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[2019] ZAGPPHC 1105
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Twala v S (A156/2019) [2019] ZAGPPHC 1105 (27 June 2019)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
APPEAL
NO: A156/2019
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES:
NO
REVISED
27
June 2019
In
the appeal of:
BAFANA
TWALA
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
VUMA,
AJ
INTRODUCTION
[1]
The appellant appeals in terms of
section 65
of the
Criminal
Procedure Act 51 of 1977
, hereinafter "the Act" against a
decision delivered on 13 May 2019 by the Learned Magistrate Ms M
Mokoena in the Pretoria
Magistrate's Court, Regional Division, in
terms of which he was refused admittance to bail.
[2]
According to Annexures B, C and D of the Charge sheet, he is charged
with the following:
2.1
Possession of a firearm;
2.2
Possession of suspected stolen property; and
2.3
Possession of ammunition
[3]
By agreement between the State and the Defence at the court a
quo,
his bail falls within the ambit of Schedule 5 of the Act.
[4]
Section 60(11)(b)
of the Act which deals with bail matters falling
within the above ambit provides that
'Notwithstanding any
provision
of this Act, where the accused is charged
with the offence referred to in schedule 5 but not schedule 6, the
court shall order that
the accused be kept in custody until he or she
is dealt with in accordance with the law unless, he having been given
a reasonable
opportunity to do
so,
adduces evidence which
satisfies the court that the interests of justice permit his or her
release.'
[5]
The appellant who was legally represented in the court a
quo
lodged a formal bail application during which he tendered
viva
voce
evidence in support of his application for bail and was the
defence's only witness. The state opposed the application and the
investigating
officer ("1.0") in this matter, that is,
Constable Masasi's affidavit, was admitted as Exhibit UA" and
his affidavit
was the only evidence read and tendered by the State.
In a nutshell, Constable Masasi opposed the bail application on the
basis
the appellant has a previous conviction for which he was
released on parole and that by him being found in 'possession a
stolen
motor vehicle', the appellant has violated his parole
conditions. He however stated that In the event the court
a quo
found otherwise, the appellant may be admitted into bail but on
certain conditions.
THE FACTS GIVING RISE TO
THIS BAIL APPEAL
[6]
The police had received information about a hijacked or a robbed BMW
motor
vehicle which had been reported as such at Littleton police
station. The police followed the said information. This led to the
arrest of the appellant at Simon Vermooten Road in Pretoria who was
driving the said BMW at the time. Inside the said motor vehicle
two
unlicensed firearms and police equipment were found. In his evidence
the appellant stated he could take the police to the person
named
Jabu to whom he had gotten the said motor vehicle from. He further
testified that he knew nothing about items that were found
inside the
BMW since he had just received the said motor vehicle from the said
Jabu.
SUBMISSIONS
ON BEHALF OF THE APPELLANT
[7]
On behalf of the appellant it was submitted that the court
a quo's
refusal and the continued detention of the accused is not in the
interests of justice. It was further submitted that the court a
quo
has misdirected itself in the following manner:
1.
It disregarded the favourable personal circumstances of the
appellant;
2.
It made a finding in respect of
section 60(4)(b)
of the Act, that is
the appellant's evasion of his trial if he is granted bail whereas
from the Record, there was no evidence in
support of same;
3.
It did not consider the undisputed evidence that the appellant is not
a danger
to the public, nor that there is no likelihood that the
appellant will interfere with state witnesses; nor that the appellant
will
commit further crimes; nor that he will not endanger public
order or safety;
4.
It did not consider the fact that appellant has a family to maintain
and a business
to run; and
5.
It did not consider that the appellant has a verified fixed address.
[8]
It was further submitted that the fact that the appellant was at the
time of his arrest
on parole does not in itself presuppose that he
has violated his parole conditions, given the presumption of his
innocence until
proven otherwise. Furthermore, the fact that the
state in its submissions admitted that it could not gainsay,
inter
alia,
neither the appellant's explanation regarding Jabu as the
person from whom he had gotten the said motor vehicle from and that
the
appellant was even willing to take the police to the said Jabu
nor that the appellant was not aware of the items that were found
Inside that motor vehicle and that the said concessions by the state
should bode in the appellant's favour. It was further submitted
that
the State even submitted that bail may be fixed in favour of the
appellant but that despite same, the court a
quo
refused the
appellant ball.
