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[2018] ZAKZPHC 26
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Ntoni and Others v S (5646/2018P) [2018] ZAKZPHC 26 (21 June 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: 5646/2018P
In
the matter between:
DAVID
NYAKALO
NTONI
FIRST
APPELLANT
MUZIWANDILE
FLOYD
XABA
SECOND
APPELLANT
SANDILE
LUNGISANI
XABA
THIRD
APPELLANT
and
THE
STATE
RESPONDENT
ORDER
The
appellants’ appeal against the refusal to admit them to bail is
dismissed.
JUDGMENT
HENRIQUES
J
Introduction
[1]
This is an appeal against the refusal by Magistrate Van Vuuren,
presiding in the Pietermaritzburg Magistrate’s Court on
15
March 2018, to admit the appellants to bail.
Offences
[2]
The appellants together with their co-accused were charged with the
following offences, namely:
(a) Possession of a
firearm in contravention of
s 3
of the
Firearms Control Act 60 of
2000
, being in possession of 4 semi-automatic firearms being 9 mm
pistols, 2 Tokareve pistols, 1 x 9 mm star and 1 x C275 pistol;
(b) Possession of
ammunition in contravention of s 90 of the Firearms Control Act; and
(c) Three counts of
attempted murder.
[3]
At the commencement of the bail proceedings it was agreed with the
appellants’ legal representative that:
(a) in respect of the
first appellant, he bore the onus to satisfy the court that
exceptional circumstances exist which in the interests
of justice
permit his release on bail as the offences fell under Schedule 6 of
the Criminal Procedure Act 51 of 1977 (the CPA);
[1]
(b) in respect of the
second and third appellants, they bore the onus to satisfy the court
that the interests of justice permit
their release on bail as the
offences fell under Schedule 5 of the CPA.
[2]
[4]
During the course of the bail proceedings the appellants did not
testify and filed affidavits in support of their bail application.
The respondent, in opposing the granting of bail filed the affidavit
of the investigating officer, Constable Msizi Leonard Mkhize
and no
viva voce
evidence was led by either party.
[5]
In the judgment in the bail application, the court considered the
affidavits filed by the appellants
[3]
and the investigating officer.
[4]
I may add that the investigating officer filed similar affidavits in
opposing bail in respect of each of the appellants’
application
for bail, the grounds of opposition and circumstances of the arrest
of each of the appellants being the same.
[6]
In his judgment,
[5]
the
magistrate held the following:
‘
A careful
consideration of the affidavits has revealed that nothing has been
placed before this Court which is of sufficient substance
to cause a
finding that insofar as the applicants 2 and 4 are concerned it
should be found that it would be in the interest of
justice for their
release or that the situation regarding the applicant 2 that
exceptional circumstance exist which would allow
this Court to
release him on bail. Circumstances do exist but not to the degree to
which would allow the Court to grant their release.
Now, none of the
applicants have discharged the onus which they carry on their
shoulders by way of the
Criminal Procedure Act 51 of 1977
. The
application in respect of each of the applicants fails,
BAIL IS
REFUSED.’
[7]
The crux of the judgment is that the magistrate was of the view that
none of the appellants had discharged the onus in terms
of the CPA in
respect of the granting of bail.
The
first appellant
[8]
The first appellant, in his affidavit,
[6]
dealt with his personal circumstances, his employment and his
previous convictions. In addition, he indicated that he intended
to
plead not guilty and denied having committed any of the offences.
[7]
His affidavit goes on to deal with the requirements envisaged in
terms of
s 60(4)
to
60
(9) of the CPA, and, in paragraph 14 thereof
[8]
submitted that he had discharged the onus to show exceptional
circumstances which in the interests of justice permits his release
on bail.
[9]
The exceptional circumstances he submits are the following: ‘the
collective effect of all his personal circumstances,
he is in custody
for an offence he did not commit, his incarceration will hamper the
preparation of his defence and that the state
has no prospects of
succeeding in a prosecution against him.
[9]
The
second appellant
[10]
In his affidavit filed in support of his application for bail,
[10]
the second appellant dealt with his personal circumstances and
indicated that he intended to plead not guilty and denied any
involvement
in the commission of the offences. His affidavit then
deals with the requirements envisaged in terms of
s 60
of the CPA.
The
third appellant
[11]
The third appellant, in his affidavit filed in support of his
application for bail,
[11]
apart from dealing with his personal circumstances indicated that he
too intended to plead not guilty and denied any participation
in the
commission of the offences. Likewise, his affidavit dealt with
the requirements in terms of
s 60(4)
of the CPA.
[12]
All three appellants indicated that they could afford R1 000 as
bail, that they did not pose flight risks as they did
not have
passports or other travel documents and thus, would not evade their
trial.
[13]
The investigating officer in his affidavit opposing bail for the
appellants
[12]
confirmed their
residential addresses and in respect of the first appellant dealt
with his previous convictions.
