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[2017] ZAGPPHC 268
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Hlabathi v S (A144/17) [2017] ZAGPPHC 268 (7 April 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
APPEAL
CASE NO.: A144/17
DATE:
7/4/2017
(1)
REPORTABLE:
YES
/
NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/
NO
(3)
REVISED.
In
the matter between
JAN
BAFANA
HLABATHI
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
VAN
DER WESTHUIZEN, A J
[1]
This appeal is directed at the refusal of the honourable
Regional Magistrate, Mr Moloto, of the Regional Court,
Pretoria,
to grant bail to the appellant. The State opposed the
bail application in the court a
quo
and opposes this appeal.
[2]
The following facts are common cause:
(a)
The offences with which the appellant are charged include
inter
alia
offences stipulated in Schedule 6 of the Criminal Procedure Act,
Act 51 of 1977 (the Act);
(b)
The accused, including the appellant, are facing fourteen
charges, which include nine counts of rape, two counts of
robbery
and two counts of kidnapping. The rape being so-called gang
rape;
(c)
The case against the appellant and his co-accused commenced
approximately 6 years ago. The trial is to proceed on 31 March 2017;
(d)
Prior to the commencement of case against the appellant, there
was apparently an application for bail, which was refused. The
records
of that application are no longer available;
(e)
The appellant has been in custody for approximately 6 years;
(f)
The trial has now reached the stage where the State has
closed its case and the accused (including the appellant) are to
present
their defences to the charges against them.
[3]
It is further common cause between the parties that in view of
the fact that the provisions of Schedule 6 of the Act apply, the
appellant is to show that exceptional
circumstances exist, which in the
interest
of
justice,
permit his release on bail.
[1]
[4]
Further in that regard,
the appellant bears the onus to adduce evidence, and
hence to prove to the satisfaction of the
court, that existence of
exceptional circumstances are of such nature as to permit the release
of the appellant on
bail.
[2]
[5]
It is trite that the
meaning and interpretation of what constitutes "exceptional
circumstances" are wide-ranging. It is
a concept indicative of
something unusual, extraordinary, remarkable, peculiar or simply
different from the
norm.
[3]
[6]
The appellant chose to put his case in respect of his
application for bail before the court a
quo
in affidavit form.
In that affidavit the circumstances upon which the appellant
relies, which were repeated in the appeal,
are the following:
(a)
The appellant has been in custody for a period of
approximately 6 years;
(b)
The appellant would not be a flight risk, he has a fixed
address and would live with his parents;
(c)
If not let out on bail, he would remain incarcerated
indefinitely;
(d)
He has not been found guilty yet and remains innocent;
(e)
The appellant has no previous convictions and there are no
pending cases against him;
(f)
The appellant further undertakes to honour any
bail condition that may be imposed;
(g)
The appellant has no financial links or capabilities outside
the boarders of the Republic.
It
was submitted on behalf of the appellant in argument, that the first
four circumstances referred to above, represent exceptional
circumstances. In my view there is no merit in the said submission
for what follows.
[7]
The record clearly indicates that all parties involved, and
privy to the trial proceedings, bear blame for the matter not
being finalised sooner. Counsel for the State submitted that at best
for the appellant it is a neutral factor. I agree.
[8]
The submission that the appellant has a constitutional right
to his freedom is fettered by the provisions of s 60(11)(a) of
the Act. The mere fact that the appellant has not yet been
found guilty is of no consequence in view of the fact that the
trial
has commenced and has reached the stage where the State closed its
case. It depends on the appellant to present evidence
of his defence.
No version as to the appellant's defence has been put before the
court a
quo.
The
submission of Mr Steenkamp on behalf of the appellant that the State
has not presented the strength of the State's case against
the
appellant is opportunistic. It is for the appellant to show
whether there is a strong
or
weak case against him.
[4]
It
is to be recorded that Mr Steenkamp does not appear on the
appellant's behalf in the trial before the court a
quo.
The appellant has another attorney who represents him in
the trial. Mr Steenkamp only represents the appellant in the bail
application.
[9]
It
has been held by the courts that a possible exceptional circumstance
would be independent evidence of innocence.
[5]
In
this regard, the appellant has given no indication what the strength
or weakness of
the
State's
case is. That has not been put up, but for a submission that the
investigating officer has placed nothing before the court
in that
regard. That submission smacks of arrogance
where the appellant bears the
onus
to prove exceptional circumstances.
[6]
The
State has closed its
case.
It is up to the appellant to put his defence forward. He has failed
to do so. There is no independent evidence of innocence.
[10]
A possible exceptional
circumstance relating to compelling reasons of health is not
relevant, the appellant clearly indicating that
he is healthy.
[11]
Objectively
considered, the possibility of flight risk is more imminent
than at the stage prior to the trial commencing. The
appellant has
heard the state case against him. Only he knows his defence. He
is the only person who could evaluate
the case against him.
If it is strong, the risk to take flight is greater. The
appellant is well aware of the
sentences should he be found guilty.
The appellant's mere saying that he is no flight risk, runs hollow in
the absence of any indication
of the weakness of the State's case.
[12]
Mr Steenkamp has
criticised the honourable Regional Magistrate for not
considering various alleged new facts and for not dealing
with each
one. Some criticisms also relate to the non-considering of the
provisions of s 60(4) of the Act. I agree with counsel
for the State
that such consideration only comes to bear once it has been
established that exceptional circumstances exist.
In my view, the
criticisms levelled against the honourable Regional Magistrate have
no substance and are without merit. The
honourable Regional
Magistrate dealt comprehensively with the issue of exceptional
circumstances.
[13]
It follows that the applicant has failed to prove exceptional
circumstances that would warrant the granting of bail at this
stage of the proceedings.
[14]
I am obliged in terms of the provisions of s 65(4) of the Act
not to set aside the decision against which the appeal is brought,
unless I am satisfied that the decision was wrong.
[15]
In view of all of the foregoing, I cannot find that the
honourable Regional Magistrate's decision is wrong.
[16]
It follows that the appeal cannot succeed.
I
grant the following order.
The
appeal is dismissed.
_____________________________
C
J VAN DER WESTHUIZEN
ACTING
JUDGE OF THE HIGH COURT
On
behalf of Appellant:
A Steenkamp
Instructed
by:
Andre Steenkamp Attorneys
On
behalf of Respondent:
Wilsenach
Instructed
by:
The State
[1]
S
60(11(a) of the Act
[2]
S
v
Petersen
2008(2)
SACR 355 (CPD) par [54]
[3]
op
cit. par [55] - [56]
[4]
S
v
Maja
et al
1998(2)
SACR 677 (SEC);
S
v
Jonas
1998(2)
SACR 677
(SEC)
[5]
S
v
Mohammed
1999(2)
SACR 507
(C)
[6]
S
v
Mathebula
2010(1)
SACR 55 (SCA)
par
[12]