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[2019] ZAECMHC 17
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Rala-Rala and Others v S (CA & R 101/18) [2019] ZAECMHC 17 (28 March 2019)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION: MTHATHA)
CASE
NO. CA&R 101/18
In
the matter between:
XOLANI
RALA-RALA
1
ST
APPLICANT
WILLIAM
M.
MOLOI 2
ND
APPLICANT
MTHEO
J.
SNYMES 3
RD
APPLICANT
VS
THE
STATE
RESPONDENT
BAIL
APPEAL JUDGMENT
DAWOOD, J:
1.
The appellants herein are appealing against the refusal of their bail
by the Mount Fletcher District Court
Magistrate.
2.
It is common cause that some of the offences they are charged with
fell within the ambit of Schedule 6 offences
and is accordingly
section 60 (11) is applicable.
3.
Section 60 (11) of the Criminal Procedure Act 51 of 1977 (hereinafter
referred to as the Act) reads as follows:
“
(11)
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, adduces evidence
which satisfies the court that
exceptional circumstances exist which
in the interests of justice permit his or her release;
(b) in Schedule 5, but
not 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, adduces evidence which
satisfies the court that the interests of
justice permit his or her release.”
4.
In the
matter of
S
v Mabena and Another
[1]
,
Nugent JA cited with approval in the case of
S
v Dlamini
;
S v
Dladla and Others
;
S v
Joubert
;
S v
Schietekat
[1999] ZACC 8
;
1999 (4) SA 623
(CC):
‘“
(Section)
60(11) (a) does more than restate the ordinary principles of bail. It
states that where an accused is charged with a Schedule
6 offence,
the exercise to be undertaken by the judicial officer in determining
whether bail should be granted is not the ordinary
exercise
established by ss 60(4)-(9) (and required by s 35(1)(f) [of the
Constitution]) in which the interests of the accused in
liberty are
weighed against the factors that would suggest that bail be refused
in the interests of society. Section 60(11)(a)
contemplates an
exercise in which the balance between the liberty interests of the
accused and the interests 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.
This exercise is
one which departs from the constitutional standard set by s 35(1)
(f). Its effect is to add weight to the scales
against the liberty
interest of the accused and to render bail more difficult to obtain
than it would have been if the ordinary
constitutional test of the
''interests of justice'' were to be applied
.’”(my
emphasis)
5.
The appellant’s counsel submitted that there is no closed list
of factors that constitute exceptional
circumstances under section 60
(11). He stated that what constitutes exceptional circumstances is
determinable from the facts of
each particular case.
6.
In requiring that the circumstances proved must be exceptional the
subsection does not say they must be circumstances
in addition to,
above and beyond and generally different, from those enumerated in
section 60 (4)-(9) of the Act.
7.
He relied on the cases of
inter alia
:
A)
S v
Dlamini; S v Dladla and Others; S v Joubert; S v
Schietekat
[2]
―
“
The subsection
says that for those awaiting trial on the offences listed in Schedule
6, the ordinary equitable test of the interests
of justice determined
according to the exemplary list of considerations set out in ss (4)
(9) has to be applied differently.”
B)
S v
Najoe
[3]
:
“
It is trite
that there is no closed list of factors that constitute exceptional
circumstances under s 60(11). What becomes evident
from the numerous
cases in which the courts have considered applications for bail,
where the applicants face charges listed under
sch 6 of the Act, is
that what constitutes exceptional circumstances is, in each case,
determinable from the circumstances of the
particular case. The
following are some of the guidelines laid down by the courts for
determination of exceptional circumstances:
‘
An applicant is
given broad scope to establish the requisite circumstances, whether
they relate to the nature of the crime, the
personal circumstances of
the applicant, or anything else that is particularly cogent. . . . In
any event, one can hardly expect
the lawgiver to circumscribe that
which is inherently incapable of delineation. If something can be
imagined and outlined in advance,
it is probably because it is not
exceptional.”’
C)
S v
Vanqa
[4]
:
“
For this
submission he placed heavy reliance on decisions of this Court in
Tandwa and Others v The State case No A374/98 and Madwantsi
v The
State case No A375/98 (both unreported judgments) as well as S v
Yanta (supra). In the latter case Van Zyl J stated at 243h-244a:
‘
The approach
adopted by Kriegler J in the Dlamini case suggest that the
exceptional circumstances as envisaged by ss (11)(a) are
not to be
construed as requiring an accused to place before a court factors or
circumstances in addition to those provided for
in ss (4), (9) and
(10) of the Act. The enquiry remains the same, namely a weighing up
of the considerations referred to in ss
(4), (9) and (10) of s
60 and then to exercise a value judgment according to all the
relevant criteria on the facts placed
before a court.
