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[2019] ZAECMHC 78
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Nyembe and Another v S (CA&R67/2019) [2019] ZAECMHC 78 (8 November 2019)
IN THE HIGH COURT OF
SOUTH AFRICA
{EASTERN
CAPE
LOCAL DIVISION, MTHATHA
}
Case
no.
317/2019
Appeal Case no.
CA&R67/2019
In
the matter between:
LOYISO
NYEMBE
First
Appellant
THEMBISILE
SIXAKAZA
Fourth
Appellant
And
THE
STATE
Respondent
JUDGMENT
T
ONI
AJ
Introduction
[1]
This is an appeal against refusal by the magistrate for the district
of Cala, Mr Fourie, to grant the appellants bail.
The bail
appellants, Loyiso Nyembe and
Thembisile
Sixakaza, who are accused no. 1 and 2, respectively, were bail
applicants no. 1 and 2 in the court
a
quo
.
They were charged with offences referred to in Schedule 6 of the
Criminal Procedure Act
[1]
(“the
Act”). This being common cause, the appellants bore the
onus to prove that exceptional circumstances exist
for them to be
released on bail. Both applicants were legally represented both
in the court of first instance and in this
court.
[2]
The appellants’ application for bail
before the court
a quo
was brought in terms of section 60 (11) (a) of the Act. This
section provides, in essence, that an accused charged with a
schedule
6 offence must be detained in custody pending his or her trial,
unless he or she “
adduces evidence
which satisfies the court that exceptional circumstances exist which
in the interests of justice permit his or
her release
.”
[3]
Both appellants were arrested by members of the South African Police
Service (SAPS) and have been in detention since 29
November 2018 and
1 December, respectively. They were charged with one count of
murder and possession of unlicensed fire-arm.
They have spent
almost a year in custody and their case has been remanded to proceed
in this court on 24 November 2019.
[4]
In the court
a quo
, the first appellant did not adduce
viva voce
evidence. Instead, his evidence was imported
into the record by means of a statement prepared on his behalf by his
legal
representative, Mr Zepe. This being the case, the state
did not enjoy the benefit of cross-examining the first appellant.
The second appellant adduced evidence and was cross-examined by the
state. Upon weighing and considering the evidence before
him,
the learned magistrate found no existence of exceptional
circumstances warranting the appellants’ release on bail.
Put otherwise, the learned magistrate found that it was not in the
interest of justice that the appellants be released on bail
and this
gave rise to the current appeal.
Grounds
for Appeal
[5]
The grounds of appeal which jelled into appellants’ argument at
the hearing are that the learned Magistrate misdirected
himself in
numerous ways in not finding the existence of exceptional
circumstances that permitted the release of the appellants
on bail.
[6]
In relation to the first appellant it was contended that the learned
Magistrate erred: (a) in not finding that the first
appellant had
established a defence which had reasonable prospects of success at
trial, (b) in not seriously considering the health
condition of the
first appellant whilst the facts revealed that the first appellant
suffered from diabetes and hypertension and
had in proof thereof a
medical certificate supported by affidavit. It was argued that
on further assessment by a doctor at
Frontier Hospital whilst in
custody, the first appellant was diagnosed of urinating blood
consequent to assault inflicted on him
and had a constitutional right
to adequate medical treatment (c) in not finding that the state’s
case was weak with
no forensic evidence or evidence of eye
witnesses to support it, (d) in not considering that the appellant
would stand trial as
has been the case in the past, cannot interfere
with state witnesses or evade trial and will not undermine or
jeopardise the administration
of justice, and (e) in not finding that
the first appellant’s employment which, taken cumulatively with
others, constitute
exceptional circumstances and would be seriously
jeopardised by his continued detention
[7]
In relation to the fourth appellant it was contended that the learned
magistrate erred: (a) in finding that the second
appellant had
propensity to commit crimes (referring to a case of robbery at Qumbu
in which the second appellant was subsequently
granted bail and had
charges against him withdrawn), (b) in finding that the state gave
evidence linking the second appellant in
contradistinction to the
investigating officer’s evidence delinking the second appellant
from the commission of the offences
charged coupled with his refusal
to participate in the murder of the deceased, (c) in linking
the firearm alleged to be found
in the possession of the fourth
appellant to the strength of the state’s case against the
forensic expert’s findings
that the cartridges fired are
negative with the firearm mentioned. The learned Magistrate
should not have relied on the investigator’s
evidence in this
regard, so the fourth appellant say, (d) in accepting the
investigating officer’s evidence that the
state fears for the
safety of state witness and the investigator whilst there was no
evidence against the second appellant in this
regard, (e) in
accepting that there are probabilities that if released on bail the
fourth appellant would be attacked by members
of the community whilst
the fourth appellant’s home is located almost 250 km away from
Cala, (f) in finding that there is
no financial risk likely to be
suffered by the fourth appellant, (g) in disregarding the weight
attached to conspiracy cases and
(h) the fourth appellant’s
election not to engage on the merits of the case reflected adversely
on his bail chances.