[14]
The investigating officer’s / State’s reasons for
opposing bail for all three appellants are the same and are recorded
as being the following:
‘
1. The accused may
be considered a flight risk as the accused tried to flee the scene
and evade arrest.
2. The accused fled from
the police in full uniform and in marked police vehicles.
3. The accused may be
considered a danger to the public as he was found in possession of an
unlicensed firearm.
4. The state consider
(sic)
the accused very dangerous as they also shot at the
police officials.
5. Accused is not
gainfully employed and has not provided his proof of identity.
6. The accused may
abscond trial as he might fear a heavy sentence that might be
imposed.
7. Accused has multiple
convictions similar to the committed offence and may be a repeat
offender.’
[13]
[15]
The affidavit further records the following in respect of the
circumstances under which the arrest of the appellants and their
co-accused occurred:
‘
The facts of the
case are as follows:
The accused x 5 were at
Lincoln Road, Woodlands with motor vehicle vw (polo) with false
number plates NP 67380 when the K-9 unit
members tried to stop their
vehicle as it had false plates but the accused tried to flee and
fired shots at the police and police
members also shot back and
injured all five (5) accused who were then arrested and found in
possession of unlicensed firearms (x4)
and ammunition in each
firearm.’
[16]
The investigating officer indicated that the appellants were linked
to the offences as they were found in possession of the
firearms and
ammunition and by witness statements.
Grounds
of appeal
[17]
The appellants noted an appeal against the refusal of bail and the
grounds for such appeal are recorded in detail in the notice
of
appeal.
[14]
Submissions
of the parties
[18]
In summary, Mr
Mbhele
acting on behalf of the appellants,
submitted in his heads of argument that:
‘
18.1 The court did
not properly consider the provisions of
s 60
of the CPA, attached
insufficient weight to the personal circumstances of the appellants
and the devastating effect incarceration
would have on them and their
families;
18.2 Attached too much
weight to the contents of the affidavit of the investigating officer;
18.3 Failed to attach due
weight to the fact that the first appellant’s previous
convictions were older than ten years and
he did not have any pending
cases;
18.4 In relation to the
second and third appellants, that they had no previous convictions
and no pending cases.’
[19]
Mr
Mbhele
further submitted at the hearing that the court a
quo erred in not considering the merits of the matter. He stressed
that two important
factors to be considered in a bail application are
the following, namely the strength of the State’s case which in
some instances
can constitute an exceptional circumstance and
secondly, whether the appellants will attend their trial. He
submitted in argument
that the State adduced no evidence to gainsay
what the appellants indicated in their respective affidavits relating
to the requirements
of
s 60(4)
of the CPA. All three of the
appellants had ties to the community, were gainfully employed and had
no travel documents indicating
that they posed a flight risk.
[20]
He submitted that given the personal circumstances of the respective
appellants, they had discharged the respective onuses
for them to be
released on bail.
[21]
Ms
Dyasi
who appeared for the respondent, submitted that the
court a quo did not err in any manner. The personal circumstances of
the respective
appellants were not out of the ordinary and were not
exceptional in the case of the first appellant. She emphasized the
circumstances
under which the appellants were arrested and indicated
that the appellants have not provided an explanation in relation to
their
arrest and possession of the respective firearms and
ammunition. In light of the unchallenged evidence of the
investigating officer
detailing these circumstances and in the face
of a bare denial from the appellants, there is evidence to suggest
that they have
an incentive to evade trial and pose a flight risk, as
if they are convicted, they face a long term of imprisonment.
The
bail appeal
[22]
This appeal is brought in terms of
s 65
of the CPA and this court
must therefore consider the appeal in accordance with
s 65(4)
which
reads 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.’
[23]
In applying the provisions of
s 65(4)
, the court hearing the bail
appeal must approach it on the assumption that the decision of the
court a quo is correct and not interfere
with the decision, unless it
is satisfied that it is wrong.
[15]
Schedule
5 offences
[24]
In respect of Schedule 5 offences, the onus is on the second and
third appellants to satisfy the court that the interests of
justice
permit their release on bail. In respect of the test for
interests of justice, the bail application must start on
the premise
that the continued detention of the second and third appellants is
the norm.
[16]
[25]
A presiding officer must weigh up the personal interests of the
appellant against the interests of justice as it appears from
all
the evidence presented.
[26]
This court must consider whether on the facts and the evidence
presented in the court a quo, the magistrate misdirected himself
or
erred when he found that the second and third appellants had failed
to satisfy the onus on a balance of probabilities that the
interests
of justice permitted their release on bail. The court was required to
make a value judgment and evaluate the strength
of the State’s
case.
