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[2019] ZAGPPHC 510
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Masuku v S (A379/2018) [2019] ZAGPPHC 510 (11 June 2019)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION PRETORIA)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES: YES/
NO
(3)
REVISED.
Case No: A 379/2018
11/6/2019
In
the matter of:
Zakhele
Oscar
Masuku
Appellant
And
The
State
Respondent
JUDGMENT
Maumela
J.
1.
This
matter came before this court as an appeal against judgment of the
Regional Magistrate Pretoria, sitting in Pretoria, hereinafter
referred to as the court
a quo.
On
the 26
th
of January 2017, the appellant, Zakhele Oscar Masuku; a male who was
33 years of age, was convicted before the court
a
quo.
He was together with 4
co-accused. The charges with which they were charged, are the
following:
Counts 1 and 2:
Attempted murder.
Count 3 to 5
:
Murder.
Count 6
:
Conspiracy to commit Robbery with Aggravating Circumstances.
Count 7:
Conspiracy to commit
Robbery with Aggravating Circumstances, read with the provisions of
section 1 of the criminal procedure act
1977: (Act No 51 of 1977).
Counts 8 to 10
:
Unlawful Possession of Firearms in contravention of Section 3 of the
Firearms Controls Act 2000: (Act No 60 of 2000).
Count 11
:
Theft.
Counts 12:
Unlawful Possession of
Ammunition in contravention of Section 90 of the Firearms Controls
Act 2000: (Act No 60 of 2000).
2.
The accused were sentenced as follows:
Counts 1 and 2:
(Both counts were treated
as one for purposes of sentence.) The accused were sentenced each to
undergo 4 years imprisonment.
Counts 3 to 5
:
(All counts were treated as one for purposes of sentence.) On the
accused were sentenced to undergo
Life Imprisonment.
Counts 6 and 7:
(Both counts were treated
as one for purposes of sentence.) The accused were sentenced each to
undergo 5 years imprisonment.
Counts 8 to 10:
(All counts were treated as
one for purposes of sentence.) The accused were sentenced each to
undergo 6 years imprisonment.
Counts 11
:
The accused were sentenced each to undergo 2 years imprisonment.
Counts 12
:
The accused were sentenced each to undergo 12 months imprisonment.
3.
On
the 31
st
of August 2017, before the court
a
quo,
the appellant and his
co-accused were granted leave to appeal against both conviction and
sentence on all counts, except the murder
convictions in respect of
which the Appellant had an automatic right of appeal in terms of the
provisions of section 309(1)(a)
of the Act. T. On the 27
th
of November 2017, the Regional Court in Pretoria refused to grant the
Appellant bail pending appeal. He now appeals against the
bail
refusal in terms of section 65 of the Criminal Procedure Act 51 of
1977 ("the Act").
4.
Before
the court
a quo,
when
the appellant applied for bail pending appeal, he did not tender oral
evidence. Instead, he submitted a sworn affidavit in
which he
tendered motivation towards his admittance to bail pending appeal. He
submitted that it will be in the interests of justice
if he were
admitted to bail pending appeal.
5.
The
Supreme Court of Appeal in S v Masoanganye and Another
[1]
advised that a court on appeal should scrutinize the reasons for the
refusal of bail and the evidence it was based on in order
to assess
the correctness of the lower court's refusal of bail. At paragraphs
[17] to [18] the Supreme Court of Appeal further
advised that the
judgment on conviction, the grounds of appeal and the reasons for
granting leave to appeal should also be scrutinized
in order to
assess the prospects of a successful appeal.
6.
It
is trite that the court on appeal need not analyse the trial evidence
in great detail; see S v Scott-Crossley
[2]
.
With brief reference to the relevant criteria, submissions will
respectfully be made to show that the court
a
quo
wrongly
refused bail.
FACTUAL BACKGROUND.
7.
On
the 22
nd
of February 2011, a cash in transit heist was committed against a
carrier vehicle belonging to 'Red Eagle Security'. The heist
was
committed along the M39 road near Rooiwal. Evidence tendered is to
the effect that prior to the execution of the heist, two
employees of
Red Eagle Security were recruited to partake in the planned robbery.