Issue
lying for determination
[8]
The crisp issue lying for determination is whether the learned
magistrate misdirected himself and erred in his findings
of
non-existence of exceptional circumstances as alleged by the
appellants.
The
first appellant’s affidavit
[9]
In the affidavit read by Mr Zepe, the first appellant stated that he
is a South African citizen and was 45 years old.
He was born at
Qumbu and stays at 41 Voortrekker Road, Elliot which he regards as
his permanent place of residence. He neither
has relatives nor assets
outside South Africa and has no passport or travel document. He
is a head of traffic at Sakhisizwe
municipality where he is
permanently employed and is also a stock farmer with a flock of
approximately 80 sheep and 40 pigs. He
owns a house located
Mbuqe Extension, Mthatha valued at R700 000.00 over which is
registered a mortgage bond with monthly
repayments of R4000.00.
He also owns two motor vehicle valued at over a million rand.
[10]
He is married with four kids aged 18 years, 15 years and13 years.
The age of the last born is not mentioned.
All the
children are attending school and he is responsible for payment of
their maintenance and support as well as school and
tuition fees for
the first born child.
[11]
He is diabetic and is on medication for high blood pressure in
confirmation whereof he has a medical certificate from
the doctor.
He has an operation on his back owing to a motor vehicle collision
which becomes affected in inclement weather.
He was diagnosed
of urinating blood whilst in custody by a doctor at Frontier
hospital, Queenstown as a result of assault by police.
[12]
The first appellant stated further that he had no previous
convictions and had a fraud case pending since 2013 in the
Elliot
regional court in which he is out on R10 000.00 bail. In
relation to the case at hand the first appellant stated
that he will
plead not guilty but accepted that the offence charged falls under
schedule 6 of the Act, it being his concession
that he must prove the
existence of exceptional circumstances for his release on bail.
He denied having committed murder,
it being his contention that the
state case is weak as there is no evidence linking him to murder.
[13]
He contended further that his release on bail will not endanger the
safety of the public and there is no evidence that
he will disturb
public order or undermine public peace. There is also no
likelihood that he may evade trial. He did
know the state
witnesses in this case and there is no likelihood that he could
interfere with them. He cooperated with the
police during his
arrest and furnished them with all the relevant information.
[14]
He had been in custody since 29 November 2018 and had been advised
that it may take more than 6 (six) months before his
case could be
finalised which he contended is too inordinate a period for him to
prove his innocence. His continued incarceration
will have a
detrimental effect not only to him but also on his family as he will
be unable to support his children and may lose
his employment.
[15]
In relation to the offence with which he had been charged he stated
that on the day of the alleged incident he was at
Elliot. He
advised the members of the SAPS to visit the garage he was sitting at
in a double cab with one Mkwande Nyembe,
a friend which he says
should be captured in the CCTV from the time he arrived up to the
time he left. He, therefore, could
not have been at Cala on the
date of the alleged murder. At the time of his arrest he was
brutalised, tortured, traumatised,
suffocated with plastic bags and
assaulted. He was forced to sign a statement under duress by
the police.
[16]
In conclusion the first appellant submitted that he discharged the
onus to show the existence of exceptional circumstances
warranting
him to be released
on bail and undertook to
abide by the bail conditions should bail be granted. As alluded
to above, nothing turned out of the
first appellant’s affidavit
as no cross examination could ensue on the allegations contained
therein.
The
fourth appellant’s evidence
[17]
Before the second appellant testified his Counsel, Mr Matoti,
volunteered an intimate disclosure that the second appellant
had two
previous convictions relating to a schedule 1 offence, three previous
convictions of non – schedule offences and
one pending case.