[9]
Before the court
a quo
the appellant had testified that if he
was granted bail, he would be in a position to pay an amount of R4
000-00. The emphasis on
behalf of the appellant was that on the
balance of probabilities, the interests of justice favours that the
appellant be granted
bail.
SUBMISSIONS
ON BEHALF OF THE STATE
[10]
Before the court a quo, the state had submitted that the offences the
appellant is facing are
very serious in nature but regardless and
save to state that he was out on parole, it could neither gainsay the
explanations given
by the appellant regarding the charges he faced.
The state thus submitted that the court may grant the appellant under
those circumstances.
Before this appeal court, the state submitted
that the fact that the appellant had violated his parole conditions
is indicative
that a likelihood exists that the objectives or proper
function of the criminal justice system would be undermined or
jeopardised
should the appellant be released on bail, which in Itself
cannot be in the interest of justice.
ANALYSIS
[11]
Foremost it must be stated that in its judgment, regarding the
appellant's personal circumstances,
the court a
quo
did not
make any contrary finding to that of either the defence or the state.
Similar to both the 1.0 and the state, the court a
quo's scrutiny or
concern, it would appear, fell on the fact that the appellant had
violated his parole conditions. In its judgment
it held that contrary
to submissions by the defence, the fact that an accused person was on
parole at the time of his arrest is
a
prima facie
violation
(my words) of his parole conditions and thus
'does not any
substantiation'.
[12]
In terms of
section 60(10)
of the Act a duty is imposed on a court
hearing a bail application to weigh up personal circumstances of an
accused against the
interests of justice. In considering the question
in subsection (4), the Act provides that the court must decide the
matter by
weighing up the interests of justice against the prejudice
the accused will likely suffer if he or she were to be detained in
custody,
taking into account factors enumerated in
section 60(9)
of
the Act.
LEGAL PRINCIPLES
[13]
Section 65(4)
of the CPA sets out the basis on which this court can
interfere with the refusal of bail by the court
a quo.
The
test is the following: was the magistrate wrong.
[14]
In the matter of
S v Mpulampula
2007 (2) SACR 133
(E)
it was held that where the court a
quo
misdirected itself
materially on the facts or the legal principles the court of appeal
may consider the issue of bail afresh. Interference
is also justified
where the lower court overlooked some important aspects in coming to
its decision to refuse bail.
[15]
The functions of the court hearing the appeal under
section 65
are
similar to those in an appeal against conviction and sentence. In
S
v
Barber
1979 (4) SA
218
(D)
at 220 E H
Hefer J
remarked as follows:
"It
is well known that the powers of this court are largely
limited where the matter comes before it on appeal
…
..
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 discretion".
[16]
In the matter of
S
v C 1998 (2)
SACR 721 (KPA)
at 724 H-I
(English translation from headnote) the court held the following:
“
It
could not have been the intention of the Legislature that an alleged
offender must be detained when he has established conclusively
that he will attend his trial, that he will not interfere with
the administration
of
justice, and
that he will
commit
no
further wrongdoing (i e., the usual circumstances
that arise for consideration in
a
bail application).
As
soon
as
more
is
required of him, the procedure
becomes punitive. That would be altogether objectionable. Therefore,
all that the Legislature enacted,
somewhat clumsily, is that a Court
which
is
seized
with
a
matter
involving
a
Schedule
6
offence
must
exercise
exceptional care when considering the usual circumstances. The Court
must be able to hold with
a
greater degree of certainty that
the detainee will do all that his bail conditions require of him.
That is all."
Although
the
S
v
C
above related to a Schedule 6 offence, reference is made thereto for
comparison purposes only.
