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[2017] ZAFSHC 88
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Mosikili v S (A30/2017) [2017] ZAFSHC 88 (25 May 2017)
IN THE HIGH COURT OF SOUTH
AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: A30/2017
In
the matter between:
DIKA
MOSIKILI
Appellant
and
THE
STATE
Respondent
HEARD
ON:
12 MAY 2017
JUDGMENT
BY:
RAMPAI, J
DELIVERED
ON:
25 MAY 2017
[1]
The matter came to court by way of an appeal from the district
court. The appellant appeals against the refusal of the
court
a
quo
to
have him released on bail. The respondent opposes the appeal.
[2]
An incident occurred at Bethlehem on Tuesday the 14 July 2015.
A certain Mr Daniel Sekhoto was shot dead and five other
persons who
were also shot in the process sustained gunshot wounds. There
were three assailants involved.
[3]
The matter was reported to the police. The police investigation
led to the arrest of three suspects. The appellant
was wanted
as one of the prosecution witnesses during their trial.
However, on 9 August 2015 he could not be found.
[4]
On 23 September 2016 the appellant was arrested. Two weeks
later, on 7 October 2016 to be precise, Ms Maditaba Anna Sekhoto
was
also arrested. They were both arrested as further suspects in
the aforesaid incident. Mr Mosikili and Ms Sekhoto
were
subsequently charged. Their prosecution is currently pending.
[5]
They are facing the following charges:
Murder, 5 counts of
attempted murder, unlawful possession of a firearm, unlawful
possession of ammunition an conspiracy to commit
murder. Mr
Mosikili and Ms Sekhoto are charged as accused 1 and accused 2.
[6]
On 10 November 2016 they applied in the district court for their
release on bail. Their applications were opposed.
The
application of accused 2 was successful but that of accused 1 was
unsuccessful. The refusal to let him out of custody
on bail
precipitated the present appeal.
[7]
The appellant did not testify. Instead he’s sworn
statement was handed as his evidence. He did not call any
witness.
[8]
The respondent called detective Sergeant MP Gumbi. He testified
against the appellant. The respondent did not call
any further
witness.
[9]
The bail verdict of the court
a
quo
was
as follows:
The
appellant was aggrieved.
The
district magistrate’s refusal precipitated the present
application.
[10]
The appellant’s counsel, Mr Kambi, submitted that the
prosecution case against the appellant was so weak that the interests
of justice dictated that he should be released on bail pending his
trial which will resume later towards the end of this year.
[11]
The respondent’s counsel, Mr Bontes disagreed. He
submitted that the prosecution case against the appellant was
so
strong that the interest of justice required that he should not be
released on bail.
[12]
It was common cause on appeal that the bail application resorted
under section 60(11)(a) of the Criminal Procedure Act 51/1977
as
amended. Seeing that the charges included premeditated murder,
an offence listed in schedule 6, the appellant had to show
on balance
of probabilities that exceptional circumstances existed which in the
interest of justice permit his release on bail.
[13]
In opposing the application, the respondent could rely on any one,
two or more of the several grounds as listed in sec 60(4).
The
general import of the section is that the interests of justice would
militate against the release of an accused – if
any of the
listed grounds is proven. Those prohibitive grounds are:
“
(a) whether 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 scheduled 1 offence; or
(b) whether 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) whether there is the
likelihood that the accuse, if he or she is released on bail, will
attempt to influence or intimidate witnesses
or to conceal or destroy
evidence; or
(d) whether there is the
likelihood that the accuse, 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; or
(e) where in exceptional
circumstances there is the likelihood that the release of the accused
will disturb the public order or
undermine the public peace or
security.”
[14]
It was therefore incumbent upon the appellant to persuade this court
in terms of section 60(5) Act No 51/1977 that the magistrate’s
refusal to let him out of incarceration on bail was wrong. See
Mooi
v The State
(162/12)
[2012] ZASCA 79
(30 May 2012).
[15]
Among others, the magistrate refused bail because the appellant might
attempt to influence or intimidate witnesses. Of
course, such
acts would ordinarily undermine or jeopardize the objectives or the
proper functioning of the criminal justice system.
Naturally it
would not be in the interest of justice to grant bail in a case where
there is a reasonable apprehension that an accused
might commit such
acts.
[16]
It was accepted, by both counsels in this court, that the
determinant factor in the instant appeal as to whether the
magistrate
should have granted or refused bail was the strength of the
prosecution case against the appellant. In determining
the
existence or otherwise of exceptional circumstances in the context of
section 60(11)(a), the substantive strength of the prosecution
case
was held to be a material and relevant consideration –
S
v Kok
2003 (2) SACR 5
(SCA) par [15].