…’
Although the
Constitutional Court has, during June 1999, laid down a clear
approach in matters of this nature in the Dlamini case,
it appears
that many magistrates within the jurisdiction of this Court still
find it difficult to apply the principle. Many of
them still believe
that ss (11)(a) requires an applicant to prove factors which are
exceptional in the sense of being unusual and
different to those
enumerated in ss (4)-(9). The greatest temptation appears to be an
attempt to attach the ordinary grammatical
meaning to the phrase
'exceptional circumstances'. An interpretation other than this is
both perplexing and frustrating to them.
Consequently they find the
'exceptional circumstances ghost' still lurking in the woods ready to
haunt them at every corner of
their judicial path to invoking the
provisions of the subsection.”
And
D)
S v
Rudolph
[5]
:
“
Exceptional
circumstances do not mean that 'they must be circumstances above and
beyond, and generally different from those enumerated'
in ss
60(4)-(9). In fact, ordinary circumstances present to an exceptional
degree, may lead to a finding that release on bail is
justified.”
8.
This application is to be determined in terms of section 65 of the
Act.
9.
Section 65 (4) of the Act provides as follows:
“
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.”
10.
In the context of this case, the appellants accordingly rely on the
fact that the magistrate was wrong in not finding exceptional
circumstances warranting the grant of bail.
11.
The learned Magistrate in this matter had extensively dealt with the
personal circumstances of each of the appellants and did
not find
anything exceptional in those.
12.
The first appellant
inter alia
had stated:
i)
He was 29 years of age;
ii)
Was married and had 2 children aged 13 and 6.
iii)
That he owned a home, 3 sheep and 2 horses;
iv)
Did not possess a passport;
v)
Had a Grade 9 level of education;
vi)
Was a self-employed bricklayer and earned R3000-00 a month with which
he supported his family.
vii)
Is in good health and has one previous conviction of housebreaking
and
theft in 2015 and was sentenced to 12 months imprisonment. He was
out on parole when these offences were committed.
viii)
He stated that he would be pleading not guilty and that the statement
that he made
to the magistrate admitting the commission of the
offences was made under duress and he was told what to say by the
investigating
officer after he had been tortured.
ix)
He stated that the state’s case against him was weak without
elaborating why he says so, the
onus
being on him.
x)
It was put to him that the police have statements from eye witnesses
who implicate him in the commission of the offences and say he took
part in the killing and that their statements are in the docket.
xi)
It was also put to him that the investigating officer would say that
he threatened to kill and even burn their horses if they come and
give information to the police.
13.
The second appellant testified
inter alia
:
a) That
he was 63 years of age;
b) Had
no previous convictions;
c) Was
married with 9 children;
d) One
in grade 3 and another in standard 5 and 2 in standard 9, the others
are unemployed.
e) He
owns his home, 250 sheep, 50 goats, 5 horses, 25 cattle, chicken,
dogs, tractors, 3 quantum mini buses,
2 bakkies and a private car.
f)
He is a taxi operator.
g) He
has no passport.
h) He
is diabetic and asthmatic and was receiving treatment in Cape Town.
i)
He alleges that the state’s case against him is weak.
j)
He alleged that he was told by the investigating officer that a
witness named Xolani stated that the
accused had given him a gun and
he had shot a person.
k) He
confirmed that he could be taken to the doctor by the police if he
fell ill.
l)
It was put to him that
inter alia
a witness places him at the
scene where the deceased were killed.
14.
The third appellant testified
inter alia
that:
a) He
was a 71 year old pensioner;
b) He
was married
c) He
had 8 adult children eldest 40 youngest 25.
d) He
has no previous convictions.
e) He
owns 113 sheep, 13 cattle a tavern with stock and 3 cars.
f)
He is managing a vegetable project run by social development as the
deputy chair.
g) No
one is running his tavern that he knows and his wife is running the
project.
He is the third person
responsible to the Treasury so were will be a hindrance to the
project.
h) He
has no travel documents.
i)
He is asthmatic since 2013 but does not take any medication
currently.
j)
His livestock and tavern are not safe now that he is incarcerated.
15.
The age of the second and third appellant and the fact that they have
no previous convictions is a relevant factor but cannot
be elevated
to an exceptional circumstance. The court took due cognisance of the
medical complaints of the second appellant and
stated why these would
be treatable even in prison.
16.
