About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2021
>>
[2021] ZANCHC 44
|
|
Pienaar and Another v S (CA & R 40/2021) [2021] ZANCHC 44 (8 October 2021)
Reportable:
YES/NO
Circulate
to judges: YES/NO
Circulate
to magistrates: YES/NO
Circulate
to Regional Magistrates: YES/NO
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No: CA & R 40/2021
Heard:
28/09/2021
Delivered:
08/10/2021
In
the matter between:
GEORGE
PIENAAR
First Applicant
ELTON
NOAH
Second Appellant
and
THE
STATE
Respondent
JUDGMENT
ON BAIL APPEAL
Mamosebo
J
[1]
This appeal
is against the refusal by Magistrate K Padayachee in Kimberley to
admit the appellants to bail on 06 August 2021. The
first appellant,
Mr Pienaar, was arrested on 23 July 2021 and the second appellant, on
26 July 2021 on a charge of robbery with
aggravating circumstances.
The appeal is brought in terms of s 65(l)(a) of the Criminal
Procedure Act, 51 of 1977 (the CPA).
[1]
The State is opposing
the
appeal.
[2]
Section 65(4) of the CPA stipulates:
"(4)
The court or judge hearing the appeal shall not set aside the
decision against which the appeal is brought, unless such
a 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 [or her]
opinion the lower court should have given."
[3]
The
appellants are represented by Adv. MMA Mafaro while the State is
represented by Adv. SK Weyers-Gericke. It is common cause that
the
bail application resorts under Schedule 6 of the CPA. The appellants
bore the
onus
to
persuade the Court that exceptional circumstances exist which in the
interests of justice permit their release
on bail.
[2]
[4]
Before Magistrate Padayachee the appellants did not testify, but
opted
to file affidavits in support of their bail application. In
opposing the application the State led the evidence of the
investigating
officer, Sgt Neil Jacobs, attached to the Organised
Crime Unit. The record of proceedings of the bail hearing forms part
of the
bail appeal.
[5]
What falls for determination is whether the decision of the
Magistrate not to admit the appellants to bail was wrong.
[6]
The appellants contend that there was a misdirection on the
part of the Magistrate in refusing them bail. The grounds set out in
the Notice of Appeal are that the Magistrate erred:
6.1
In finding that the State has a
prima facie
case
against the second appellant;
6.2
In not placing any value on the inadmissible evidence relating
to the second appellant;
6.3
In finding that the personal circumstances of the first
appellant do not qualify as exceptional circumstances;
6.4
In its finding that inadmissible evidence may be cured by
investigations; and
6.5
In failing to properly consider the factors listed ins
60(4)(a) to (e) and ss (9) of the CPA.
[7]
The following was considered by the Court
a quo
on
behalf of the first appellant: He is 42 years old, unmarried with
eight (8) children. He is self-employed, running a tavern and
courier
services. His highest academic qualification is Grade 12. He has a
previous conviction of theft for which a suspended sentence
was
imposed in 2020. On the day of the alleged robbery he travelled from
Upington to Kimberley to buy motor vehicle parts for the
VW Golf
hired by his girlfriend. He drove to Boshof and picked up hitchhikers
along the way. He can afford to post bail of R500.00.
If realised on
bail he would support his family; manage his business; undergo a
covid-19 test and consult with his legal representative.
He also
believes the investigations are going to take long.
[8]
The second appellant is 40 years old, married with six (6)
children. He is not gainfully employed but does casual jobs. His
highest
academic qualification is Grade 12. He has a previous
conviction of theft for which he was sentenced to 6 years direct
imprisonment
in 2015. He denies any involvement in the case of
robbery with aggravating circumstances. He can afford to post bail in
the amount
of R500.00. He denies knowing the first appellant and only
met him in the police cells. He did not wish to comment on the merits
of the case.
[9]
The evidence of the State is briefly the following: The
complainant in the robbery case, Mr Lucky Mkhize, was transporting
three
boxes of concentrated diamonds in a bakkie from Upington to
Kimberley when he noticed that he was being followed at the Boshof
Road. According to the Tracker reports the appellants had been
following the complainant from Boshof. The bakkie following him had
blue lights on and signalled to him to pull over from the road, which
he did. Two armed men emerged from a VW Golf and boarded
his vehicle,
sandwiching him. When they reached the Eskom turn off they tied him
up, took off with the three boxes, his firearm,
wallet, cash,
driver's and firearm licenses and bank cards.
[10]
Sgt Neil Robert Jacobs testified that the appellants were linked to
the robbery through CCTV footage. The hired Golf VW was
traced back
to the first appellant. His house was searched by the forensic
members of the South African Police Services and mining
sand was
found on the floor. The complainant has identified both appellants
through photo identification. The State was still awaiting
copies of
the video footage, DNA results, cellphone records and statements from
other witnesses. Sgt Jacobs believes the State's
case is strong
against both appellants and that further arrests were expected.
[11]
According to Sgt Jacobs, should the appellants be released, they may
interfere with the investigation and
the state witnesses. The
firearms, blue lights and the police uniforms have not been
recovered.
[12]
The Magistrate found Sgt Jacobs to be a credible witness and was
satisfied that the appellants have a case
to answer to. In
considering the likelihood whether the appellants would, if released
on bail, commit a Schedule 1 offence, the
Court answered in the
affirmative; regard also being had to their previous convictions. A
further concern related to the missing
firearms, blue light and
police uniforms posing a risk for the commission of further
offence(s) or destroying or concealing evidence.
