into account
the following factors,
namely-
(a)
whether the nature of the
offence or the circumstances under which the offence was committed is
likely to induce a sense of shock
or outrage in the community where
the offence was committed;
(b)
whether the shock or outrage
of the community might lead to public disorder if the accused is
released;
(c)
whether the safety of the
accused might be jeopardized by his or her release;
(d)
whether the sense of peace
and security among members of the public will be undermined or
jeopardized by the release of the accused;
(e)
whether the release of the
accused will undermine or jeopardize the public confidence in the
criminal justice system; or
(f)
any other factor which in the
opinion of the court should be taken into account.”
EVALUATION
[22]
The question thus becomes w
hether or not a
possibility exists that the Appellant will endanger the safety of the
public or any particular person or will commit
a Schedule 1 offence.
The evidence levied before the Court
a
quo
showed that the Appellant has a
predilection to commit violent crimes. This is apparent from his
previous convictions of murder
and a whole string of armed robberies
and possession of unlicensed firearms. I cannot find fault with the
Court
a quo
’s
reference to previous convictions because it did what the CPA
requires. The crimes with which the Appellant was charged
and
convicted are grave and widespread. One only has to take a look at
the criminal roll of this Court to confirm this fact.
[23]
The next issue for consideration is the existence of likelihood that
the Appellant will or will
attempt to evade the attendance of trial
until it is finalized. Here it is important to note that the
Appellant has confessed that
he crosses the border between eSwatini
and South Africa illegally whenever he deems it necessary. Most
disquieting is that he appears
to be a Swazi national, if the fact
that he was placed on parole and deported is anything to determine
this, but he possesses no
Swazi travel documents. It is common course
that he has a South African Identity Book. How did he acquire this
Identity Book because
he would not have been deported to eSwatini if
he had an Identity Book at the time when he was placed on parole. The
conclusion
that it would be difficult to trace him in either country
if released on bail is inescapable.
[24]
Will it be easy for eSwatini to extradite the Appellant to South
Africa in case he is released
on bail and subsequently fails to
attend his trial? It is fairly obvious that eSwatini does not know
the movements of the Appellant
at all especially if his confession of
crossing the border undetected between the two countries back and
forth are true. It is
the opinion of this Court that the State might
hear the last of the Appellant if he were to be admitted to bail.
Moreover, it has
to be taken into account that the offences with
which the Appellant is charged are serious and are likely to attract
long term
sentences such as life, if he is found guilty.
[25]
Perhaps I should add here that the fact that he was pointed out at an
identification parade strengthens
the State’s case as found by
the Court
a quo
. I am at total loss why Counsel for the
Appellant thinks that the State does not have a strong case because
had it not been the
pointing out at a parade, he would not have been
arrested. This is nonsensical. The point is that he was identified at
a parade
and that makes the State’s case strong. The fact that
he was initially arrested for unlawful possession of a firearm and
only thereafter incarcerated for murder as a result of being
identified at the parade is besides the point.
[26]
I note the Appellant’s assertion that the investigating officer
had contradicted himself
when he and his team chose to go to the
place of residence of the Appellant instead of searching the vehicle
said to have a firearm
inside. I am unable to find such
inconsistency. However, it is correct that the investigating officer
opted to commence his search
at the Appellant’s place of
residence and only thereafter did he go to the Appellant’s
vehicle where he discovered
the unlicensed firearm. How this renders
the case of the State against the Appellant untenable and constitutes
a conflict in the
evidence of the investigating officer leave me
confounded.
[27]
The suggestion that the mobile phone recordings of the Appellant
conspiring to kill a person
is not strong evidence militating against
releasing the Appellant on bail is staggering. The mere fact that the
Appellant was heard
on record planning to kill a person is sufficient
to deny him bail it being irrelevant that the person that he intends
to murder
was or was not the deceased. Releasing him on bail while
mindful that intends to kill a person could be irresponsible in the
extreme.
The argument is thus vain and is rejected as devoid of any
merit.
[28]
Whichever way the circumstances of the Appellant are examined, the
indication is that notwithstanding
the Court
a
quo
’s
limited scrutiny of the facts, it was right to refuse bail to the
Appellant. Accordingly, the appeal fails and I make the
following
order:
The appeal is dismissed.
B A MASHILE
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA
This judgment was
handed down electronically by circulation to the parties and/or
parties’ representatives by email. The date
and time for
hand-down is deemed to be 29 October 2021 at 10:00.
APPEARANCES:
Counsel for the
Appellant:
Mr Maseko
Instructed by:
MP Maseko Inc
Counsel for the
Respondent: Adv MB
Marishane
Instructed by:
National Director of Public Prosecution
Date of
Judgment:
29 October 2021