The above having been said, the second appellant testified that he
fathers three children aged 9, 7 and
5 years of age from different
mothers. One is staying with him at Qumbu and the two others
are staying with their mothers
in Cape Town. He is responsible
for the maintenance of his last born minor child who has been staying
with his grandmother,
the appellant’s mother, since his
incarceration. He is responsible for supporting his minor
children and is also paying
for their school fees and their school
uniforms. One of the children has been taken by his mother
whilst he is detention
as his family cannot afford to support him.
The appellant’s mother lives on old age pension grant and is
also dependent
on the fourth appellant for her maintenance and
support.
[18]
He stated further that he owns 49 sheep and five bakkies out of which
he makes a living by conveying members of
the community to town
for reward. He has siblings but none of them are working.
He is the only one who is responsible
for supporting his mother.
[19]
He was arrested at Lily B & B, East London, which he used
as a temporary accommodation on or about the 6
th
December
2018 and was taken to Qumbu on the same day where he was charged for
business robbery. He is out on bail of R3000.00.
He had
been in detention since his arrest. Nothing has changed in his
personal circumstances since his arrest save that he
experienced
asthma attacks whilst in custody.
[20]
He will plead not guilty to the charges. He made a confession
which was not read back to him and in which he stated
that he told
those who wanted to commit murder that he did not want to be
involved. He did not know any of the state witnesses
and he
will attend court when directed to do so by the court. He
stated that he would not disturb public order if released
on bail.
[21]
His continued detention will have adverse effects on his mother and
the minor children who have no one to support them
in his absence.
He used to convey his kids to school on his bakkie. His used
spares business is managed by his younger
brother and it will be
adversely affected by his continued detention as his younger brother
has his own business to look after.
[22]
In cross – examination he insisted on his innocence and that
there is nothing that links him to the commission
of the offence with
which he is charged. He denied that the firearm used in the
murder and live ammunition were found in
his possession. Whilst
he conceded that the first appellant’s Mercedes Benz motor
vehicle allegedly used as a getaway
vehicle after the murder was
committed was found in his possession he, however, stated that the
first appellant had borrowed his
bakkie and left his Mercedes Benz
with him. He further stated that he was not aware that
the motor vehicle was used
as a getaway vehicle. He also denied
that he was involved in the planning of the murder.
The
evidence of Brigadier Ngculu
[23]
In opposing bail the state called the investigating officer,
Brigadier Ngculu, (“Ngculu”), to testify.
In her
testimony Ngculu stated that the first appellant was charged for
fraud and corruption in which one Nobhongoza, (“the
deceased),
was a whistle blower. The first appellant threatened Nobhongoza
and used one of the state witnesses who was an
employee under him to
conspire and kill the deceased. The said witness was in a place
of safety for fear that the first appellant
‘
could threaten
or do something
’ to the witnesses if released. The
witness received calls from the first appellant whilst in custody
that when he is
out of detention this witness will follow the
deceased. According to Ngculu the first appellant has a hit
list among which
are also politicians.
[24]
Another witness who was in custody with the first appellant would
also be in danger if he were released as he disclosed
the details
relating to the murder. This witness had also been threatened
and two men were interrupted before doing something
against the
witness. Ngculu stated further that the first appellant should
be kept in custody also for fear of reprisals
as the community
members who had a petition against the first appellant’s
release would attack him because of the anger they
harbour after the
deceased was killed.
[25]
Ngculu denied that the state’s case against the first appellant
was weak. She stated that the first appellant
conspired the
murder of the deceased and also hired people to kill him.
Ngculu stated further that the first appellant made
sure that on the
day of the murder he would be in a place where there are cameras to
obviate any link to the murder. Ngculu
also told the court that
the evidence against the first appellant was strong. She,
however, conceded that the first appellant
had no previous
convictions.
[26]
On resumption of the bail application on 28 January 2019 the public
prosecutor sought leave of the court
a quo
for Ngculu to
supplement her testimony on account of new evidence. The new
evidence was that on 14 January 2019 she consulted
with another state
witness for the purpose of informing the witness that she was
considering releasing her motor vehicle which
was used in the
commission of the crime. The said witness informed her that she
was working under the first appellant as
a traffic examiner and it
would not be appropriate to release the first appellant on bail as
the first appellant would kill her
upon his release.