[17]
In
S
v Dlamini;
S
v Dladla and others;
S
v Joubert:
S
v
Schietekat
[1999] ZACC 8
;
1999 (2)
SACR 51
(CC)
it was held that the focus was to protect the
investigation and prosecution of the case against hindrance. It was
held that it
would simply mean a value judgment of what would be fair
and just to all concerned. The Court further held that content of
such
value judgment would depend on the context and applied
interpretation in each and every case. The Court further held that in
applying
the interests of justice criterion, both the trial
related and extraneous factors are to be taken into account. This
criterion
requires a weighing up of the accused's interests in
liberty against those factors which suggest that bail be refused in
the interests
of the society.
ANALYSIS
[18]
It is common cause that the basis on which this court can interfere
with the refusal of
bail by the court a
quo
in a bail appeal
is set out in terms of
section 65(4)
of the Act, namely: "was
the magistrate wrong" and the
ratio
as laid down
in the matters of
Dlamini, Dladla, Joubert
and
Schletekat
above
[19]
The question for determination by this court is whether, from the
Record of the bail application
in the court
a quo,
the
appellant has succeeded to prove that, on the balance of
probabilities, the interests of justice exist warranting his release
on bail. It is trite that in the event the bail appeal court finds
that the evidence adduced by the appellant in the court a
quo
meets the above standard, then it court must determine if the
court
a quo's
decision to deny the appellant bail under those
circumstances was wrong, in which event it can thus interfere with
such a decision.
[20]
In its judgment, the court
a quo
stated that the state's
objection to the appellant's admittance to bail turned on the fact
that he was on parole. It thus held the
following:
19.1. That the appellant
was on parole;
19.2. That should the
appellant be released on bail, the likelihood that the objectives or
proper function of the criminal justice
system would be undermined or
jeopardised exists, and
19.3. That the appellant
himself personally acknowledges the seriousness nature and gravity of
the charge(s) he faces.
[21]
It is indeed common cause that the appellant was and still is on
parole. It is further common
cause that despite the above being the
case, the state submitted that bail may be fixed for the appellant,
although not suggesting
the amount. In his evidence the appellant has
indicated that he would be able to afford bail in the amount of R4
000-00 if granted.
It is trite that
section 60(10)
of the Act
emphasizes the duty incumbent on the court, even where the
prosecution is not opposing the granting of bail, to weigh
up the
personal interests of
'the accused
against
the
interests
of
justice'.
[22]
From the Record, the court a
quo
does not state her reasons
and findings which led to her conclusions and thus her judgment. Such
a
lacuna
therefore calls for this court to rely on
probabilities. However, the general tone of her judgment seems to
suggest that should
the appellant be released on bail, a likelihood
exists that the objectives or proper function of the criminal justice
system would
be undermined or jeopardised for two reasons:
1.
The appellant was on parole; and
2.
He might evade his trial if released on bail.
[23]
Based on the above she concluded that the appellant failed to
discharge his onus in this regard
as provided for, particularly in
section 60(4)
of the Act.
[24]
It is my view that in determining whether an accused should be
admitted to bail, a holistic approach
should be adopted and not to
consider each factor in a piecemeal fashion. However, the court a
quo's
conclusion that the appellant will evade justice is made
without even laying a basis for same since, in my view, from the
Record,
there is no evidence that justifies such a conclusion. His
undisputed personal factors state,
inter alia,
that he
a married father of two minor kids who are of a school-going age; he
has a fixed address; he does not own any travelling
documents; he
owns a business by selling clothes the value of which is R70 000-00,
from which business he generates a monthly income
of R10 000-00 and
earns a living as a sole breadwinner; he owns furniture to the value
of R70 000-00 and a motor vehicle worth
over R200 000-00; and other
than the previous conviction for which he is out on parole, he has no
pending cases against him.
[25]
Moreover, the state's submission is that it could not gainsay that
Jabu was not indeed the person
from whom the appellant had gotten the
motor vehicle from and that the appellant knew nothing pertaining to
the items found inside
the said motor vehicle. It is my view that
these concessions by the state should have been factored in the court
a
quo
in determining the strength of the state's case against
the likelihood of the appellant evading his trial.
