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[2019] ZALMPPHC 6
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Mdhluli v S (BA23/18) [2019] ZALMPPHC 6; 2020 (1) SACR 98 (LP) (10 January 2019)
IN THE HIGH COURT
OF SOUTH AFRICA
(
LIMPOPO
HIGH COURT
)
POLOKWANE
CASE
NO
: BA23/18
DATE
:
10/01/2019
In the
matter between
PRINCE GIFT
MDHLULI
Applicant
and
THE
STATE
Respondent
BEFORE THE HONOURABLE MADAM JUSTICE SEMENYA
JUDGMENT
SEMENYA
(J)
:
This is an appeal against the decision of the Praktiseer
magistrate
to refuse to admit the appellant on bail. The appellant
is charged with five counts, two of which are of
robbery with
aggravating circumstances as envisaged in
Section 1
of the
Criminal
Procedure Act 51 of 1977
, one of possession of a firearm without a
license and one of unlawful possession of ammunition, the last being
one of attempted
murder.
The test to be applied at this stage has been
enunciated as follows in
S v Barber
1979 (4) SA 218.
“
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.”
In the initial application the court was called
upon to determine whether the appellant has discharged his onus of
establishing
on a balance of probabilities that exceptional
circumstances exist that justifies his release on bail as envisaged
in
Section 60(11)(a)
of the
Criminal Procedure Act.
It
is trite that the main consideration in an
application for the admission to bail is whether the appellant would
not defeat the
ends of justice by evading his trial. The
personal circumstances of the appellant placed before the court is
the following:
The appellant was 28 years old, unmarried with two
children. He was running businesses of three taverns, a
shop and
a plumbing and tiling business. He was living with his
girlfriend. He further owned cars and fixed property in South
Africa.
This evidence was to a larger extent confirmed by
the investigating officer. The appellant further testified that
he has a
previous conviction of statutory rape. He was on
parole as at the date of his arrest. He was on a Level C, which
according
to him, meant that parol conditions were no longer
stringent.
The appellant admitted that he used to travel
between Mozambique and South Africa and had alleged that he was out
of the country
as at the date on which the offences were allegedly
committed. He stated that he will stand his trial in order to
proof his
innocence and that the state has a week case against him.
The respondent’s evidence, as placed before
the court during the bail application by the investigating officer,
was that the
appellant is untrustworthy in that according to the
affidavits deposed to by the Home Affairs official the appellant left
the country
on the 8
th
of March and it appears to them that he is supposed to have still
been in Mozambique as at the date of the incident according to
the
records.
The investigating officer further testified that
the house that the appellant referred the police to was not his own
property but
that of his girlfriend who informed the police that she
is indeed staying with the appellant.
The investigating officer confirmed that the
appellant was once arrested on two separate cases and that he
attended court regularly
until the cases were withdrawn.
The police officer testified that the appellant is linked to the
commission of the
offences in this matter by means of fingerprints
which were lifted on the getaway vehicle which was said to be a
Volkswagen Amarok.
He testified to the effect that this Amarok was
robbed from its owner on the 14
th
of March. The investigating officer further testified that the
appellant breached his parole conditions in that he travelled
outside
the country when he was not allowed to do so in terms of the parole
conditions.
He testified that he was in possession of the
affidavits deposed to by the officials from the Department of Home
Affairs with regard
to the records of the appellant’s movement
in and out of the country, as well as an affidavit deposed to by an
official from
the Correctional Services with regards to the condition
of parole.
It is of note that the affidavits by the two
officials from the Home Affairs and the Correctional Services
Department were not handed
in as evidence during the bail
application. The magistrate on her own accord called the
officials of the two departments
to come and testify.
In her judgment she justifies this decision on the
provisions of
Section 60
and on the decided case of
David
and Others v S
(288/15) ZAKZDHC.
The official from the Home Affairs Department testified that their
records show that the stamps
on the appellant’s passport are
fraudulent in that they do not conform to those prescribed by the
department.
It is these stamps that, according to the
official, showed that the appellant travelled between South Africa
and Mozambique between
March and May 2018.