[27]
In relation to the fourth appellant Ngculu stated that the former had
no fixed employment and that he had no reason not
to evade trial if
he were released on bail. Ngculu confirmed that the fourth
appellant has a motor vehicle which he uses
as public transport but
nothing would suffer in his absence. He also
confirmed
that the fourth appellant is known for committing crimes and evading
trials. The second appellant was arrested in
East London and
had no idea why he was arrested. He, however, confessed that he
got involved in the case because of his cousin,
the first appellant
who told him to hire people to kill the deceased. He also had
independent witnesses to that effect and
was also implicated by the
first appellant in his statement and also by other witnesses.
The first appellant’s motor
vehicle was also found in his
possession.
[28]
Under cross – examination by the first respondent’s legal
representative, Mr Zepe, Ngculu did not dispute
that when he was out
on bail on serious charges of fraud and corruption in another
case: (a) there is no case opened against
the first appellant that he
had threatened witnesses; (b), there is no evidence that the first
appellant had evaded justice; (c)
there is no evidence that the first
appellant had threatened to kill any witness between 2012 and 2019,
(d) the first appellant
had been a good candidate after he was
granted bail.
[29]
Whilst Ngculu testified that there was a statement made by one of the
witnesses to the effect that he was threatened
by the first
appellant, she was at pains to concede that no complaint of threats
against the first appellant was laid with the
police for
investigation. Consequently, no investigations had been
instituted with regard to such threats. Ngculu could
also not
dispute that the deceased, as a ‘
whistle blower
’
did not testify in the Elliot fraud and corruption case against the
backdrop of Ngculu’s earlier testimony that the
first appellant
conspired with and hired someone to kill the deceased.
[30]
In relation to the case at hand, Ngculu testified under cross –
examination that the first appellant was nowhere
in the area in which
the deceased was killed and did not kill the deceased himself but
conspired with someone to do so. She
further confirmed that her
main witness went into hiding on his own and is not under any witness
protection programme as a section
204 witness. She had not
verified the threats against this witness but is investigating them.
The second witness is
safe under the witness protection programme.
She also confirmed the existence of a hit list and also that it had
not been
compiled by the first appellant.
[31]
As regards the fourth appellant Ngculu in cross -examination by Mr
Matoti stated that she could not be sure that the
firearm found in
the first appellant’s motor vehicle driven by the fourth
appellant was used, as if she was, she would not
have sent it for
ballistic tests. This concession is contrary to state’s
assertion during the fourth appellant’s
cross –
examination that the investigating officer ‘
will come and
testify that the weapon or murder weapon that was used to kill the
deceased was found in your possession
’. What also
transpired during cross – examination is that despite the
allegation that the fourth appellant was
running away from the court,
he was granted bail whilst charged for a schedule 6 offence at Qumbu
and this, it was contended during
Ngculu’s cross -examination,
alone proves that he was a good candidate for bail as nothing had
changed since his detention
for this case. Ngculu further
conceded in cross – examination that he had no knowledge of the
fourth appellant interfering
with state witnesses.
[32]
In a dramatic twist of events, Ngculu denied having told the court
that the fourth appellant agreed to murder the deceased,
saying that
this she read from the first appellant’s evidence.
Bizarrely, Ngculu further stated that the fourth appellant
did not
refuse to murder the deceased but ‘
he was actually scared to
carry out the murder himself
. However, Ngculu later
conceded that the fourth appellant did refuse to murder the deceased,
‘
according to his statement’
.
The
State’s opposition to bail in the court a quo
[33]
Two main reasons were advanced by the State as to why bail should be
denied to the first appellant and these are that,
firstly, the first
applicant if admitted on bail will commit another schedule 1 offence
and secondly, the first appellant may intimidate
state witnesses one
of whom is on a witness protection programme Should he be
admitted to bail ‘
he will go back, work and be a supervisor
’
to the witnesses.
[34]
It was further suggested by the state that the first appellant has
not adduced any exceptional circumstances that are
extra ordinary.
Inexplicably, the evidence of the first appellant that he suffers
from diabetes and high blood pressure was
not gainsaid.
Similarly, whilst the State submitted that the first appellant was
receiving treatment in SADA prison, no evidence
was led or even a
suggestion made to that effect.
[35]
In relation to the fourth appellant, the state argued that there is
nothing about his financial predicament and no evidence
was presented
to the effect that his continued detention will result in the
financial downward spiral of his business. There
is also
nothing exceptional about his children, so it was submitted.
There is no evidence adduced before court that his children
are
suffering. It was also the state’s argument in the court
a quo
that if released, the fourth appellant will commit another schedule1
offence.