It is alleged that it was agreed that the security
officers are to
participate in return for a portion of the loot. Unbeknown to the
perpetrators, the South African Police Services
were informed about
the planned robbery. A trap was set up. An undercover operation was
secretly authorized and executed in terms
of section 252A of the Act.
8.
Security employees were tasked as police
agents. They obtained information about the details of the heist.
Acting upon information,
received from the undercover security
employees, SAPS kept watch over the suspects. Measures were applied
in order to counter the
robbery. On the day of the commission of the
heist, three suspects were killed in the cross-fire between the
police and the robbers.
Appellant who sustained gunshot wounds, was
arrested in the vicinity of the scene of the robbery. He pleaded not
guilty. At a subsequent
trial, appellant pleaded not guilty. He
exercised his right to remain silent and therefore did not disclose
the basis of his defence.
9.
Before the court
a
quo,
Appellant applied for bail
pending appeal, which was denied. Among others, the reason why the
appellant was denied bail was because
there were allegations that
there are two more cases pending against him in Lenasia and Brits
respectively.
10.
The appellant was 32 years of age at the
time he applied for bail pending appeal. He is unmarried and is
father to two minor children
aged 8 and 10 respectively. The children
reside with their biological mother. Prior to his arrest, his
residential address was
at his parental home which is number 992
Block DD, Soshanguve. He has not seen his children from the time of
his arrest until now.
The relationship with the mother of his
children deteriorated immediately after his arrest. However, he and
the mother of his children
have since ironed out their differences.
They have agreed that the mother of his children shall allow him to
see them.
11.
The appellant owned a light delivery van
with which he couriered goods for a living. The vehicle has since
become damaged beyond
repair due to an accident. While still using
the vehicle, he used to earn between R 8 000-00 and R 10,000-00 per
month. He states
that his father, who is retired from the South
African Police Services is willing to assist him to buy another
vehicle. He is therefore
in a position to continue with the courier
work he was doing before his arrest in order to earn a living. At the
conclusion of
the trial before the court
a
quo,
the appellant was sentenced
among others, to life imprisonment. He has noted an appeal which is
yet to be set down for hearing.
12.
Appellant contends that he has no reason
to flee the country and to evade justice. He regards Gauteng as his
permanent place of
residence. He makes the point that owing to
backlogs and constraints resulting from human resource shortages, the
setting down
of his appeal shall be preceded by protracted delays. He
is eager to build proper relationships between himself, his children
and
their mother. He told the court
a
quo
that his parents are willing and
able to assist him in raising bail money.
13.
It is trite that in the event where an
applicant for bail pending appeal accused stands already convicted,
courts have to adopt
a more stringent approach in considering
applications for bail pending appeal. In the case of Z v Williams
[3]
,
the court stated the following:
"Different
considerations do of course arise in granting bail after conviction
from those relevant in the granting of bail
pending trial. On the
authorities that I have been able to find it seems that it is putting
it too highly to say that before bail
can be granted to an applicant
on appeal against conviction there must always be
a
reasonable prospect of success
on appeal. On the other hand, even where there is
a
reasonable prospect
of
success on appeal, bail may be
refused in serious cases notwithstanding that there is little danger
of an applicant absconding.
See cases such as S v Milne and
Erleigh
[4]
and
R
v Mthembu
[5]
."
14.
In these
proceedings, the court is not to consider or to enquire into whether
the appellant ought to be admitted to bail or not.
The court is to
determine whether the court
a
quo
was correct
or not, in dismissing the application by the appellant for bail. In
so doing, the court is to consider the offences
charged, the basis
upon which the court
a
quo
convicted
the appellant and the averments made by the appellant before the
court
a quo
in
his application for bail pending appeal as contained among others
within his founding affidavit. The court then has to look at
the
reasons on the basis of which the court
a
quo
dismissed
appellant's application for admittance to bail pending appeal.
15.
Even if this court, on appeal were to
hold different view as compared to that of the court
a
quo,
it does not mean that the court
a quo
was
wrong in refusing bail. In the case of S v Barber
[6]
,
Heter J stated the following:
"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 but
exercised that discretion wrongly.... Without saying that the
magistrate's view was actually the correct one,
I have not been
persuaded to decide that it is the wrong one."
