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[2018] ZANCHC 16
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Mabejane and Others v S (K/S 07/2015) [2018] ZANCHC 16 (2 February 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No: K/S 07/2015
Heard
on: 23/01/2018
Delivered
on: 02/02/2018
In
the matter between:
KEARABETSWE
McNULTY MABEJANE 1
st
Applicant/accused 1
KlTLANO
OCCASION MABEJANE 2
nd
Applicant/accused 2
GADIHELE
PATRICIA KGOMOELELA 3
rd
Applicant/accused 3
TSHEPISO
SHADRACK MODUTWANE 4
th
Applicant/accused 4
PATRICK
MOGAPI Accused
5:
NI
A
SIPHO
GIFT KEOGATILE 5
th
Applicant/accused 6
and
THE
STATE Respondent
JUDGMENT:
APPLICATION FOR BAIL PENDING APPEAL
MAMOSEBO J:
[1]
This is an application for bail pending an appeal to the Full Bench
of the Northern
Cape Division on conviction which is opposed by the
State.
[2]
The five applicants were each convicted on 29 August 2016 of Count 1:
murder with
dolus eventualis
as a form of intent; Count 2:
Assault with intent to cause grievous bodily harm. They were
sentenced on 16 November 2016 to 15 years'
imprisonment on the murder
charge and two years' imprisonment in respect of the Assault GBH
charge. The two sentences in respect
of each one of them were ordered
to run concurrently.
[3]
Leave to appeal was refused. They were also unsuccessful in their
application to be
released on bail pending appeal. The applicants
petitioned the Supreme Court of Appeal (SCA) and were successful in
that leave
was granted to appeal to the Full Bench of this Division
on conviction, which precipitated this application.
[4]
Heavy reliance, by all the legal representatives appearing on behalf
of the applicants,
was placed upon the fact that six different judges
of the Supreme Court of Appeal (SCA), have granted leave to appeal
against their
conviction. This, they argued, is an indication that
they have strong prospects of success on appeal. Haneke AJA dealt
with this
aspect in
S
v Scott-Crossley
[1]
as follows:
"[7] The
prospects of success do not in itself amount to exceptional
circumstances as envisaged by the Act - the Court must
consider all
relevant factors and determine whether individually or cumulatively
they constitute exceptional circumstances which
would justify his
release (S
v
Bruintjies)
[2]
."
[5]
In the
Bruintjies
case
[3]
the appellant and
his co-accused were convicted of robbery with aggravating
circumstances and possession of unlawful firearms. They
were
sentenced to 15 years and five years respectively. The appellant
applied for and was granted leave to appeal to the
Full
Bench
against his conviction and sentence. The SCA dismissed his appeal.
The SCA remarked that the 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,
especially for a serious crime such as murder, citing
R
v Mthembu
[4]
with approval. All
relevant factors must be taken into consideration by the Court
considering applications of this nature and determining
whether
individually or cumulatively they warrant a finding that exceptional
circumstances exist justifying the applicant' release
on bail.
[6]
Mr Bode, appearing for the third and fourth applicants, added that
the successful granting
of leave can presuppose the existence of a
reasonable prospect of success in the appeal, which in itself
constituted an exceptional
circumstance. As already alluded to, the
SCA pronounced that this, on its own, cannot amount to exceptional
circumstances.
[7]
Another factor which was argued on behalf of the applicants related
to the aspect
that they were on a 'mere R500.00' bail until they were
sentenced and never absconded. Mr Schreuder, appearing for the first
and
second applicants, relied on
S
v Dlamini: S v Dladla and Others; S v Joubert: S v Schietekat
[5]
in
support
of his argument that the applicants be released on bail. Counsel
overlooked the following instructive passage in the judgment
[6]
by
Kriegler J:
"What is of
importance is that the grant or refusal of bail is under judicial
control, and judicial officers have the ultimate
decision as to
whether or not, in the circumstances of a particular case, bail
should be granted.
"
[8]
Mr Mxabo, appearing for the State, referred to
Beetge
v The State
[7]
and argued that the
onus still rests on the applicants to present exceptional
circumstances which he submits they have failed to
do. These
exceptional circumstances should be weighed against the interests of
justice. He contended that save for the fact that
the SCA has on
petition granted them leave the applicants have not placed before
Court any other factor that is out of the ordinary.
All the other
factors, including their personal circumstances were considered when
the application was previously declined, counsel
contended.
[9]
As stated in
Crossberg
v S
[8]
:
"Over and above
the procedural right is the Constitutional right to freedom and
security of the person as set out in s 12(1)
of the Constitution. Our
courts have always treated matters of personal freedom as matters of
importance and urgency."
[10]
There can be no question that the crimes with which they have been
convicted are of a serious nature.
To this end they are facing a long
term imprisonment of 15 years. It is correct, as Mr Mxabo argued,
that their situation is different
in that before their conviction
they did not have the experience of prison but have now experienced
the inside of prison which
may affect the risk of abscondment.
However, the applicants have attended court and had never defaulted
in their appearances. They
also observed their bail conditions. They
have fixed address and relatives in Mothibistad, Northern Cape
Province. Regard being
had to their personal circumstances they
cannot be categorised as a flight risk. All these factors count in
their favour. The objective
of the right to bail is to minimize the
interference with an accused's freedom and to avoid anticipatory
punishment before conviction
and sentence. The fact that they have
been granted leave to appeal their convictions by the SCA may be an
indication that they
have prospects of success. On this conspectus I
am swayed to grant the applicants bail pending their appeal to the
Full Court of
this Division. I proceed to make the following order.
Order:
1.
The applicants are granted bail in an amount of R5 000.00
(Five Thousand Rand) each pending the determination of their appeal
by
the Full Bench of the Northern Cape Division of the High Court on
the following conditions:
(a) The
applicants are prohibited from obtaining any passport and/or any
other travelling document
whilst on bail.
(b) The
Applicants are prohibited from visiting any International Airport or
Harbour where access can
be obtained to any means of leaving the
Republic of South Africa.
(c) The
Applicants are prohibited from leaving the Northern Cape Province
without the prior written consent
of the Investigating Officer in
this matter.
MAMOSEBO
J
JUDGE OF THE HIGH
COURT
For
1
st
and 2
nd
Applicants:
Adv Schreuder
Instructed
by: Engelsman
& Magabane Attorneys
For
3
rd
and 4
th
Applicant:
Mr R Bode
Engelsman
& Magabane Attorneys
For
5
th
Applicant:
Mr
A Van Tonder
Kimberley Justice
Centre
For the
Respondent:
Adv NA Mxabo
Director
of Public Prosecution
[1]
2007 (2) SACR 470
at 473e (para 7)
[2]
2003 (2) SACR 575 (SCA)
[3]
See footnote 2 above
[4]
1961 (3) SA 468 (D)
[5]
[1999] ZACC 8
;
1999 (2) SACR 51
(CC)at 88h - i; 89e and 90b - d
[6]
The last paragraph at page 88i
[7]
(925 / 12)[ 20 13] ZASCA I (11 February 2013)
[8]
[2007] SCA 93 (RSA) delivered 22 August 2007