The
judgment of the court a quo
[36]
In its judgment the court
a quo
correctly found that the
offence with which the appellants were charged fell within the ambit
of schedule 6 of the Act and that
the provisions of section 60 (11)
(a) were applicable. The learned magistrate correctly
identified that as a result of the
application of section 60 (11) (a)
the appellants bore the onus to establish the existence of
exceptional circumstances which in
the interest of justice permit
them to be released on bail. The learned magistrate referred to a
plethora of cases to bolster his
above proposition. The effort
exerted by the learned magistrate in this regard is applaudable.
[37]
The learned magistrate appreciably quoted a passage in
S
v Magotye
[2]
in which he said that the learned Judge in that case said that
exceptional circumstances is a concept incapable of exact
definition.
All the authorities are
ad
idem
that the concept ‘exceptional circumstance’ has no
precise definition. In
Magotye
the
learned
Judge said, and correctly so in my view, that the concept refers to
unique, unusual, rare and peculiar circumstances.
However, how
unique is unique, how
usual
is unusual, how rare is rare and how peculiar is peculiar, remains a
moot point. It is always shrouded in mystery and
is in itself
incapable of precise definition.
[38]
As a point of departure the learned magistrate left a
spes
that he will deal with the principles enunciated in
Magotye
later in his judgment ‘
as
well as some of the submissions made by the defence
’.
In his quest to attach a proper meaning to the concept ‘exceptional
circumstances’, the learned magistrate
referred further to
S
v Yanta
[3]
in which is stated that exceptional circumstances could mean urgent,
serious medical operation, terminal illness or lack of evidence
implicating the accused in the charge.
[39]
The learned magistrate further referred to
S
v D, V & Others
[4]
in which
the
court held that cumulatively the fact that the state case is subject
to some doubt, the low risk pertaining to flight, the absence
of
likelihood of interference with state witnesses and the low risk of
reoffending, constituted exceptional circumstances.
As a last
straw, the learned magistrate hit the nail in the bud when he
referred to
S
v Rudolph
[5]
and said: “
This,
according to the Court, involved the balancing between the liberty,
interest of the accused and the interest of the society
in denying
the accused bail and which will be resolved in favour of the denial
of bail unless exceptional circumstances are shown
by the accused to
exist
”.
[40]
I cannot agree more with the learned magistrate that: “
exceptional
circumstances do not mean that they may be circumstances beyond and
generally different from those enumerated in sub
– section 60
(4) to (9), in fact ordinary circumstances present to an exceptional
degree may lead to a finding to release
on bail is justified
”.
It bears mention that circumstances refrred to in section 60 (4) to
(9) have to be taken into account for the purpose
of determining
whether the appellants should be admitted to bail.
[41]
In opposing bail, the state largely placed reliance on the say so of
its only star witness, Brigadier Ngculu. In
the same vein, in
denying the appellants bail
the learned
magistrate took what Ngculu said or did not say into account.
To the extent that the learned magistrate also might
have
gratuitously taken into account what Ngculu did not say, in this
respect the leaned magistrate shall have erred and misdirected
himself.
[42]
In conclusion, the learned magistrate found that there were no
exceptional circumstances which in the interest of justice
permit the
release of the appellants on bail.
Analysis
and evaluation
[43]
Apart from not taking the court in her confidence as regards where
the murder was planned, when and with whom it was
planned, and who
else was present in the planning meeting, Ngculu herself denied that
she ever said that the first appellant was
involved in the planning
of the murder. The confession the first appellant allegedly
made did not sustain the state’s
case in this regard.
Equally a mere saying that the first appellant planned to feign an
alibi
from the scene of crime at Cala and parade himself under CCTV cameras
in Elliot in an attempt to sustain his
alibi
is a conjecture and speculation that is not supported by any
evidence.
[44]
The confession allegedly made is in itself full of holes.
Nothing is contained therein bolsters the contention
that the first
appellant admitted to having killed the deceased or having hired
assassins to carry out the plot in as much as he
never admitted to
having promised to pay R20 000.00 to some people to carry out
the murder. Where, how and with whom
the plot to kill was
hatched is of paramount significance.
[45]
There is no evidence that the first appellant breached his bail
conditions in the case in which he was released on bail
for having
committed a schedule 6 offence.
[46]
Whilst the learned magistrate referred in his judgment to warrant of
arrests which ‘exist on all four accused’,
I did not
understand the evidence of Ngculu to mean that the first appellant
has a warrant issued against him. And so the
learned
magistrate’s comment that Ngculu ‘gave evidence that
linked all the four applicants to this offence’.
