About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Bhisho
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Bhisho
>>
2018
>>
[2018] ZAECBHC 1
|
|
Wili v S (C.A&R 14/2018) [2018] ZAECBHC 1 (1 June 2018)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, BHISHO)
APPEAL NO. C.A&R
14/2018
1/6/2018
In
the matter between:
MNINAWA
SIMPHIWE GABA WILI
Appellant
And
THE
STATE
Respondent
APPEAL JUDGMENT
BESHE ADJP:
[1]
This is an application in terms of section
65 of the Criminal Procedure Act No. 51/1977. This provision governs
appeals to the local
division of the Supreme Court with regard to
bail. Sub-section 4 thereof provides that
"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 opinion
the lower court
should have given.
"
[2]
The appellant, who is facing a charge of
murder where it is alleged that such murder was planned, was denied
bail in the Regional
Court, Zwelitsha. He is now appealing that
the
decision.
[3]
The bail application fell within the
perview of Schedule 6 of the Criminal Procedure Act and fell to be
dealt with terms of section
60(11) of the Act which provides that
"An
accused shall be detained in custody until he 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 interest of justice permit his
or her release.
"
[4]
The Magistrate in the court
a
quo
found that there were no such
exceptional circumstances.
[5]
As
I
understand it, the case against the appellant is that he conspired
with his co-accused person to kill the latter's husband. That,
to
this end he secured an assassin from Engcobo who shot and killed the
deceased. He was at some stage before the murder of the
deceased seen
in his company. There is also a suggestion that certain payments were
made to him between March - October 2017 (presumably
by his
co-accused) deceased died on the 24 February 2017.
[6]
I prefaced the preceding paragraph by
saying
"As I understand the case
against the appellant"
because the
fundamental difficulty is that the evidence of the investigating
officer does not form part of the record (transcribed
record). It is
not clear why this evidence could not be transcribed as would appear
from Ms Janse van Rensburg of Ikamva Veritas
letter. No reference is
made by those representing the appellant of this fact in the papers -
save one of the documents filed on
page 169 of the papers is a
certificate from Ikamva Veritas showing that transcribed record is
complete and
correct.
[7]
In argument before me Counsel for the
appellant submitted that owing to the urgency of the matter
concerning as it does the liberty
of the appellant - I should deal
with the appeal on what is before me. As far as the evidence of the
investigating officer is concerned,
the only part of his evidence
that was transcribed is when he was under cross-examination.
Cross-examination by the Mr Mayisane
who appeared for the appellant
was recorded in full whereas that of his co-accused was not. From the
cross-examination it would
appear that the investigating officer is
opposing bail on the basis that there is a strong case
against the appellant who is implicated by
a witness in the planning the execution of the murder amongst other
things that
there
is
evidence that
appellant received a
sum of R60.000,00 from
March
2017
which was
part
of
payment
by
Old
Mutual Insurance and FNB following
deceased's death in February. Bail was also opposed on the basis that
appellant does not have
a fixed address. He only visits the address
he gave
as
NU 11, and there's mention of
an
address
in Cape Town
[8]
Besides submitting that there is
no
suggestion
that
appellant is
a
flight
risk, it was
also
submitted that
exceptional circumstances exist in
that the
case
against the appellant is weak. It had also emerged from appellant's
evidence that he used to smoke but stopped because he suffered
from
chest pains. And that being locked with up to 32 others in a cell
some of whom smoke cigarettes, dagga, tablets and tic
he gets
to
inhale
the
smoke and the
prison authorities cannot do
anything to stop the
smoking.
He
does
not
get
any
treatment from
prison
for
chest problems.
[9]
The Magistrates decision is impugned on the
following grounds,
inter
alia:
She
misdirected herself in
the
application of
the
law, when she made a
finding
that the presumption of innocence does not apply in bail proceedings;
she misdirected herself in
her
evaluation of
the
facts
and
discarding with evidence of
that
appellant about the
effect
of
smoke on
his
health
condition.
By
finding that there was
strong
case against the appellant, by ignoring the following facts; that
there was no likelihood that appellant will threaten witnesses,
breach bail conditions, commit Scheduled Offence and is not a flight
risk.
[10]
It is indeed so that when the Magistrate
was setting out the legal principles that apply to bail applications,
she quoted a dictrum
from S
v Mbeleki
and Ano.
Where at para 14 the
following was said
"I
need, however, to also deal with this perception that the presumption
of innocence had a role to play in the consideration
of bail. In
S
v
Dlamini
[1]
"our Constitutional Court unanimously decided that the right to
be presumed innocent is not a pre-trial right, but a trial
right.
This has also been understood by the learned Magistrate".
It
cannot therefore be said that the Magistrate misdirected herself by
taking note of this dictrum.
[11]
It must be borne in mind as the Magistrate
correctly pointed out - it is only once exceptional circumstances
have been established
by the applicant for bail that the enquiry will
move to focus on the balance between the interest of the state
I
justice
vis-a-vis
the
personal freedom of
the
applicant.
[12]
As far as the strength or otherwise of the
case against the appellant, the Magistrate acknowledged that evidence
against him was
of a circumstantial nature but that it connected the
appellant to the killing of the deceased. I can find not fault with
this evaluation.
It cannot be found that the state's case against the
appellant is non-existent, or weak and that the appellant in all
likelihood
will be acquitted after the trial. The appellant has not
been able to show that he will in all likelihood be
acquitted.
That
the
case
against him is
now
non-existent.
[13]
Did the appellant succeed in showing on a
balance of probabilities that his continued incarceration is
negatively affecting his
health due to smoke inhalation? According to
the investigating officer when he met with the appellant and chatted
to him, appellant
was smoking. The sum total of appellant's evidence
in chief in this
regard
was
the
following.
"Counsel:
Do you smoke cigarette, dagga or anything?
Appellant:
No I stopped
Counsel:
When did you stop?
Appellant:
Your Worship, I was smoking but I had chest pains and then went to
the doctor he said I had chest
pain problem.
Counsel:
Now in that cell where you are staying is there any where that the
warders can regulate
smoking in that cell?
Appellant:
They are smoking your Worship, they smoke there.
Counsel:
Are you inhaling a smoke being asthmatic?
Appellant:
Yes, Your Worship they smoke dagga, tablets as well as tic."
Nowhere does he say he
drew the attention of prison authorities to his problem. Even the
suggestion that the ailment was asthma
came from his counsel. In this
regard as well in my view the Magistrate was correct in finding that
an appellant has not established
that this was an exceptional
circumstance.
[14]
It must necessary follow that from what I
have stated above that the appellant has not succeeded in showing
that the Court below
was wrong and that its
decision should be set aside.
Accordingly the appeal
is dismissed.
N G BESHE
ACTING DEPUTY JUDGE
PRESIDENT
BHISHO
Counsel
for the Appellant:
Adv
T Sellem
Instructed
by:
Manyisane
Attorneys
No
40 Union Street
Central
Square Building
EAST
LONDON
For
the Respondent:
Adv
D Willemse
Instructed
by:
Director
of Public Prosecutions
BHISHO
Date
Heard:
02 May 2018
Judgment
Delivered: 01
June 2018
[1]
2013
(1) SACR 165
KZD