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[2019] ZAFSHC 104
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Singhapi v S (A81/2019) [2019] ZAFSHC 104 (11 June 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: A81/2019
In
the matter between:
ZOLA
JAMES SINGAPHI
Appellant
and
THE
STATE
Respondent
CORAM:
MOROBANE,
AJ
JUDGMENT:
MOROBANE,
AJ
HEARD
ON:
10
JUNE 2019
DELIVERED
ON:
11
JUNE 2019
[1]
This
is an appeal against the decision of the Magistrate in the Wepener
district Court in which the appellant’s bail application
was
dismissed. The brief facts are that the deceased was stopped by the
appellant on the side of the road and was asked for his
driver’s
licence. At that stage a Toyota vehicle with four armed occupants
approached and stopped at the scene. After alighting
from the
vehicle, they disarmed the appellant of his firearm, kidnapped the
deceased and fled the scene. The deceased was later
found dead. The
appellant was arrested and arraigned on charges of conspiracy to
commit murder, murder and kidnapping.
[2]
During
the bail proceedings, the state opposed the application on the
possibility that the appellant might be killed as a result
of his
confession and the thought that the appellant might interfere with
the witnesses
[3]
In
support of his application, the appellant relied on the following
grounds in terms of his notice of appeal:
1.1
The
learned magistrate erred in finding that the appellant failed to
prove that there are exceptional circumstances why release
on bail
should be granted.
1.2
The
learned magistrate erred in placing undue emphasis on the fact that
the court should, in providing bail to law enforcement officers,
be
careful not to lose the trust of the community; and
1.3
The
learned magistrate erred in his finding that the state has a strong
case against the appellant.
[4]
In
terms of 60(11) (a) of the Criminal Procedure Act 51 of 1977 (“the
CPA”) read with Schedule 6, the appellant is required
to prove
on a balance of probabilities that exceptional circumstances exist
which, in the interest of justice, permit his release.
In S v Dlamini
[1999] ZACC 8
;
1999 (2) SACR 51
(CC) paras 64-65, Kriegler J stated:
‘
[64]
Section 60(11) (a) contemplates an exercise in which the balance
between the liberty interests of the accused and the interest
of
society in denying the accused bail, will be resolved in favour of
the denial of bail, unless “exceptional circumstances”
are shown by the accused to exist.
[65]
A bail application under s 60(11) (a) is more gravely invasive of the
accused person’s liberty right than that under
s 60(11) (b). To
the extent, therefore, that the test for bail established by s 60(11)
(a) is more rigorous than that contemplated
by s 35(1) (f) of the
Constitution, it limits the constitutional right.’
[5]
The
appellant pleaded with the court to accept his reasons as exceptional
circumstances that permits his release on bail. These
are that he is
employed as a traffic officer and does not want to lose his job; that
his wife is on strong medication and she cannot
look after their
sickly daughter alone; and that he would not abscond. In S v Botha en
’n Ander
2002 (1) SACR 222
(SCA) para 20, the court concluded
as follows:
‘
Ingevolge
beide art 60(11) (a) and (b) is daar ’n formele bewyslas op ’n
beskuldigde wat om borgtog aansoek doen “om
getuienis aan te
bied wat die hof oortuig”. … Artikel 60(11) (a) bevat
twee afsonderlike vereistes waarvan die beskuldigde
die hof op ’n
balans van waarskynlikhede moet oortuig: eerstensdat daar
buitengewone onstandighede bestaan wat sy of haar
vrylating toelaat
en, tweedens, dat sodanige buitengewone onstandighede die vrylating
in die belang van geregtigheid veroorloof…’
[6]
The
magistrate found that the reasons advanced by the appellant are not
exceptional on the basis of evidence given during the proceedings.
Therefore, the appellant failed to discharge the onus which rested on
him.
[7]
In
conclusion, section 65(4) of the CPA provides that a bail appeal
should fail unless the court of appeal is satisfied that the
decision
of the lower court was wrong. In this instance, I cannot find in any
way that the magistrate was wrong. It follows therefore
that the
appeal cannot succeed.
[8]
I
make the following order:
1.
The
application for condonation for the late filing of the appellant’s
notice of appeal is granted.
2.
The
appeal is dismissed.
.M.
MOROBANE, AJ
On
behalf of the appellant:
Adv J Nel SC
Instructed
by: Giorgi & Gerber Inc. BLOEMFONTEIN
On
behalf of the respondent:
Adv
Pienaar
Instructed
by:
Director
of Public Prosecutions BLOEMFONTEIN