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[2019] ZAGPPHC 210
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Moloi v S (04/19) [2019] ZAGPPHC 210 (24 May 2019)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
YES
(2)
OF
INTEREST TO OTHER JUDGES:
YES
(3)
REVISED.
CASE NO: 04/19
SH17/19
DATE
OF HEARING: 23 MAY 2019
In
the matter of:
SIPHO
THOMAS MOLOI
APPELLANT
and
THE
STATE
RESPONDENT
JUDGEMENT
N
N Bam AJ
1.
This
is an appeal against the decision of the regional magistrate refusing
bail.
2.
The
record of proceedings demonstrates that the appellant, a 26 year old
man, had been arrested on robbery with aggravating circumstances
read
with
section 51
(2) of the
Criminal Law Amendment Act 105 of 1997
.
The state alleged that the appellant had unlawfully and intentionally
assaulted, using a firearm, two people, at or near Pasta
Road in the
area of Evaton, and stealing their property or property in their
lawful possession to
wit,
two
Nokia mobile phones valued at R3000 and R2600, cash amounting in
total to R5000, airtime vouchers of R4000 and an assortment
of
cigarettes valued at R2000.
3.
Two
more people were said to have been in the company of the appellant at
the time of the offence however, they were still at large
at the time
of the hearing of the bail proceedings in February 2019.
4.
On
11 February 2019, the appellant launched a bail application in the
Regional Court for the Division of Gauteng held at Sebokeng.
In order
to discharge the onus placed upon him by
section 60
(11 (a)
[1]
,
that exceptional circumstances existed and that it was in the
interests of justice that he be granted bail, the appellant testified
that:
a)
He
had a fixed address and had a wife and two children. In addition to
looking after his two children who are 14 and 3, he also
cared for
his neighbor's three children who had lost their father.
b)
He
and his wife are unemployed. They sustain themselves by selling
cooked food from which they make income of about R4000 per month;
c)
He
had no pending cases and, he had once been fined R300 following a
conviction of being found in possession of suspected stolen
property;
d)
He
did not know the witnesses to the case and could therefore not
interfere or intimidate witness/es and had no history of intimidating
state witnesses or interfering with the evidence. He also placed
before the court that he would not unlawfully jeopardize the proper
administration of justice.
e)
He
had no travel documents, he lived in his mother's house and had no
family outside the country and he was therefore not a flight
risk.
f)
As
to the offence with which he has been charged, the appellant denied
knowledge of the offence. He further declined to provide
his plea
explanation proffering to the magistrate that he would like to do so
during trial.
The charge, and the identification
parade
5.
Appellant
however, went on to place before court three issues, suggesting that
the state's case was weak, namely, the charge he
faced when he first
appeared before court and the validity of the identification parade.
Later in cross examination of the investigating
officer, the defence
queried of the appellant's identification by two witnesses leading up
to his arrest.
6.
As
to the charge, appellant raised questions about the charge he first
faced when he appeared in court, which is that of unlawful
possession
of a firearm and ammunition and the investigating officer was
questioned extensively on this by the defence. Although
conceding
that the appellant should have been charged with robbery from the
onset, the investigation officer's view was that it
was only because
he was still busy with the investigations into the charges of
robbery. Regarding the description of the appellant
by the two
witnesses, the investigating officer testified that of the two
witnesses who followed the appellant after the robbery,
one had
actually witnessed the robbery in action, while the second had only
seen the appellant as he passed his salon, which is
next to the
tuck-shop. The witness who had seen the robbery had informed the
arresting officer that the appellant had in his person
airtime,
(referring to airtime vouchers) and a fire arm. As they followed the
appellant on a distance of about 3 kilometers, the
witnesses came
across a marked flying squad vehicle and reported the incident to
that officer. It was the evidence of the investigating
officer that
the witnesses had not only pointed the appellant just as he was about
to board a taxi, but that they had informed
the arresting officer
that the man wearing a black t-shirt, grey jeans and Adidas shoes was
seen walking out of the tuck shop after
a robbery and had a fire arm
on him. The arresting officer followed the taxi and stopped it. He
got inside and searched a man with
a black t-shirt, grey jeans and
Adidas shoes and found a firearm between his thighs. It was common
cause that no airtime and no
money were found on the person of the
appellant.
7.
On
the question of the validity of the identification parade, the
appellant testified that upon being arrested he was taken to the
charge office in Evaton. It appears from the evidence of the
investigating officer that Evaton charge office does not have holding
cells. Appellant testified that he was left to sit for more than two
hours in the charge office. Directly opposite him sat three
people
who identified him during an identification parade on the very next
day. When asked about the issue of the identification
parade and why
it was necessary to hold an identification parade, the investigating
officer testified that he could not testify
about what had occurred
before he got to the police station. That the arresting officer had
informed him that he had taken the
appellant to the charge office and
could neither dispute nor agree with the appellant's testimony
regarding the sitting at the
charge office including who did or did
not see the appellant. As to the reason behind the identification
parade, the investigating
officer said he had received a call from
the Senior Public Prosecutor.