[13]
Further considerations by the court a
quo
pertained to the
peace and security of the public against the backdrop of the missing
blue lights, firearms and police uniforms.
The court did not rule out
the possibility of the SAPS members being involved considering the
extent to which the crime was planned
and the nature of its
seriousness. The Magistrate found that the appellants failed to
discharge their
onus
that exceptional circumstances existed
and dismissed their application.
[14]
It is trite
that when a court is required to exercise its discretion to allow a
detained person to bail, it has to balance his or
her right to
liberty against the interests of justice. The correct approach
is
as stated
by
Harcourt
J
in s
v Smith
and
Another
[3]
:
"The
Court will always grant bail where possible and will lean in favour
of and not against the liberty of the subject provided
that it is
clear
that
the
interests
of
Justice
will
not
be
prejudiced
thereby."
See
also S
v
Acheson
[4]
[15]
The
remarks
by
Hefer
J
in 5
v
Barber
[5]
are
apposite:
"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.
Accordingly, although this Court may have a different view, it should
not substitute its own view for that of the magistrate because
that would be an unfair interference with the magistrate's exercise
of his discretion. I think it should be stressed that, no matter what
this Court's own views are, the real question is whether
it can be
said that the magistrate who had the discretion to grant bail
exercised that discretion
wrongly."
[16]
Mr Mafaro,
invoking S
v
DV
[6]
,
contended
that based on the
appellants'
personal circumstances, that some doubt pertaining to the
State's
case,
and
how
long
the
investigation
might
still
take
to reach
completion, considered cumulatively, make up exceptional
circumstances.
Counsel further urged the Court to take into account
the
concession
by the
State at
para
38 of its
heads of
argument
that
the
Magistrate had erred by refusing bail because
"there
is a
likelihood
that the applicant",
who
is not specified in the heads,
"if
released
on
bail
may
endanger
his
own
safety
or
the
safety
of
the
public".
Ms
Weyers-Gericke
submitted
that
this
concession
was
an
error
and
should
not
have
been
made. The
ConCourt
has
already
decided in
Matatiele
Municipality and Others v President of the RSA
and
Others
[7]
that
the
court
is
not
bound
by
a
concession
by
counsel
erroneously
made. See
Azanian
Peoples Organisation {AZAPO) and
Others
v
President
of
the
Republic
of
South
Africa
and
Others
[8]
•
[17]
The
following pronouncements by the Supreme Court of Appeal in
S
v Scott-Crossley
[9]
are
insightful:
"[7]
The prospects of success does not in itself amount to exceptional
circumstances as envisaged by the Act
-
the Court must
consider all relevant factors and determine whether individually or
cumulatively they constitute exceptional
circumstances
which
would
justify
his
release
(S v Bruintjies
[2003 (2) SACR 575
(SCA)]). In evaluating the prospects of success it is not the
function of this Court to analyse the evidence in the Court a quo
in
great detail. If the evidence is extensively analysed it would become
a dress rehearsal
for the
appeal
to follow: cf
S v
Viljoen
2002
(2) SACR 550
(SCA)([2002]
4 All SA 10)at
561g-i.Findings
made at
this stage might also
create an untenable situation
for
the
court hearing
the
appeal on the
merits."
[18]
The
appellants' reasons advanced for bail to be granted, even if taken
cumulatively, do not amount to exceptional circumstances
for purposes
of s 60(11)(a). Mindful that
'exceptional
circumstances'
have
not been defined in the legislation, however, in
S
v Petersen
[10]
the
court held that 'exceptional' is indicative of something unusual,
extraordinary, remarkable, peculiar or simply different. Mr
Mafaro
also argued that Covid-19 constitutes an exceptional circumstance.
Covid-19 is indeed a global pandemic with devastating
effects but it
cannot be a free ticket to lawlessness either. The relevant
authorities in all workplaces, including the prisons
and police
stations, have a constitutional obligation to promote occupational
health and safety standards. Testing for Covid-19
and receiving
vaccination can also be administered at police stations and prisons.
To merely state that bail must be posted for
the appellants without
any
context
is
unprincipled.
[19]
I am not persuaded that the Magistrate misdirected herself in
refusing to admit appellants to bail. The Magistrate
has considered
all factors placed before her. Even cumulatively they do not
constitute exceptional circumstances. The SCA further
said:
"[12]
As far as the appellant's personal circumstances are concerned, they
are commonplace and not out of the ordinary."
[20]
It follows, therefore, that the Court
a quo
correctly
dismissed their application for bail.
The appeal cannot succeed
and stands to be dismissed.
[21]
Resultantly, I make the following order:
The
appeal is dismissed.
M.C.MAMOSEBO
JUDGE
OF THE HIGH COURT
NORTHERN
CAPE DIVISION
For
the Appellants:
Adv. M.M.A Mafaro
Instructed
by:
Mr KL Juries
For
the Respondent:
Adv. S.K Weyers-Gericke
Instructed
by:
The Office of the DPP
[1]
Section 65(1)(a) stipulates: "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."
[2]
Section 60(11)(a) of the CPA
[3]
1969 (4) SA 175
(N) at 177E- F.
[4]
1991 (2) SA 805 (NMHC)
[5]
1979 (4) SA 218
(D &CLO) at 220E - F
[6]
2012 (2) SACR 492
(GNP) at para 8
[7]
2006 (5) SA 47
(CC) at para 67
[8]
[1996] ZACC 16
;
1996 (4) SA 671
(CC) at para 16
[9]
2007 (2) SACR 470
(SCA) at paras 7 and 12
[10]
2008 (2) SACR 355
(C) at para 55