[17]
Schedule
6 offences
[27]
Section 60(11)
(a)
of the CPA provides that an accused is to be detained in custody when
charged with an offence referred to in Schedule 6, unless
he adduces
evidence to the satisfaction of a court that ‘exceptional
circumstances exist which in the interests of justice
permit his or
her release’.
[28]
Our courts have refrained from providing an exhaustive definition of
what constitutes exceptional circumstances.
[29]
In
S
v Jonas
[18]
the court held the following:
‘
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 view
as an exceptional
circumstance. Where a man is charged with the commission of a
Schedule 6 offence when everything points to the
fact that he could
not have committed the offence, eg that he has a cast-iron alibi,
this would likewise constitute an exceptional
circumstance.’
[30]
In
S
v Scott-Crossley
[19]
the court held the following:
‘
Personal
circumstances which are really ‘commonplace’ can
obviously not constitute exceptional circumstances for purposes
of
section 60(11)(a)
;’
[31]
In
S
v Petersen
[20]
the court held that ‘“exceptional” is indicative of
something unusual, extraordinary, remarkable, peculiar or
simply
different.’
[32]
Generally speaking what may constitute exceptional circumstances in
any given case depends on the discretion of the presiding
officer and
the facts peculiar to a particular matter. In the context of the
provision of
s 60(11)
(a)
,
the exceptionality of the circumstances must be such as to persuade
the court that it would be in the interests of justice to
order the
release of the accused person. It requires the court to exercise a
value judgment in accordance with all the relevant
facts and
circumstances.
[33]
In
S
v Yanta
[21]
the
court was of the view that a proper construction of s 60(11) of the
Act involved the balancing of the interests of society and
the proper
and effective administration of criminal justice as opposed to the
personal interests of an accused. In
S
v Mokgoje,
[22]
,
the court was of the view that the concept referred to circumstances
that were unique, unusual, and particular.
[34]
It has further been held that proof by an accused that he or she
would probably be acquitted can constitute exceptional circumstances
for the purpose of the section. See in this regard
S
v Botha en ‘n Ander
.
[23]
This
was further reinforced in the decision of
S
v Viljoen
.
[24]
.
In
S
v van Wyk
the Supreme Court of Appeal found that the absence of a prima facie
case against an accused was relevant to the aspect of exceptional
circumstances.
[35]
In
S v
Hudson
[25]
the court held the following:
‘
. . .the
expectation of a substantial sentence of imprisonment would
undoubtedly provide an incentive to the appellant to abscond
and
leave the country…
And further that
[26]
“ where an accused applies for bail and confirms on oath that
he has no intention of absconding due weight has of course
to be
given to this statement on oath. However, since an accused who does
have such an intention is hardly likely to admit it,
implicit
reliance cannot be placed on the mere say-so of the accused. The
court should examine the circumstances.”
[36]
In
S v
Porthen & others
[27]
the court held that where a bail applicant was not a flight risk, nor
was there any evidence that he was likely to interfere with
State
witnesses and/or the investigation, the accused has discharged the
burden of proof which rested upon him in terms of s 60(11)
(a)
.
[37]
In
S
v Schietekat
[28]
Slomowitz AJ stated the following:
‘
Bail proceedings
are
sui generis
. . .The State is thus not obliged in its turn
to produce evidence in the true sense. It is not bound by the same
formality. The
court may take account whatever information is placed
before it in order to form what is essentially an opinion or value
judgment
of what an uncertain future holds. It must prognosticate. To
do this it must necessarily have regard to whatever is put up by the
State in order to decide whether the accused has discharged the
onus
.
. . .’
[38]
In the case authorities that I have had regard to, the test appears
to be whether there was a likelihood that the appellant
would evade
trial and a likelihood of something more than a mere temptation. The
strength of the State’s case and the probability
of conviction,
although an important consideration, does not displace the central
issue which the court is required to decide,
that is whether or not
the interests of justice permit the release on bail of the second and
third appellant
[29]
and
whether exceptional circumstances exist which in the interests of
justice permit the release on bail of the first appellant.
[39]
I have had regard to the affidavits of the appellants and the court a
quo’s judgment. I cannot find that the court a
quo misdirected
itself in any way in reaching the conclusion that it did.
[40]
In deciding whether the appellants had discharged the onus, one
cannot read their affidavits in isolation and only have regard
to
their personal circumstances. One must have regard to the affidavit
of the investigating officer in relation to the offences
and the
circumstances of their arrest. One must weigh up their version of a
bare denial as against the version put up by the respondent.
This
must be considered in deciding whether they had discharged their
respective onus.
[41]
In my view, the court a quo was correct in finding that when weighed
against this evidence of the respondent, the appellants
had not
discharged the onus on a balance of probabilities.
[42]
The appellants had a fair and reasonable opportunity to deal with the
allegations contained in the affidavit of the investigating
officer
but elected not to do so. Apart from tendering bail in the sum of R1
000, none of the appellants made submissions in respect
of bail
conditions.