She stated that the only valid stamp on the
appellant’s passport is the stamp that was dated the 8
th
of March 2018 which indicated that the accused exited South Africa
and travelled to Mozambique. She testified that
the fonts
on the stamps that appear on the appellant’s passport on the
dates after the 8
th
of March 2018 are different from the fonts of the stamps prescribed
by the Department of Home Affairs in South Africa.
It is evident from the magistrate’s judgment
that she placed more emphasize on the evidence of the Home Affairs
official in
her reasons for refusing to admit the appellant on
bail. It was argued on behalf of the appellant that the
evidence
of the witnesses called by the court should be ignored as it
was improperly placed before the court.
It was argued that according to their
interpretation
Section 60(3)
enjoins the magistrate to order either
the state or the prosecutor or the defence to place further
information on record and not
for the court to do so
mero
motu
. It was submitted that
the
Criminal Procedure Act gives
a judicial officer discretion to
call witnesses only during trial and not during bail application.
The appellant’s argument that the magistrate
overstepped her powers in calling the two witnesses is base on the
provisions
of
section 60
of the CPA.
Section 60(2)(b)
and
(c) provides as follows:
“
(2) In bail
proceedings the court-
(b)
may,
in respect of matters that are not in dispute between the accused and
the prosecutor, acquire in an informal manner the information
that is
needed for its decision or order regarding bail;
(c)
may,
in respect of matters that are in dispute between the accused and the
prosecutor, require of the prosecutor or the accused,
as the ‘case
may be, that evidence be adduced;”
Section 60(3)
which should be read together with
Section 60(2)(b)
and (c) provides as follows:
“
(3) If the court is
of the opinion that it does not have reliable or sufficient
information or evidence at its disposal or that
it lacks certain
important information to reach a decision on the bail application,
the presiding officer shall order that such
information or evidence
be placed before the court.”
I tend to agree with the appellant’s
interpretation of the two sections. In these sections the
duty of the judicial
officer is clearly to order the prosecutor or
the accused to place sufficient information before it so that it can
be in a position
to make a just decision.
The judicial officer is not empowered, on his or
her own accord, to call witnesses so as to place the necessary
information or evidence
before it. A comparison between
the above sections and
section 186
of the CPA will make this point
more evident.
Section 186
empowers a court to subpoena a witness
during the course of trial for the purposes of clarifying certain
aspect of the evidence
that is already n record. Same cannot be said
with regard to
section 60(2)
and (3). These sections expressly
provide that such information must be placed on record by the State
or the accused.
The respondent’s argument that the
magistrate’s decision cannot be faulted is rejected.
It is clear that
the witnesses were not merely called to clarify
issues but were called to add more flesh to the skeleton that
constitute the evidence
of the state or that of the investigating
officer.
I agree that such evidence should be ignored.
I further agree that the evidence deposed to by the two officials of
the Home
Affairs Department and the Correctional Services Department
should be ignored. It was not properly placed before the
court as the magistrate acted outside her powers as envisaged in
Section 60(2)
and (3) of the CPA.
I will therefore disregard their evidence, in
particular, the evidence of the official of the Home Affairs
Department with regard
to the stamps that appears on the passport of
the appellant.
The magistrate’s further reason to refuse bail was based on the
strength of the state case against the appellant.
The magistrate found that the state has managed to
proof that the fingerprints, which were lifted from the getaway
vehicle, the
Volkswagen Amarok, match those of the appellant.
This finding is found to be without merits. The concession made
by counsel for the respondent is that, as at the date of the
application for bail, certain fingerprints were lifted from the
Amarok
vehicle but that comparison of those fingerprints with those
of the appellant was not yet done.
That she is however in possession of the results
of the comparison and that some of the fingerprints lifted from the
car were found
to match those of the appellant in this matter.
I cannot consider such evidence coming from the bar.
Nothing precluded the respondent from bringing an
application for the leading of further evidence during appeal.
It is evident
that the so-called evidence of fingerprints is the only
evidence that the state is relying on or relied on during bail
application.
I find that this, on its own, proves that as at
the date of the applicant for bail the state did not have a strong
case against
the appellant in this matter in that, although the
fingerprints were lifted from the vehicle, they had not yet being
compared with
those of the appellant in this matter and the court’s
finding that they matched is misguided.
