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[2018] ZANCHC 9
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Mphetsheni v S (CA & R 4/18) [2018] ZANCHC 9 (2 March 2018)
IN THE HIGH COURT
OF SOUTH AFRICA
NORTHERN CAPE
DIVISION, KIMBERLEY
Case No: CA &
R 4/18
Heard on:
22/02/2018
Delivered on:
02/03/2018
In
the matter between:
MBUYISELO
ASHLEY MPHETSHENI
Appellant
and
THE
STATE
Respondent
JUDGMENT
ON BAIL APPEAL
MAMOSEBO J:
Introduction
[1]
On
22 January 2018 the appellant brought a formal application for bail
in the Postmastburg magistrate court before Magistrate P
Mulder. His
application was refused. He now appeals against that decision in
terms of s 65(1) (a) of the Criminal Procedure Act
[1]
(CPA).
[2] The
appellant, in the magistrate court, was represented by his attorney
Ms J
Lofty-Eaton while the State was represented by Adv Zazo. The
appellant, on appeal, was represented by Adv IJ Nel while the
respondent
was represented by Adv Q Hollander.
[3] Mr
Mbuyiselo Mpetsheni, the appellant, testified at the formal bail
application
and no other witnesses testified on his behalf. Constable
Christine van der Westhuizen testified on behalf of the State.
[4] In
the proceedings that served before this Court Mr Hollander submitted
that
the court a quo had been correct when it refused to grant the
appellant bail while Mr Nel held a contrary view.
[5] It
was common cause that the charges that the appellant faces are
referred to
in Schedule 6 of the CPA. This was because he had a
pending case of theft in Kimberley involving goods to the value of
RI.2 million
rand listed in Schedule 5 and is now charged with
Schedule 5 offences of one count of murder read with the provisions
of
s 51
of the
Criminal Law Amendment Act, 105 of 1997
and four
counts of attempted murder.
[6] The
personal circumstances were placed and considered by the Magistrate.
The
appellant is a 42 year old South African citizen born at
Postmasburg. He is not married but has a life partner with whom he
has
two children aged 13 and 7 years old. They reside in Galeshewe,
Kimberley. His life partner is employed by the Department of Health
and earns about R19 000.00 per month while he assists at his
brother's guest house and he receives R5000.00 every month. He denied
having a passport. He owns a motor vehicle and some furniture. In as
far as previous convictions are concerned, he said he paid
a R200
admission of guilt for common assault and denied having any other
prev10us conviction. He has a pending criminal case of
theft in the
Regional Court in Kimberley for which he was released on bail. He
knows two of the state witnesses in the current
matter.
[7] The
respondent opposed the application. Constable Christine Van der
Westhuizen
testified. She based her evidence on, inter alia, the
contents of the statements she obtained from some of the witnesses.
She testified
that the appellant used his vehicle to chase the
victims at the street, killed one and attempted to kill the others by
colliding
and/or driving over them. This she said, happened after an
altercation between him and the Mooki family.
[8]
The investigation is incomplete. The investigating officer envisaged
that
a period of four months is required to complete the
investigations since forensic investigations are also underway.
[9] Const
Van der Westhuizen explained that the appellant's profile reflects an
aggressive
person. She says when she enquired from the appellant
whether he has any previous convictions, he denied having any. The
appellant
testified to having paid R200 admission of guilt fine for
assault. However, his SAP 69's, that is record of his previous
convictions,
speaks something else. He was convicted of assault and
of discharging a firearm in an urban area. Both offences were
committed
in Postmasburg under CAS 35/3/2001 and CAS 40/3/2001.
[10]
The State did not dispute the fact that the appellant had a fixed
address in Postmasburg and Kimberley.
However, the appellant had
failed to disclose his Kimberley residence to the investigating
officer. This resulted in the address
verification being conducted by
the investigating officer only at the Postmasburg address.
[11]
The
appellant vehemently denied ever having a passport. He testified that
he only obtained a temporary passport once and crossed
the border to
Swaziland to attend a funeral. However, evidence revealed during
cross examination that the appellant also crossed
the border to
Namibia more than once. Const Van der Westhuizen confirmed that the
records show that the appellant's passport expired
in 2014. The
Department of Home Affairs records show that he exited the country
but there is no record of his return to the country.