[43]
The respondent had a prima facie case against the appellants. Despite
the respondent opposing bail by way of affidavits, evidence
was
placed before the court a quo which stood uncontradicted in light of
the appellants’ bare denial. I cannot therefore
fault the
magistrate’s reliance on and weight attached to the evidence
presented by the respondent as opposed to that of
the appellants
whose affidavits were a bare denial.
[44]
I am cognisant of the fact that in exercising a judicial discretion,
a court must consider the totality of the evidence
[30]
and decide the matter on the probabilities.
[31]
[45]
This court of appeal, like the court a quo is fully cognisant that
the Constitution of South Africa provides that no person
ought to be
deprived of his freedom arbitrarily, and if it is in the interests of
justice to do so, an arrested person is entitled
to be released from
detention on bail. However, s 60 of the CPA has been promulgated to
regulate the granting of release from detention
in respect of serious
crimes and must accordingly be implemented with due regard to the
guidelines provided by the Act and the
decided cases. As was held in
S
v Green & another
:
[32]
‘
It
is clear from s 60(10) that the court’s function in a bail
application is intended to be more proactive than in normal
criminal
proceedings. As it was put in the
Dlamini
decision (at para [11]), “a bail hearing is a unique judicial
function” and the “inquisitorial powers of the
presiding
officer are greater”.’
[46]
Having considered all the evidence placed before the court a quo, I
was not persuaded on the merits of the appeal. I am also
unable to
find that the court a quo erred in the exercise of its judicial
discretion in finding that the appellants had failed
to discharge
their respective onus permitting their release on bail.
[47]
In the result the following order will issue:
The
appellants’ appeal against the refusal to admit them to bail is
dismissed.
_______________________
HENRIQUES
J
Case
Information
Date
of argument
:
13
June 2018
Date
of judgment
:
21
June 2018
Appearances
Counsel
for Appellants
:
Mr
E Mbhele
Instructed
by
:
Govindasamy,
Ndzingi & Govender Inc
211
Burger Street, Pietermaritzburg
Ref:
EM/N1687
Tel:
033-345 3427
Counsel
for Respondent
:
Ms
Dyasi
Instructed
by
:
The
Director of Public Prosecutions, KwaZulu-Natal
[1]
See s 60(11)
(a)
of the
CPA.
[2]
See s 60(11)
(b)
of the
CPA.
[3]
Exhibits “A”, “B” & “C”.
[4]
Exhibits “D”, “E” and “F”.
[5]
Index pages 24-25 of the papers.
[6]
Exhibit “A”.
[7]
Para 6, Index page 30.
[8]
Index page 33.
[9]
Index page 33, paras 14.1 to 14.4
[10]
Exhibit “C”. Index pages 41-46.
[11]
Exhibit “E”. Index pages 52-57.
[12]
Exhibit “E”. Index pages 38-40.
[13]
Para 6 of investigating officer’s affidavit, index page 39
[14]
Index pages 62-64.
[15]
S v
Mbele & another
1996 (1) SACR 212
(W) at 221h-i;
S
v Barber
1979 (4) SA 218
(D).
[16]
Section 60(11)
(b)
.
See also
S
v Dlamini
;
S v
Dladla
&
others
;
S v
Joubert
;
S v
Schietekat
[1999] ZACC 8
;
1999 (2) SACR 51
(CC) at 84c-e and 85.
[17]
S v van
Wyk
2005 (1) SACR 41 (SCA).
[18]
S v
Jonas
1998 (2) SACR 677
at 678e-g.
[19]
S v
Scott-Crossley
2007 (2) SACR 470
SCA para 12.
[20]
S v
Petersen
2008 (2) SACR 355
(C) para 55.
[21]
S
v Yanta
2000
(1) SACR 237
(Tk) at 249c-e.
[22]
S
v Mokgoje
1999
(1) SACR 233 (NC).
[23]
S
v Botha en ‘n Ander
2002
(1) SACR 222
(SCA) para 21.
[24]
S
v Viljoen
2002
(2) SACR 554
(SCA) para 11.
[25]
S v
Hudson
[1980] 1 All SA 130
(D) at 131.
[26]
S v
Hudson
[1980] 1 All SA 130
(D) at 133
[27]
S v
Porthen & others
2004 (2) SACR 242 (C).
[28]
S v
Schietekat
1998 (2) SACR 707
(C) at 713h-714j.
[29]
S v
Malumo & 111 others
(2)
2012 (1) NR 244
HC para 30.
[30]
S v
Stanfield
1997 (1) SACR 221
(C) at 226c-d.
[31]
S
v Diale & another
2013 (2) SACR 85
(GNP) para 14.
[32]
S v
Green & another
[2006] ZASCA 3
;
2006
(1) SACR 603
(SCA) para 23.