There is no evidence on record that proved that
the appellant is a flight risk. The common cause evidence is
that, despite
his ability to travel between South Africa and
Mozambique, be that legally or illegally, the appellant continued to
attend court
until his two previous cases were withdrawn.
I have no evidence to the effect that he will fail
to do the same in this instant matter. The magistrate did not
make any
determination with regard to the factors relevant in terms
of
Section 60(4)
(a), (c), (d) and (e). I am not called upon to
do so at this stage. In any event there is no evidence to guide me in
that
regard. The evidence of the parole officer did not
take the matter further. He conceded that he is not the
officer who was allocated the duties of monitoring the movements of
the appellant while he was on parole.
Of importance is his concession that the appellant
was never arrested for breach of any of the parole conditions until
he was arrested
in respect of this matter. With regard to
the fairness of the proceedings in the Magistrate’s Court the
court
will have to refer to the sentiments raised by Nugent J A, as
he then was, in the case of
S v Mabena
and Others
2007 (1) SACR 428
(SCA) in
which he stated the following:
“
And while a judicial officer is entitled to
invite an application for bail, and in some cases is even obliged to
do so, that does
not make him or her a protagonist. A bail
enquiry, in other words, is an ordinary judicial process, adapted as
far as needs
be to take account of its peculiarities, that is to be
conducted impartially ‘and judicially and in accordance with
the relevant
statutory prescripts.”
I fail to find any impartiality in the manner in
which bail application proceeded in the Magistrate’s Court,
more in particular
in the manner in which the judicial officer in
that application interpreted the provisions of
Section 60(3)
and used
that interpretation to call the two witnesses, that is the officials
of the Department of Home Affairs and Correctional
Services.
I am of the view that the argument raised by the
appellant in this matter that the magistrate in so doing prejudiced
the appellant
in this matter holds water. The evidence of the
official of Home Affairs Department misguided the magistrate in
arriving
at a conclusion that the appellant is a person who cannot be
trusted.
I am of the view that she, although not
categorically stated, found that the evidence proves that the alibi
the applicant is able
to move between the two countries illegally.
Although this is not expressly stated by the magistrate, an inference
in that regard
may be drawn from the findings made by the magistrate
in the bail application.
I agree with appellant’s submission that, at
this stage of the bail application, the court cannot enquire into the
validity
of the defence that the accused intends to rely on in
ensuing trial. Whether the intended defence of alibi, which the
appellant
in the evidence in chief stated that he will rely on during
the trial will succeed or not, should be left to the decision of the
trial court.
I find that the magistrate misdirected herself in
relying on the evidence of the officials of the Department of Home
Affairs and
the evidence of the official of the Department of
Correctional Services in her finding that the appellant in this
matter should
not be admitted to bail.
I further find that there is no evidence to
justify the Magistrate’s Court finding that the appellant in
this matter is a
flight risk. On the contrary the evidence which
appears to be common cause proves that he is a person who attends
court on each
and every date and time as he shall be ordered to do so
by a court of law.
I find that this is a case where the exercise of
the discretion by the magistrate can be interfered with as stated in
S v Barber
cited in above. I further find that I can replace the order of the
magistrate, which is the refusal to grant the appellant bail,
with an
order that the accused should be admitted to bail.
ORDER
I therefore order that the appellant in this
matter is
ADMITTED TO BAIL IN THE AMOUNT
OF R2 000.00 (TWO THOUSAND RAND)
.
--------------
SEMENYA
(J)
:
Is there a problem with the recording machine?
STENOGRAPHER
:
[indistinct].
SEMENYA
(J)
:
It is ordered, I am told that what I said with regard to
the order is
not audible.
It is ordered that the appellant is
ADMITTED
TO BAIL IN THE AMOUNT OF R2 000.00 (TWO THOUSAND RAND)
subject to the ordinary condition that he shall attend court on each
date on which he shall be required to appear until the matter
is
finalized.
MV SEMENYA
JUDGE
OF THE HIGH COURT, POLOKWANE, LIMPOPO DIVISION
ON BEHALF OF THE APPELLANT:
ADV. A CAMBELL
ON BEHALF OF THE
STATE:
ADV.
MC MOLEPO