[12]
The
family of the deceased and the victims of these offences, the Mooki
family, wrote a letter to the Director of Public Prosecutions,
whereat they expressed their concerns in respect of how the police
and the legal system treat the appellant. They demanded intervention
by the office of the Director of Public Prosecution.
[13]
The
Magistrate did not specify the factors as he dealt with them but it
can be said that he conducted that exercise in his judgment.
I will
elaborate more hereunder. First, it is apposite to highlight the view
expressed by the Supreme Court of Appeal on exceptional
circumstances.
[14]
The Supreme Court of Appeal has clarified what is meant by
exceptional circumstances in
S
v Bruintjies
[2]
where
Shongwe AJA had the following to say:
"what is
required is that the court consider all relevant factors and
determine whether individually or cumulatively they warrant
a finding
that circumstances of an exceptional nature exist which justify his
or her release. What is exceptional cannot be defined
in isolation
from the relevant facts, save to say that the legislature clearly had
in mind circumstances which remove the applicant
from the ordinary
run and which serve at least to mitigate the serious limitation of
freedom which the legislature has attached
to the commission of a
schedule 6 offence".
The court further
remarked as follows at 577I:
"If, upon an
overall assessment, the court is satisfied that circumstances
sufficiently out of the ordinary to be deemed exceptional
have been
established by the appellant and which, consistent with the interests
of justice, warrant his release, the appellant
must be granted bail".
See also
S
v Rudolph
[3]
.
15 The
Magistrate refused to admit the appellant to bail and dismissed the
application.
In doing so, it followed an approach of on its own
searching for exceptional circumstances without specifically making
reference
to the factors as outlined in
s 60(4).
This is said based
on the following findings by the Magistrate:
15.1 The
appellant is not a flight risk and he will not evade trial. This
finding is on the basis of
s 60(4)(b).
2.62
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15.2 The
fact that the appellant will not interfere with state witnesses is
doubtful ("twyfelagtig").
This is in line with
s 60(4)
(c).
15.3 That
the appellant's personal circumstances are not exceptional.
15.4 That
the failure by the appellant to disclose his 'forgotten' previous
convictions could not be ignored
but it will be left to the State to
decide on any further steps on this aspect.
15.5 The
fact that the appellant intends to plead not guilty to the charges.
The evidence of the appellant
was that he was attacked and had to
flee the scene. The evidence of Const. Van der Westhuizen was to the
effect that the appellant
could have proceeded straight as he 'sped
off and would have left the scene. It is incomprehensible how the
appellant, fleeing
from an emergency situation, would tum his vehicle
instead of proceeding straight. The Magistrate found that what was
presented
by const. Van der Westhuizen watered down the appellant's
version.
15.6 The
Magistrate was satisfied, at least prima facie, that the State case
against the appellant was strong
.
15.7 In
finding no exceptional circumstances justifying the appellant's
release on bail. The appellant's
evidence contained only usual
circumstances, which, in his view, did not assist him to discharge
his onus and dismissed the bail
application.
16 The
Magistrate overlooked
s 60(4)(a)
to determine whether there is a
likelihood that the appellant, if released on bail will endanger the
safety of the public or any
particular person or will commit a
Schedule 1 offence. Mr Hollander submitted that the factors listed
ins 60(5)(a) -(h) are apposite
in making this determination. Mr
Hollander submitted that the factors are present in this matter as
follows:
16.1
It is the respondent's case that the appellant used his vehicle to
chase victims around and drove
over one of them while he drove
straight into the others. This meets the provision of
s 60(5)(a)
in
terms of the implicit degree of violence towards others.
16.2
The appellant uttered threatening words to the people who walked him
out of the Mooki family
home saying "he will show them, he fears
no one and they were nothing in his eyes". This happened before
he went into
his vehicle and went amok.
Section 60
(5)(b) requires
any threat of violence made by the appellant to be considered.
16.3 Sight
should not be lost of the fact that the appellant was prevented from
confronting the person
who allegedly assaulted his son. That person,
submitted Mr Hollander, is now known to him and it is that very
incident that caused
him to find himself in conflict with the law.
Worse still, while on bail in another matter. This means that being
on bail failed
to deter him from committing further offences.