16.
The court
a
quo
applied its discretion and
dismissed the appellant's application for admittance to bail pending
appeal. Unless it is shown that
the court
a
quo
erred and was wrong, or that it
misdirected itself in coming to the decision it came to, this court
may not interfere with its decision.
In the case of S v Fancis
[7]
on the aspect of Appellate Powers, the court stated the following:
"The powers of a Court of appeal
to interfere with the findings of fact of a trial Court are limited.
In the absence of any
misdirection, the trial Court's conclusion,
including its acceptance of a witness' evidence is presumed to be
correct. In order
to succeed on appeal, the appellant must therefore
convince the Court of appeal on adequate grounds that the trial Court
was wrong
in accepting the witness' evidence
-
a reasonable doubt will not suffice
to justify interference with its findings.
Bearing in mind the advantage which a
trial Court has of seeing, hearing
and
appraising a witness, it is only in exceptional cases that the Court
of appeal will be entitled to interfere with a trial Court's
evaluation of oral
testimony."
17.
It is trite that prospects of success on
appeal have to count for something in the consideration of an
application for bail pending
appeal. In the case of S v De Abreau
[8]
,
the court stated the following concerning prospects of success on
appeal in an application for bail pending appeal:
"It
seems to me that the prospects of success on appeal
also
form a factor to be taken into
account in an appeal against the refusal of bail. If, for example,
the view of this Court should
be that the appeal to the Provincial
Division
is
hopeless, this Court would
probably be reluctant to alter a judgment refusing bail."
18.
The court applied its discretion and
refused applicant's application for admittance to bail pending
appeal. Unless it is shown that
the court
a
quo
erred and was wrong, or that it
misdirected itself in coming to the decision it made, this court may
not interfere with decision
made by the court
a
quo.
In the case of S v Fancis
[9]
,
Appellate Powers:
"The powers of
a Court of appeal to interfere with the findings of fact of a trial
Court are limited. In the absence of any
misdirection the trial
Court's conclusion, including its acceptance of a witness' evidence
is
presumed to be correct. In
order to succeed on appeal, the appellant must therefore convince the
Court of appeal on adequate grounds
that the trial Court was wrong in
accepting the witness' evidence
-
a
reasonable doubt will not suffice to justify interference with its
findings. Bearing in mind the advantage which a trial Court
has of
seeing, hearing and appraising a witness, it
is
only in exceptional cases that
the Court of appeal will be entitled to interfere with a trial
Court's evaluation of oral testimony."
19.
In the case of S v Hudson
[10]
,
Flemming DJP, stated the
following:
"In S v Anderson
[11]
Marais J with reference to a case where there is a reasonable
prospect of success'. He said that if the appeal is 'reasonably
arguable and not manifestly doomed for failure; the lack of merit in
the appeal should not be the cause of refusal for bail. I agree.
I
add that if the conclusion that the appeal is manifestly doomed to
failure can be reached only after what is tantamount to or
approximates a full rehearing, the appeal should ordinarily for
purposes of considering bail be treated as an appeal which is
arguable. The question is not whether the appeal 'will succeed' but
on a lesser standard, whether the appeal is free from predictable
failure to avoid imprisonment. See S v Moeti
[12]
,
where in it was said that the applicant for bail must convince court
that there is a 'reasonable possibility' that the appeal
will vert
imprisonment
."
20.
In the case of S v Bruintjies
[13]
,
the court stated the following:
"The
section deals, on the face of it, with unconvicted persons. However,
it must follow that a person who has been found guilty
of a schedule
6 offence cannot claim the benefit of a lighter test. It was conceded
that the mere fact that a sentenced person
has been granted leave to
appeal does not automatically suspend the operation of his sentence,
nor does it entitle him to bail
as of right. (See S v Mthembu
[14]
)."
21.
The attorney who represented the
appellant from the beginning withdrew and had to be replaced. From
2011, the appellant has remained
in custody. At some stage, an
application towards bail which was launched was abandoned. The court
a quo
made
the point that the appellant stands sentenced among others to life
imprisonment. The court
a quo
viewed
that this is a heavy sentence which may prompt the appellant to
develop eagerness to abscond. Therefore the court viewed
that the
appellant is likely to attempt evading justice. It arrived at this
decision notwithstanding the view of the state to the
effect that its
case against the appellant is weak. It based its decision on the
evidence tendered before it.