[26]
The fact that the appellant was out on parole at the time of his
arrest does not. in my view,
presuppose that he has violated his
parole conditions, hence my view as appears above that a holistic
approach should have been
followed by the court a
quo
in
making the assessment in respect hereof. Although not categorically
stated in the judgment, given its silence
re
its conclusions
regarding its refusal now being appealed against, such a finding
cannot be lightly arrived at in isolation of the
glaring evidence
from the Record. As stated
in
paragraph 25 above, the
concessions made by the state in its submissions seem to suggest that
save for the issue of the appellant
being out on parole, the evidence
or the state's case relating to the offence(s) as against the
appellant
per
se was weak and may thus not withstand the
explanations given by the appellant at the time of the bail
application. It is my view
therefore that to the extent that the
state's case against the appellant was/is weak, the probability of
his conviction did not
exist and thus neither his perceived violation
of his parole conditions. This view brings me to the conclusion that
the court a
quo's
conclusion that release of the
appellant on bail carries the likelihood of the criminal justice
system being undermined and /or
jeopardized wrong as same is not
supported by the Record.
[27]
From the above, I find that the state's concessions and acceptance
with regard to the appellant's
explanation as an admission that its
case is weak. On the whole the general view is that an accused
against whom the state's case
is strong would most likely evade his
trial. However, the reverse of such a likelihood not existing
in
casu
should be made in favour of the appellant in that given the
state's weak case against him, he would not evade his trial. I
therefore
further find that the court
a quo's
conclusion of
the evasion of trial against the appellant is not supported by the
Record, bearing in mind that the court
a quo
could have held a
proper enquiry to clarify any grey area during the bail application
to elucidate and justify her conclusions,
yet she did not. One may
add that the serious nature and gravity of the offence cannot be
viewed at in isolation of the strength
or weakness of the state's
case against an individual accused.
[28]
In conclusion, if it is accepted that from the state's submissions,
the deduction that may be
drawn is that the state's case is weak,
then on the probabilities it follows that at the end of the trial he
will be acquitted.
Invariably therefore and moving from the above
premise, I am of the view that there will be parole conditions that
would have been
violated by the appellant. I am of the further view
that in the interest of justice "the contravention" of the
parole
conditions should never be viewed without taking into account
the strength or weakness of the state's case. The approach, in my
view, regarding the question whether the parole conditions have been
contravened should not flow from a blanket approach as held
by the
court a
quo
when she stated that it does not need or require
any substantiation. A value judgment based on the totality of the
facts ought to
be made.
RESULT
[29]
In the result and taking into account,
inter alia,
s60(1)
of
the Act, the court a
quo's
decision to refuse the appellant
bail was wrong and this court therefore ought to interfere with same.
[30]
Regarding the amount may be set for the appellant, the factors that
have to be taken into
account by the court are trite, amongst which,
whether the appellant can afford the said amount.
CONCLUSION
[31]
From the aforegoing consideration, I am satisfied that the appellant
has established that on
the balance of probabilities the interest of
justice permit his release on bail pending the trial. As provided for
in terms of
section 65(4)
of the Act, I am persuaded that the
decision of the court
a quo
in refusing to admit the appellant
to bail was wrong and is hereby set aside and the appeal is upheld.
ORDER
1.
Bail is fixed in the amount of R 8000·00 (eight thousand rand)
in favour
of the appellant subject to the following conditions:
1.1
Should the appellant change his current address, he must inform the
Investigating Officer of such
changes before relocation.
1.2
The appellant must attend his trial on the given date and subsequent
days not later than 9am and
must remain in attendance until this
matter is finalised or he is excused by the court.
L.B.
VUMA
Acting
Judge of the High Court
Gauteng
Division, Pretoria
Heard
on: 24 June 2019
Judgment
delivered: 27 June 2019
Appearances:
For
the appellant: Adv Joubert
Instructed
by: S Mahlangu Attorneys
For
the respondent: Adv Maritz
Instructed
by: Office of the DPP, Pretoria