In my
view Ngculu’s evidence stands to be tested in court, more so in
the light of the first appellant’s
alibi
which has at
this stage not been meaningfully gainsaid.
[47]
The first appellant’s evidence that he never failed to appear
in court in respect of his fraud and corruption trial
was not
gainsaid by the state. The distinction drawn by the learned
magistrate as to which of the two offences, namely; the
fraud and
corruption charge and the murder charge he is facing in the court
a
quo
is, with respect an unfortunate distinction that is not born
by any merit as both theses offences are schedule 6 offences.
At page 9, line 19 of his judgment, the learned magistrate commented:
“
One must bear in mind that he is out on charges of fraud
and corruption whereas here he is facing charge of murder
”.
Similarly the learned magistrate’s comment that “
No
evidence on the contrary was placed before me by the four applicants
”
is not well founded as the appellants strenuously denied involvement
in the commission of the offences.
Submissions
by Counsel in this court
[48]
In his submission Mr Matanda, for the first appellant, contended that
the court
a quo
should have found that the first appellant’s
continued detention will seriously prejudice his health which is
corroborated
by medical certificates annexed to his affidavit and
this constitutes exceptional circumstances.
According
to Mr Matanda the learned magistrate did not deal with the ill health
of the first appellant at all in his judgment.
When Mr Matanda
was asked by the court if an accused is suffering from diabetes and
high blood, he is immune from detention, Mr
Matanda’s response
was that it must appear from the record that the issue was considered
by the court. I agree with
Mr Matanda that there is no
reference at all in the court
a quo’
s judgment to the
first appellant’s health condition.
[49]
Mr Matanda further referred the court to an assessment made by a
doctor in frontier hospital where the first appellant
was diagnosed
of urinating blood consequent upon assault by police. It may
very well be it that the first appellant was at
the time of
examination urinating blood but there is no evidence that at the time
the bail application was made the first appellant
was still urinating
blood. When asked by the court whether this issue was still
relevant, Mr Matanda responded that it might
not be but it was at the
time. I do not agree with Mr Matanda that this alone
constitutes exceptional circumstances.
[50]
Mr Matanda in the first appellant’s heads of arguments
submitted further that even if the provisions of section
60 (11) had
been invoked, it is not the duty of the bail court to make a
provisional finding of guilt. I agree with Mr Matanda
in this
regard as it is trite that the refusal to admit an accused to bail
should not be used as a form of anticipatory punishment.
He
further submitted the bail court should not go on a hunting spree for
extra ordinary circumstances without taking into account
that such
factors as weakness of the state case, the low risk pertaining to
flight, employment interest and constitute exceptional
circumstances,
the test being whether the first appellant will evade justice.
[51]
On behalf of the second appellant, Mr Tshitshi submitted that what
linked the second appellant to this case was the motor
vehicle that
was found in his possession. According to Mr Tshitshi the
fourth appellant gave an explanation regarding his
possession of the
first appellant’s motor vehicle which was referred to as a
getaway vehicle. The fourth appellant’s
explanation is
that the first appellant is his cousin and that the first appellant
needed a bakkie and they swapped vehicles.
Mr Tshitshi argued
further that what was said by the state to be linking the fourth
appellant is the firearm that was allegedly
found in the motor
vehicle. He further submitted that when the forensic
expert examined the cartridges and compared
them to the cartridges
fired from the firearm found at Mdantsane, the results were
negative. He further submitted that the
court
a
quo
did not take into consideration
the financial risk befalling the second appellant and the adverse
effects thereof on his children.
[52]
On behalf of the State, Mr Joubert submitted that the appeal to this
court is located in section 65 (4) of the
Act the provisions
whereof preclude this court from setting aside the magistrate’s
decision unless the court is satisfied
that it is wrong in that the
magistrate misdirected himself or herself in some material way in
relation to the fact or law.
I agree with Mr Joubert that this
is the correct legal position.
[53]
According to Mr Joubert, the learned Magistrate dealt properly with
all the relevant considerations and applicable principles.
In his
heads of argument, Mr Joubert further argued that the defence of
alibi
raised by the first appellant is not sustainable and
when one evaluates the strength of the state case, the
alibi
defence disappears. He also submitted that the threats against
the investigating officer should not be evaluated in isolation.