The appellant’s personal circumstances were in the main common
place.
17.
The state
counsel referred
S
v Scott-Crossley
[6]
where it was held that personal circumstances which are really
commonplace can obviously not constitute exceptional circumstances
for purposes of section 60 (11) (
a
).
18.
He further
referred to the case of
S
v Ali
[7]
where it was held that the court could not interfere with the
magistrate’s decision, unless it was shown that he misdirected
himself in some way.
19.
The appellant’s counsel alleged that the magistrate misdirected
himself by:
a)
Finding that the role of each appellant was clearly stated by
the investigating officer and that the state has clearly established
that there is a strong prima facie case against all three appellants
where the investigating officer had failed to provide any
details
regarding the circumstances of the shooting.
b)
He argued that he had failed to spell out exactly what each of
the appellants did in relation to the various counts.
c)
He further argued there is nothing indicating which appellant
shot which deceased, how many times, where on the body, at what
stage,
what was robbed from whom and how.
20.
The investigating officer’s testimony could have been clearer.
21.
The investigating officer was uncertain of how many persons were
allegedly shot by the appellant but was quite clear that
each of
them were identified as having shot at least one deceased clearly
demonstrating that they were implicated in at least one
murder by eye
witnesses
.
22.
Appellants had contented themselves by merely stating that the
state’s case against them was weak.
23.
I accept that they were not in possession of the docket content and
may have been somewhat hamstrung in cross-examining fully
but this
would not have precluded them from asking the very questions that are
now been posed by counsel regarding details of which
deceased was
shot by whom and how.
24.
The magistrate took due cognisance of all the relevant factors and
the testimonies when he made his findings that there was
no
exceptional circumstances present warranting the grant of bail.
25.
The criticism was levelled against the magistrate’s findings
that despite the admission made by the investigating officer
that
there were no threats made, the magistrate wrongly found that the
investigating officer persists that they were clearly made
without
any basis for that finding.
26.
There was a great deal of inaudibles in the investigating officer’s
testimony particularly with regard to this aspect
as well as in the
magistrate’s ruling in this regard.
27.
However, from my reading of her testimony she had in fact persisted
that these threats were made and thus the witnesses’
reluctance
to make a statement, what she conceded was that these threats were
not recorded in writing
not
that they were not made at all.
28.
The magistrate accordingly did not misdirect himself in this regard
either.
29.
The fact that she said that these threats were contained in the
written statement and then conceded that it was not recorded
in
writing does not constitute an exceptional circumstance. There are
eye witnesses’ statements which provide nicknames and
clan
names which the investigating officer could not have known pertaining
to the appellants. This led to the arrest of the appellants.
The
first appellant further had made a statement to a magistrate
regarding the offences, although he states it was under duress.
These
factors cannot be ignored nor can her testimony as a whole be
rejected having regard to the aforegoing. Her evidence has
to be
viewed in totality.
30.
I am not satisfied that the magistrate’s decision was wrong. He
correctly found that there were no exceptional circumstances
warranting the grant of bail and there is accordingly no basis for
interfering with his findings.
31.
The magistrate took due cognisance of all the testimonies led and
properly considered all relevant factors in arriving at his
decision.
That the appellant had failed to discharge the
onus
resting
upon them.
32.
The appeal is accordingly dismissed.
__________________
F.
B. A. DAWOOD
JUDGE
OF THE HIGH COURT
DATE
HEARD:
08 MARCH 2019
DATE
HANDED DOWN:
28 MARCH 2019
FOR
THE PLAINTIFF:
MR MAPOMA
PLAINTIFF’S
ATTORNEYS:
B. G. SANDLANA & CO.
FLAT
NO. 3 – 1
ST
FLOOR
UNITY HALL COMPLEX
MTHATHA
FOR
THE DEFENDANT:
MR MPOMOLO
DEFENDANT’S
ATTORNEY:
DPP: MTHATHA
BROADCAST HOUSE
No. 94 SISSION STREET
FORTGALE
MTHATHA
[1]
2007 (1) SACR 482
(SCA) at 486.
[2]
[1999] ZACC 8
;
1999 (4) SA 623
(CC) at 663 C-D.
[3]
2012 (2) SACR 395
(ECP) at 397 B-C.
[4]
2000 (2) SACR 371
(Tk) at pages 374-5 H-A; 377F–H.
[5]
2010 (1) SACR 262
(SCA) at 266 H-I.
[6]
2007 (2) SACR 470
(SCA) at para 12.
[7]
2011 (1) SACR 34
(ECP) at para 14.