8.
The
appellant was asked to state why he should be granted bail to which
he responded that his children and the wife were struggling
to cope
in his absence. He added that the wife usually attended to the
children and that he was responsible collecting stock. These
then are
the circumstances placed before the court quo for its consideration
of the bail application.
9.
Having
considered the factors adduced by the appellant and taking into
account the strength or otherwise of the state's case, the
magistrate
concluded that the appellant had failed to discharge the onus place
on him in terms of 60 (11) (a) in that he had demonstrated
no
exceptional circumstances which warranted his release on bail.
10.
The law
11.
Section60 (11) (a) of the Criminal
Procedure Act
[2]
provides:
'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, ad duces evidence which
satisfies the court
that exceptional circumstances exist which in the
interests of justice permit his or her release;'
The appellant's case on appeal
12.
Before
this court, counsel for the appellant suggested, in the first
instance, that the learned magistrate had erred in finding
that the
appellant had failed to adduce exceptional circumstances. In support,
counsel pointed that the evidence of the appellant
that there was no
evidence linking him to the commission of the offences in question
could not be refuted. It was further common
cause that the appellant
had not been found with anything on his person that belonged to the
complainant. These grounds when looked
at together weakened the
state's case, argued appellant's counsel.
13.
In
the second instance, it was argued that the learned magistrate erred
in not taking into account the investigating officer's evidence
that
he was not opposed to bail and that he did not consider the appellant
a flight risk. It was further suggested that the decision
by the
state to first charge the appellant with unlawful possession of a
firearm and ammunition instead of robbery pointed strongly
to a very
weak case on the count of robbery. Looked at cumulatively, these
factors amounted to exceptional circumstances, suggested
counsel for
the appellant.
14.
Counsel
for the appellant further reminded the court that the investigating
officer had testified that he had no opposition to the
court granting
the appellant bail, he knew the family of the appellant, had verified
his address, and had confirmed that the appellant
resided with his
wife and children in his mother's house.
15.
With regard to the factors listed in
section 60 (4) (a) to (e) of the Criminal Procedure Act, it was
suggested that the magistrate
erred in not finding that those factors
were in favor of the appellant. On the basis of the aforesaid,
counsel urged the court
to find that the magistrate had misdirected
himself. He asked that the appellant be granted bail. His client can
afford R3000 bail,
he said.
16.
Counsel
for the state argued that there was no merit to the appellant's point
regarding the decision to charge him with unlawful
possession of a
firearm and ammunition and not robbery in the first instance. She
dismissed the point as nothing more than the
normal progression of an
investigation. It was early stages she said.
17.
As
to the strength of the state's case, she submitted that the state had
made a prima facie case for the appellant to answer. She
pointed to
the firearm the evidence provided in the court a quo which was said
to have been found on the person of the appellant.
As to the
investigating officer's testimony and his attitude to the court
granting the appellant bail, counsel correctly pointed
that it was
for the magistrate to apply the law correctly and given that the
charges brought against the appellant were those specified
in
schedule 6, it was for appellant to adduce exceptional circumstances.
In the state's view, this the appellant failed to discharge
such
onus.
18.
The jurisdiction requirements for the
appellate court to interfere with the decision of court a quo are set
out in section 65 (4).
The section reads:
"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."
19.
In reasoning the bail application, the
court a quo noted:
'... ... .... . What are the exceptional
circumstances.[?] That is the question that the court should answer
in deciding on the
bail application. The court have (sic) actually
taken it as an exceptional circumstance if the state's case is weak,
and it may
lead to an acquittal. It is clear from Mr Twala's [the
defence attorney] address that the defence is going to challenge the
identification
parade in a trial, and that it was not a proper
identification parade, since the witnesses have seen the applicant
before the parade.
This court should actually avoid substituting
itself as a trial court...... .Therefore I am not going to delve into
the merits.
But there is evidence that the applicant was arrested in
possession of a firearm, according to what they say, and the the
applicant
came from the shop, and one of the victims who is a Somali
business person, who was a victim, pointed out the applicant during
the parade. Therefore, I conclude that there is nothing that shows
that the state does not have a case at all against the accused.
.....I find that the applicant has not succeeded in adducing evidence
on a balance of probabilities to satisfy the court that exceptional
circumstances do exist that in the interests he will be permitted to
bail. (sic)'
20.
In S v Barber
1979 (4) SA 218
(0) at
220 E-H
it was said:
"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
it would be an un fair 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 ... '
21.
In
S
v Faye
[3]
where the court referred to
S
v Porthen
&
Others
2004 (2) SARC 242 (C) at para 7:
'Binns-Ward AJ ...............'it necessary to
point out that a court hearing a bail application (i.e the court a
quo exercises
a wide as opposed to a narrow (or strict) discretion.