He further submitted that there is nothing unusual in the personal
circumstances of the appellants. He further submitted
that the
first appellant’s claim that his health is not good cannot be
serious as he has been in custody for some time and
it can be safely
accepted that he is alive.
The
legal framework
[54]
The relevant statutory regime governing the release on bail of a
person accused of having committed an offence referred
to in Schedule
6 of the Act is section 60 (11) (a) of the Act. Section 60 (11)
(
a
) provides that where an accused is charged with an offence
referred to 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.
[55] Section 65 (4)
of the Supreme Court Act provides that a Court hearing an appeal
against the refusal to release an applicant
on bail will not set
aside the
decision
of the magistrate unless such Court is satisfied that the decision
was wrong. The proper approach to be followed
is set out in
S
v Barber
as follows:
“
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. 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 unfair interference with the magistrate’s exercise of
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 . . .”
[6]
[56]
The term, “exceptional circumstances”, is not properly
defined in the Act. In
S
v Schietenkat 1999 (2) SACR 51 (CC)
[7]
,
the Constitutional Court held that,
"the
inclusion
of the requirement “exceptional
circumstances” in Section
60 (11)
(a)
limits the right enshrined in Section 35 (1) (f) of the Const
i
tution,
it is a limitation which is reasonab
l
e
and justifiable in terms of the Constitution in current
circumstances.
[57]
In
S
v Jonas
1998 (2) SACR 673
at (687 e-j
)
Horn AJ held that “exceptional circumstances” is
established when an accused is able to adduce acceptable evidence
that the case against him is non-existent or subject to serious
doubt. The learned Judge further said:
“
The
term ‘exceptional circumstances’ is not defined. There
can be as many circumstances which are exceptional as the
term in
essence implies
.
An urgent
serious medical operation necessitating the accused's absence is one
that springs to mind. A terminal illness may be another.
It would be
futile to attempt to provide a list of possibilities which will
constitute such exceptional circumstances. To
my mind, to
incarcerate an innocent person for an offence which he did not commit
could also be viewed as an exceptional circumstance.
Where a man is
charged with a commission of a Schedule 6 offence when everything
points to the fact that he could not have committed
the offence e.g
he has a cast - iron alibi, this would likewise constitute an
exceptional
circumstance.
''.
[58]
The standard of proof required from the appellant to establish the
existence of “exceptional circumstance”
is on a balance
of probabilities
.
See
S
v Rudolph
2010 (1) SACR 262
(SCA) at 266 f-g
.
Once “except
i
onal
circumstances” have been established by a bail applicant the
enquiry must focus on the balance between the interests
of the State
as set out in
Section
60
(4) of the Act on the one hand, and the appellant's interest in his
personal freedom as set out in Section 60 (9) of the Act,
on the
other hand.
Section
60 (4) provides
:
“
(4)
The interests of justice do
not permit the
re
l
ease
from detention of an accused
Where
one
or
more
of
the
following
g
r
ounds
are
established;
(a) where there is a likelihood that the accused, if he or she
is released
on
bail, will endanger the safety of the public or any particular person
or will commit a
Schedule 1
offence, or
(b)
where there is a likelihood that the accused, if he or she were
released on bail
,
will attempt
to evade his o
r
her tria
l
;
or, (c) where there is a likelihood
t
hat
the accused
i
f
he or she were re
l
eased
on bail, will attempt to influence or intimidate witnesses or to
conceal or destroy evidence,
or
(d) where there
is likelihood that the accused
,
if he or she
were released on bail, will underm
i
ne
or jeopardise the object
i
ves
or the proper functioning of the
criminal
justice system, including the bail system, (e)
whe
r
e
in
except
i
onal
c
i
rcumstances
there
is
a
l
ikelihood
that
the
release of the accused will disturb the publ
i
c
order or undermine the public peace or security”
.
[59]
Section 60 (9) provides:
“
(a)
In considering the question in subsection 4 the court shall decide
the matter by weighing the interest of justice against
the rights of
the accused to his
or her
personal freedom and in particular the prejudice he or she is likely
to suffer if he or she were to be detained
i
n
custod
y
,
taking into
account where applicable, the following factors;
(b)
the period for which the
accused has
already been
i
n
custody since his or her arrest;
(c) the reason
for the delay in the disposal or conclusion of the tria
l
and any fault
on part of the accused with regard to such delay. (d) any impediment
to the preparation of the accused's defence or
any delay
i
n
obtaining legal representation which may be brought about by the
detent
i
on
of the
accused
;
(e) the state of
health of the
accused; (f)
any other factor which in the opinion of the court should be taken
into account”.