Sec
60(5)(c)
requires the court to take into consideration any form of
resentment that the appellant is alleged to harbour against any
person.
17 The
grounds of appeal as contained in the notice of appeal dated 08
February 2018
are essentially that the magistrate failed to attach
any weight or sufficient weight:
17.1 to
the favourable grounds testified to by the appellant which
cumulatively show that the interests
of justice permit his release on
bail;
17.2
by
not weighing up the interests of justice against the prejudice likely
to be suffered by the appellant should he not be admitted
to bail.
17.2
to the averment that the appellant's version was not materially
disputed by the respondent;
17.3
to the provisions of
s 60(4)
(a) to (e) of the CPA;
17.4
To the likely prejudice the appellant would suffer if his bail
is refused;
17.5
to the submission that his previous convictions were over 10
years ands 271A of the CPA found application;
17.6
the
possibility that the appellant may only be convicted of culpable
homicide and/or negligent or reckless driving instead of making
a
finding that the respondent's case was strong against him;
17.7
that
exceptional circumstances were shown by the appellant.
The legal
position
18
Kriegler
J made the following remarks in
S
v Dlamini: Sv Dladla and Others; S v Joubert: S v Schietekat
[4]
:
"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."
19
Section
65(4)
of the CPA stipulates that an appeal court shall not set aside
the decision against which the appeal is brought, unless such Court
or Judges is satisfied that the decision was wrong. This principle
was enunciated in
S
v Barber
[5]
where
Heher J pronounced:
"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
for bail. 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 his
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 exercised
that discretion wrongly."
20 Bail
applications of accused persons are regulated by
s 60
of the CPA.
Sec
60(1)(a)
stipulates:
"(1)(a) An
accused who is in custody in respect of an offence shall, subject to
the provisions of
section 50
(6), be entitled to be released
on bail at any stage preceding his or her conviction
in respect
of such offence, if the court is
satisfied that the interests of justice so permit".
21
Section
60(1
l)(a) provides:
"(11)
Notwithstanding any provision of this Act, where an accused 1s
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".
Section 60(11)(a)
places the burden or the onus on the accused to satisfy the court by
way of evidence that exceptional circumstances exists which,
in the
interests of justice, permit his release. This burden seems to me to
be heavier than the burden in terms of
s 60(11)(b).
15
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22
Section 60
(4) of the CPA provides that:
"(4)
The interests of justice do not permit the release from detention of
an accused where one
or more of the following grounds are
established:
(a)
Where there is the likelihood that the accused, if he or she
were 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 the likelihood that the accused, if he or she
were released on bail, will attempt to evade his or her trial; or
(c)
Where there is the likelihood that the accused, if he or she
were released on bail will attempt to influence or intimidate
witnesses
or to conceal or destroy evidence; or
(d)
Where there is the likelihood that the accused, if he or she
were released on bail, will undermine or jeopardise the objectives or
the proper functioning of the criminal justice system, including the
bail system;
(e)
Where in exceptional circumstance there is the likelihood that
the release of the accused will disturb the public order or undermine
the public peace or security.
The issues
23 The
issues to be determined are whether the appellant has discharged the
burden placed on him by
s 60(1l)(a)
of the CPA to be admitted to bail
and whether the Magistrate has indeed erred by refusing to grant the
appellant bail.
24 It
is not discernible how the Magistrate would easily dismiss the aspect
of the
passport and the information by the Department of Home Affairs
that the records show that the appellant went out of the country
and
yet there is no information that he is back in the country. This, in
my view, cannot just be dismissed without ascertaining
facts. These
allegations required further interrogation or investigation. The
Magistrate simply said he thought it was an administrative
fault on
the part of the Department of Home Affairs because since the first
temporary passport in 1999 subsequent temporary passports
were issued
to the appellant in 2000, 2004 and in 2014 he was given an emergency
passport. In my view, the issue around the passport
is exacerbated by
the concealment of information that the appellant had travelled out
of the country on more than one occasion
and to different countries.
It was misleading and dishonest of him to emphatically state that he
only left the country once to
attend a funeral in Swaziland and has
never used the temporary passport again.