At para [16] the learned judge remarked as follows with reference
to
S v Botha en 'n ander
2002 (1) SACR 222
(SCA):
'Insofar as the quoted dictum in S
v Barber
(supra)
might be amenable to be construed to suggest that the
appellate court's power to intervene in terms of s 65(4) of the CPA
is strictly
confined, in the sense of permitting interference only if
the magistrate has misdirected him- or herself in the exercise of his
or her discretion in the narrow sense, I consider that it would be
incorrect to put such a construction on the subsection; certainly
in
respect of appeals arising from bail applications made in terms of s
60(11)(a) of CPA. I am fortified in this conclusion by
the manner in
which the Supreme Court of Appeal dealt with the bail appeal in
Botha's case supra. See paras [21]-[27] of the judgment.
It is clear
that the Ap peal Court undertook its own analysis of the
evidence and came to its own conclusion that the appellants
had not
discharged the onus on them in terms of s 60(11)(a) of the CPA. (The
fact that the appeal in Botha's case was an appeal
from a decision of
a bail application by the High Court as the court of first in
stance does not affect the principle in issue.)'
22.
'[13] At para [17] in S
v
Porthen
&
Others,
supra, the learned judge continued
"......[i]t remains necessary to be mindful that a bail appeal,
including one affected by
the provisions of s 60(11)(a), goes to the
question of deprivation of personal liberty. In my view, that
consideration is a further
factor confirming thats 65(4) of the CPA
should be construed in a manner which does not unduly restrict the
ambit of an ap
peal court's competence to decide that the lower
court's decision to refuse bail was "wrong". Sees 39(2) of
the Constitution
of the Republic of South Africa Act 108 of 1996."
23.
In
Mathebula
v The State
[4]
it was held that:
'[12] But a state case supposed in advance to
be frail may nevertheless sustain proof beyond a reasonable doubt
when put to the
test. In order successfully to challenge the merits
of such a case in bail proceedings an applicant needs to go further:
he must
prove on a balance of probability that he will be acquitted
of the charge: S v Botha
2002 (1) SACR 222
(SCA) at 230h, 232c; S v
Viljoen
2002 (2) SACR 550
(SCA) at 556c. That is no mean task, the
more especially as an innocent person cannot be expected to have
insight into matters
in which he was involved only on the periphery
or perhaps not at all. But the state is not obliged to show its hand
in advance,
at least not before the time when the contents of the
docket must be made available to the defence ; as to which see
Shabalala
& Others v Attorney-General of Transvaal and Another
[1995] ZACC 12
;
1996 (1) SA 725
(CC). Nor is an attack on the prosecution case at all
necessary to discharge the onus; the applicant who chooses to follow
that
route must make his own way and not expect to have it cleared
before him. Thus it has been held that until an applicant has set
up
a prima facie case of the prosecution failing there is no call on the
state to re but his evidence to that effect: S v
Viljoen at
561f-g'.
24.
I
have considered the record in light of the considerations of the
cases quoted in the preceding paragraphs. I have also noted the
sum
total of the appellant's testimony. It appears to me that the thrust
of the appellant's case are the alleged vulnerabilities
in the
state's case. I could not ignore that in recognizing the exceptional
circumstances, the magistrate had taken into account
what the defence
highlighted as vulnerabilities in the state's case. He, after
considering the circumspect of evidence before him
concluded that the
appellant had a case to answer . I agree. I am further fortified in
my view by the comments of the SCA in Mathebula
and note that the
appellant did nothing that could be summed up as going further to
establish a likely acquittal. His tilt at the
state's case was met,
at times,
with equally formidable riposte in particular on the question of the
witnesses who had followed the appellant all the way to the
point
where they reported the case to the member of the flying squad. It
may well be the view of the defence that the states case
appears
weak, but as Mathebula suggests, the appellant had the responsibility
to go further and demonstrate probabilities of an
acquittal. This,
the appellant has not done. Even if I were to be charitable in
viewing the appellant's case, the conclusion is
ineluctable that he
failed to adduce exceptional circumstances. It is my judgement that
the appeal falls to be dismissed.
25.
Accordingly, the order is made that
appeal is dismissed.
NN BAM
ACTING
JUDGE OF THE HIGH COURT,
GAUTENG
DIVISION, PRETORIA
DATE
OF HEARING
:
23 May 2019
DATE
OF JUDGMENT
: 24 May 2019
APPEARANCES
Appellant's
Attorney
:G Mohohlo (Phehello Molise Attorneys)
Respondent's
Counsel :Adv S Mahomed (Office of
the DPP.Pretoria)
[1]
of the
Criminal Procedure Act 51 of 1977
, as amended
[2]
51 of 1977 as emended
[3]
(A122/2008) [2008) ZAECHC 211;
2009 (2) SACR 210
(Tk) (24 December
2008 para 12
[4]
(431/09)[2009] ZASCA 91 (11 September2009) para 12