[17]
There is a great variety of factors which a court may take into
account in considering whether there is a likelihood of an
accused
evading his trial. Among other relevant factors the following
are included:
the
gravity of the offence; the strength of the prosecution case
against him; the magnitude of the likely punishment
in the
event of him being convicted or any other factor which, in the
opinion of the court, should be taken into account.
[18]
The personal profile of the appellant was placed on record by his
attorney. He was born on 31 August 1972. His
national
identity number is 720831 5343 08 9. His level of formal
education did not appear on the record. He resides
at 2018
Thejane Street Bohlokong Bethlehem. His mother owns the
residential property. He has been resident in that
town since
he was born. He earns his livelihood as a general dealer of
some sort. He generates a monthly income of
R2000 on average.
He is an unmarried father of 2 dependent minor children who are 18
and 6 years of age.
[19]
He has a previous conviction of assault. He has no pending
cases. He was arrested on the 14 November 2015. He spent
160
days in custody. The case was withdrawn on 22 April 2016.
He was re-arrested on the 26 September 2016. He
does not know
the state witnesses other than those that had already testified.
Ms Sekhoto was his girlfriend. He is
on chronic medication for
a chronic illness. He did not wish to disclose the exact nature of
his illness in an open court.
He intended to plead not guilty.
He had been advised not to deal with the merits of the case.
The case against him
was very weak. He was coerced to make a
statement. He would not abscond should the court release him on
bail.
There existed exceptional circumstances which justified
the conclusion that the interest of justice permit his release on
bail.
The appellant adduced the above evidence by way of an
affidavit – see “exi a”. This completes the
version
of the appellant.
[20]
The version of the respondent was narrated by one witness Detective
Sargeant MP Gumbi on the 10 November 2016. He testified
that he
and Colonel Mokhothu were the investigating officers. The
latter was his direct supervisor. The appellant had
3
previous convictions. These are: common assault 1997,
malicious damage to property 1997 and reckless driving
2012. He
had no pending cases. He did not stay with his mother at 2018
Thejane Street Bohlokang. He was jobless.
His car, a VW
Polo was repossessed. In 2015 the 2 accused drove to Welkom to
hire a hitman. A certain Pens Elias Lapi
also known as Shakes
rejected their offer to kill David Sekhoto, accused number 2’s
husband.
[22]
Later the same year the 2 accused engaged 3 men namely, Napo
Arthur Monaheng, Tsietsi Nkhatla and Thandoxolo Majwede
to kill
Daniel Sekhoto for the contract fee of R600 000. They
killed the man. Following the killing they were
arrested.
They were convicted in the Bethlehem Circuit Court on the 13
September 2016. Their attorney furnished the
police with their
statements concerning the Sekhoto incident. The accused
confessed his involvement in the Sekhoto murder
in his warning
statement. There was no pending case of assault opened by the
appellant against Colonel Mokhothu. His
statement was
substantially the same as those of the three convicted killers.
The witness was of the opinion that the case
against the appellant
was very strong.
[23]
Besides the statements of the hitmen and the statement of the
appellant himself, the police were also in possession of cellular
data evidence which evidence incriminated the appellant. The
firearm found by the police in the possession of one of the
killers
and seized by the police was positively linked to the crime scene at
Bethlehem on 14 July 2015. The evidence in the
police docket
showed that the appellant had supplied the murder weapon to the
contract killers.
[24]
The investigating officer, Detective Sergeant Gumbi testified further
that the appellant was supposed to be a state witness
in the case of
the
State
v NA Monaheng & Others
;
that he did not attend the court; that he disappeared;
that the police searched for him everywhere without success;
neither his mistress nor his mother could shed any light on his exact
whereabouts; that a charge of defeating the ends of
justice was
then opened against him; that he then was re-arrested and that
he doubted whether the appellant would attend
his trial should he be
released on bail. He feared that the appellant might influence
his co-accused to abscond with him
in view of the gravity of the
charges and the repercussions of the conviction. He also found
that the appellant might influence
Pens Elias Lapi not to testify
against him and his co-accused. He was also concerned about the
safety of that witness as
well as the other witnesses called Sello
and Lefa.
[25]
During cross examination the witness confirmed that the appellant did
not know that he had to attend the trial of Monaheng
and Others in
order to testify. It also came to light that the deceased
victim told one of the witnesses, shortly before
he died, that he
knew one of the assailants.
[26]
The appellants stated as follows as regards the substantive merits:
“
I
place on record that I was informed by my legal representative of the
charge against me and do I place on record that I intend
to plead not
guilty to all of them. I place on record that I have been
advised that I do not have to deal with the merits
of the case for
purposes of my bail, and do I hereby choose to invoke my right to
remain silent in terms of Section 35 (A) of the
Constitution of the
Republic of South Africa, Act (sic) 108 of 1996 with regards to the
merits of the case.”