[60]
The issue in
casu
is whether the learned Magistrate misdirected himself in
refusing the appellant bail and whether it is in the interest of
justice that the appellants be released on bail.
[61]
Whilst in some cases previous convictions can be of a serious nature,
I do not agree that previous convictions alone
could be used by the
court to punish an accused and deny him bail. This, in my view,
is in keeping with a long held legal
principle that refusal to grant
bail to an accused should not be used as some form of anticipatory
punishment.
[62]
In considering whether it is in the interest of justice that the
appellant be released on bail the court
a
quo
should have balanced the interest
of the appellant and those of the State. In
S
v Hudson
1996 (1) SACR 431
(W),
Flemming DJP held:
“
Considering
the granting of bail involves, as is well known, a balancing of the
interest of justice against the wishes of the accused.
But this
is, of course, not accurate. Those interests are not fully in
opposition. It is also to the public good and
part of public
policy that a person should enjoy freedom of movement, of occupation,
of association, e.t.c…”
[63]
In
S v Stanfield
1997 (1) SACR 221
(C)
it was held that the court
a
quo
had lost sight of the fact that
denial of bail would be in the interest of justice only if one of the
factors set out in section
60 (4) was probable.
Where
the facts in sections 60(4) and 60(9) of the CPA are relied upon in a
bail application, they are relevant and cannot be ignored.
[64]
The learned Magistrate should have also taken into consideration the
factors set out in section 60 (9) and this court
must not lose sight
of the period the appellants have spent in detention pending their
trial.
[65]
Similarly, reliance by the State on the strength of its case
could not have been considered in isolation.
In
S
v Van Wyk
2005
(1) SACR 41
(SCA)
at paragraph (6), it was held that “
the
duty of the court in a bail application is to assess the prima
facie strength of the state case against the bail applicant
as
opposed to making a provisional finding on the guilt or otherwise of
such an applicant. Bail proceedings are not to be
viewed as a
full-dress rehearsal for trial. The making of credibility
findings of witnesses on the merits of the case against
the accused
is left to the trial
court
which is better placed to assess such witnesses. (See
S
v Van Wyk
2005
(1) SACR 41
(SCA)
at par [6])”
.
Conclusion
[66]
I am not convinced that it is not in the interest of justice that the
appellants be released on bail.
[67]
It seems to me that in its judgment, the court
a
quo
did not properly deal with
appellants’
p
ersonal
circumstances, financial interest, possibility of the first appellant
losing his job, possibility of the elder child of
the first appellant
dropping out of school, the fact that the appellants are not a flight
risk and may not evade justice as well
as the medical condition of
the first appellant.
[68]
In my view, the learned magistrate did not bother balancing the
interest of the appellants and those of the State or
did he even
bother affording the personal circumstances of the appellant due
weight. The above is in my
view a misdirection.
Order
[66]
In the result I grant the following order:
1.
The first and
fourth appellants’ appeal is upheld.
2.
The decision
of the court below in refusing bail to the appellants is set aside
and is substituted with the following:
2.1
“
Bail
is granted to the first appellant in the amount of R20 000.00.
2.2
“
Bail
is granted to the second appellant in the amount of R15 000.00.
3.
The granting
of bail to the appellants is subject to the condition that they shall
not interfere with state witnesses.
___________________________________
H. S. TONI
JUDGE
OF THE HIGH COURT (ACTING)
Appearances
For
the first appellant
: Mr
E.M.
Matanda
Instructed by
: Keightely
Sigadla Inc.
MTHATHA
For
the fourth appellant :
Mr S. Tshitshi
Instructed by
: Mkata
Attorneys
MTHATHA
For
the state
: Mr JMK
Joubert
Instructed by
: Deputy
Director of Public Prosecutions
MTHATHA
DATE
HEARD :
28 October 2019
DATE
RESERVED :
28 October 2019
DATE
DELIVERED :
8 November 2019
[1]
Act
51 OF 1977
[2]
1999
(1) SACR 223 (NC)
[3]
2000
(1) SACR 37 (Tkei)
[4]
2012
(2) SACR 492
(GNP
[5]
2010
(1) SACR 262 (SCA)
[6]
1979.
(4) SA 218 (D)
[7]
At
paragraph 77