25
In
S v
Dlamini; S v Dladla and Others;
S
v
Joubert; S v Schietekat
[6]
the
Constitutional Court made the following instructive pronouncements:
"It should of
course never be forgotten that the Constitution does not create an
unqualified right to personal freedom and
that it is inherent in the
wording of s 35(1)(f) that the Bill of Rights contemplates - and
sanctions - the temporary deprivation
of liberty required to bring a
person suspected of an offence before a court of law. The hypothesis,
indeed the very reason for
the existence of s 35(1)(f), is that
persons may legitimately and constitutionally be deprived of their
liberty in given circumstances.
This clearly establishes that unless
the equilibrium is displaced, an arrestee is not to be released."
26 In
my view the Magistrate has indeed dealt with some of the
considerations in s 60(4)
and the submission that he has failed to do
so or not attached adequate weight to the factors thereat cannot be
correct. This is
what the Magistrate said:
"Nou die
Staatsaanklaer het die bepalings van Artikel 60(4) van die
Strafproseswet mooi uiteengesit waarin sy dan nou se waarna
die Hof
moet kyk en dan het die Strafproseswet ook dan nou die bepaalde sub
artikels opgebreek in antler artikels waama die
Hof moet kyk."
27 While
the appellant's counsel submitted that the offences which he
committed in
the past are old and should remain in the past, for
these purposes I am of the view that they show that he has at least
made himself
guilty of Schedule 1 offences on several occasions. The
Magistrate did not even consider them to be serious because the
appellant
paid admission of guilt for them.
28 I
am not satisfied that the Magistrate has exercised his discretion
wrongly by
not admitting the accused to bail. There was no
misdirection by the Magistrate in expressing a finding that there was
a
prima facie
strong case against the appellant.
29 The
appellant has failed to show the exceptional circumstances which, in
the interests
of justice, permit his release on bail. I am satisfied
that the Magistrate applied the provisions of s 60(4), 60(5) and
60(9) of
the CPA. Section 60(4) of the CPA clearly provides that the
interests of justice do not permit the release from detention of an
accused where one or more of the grounds referred to in the
subsections of s 60(4) are established.
30 Although
the Magistrate found that the appellant was not a flight risk and
will not evade trial, he still found it doubtful whether his release
on bail may create that opportunity for him to interfere with
state
witnesses. I am not convinced by the appellant's explanation around
the passport and having relatives outside the borders
of the country
as well as the number of occasions when he has left the country. He
chose to be evasive and suffered some memory
loss when it came to
those aspects during the formal bail application. It is still
necessary, in my view, for the investigating
officer to follow up on
the issue of the Home Affairs records in respect of the status of the
appellant and find the true position.
31 What
is disturbing and inexplicable is how the appellant expects to be
afforded
yet another opportunity to be out on bail when he is
currently on bail in another matter and these offences are committed
during
that indulgence.
32 It
cannot be said that the Magistrate was wrong in refusing to admit the
appellant to bail. There is no basis for the appeal court to
interfere with the discretion exercised by the Magistrate. The appeal
must therefore fail.
33 In
the result, the following order is made:
ORDER
The appeal is
dismissed.
MAMOSEBO
J
JUDGE OF THE HIGH
COURT
For
the Appellant:
Adv
I Nel
Independent Bar
For the
Respondent:
Adv
QH Hollander
Director of Public
Prosecutions
[1]
51 of 1977 as amended. Section 65(1)(a) stipulates:
"An
accused who considers himself aggrieved by the refusal by a lower
court to admit him to bail or by the imposition by
such court of a
condition of bail, including a condition relating to the amount of
bail money and including an amendment or supplementation
of a
condition of bail, may appeal against such refusal or the imposition
of such condition to the superior court having jurisdiction
or to
any judge of that court if that court is not then sitting.
[2]
2003 (2) SACR 575
(SCA) at 577f
[3]
2010 (1) SACR 262
(SCA) at 266g- h
[4]
[1999] ZACC 8
;
1999 (2) SACR 51
(CC) at 88h - i; 89e and 90b- d.
[5]
1979 (4) SA 218
(D) at 220E - H
[6]
[1999] ZACC 8
;
1999 (2) SACR 51
(CC);
1999 (4) SA 623
(CC);
1999 (7) BCLR 771
(CC)
at para 79