22.
The role of this court is appellate in
nature. It is trite that appellate courts are not entitled to
interfere with decision of
trial courts unless certain criteria are
met. The question before this court is not about whether it would or
would not have granted
appellant bail pending appeal given the facts
at hand. The question is rather whether or not the court
a
quo
misdirected itself in dismissing
appellant's application for bail pending appeal. If not, this court
may not interfere with the
decision of the court
a
quo.
If the court
a
quo
misdirected itself, this court
is entitled to interfere with its decision.
23.
The appellant had an automatic right to
appeal against his sentence to life imprisonment concerning counts 3,
4 and 5. The court
a quo
conceded
that another court may arrive at a different verdict. It conceded
that another court could have applied the provisions
of
section 174
of the
Criminal Procedure Act 1977
; Act No 51 of 1977. Before the
court
a quo,
the
state did not oppose appellant's admittance to bail pending appeal.
24.
Appellant raised the point that the
court
a quo
did
not take into regard the discrepancies in the evidence of the
undercover agents, Mr William Oupa Makela and Mr Jan Sithole.
He
argues that the evidence by the two witnesses only went as far as an
attempt at the crime alleged and not a completed crime.
He points out
that the evidence in the case does not prove that he conspired to
commit the crime.
28.2. Whether there
are reasonable prospects of success on appeal, see R v Mthembu
[15]
and S v Nel
[16]
.
EVIDENCE BEFORE THE COURT
A
QUO
IN THE APPLICATION FOR BAIL PENDING APPEAL.
29.
Before the court
a
quo,
the appellant adduced evidence
on affidavit. He told court that ever since his arrest on the 22
nd
of February 2011, he has remained in custody for 6 years and 8
months. Before his arrest he was residing at his parental home at
number 992, Block DD Soshanguve. He is unmarried and has 2 minor
children for whose upkeep he is responsible. He made the point
that
there are heavy backlogs on the court rolls in the High Court so
that, it will take time for his appeal to be heard. He argues
that he
is likely to be prejudiced by the delay in the finalisation of his
appeal.
30.
In this case, the court has to examine
the judgement of the court
a quo
and
should determine whether or not the decision arrived at is sustained
by the evidence at hand. The court has to assess the evidence
presented before the court
a quo.
Considering the facts put before the
court
a quo,
and
the decision at which it arrived, this court finds no basis upon
which to conclude that the court
a
quo
misdirected itself in dismissing
appellant's application for bail pending appeal. In the result, the
appeal against the decision
of the Regional Magistrate Pretoria to
refuse the application by appellant to be admitted to bail pending
appeal stands to be dismissed.
The following order is made:
31.
In the result, the appeal against the
decision of the Regional Magistrate Pretoria, to refuse the
application by applicant for bail,
stands to be dismissed, and the
following order is made:
ORDER.
1.
The
appeal against the decision of the Regional Magistrate Pretoria, to
refuse the appellant's application for bail pending appeal
is
dismissed.
T.A.
Maumela.
Judge
of the High Court of South Africa.
[1]
2012 (1) SACR 292
(SCA) at [16]
[2]
2007 (2) SACR 4700
(SCA) at [7].
[3]
1981 (1) SA 1170
(ZAD), 1172 -1173 B.
[4]
1950 (4) SA 601 (W).
[5]
1961(3) SA 468(N).
[6]
1979 (4) SA 218
(D), at page 220 E- H.
[7]
1991 (1) SACR 198 (A)
[8]
1980 (4) SA 94 (W).
[9]
1991 (1) SACR 198 (A)
[10]
1996 (1) SACR 431
(W), at page 434 A- D.
[11]
1964 (3) SA 494
(A), at 495 G.
[12]
1991 (1) SACR 462
(B). wherein to
[13]
2003 (2) SACR 575 (SCA).
[14]
Supra.
[15]
1961 (3) SA 468
(D), at page 471 A - C.
[16]
2002 (1) SAR 425 (T), at page 426.