[27]
Besides indicating that he would plead not guilty to all the charges,
the appellant did not disclose the substratum of his
defence(s) let
alone deal with the merits of the case. He did not touch the
merits at all. Instead he chose to remain
silent. He had
earlier stated:
“
I
further submit the facts herein will indicate it is also reasonable
and just that I be released on bail. I am making this
affidavit
out of my own free will and confirm that I have to (sic) been
influenced or forced to make this affidavit. The
facts
contained herein fall within my personal knowledge and are both true
and correct, unless the context indicates otherwise.
The
purpose of this affidavit is to provide this Honourable Court with my
personal circumstances and factors that the Court have
(sic) to weigh
up as laid out in Section 60 (4) to (9) of that. (sic) I have
been advised and understand that I bear the
onus to show this
Honourable Court that it is in the interest of justice that bail be
granted to me. I will as indicated
show that it is in the
interest of justice that I be released on bail.”
[28]
Notwithstanding his understanding of the onerous burden of proof, the
appellant somewhat strangely chose to avoid dealing with
the
substantive merits of the case against him. In an application
of this type, he was obliged to do so. How else could
he show
the substantive weakness of the case against him? He certainly
made no serious attempt, in his written sworn statement
to discharge
the onus as he was required by law. In
S
v Botha & Others
2002
(1) SACR 222
(SCA) par [16] the court, per Vivier ACJ, said:
“
Die
bewoording van die subartikel is duidelik en ondubbelsinnig en is vir
net een uitleg vatbaar. Dit is dat die formulering van
die aanklag in
die akte van beskuldiging, indien nodig aangevul deur 'n skriftelike
bevestiging ingevolge art 60(11A), beslissend
is vir die vraag of 'n
beskuldigde hom van die bewyslas in art 60(11)
(a)
moet
kwyt om sy vrylating op borgtog te verkry.”
[29]
The respondent’s witness, Detective Sergeant Gumbi, gave
evidence. He thoroughly addressed the substantive merits
of the
case against the appellant and his co-accused. The material
aspects of his evidence can be briefly condensed as follows:
·
The
accused in the pending case, namely: Mr Dika Piet Mosikili and
Ms Maditaba Anna Sekhoto, were secret lovers;
·
The
deceased victim, Mr Daniel Sekhoto, was the husband to the
appellant’s mistress, Ms MA Sekhoto;
·
The
accused lovers conspired to eliminate the victim;
·
They
then approached a certain character by the name of Pens Elias Lapi
also known as Shakes in Welkom to eliminate the victim but
he
declined to do so;
·
Undeterred
by Shakes’ refusal, they travelled to Vereeniging where they
clinched a deal with three exterminators;
·
They
undertook to pay R600 000 to the three contract hitmen;
·
They
maintained cellular contact with the contract hitmen over a period of
time;
·
They
provided the hitmen with a firearm to shoot the victim;
[30]
Let me pause for a second. I want to comment about the trial of
the three contract hitmen. The police witness testified
that
although they initially pleaded not guilty, each of them changed his
plea; that they admitted that they were indeed
involved in the
incident and that, in their statements, they heavily implicated Mr
Mosikili and Ms Sekhoto, the secret lovers,
as their contract
masters.
[31]
It was indeed so that the appellant, through his legal
representative, mounted some challenge to evidence given by the
detective
in the court
a
quo
.
In my view such reactive challenge was not enough to fill up the void
in the appellants’ affidavit created by his
deliberate decision
to remain silent with regard to the merits. The sporadic
attacks subsequently launched against the version
of the respondent
did not materially compensate for the appellant’s deliberate
omission, to deal with the substantive merits
or demerits of the
case.
[32]
I now turn to consider the submission made by Mr Kambi on behalf of
the appellant. In the first place, counsel heavily
relied on
the fact that the court
a
quo
granted
bail to accused 2 notwithstanding the evidence of the respondent’s
witness. The line of argument was that because
the court had
rejected the evidence of Sergeant Gumbi in respect of accused 2 there
was no rational basis for its acceptance of
the same evidence in
respect of accused 1, the appellant.
[33]
The submission failed to impress me. Let me hasten to set the
record straight. The court
a
quo did
not really reject the evidence of the detective. All it did was
to distinguish between the circumstances of accused
1 and accused 2.
The point is this: If the court
a
quo
erred in releasing one accused on bail, such error or misdirection
would not justify the release of a co-accused. It would
be
irrational to release on bail an accused person who has made out no
proper case for his release merely because the court has
released on
bail a co-accused who, on the objective facts, also did not deserve
to be released.
