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[2018] ZAECBHC 2
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Nqayi v S (C.A&R 16/2018) [2018] ZAECBHC 2 (1 June 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, BHISHO)
APPEAL NO. C.A&R
16/2018
1/6/2018
Reportable:No
In
the matter between:
MANEZI
NQAYI
Appellant
And
THE
STATE
Respondent
BAIL APPEAL JUDGMENT
BESHE ADJP:
[1]
This is an appeal against the refusal to
admit the appellant to bail pending his appeal against both
conviction and sentence in
the Zwelitsha Magistrate's Court. The
learned Magistrate granted appellant leave to appeal his conviction
and sentence.
[2]
The appellant pleaded not guilty to a
charge of assault with intent to do grievous bodily harm. It was
alleged that he hit the complainant
with a glass on the eye. He was
however convicted as charged after the trial and sentenced to undergo
36 months imprisonment.
[3]
Evidence at the trial revealed that: The
incident occurred at a drinking place Sly bar. Complainant and
appellant had been drinking
and joking with others. When the bar was
about to close appellant struck complainant with a glass on his eye
for a reason that
was not apparent to the complainant. The incident
was witnessed by one of complainant's friends who testified in court.
The injury
resulted in complainant losing his eye. Appellant's
defence was that as he was preparing to leave the bar complainant
approached
him and objected to him taking liquor with him whilst they
were still sitting there. Appellant told him it was his liquor he
could
do as he pleased with it. Complainant tried to grab the liquor
away from him. At the time he was carrying a bottle of wine and a
glass with some wine inside. He reported complainant's behaviour to
the owner of the bar. When he tried to leave the bar again
complainant followed him and hurled insults at him. He decided to
throw the wine at him but it so happened that complainant was
moving
his face towards him and got struck by the glass in the process. The
Magistrate rejected appellant's version and found that
he hit the
complainant with the glass on his eye for no reason. She then
convicted the appellant of offence charged.
[4]
Appellant sought leave to appeal. The
prosecutor submitted that the application had no basis or merit but
in the same breath did
not oppose the application for leave to
appeal.
[5]
The Magistrate "noted" the appeal
on the basis that appellant had a constitutional right to lodge an
appeal.
[6]
Appellant's attorney moved an application
for bail pending appeal and submitted as follows:
"He
is not a flight risks, he has a permanent place of residence and is
permanent {sic) employed, he is traceable, he can if
the court wishes
so sign at the nearest police station twice or trice a week
-
the nearest police station will be
Bhisho.
" The State did not oppose
the application. The application was dismissed by the Magistrate
without providing any reasons -
save to state that she is not bound
by the attitude of the State. This is not acceptable as a judicial
officer has a duty to give
reasons for his decision. As was stated in
Mokele
2012
(1) SACR 431
SCA [12] a decision the Court was also referred to in
the appellant's Heads of Argument.
"I
find it necessary to emphasise the importance of judicial officers
giving reasons for their decisions. This is important
and critical in
engendering and maintaining the confidence of the public in the
judicial system. People need to know that courts
do not act
arbitrarily, but base their decision on rational grounds. Of even
greater significance is that it is only fair to every
accused person
to know the reasons why a court has taken a particular decision,
particularly where such a decision has adverse
consequences for such
an accused person. The giving of reasons becomes even more critical,
if not obligatory, where one judicial
officer interferes with an
order or ruling made by another judicial officer. To my mind this
underpins the important principle
of fairness to the parties. I find
it unjudicial for a judicial officer to interfere with an order made
by another court, particularly
where such an order is based on the
exercise of a discretion, without giving any reasons therefor.
"
Appeals to this Court with regard to bail are governed by section 65
of the CPA. Sub-section 4 provides that:
"The
Court or Judge hearing the appeal shall not set aside the decision
against 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.
" The
Magistrate's decision was wrong in that she does not seem to have
applied her mind to the application. Her decision seems
to be
arbitrary, if not random. She is correct that she is not bound by the
attitude of the State. She should have gone further
and considered
the merits of the application for bail pending appeal.
[8]
Ordinarily, once a Court has found that the appeal does have
prospects of success, it leans in
favour of granting bail pending
appeal. Unfortunately in this matter the Magistrate did not make such
a finding - namely that there
are reasonable prospects of success on
appeal be it on the conviction or sentence which is the proper test
for granting leave to
appeal. Be that as it may, after conviction,
the Court must take into account that the risk of absconding is
increased when a person
such as the appellant in this matter is
facing time in jail (36 months). No such risk / likelihood has been
shown to exists. Granted
that the appellant does not have any
immovable property and is not married. Even if there might be a slim
chance, if any, of the
conviction being set aside, the prospect of
the sentence being altered / interfered with cannot be discounted.
Accordingly the
appeal against the refusal of bail pending an appeal
succeeds.
The appellant is granted
bail in the amount of R2000,00 (Two Thousand Rand) with the following
conditions attaching to his release
that:
He
hands himself over to appropriate prison authorities within a period
of
7
days
after the receipt of the notification of the dismissal of his appeal
against conviction or sentence or both or within 7 days
after having
abandoned the appeal.
The appellant is to
report every Monday, Wednesday and Friday at the Bhisho Police
Station between 07H00 and 17H00 immediately after
having paid bail.
N G BESHE
ACTING DEPUTY JUDGE
PRESIDENT
BIDSHO
Counsel
for the Appellant:
Adv.
Jikwana
Instructed
by:
Madubula
& Mancotywa Inc
C/O
Luvuyo Solven Attorneys
1
st
Floor, Office No. 2
Old
King Theatre Building
KING WILLIAMS TOWN
For
the Respondent:
Adv.
Monis
Instructed
by:
Director
of Public Prosecutions
BHISHO
Date
Heard:
01 June 2018
Judgment
Delivered: 01
June 2018