[34]
During the course of considering the bail application of accused 2,
Ms Sekhoto, the court
a quo
used the phrase:
“
What
you do on the left, you also do on the right.”
Mr
Kambi understood that to me that if the evidence was not good and
strong enough to warrant the refusal to release accuse 2 then
it
could not have been good and strong enough to sustain the refusal to
release accuse 1 as well.
[35]
Before one can say what’s good for the goose is good for the
gander all things must be equal. Unless they are and
they can
truly be seen to be equal – what’s done on the left
cannot also be blindly done on the right.
Where the eggs in the
basket on the left are not the same as the eggs in the basket on the
right - the chickens will never
be the same. There can be
no equation in such circumstances. In this instance, rightly or
wrongly, the court
a
quo
had
some reservations concerning the permanence of the appellant’s
attachment to the district, his trustworthiness, his past
criminal
history, his occupation; the possible risk of his improper
influence and his association with the actual killers.
It
seemed to me that on the strength of all those factors, the court
considered the appellant to be a potential flight risk.
The
court did not have similar or any concerns about his co-accused.
However, none of those, singularly or collectively,
was a determinant
factor.
[36]
In the second place, Mr Kambi submitted that the delay in the
finalization of the trial constituted relevant circumstances
which
qualified as exceptional circumstances which indicated that it was
not in the interest of justice to detain the appellant
any longer.
The phrase, “exceptional circumstances”, is located in
the wording of sec 60(11)(a) which reads:
“
Section
60(11)(a) of the CPA: ‘Notwithstanding any provision of
this Act, where an accused is 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 exists which in the interests of justice permit his or
her release;”
[37]
The nature of that onerous schedule 6 requisite, “exceptional
circumstances” is not defined. In
S
v Botha & Another
,
supra
,
par [19] the court held:
“
Dit
word nie vereis dat 'buitengewone omstandighede' verskillend van
aard, of andersoortig moet wees as die omstandighede wat in
subarts
(4) - (9) genoem word nie. Gewoonlik, maar nie noodwendig nie, sal
dit omstandighede wees wat daarop gemik is om die onwaarskynlikheid
van die gebeure genoem in art 60(4)
(a)
-
(e)
te
bewys. Met betrekking tot daardie gebeure, of andersins, moet die
aangevoerde omstandighede, in die konteks van die besondere
saak, van
so 'n aard wees dat dit as buitengewoon aangemerk kan word (
S
v Vanqa
2000
(2) SASV 371 (Tk)
op
376
b
-
d
).
Dit is vir die hof om in elke saak in die besondere omstandighede van
daardie saak 'n waarde-oordeel te vel of die bewese omstandighede
van
so 'n aard is dat dit as buitengewoon aangemerk kan word.”
[38]
In
S
v Dlamini and 3 Other
similar cases
[1999] ZACC 8
; ,
1999 (4) SA 623
(CC) the court found that the
limitation in sec 60(11)(a) is reasonable and justifiable in terms of
sec 36 of the constitution.
The court found that:
“
In
requiring that the circumstances proved be exceptional, the
subsection does not say they must be circumstances above and beyond
and generically different from those enumerated. Under the
subsection, for instance, an accused charged with a
Schedule
6 offence could establish the requirement by proving that
there are exceptional circumstances relating to his or her emotional
condition that render it in the interests of justice that release on
bail be ordered notwithstanding the gravity of the case.”
[39]
In
S
v Botha & Another
,
supra
,
par 18 the court found:
“
Die
vereiste van 'buitengewone omstandighede' beteken dat die gewone
oorwegings vir die verlening van borgtog wat in art 60(4) -
(9)
uiteengesit word, waar die aangehoudene se reg op vrylating opgeweeg
word teen die faktore wat sy vrylating in die belang van geregtigheid
sou verhinder, nie voldoende is om sy vrylating te verkry nie. 'n
Blote ontkenning van die waarskynlikheid van die gebeure in art
60(4)
(a)
-
(e)
sou
dus nie voldoende wees nie.”
[40]
Mr Bontes pointed out that on 24 April 2017 the trial was postponed
to 6 November 2017. Counsel stressed two important
facts about
the postponement. Firstly, the trial was brought to a
sudden halt at the request of the defence and not
the state.
Secondly, that the state was ready to have the hearing resumed
three months earlier, in other words during August
2017 but such
earlier date did not suit the defence – hence it was postponed
to 16 November 2017 at the request of the defence.
[41]
In
S
v Mooi
(162/2012)
[2012] ZASCA 79
(30 May 2012) the court found that
unexplained delays in the prosecution of a criminal trial qualified
to be regarded as exceptional
circumstances. It was then held,
in view of the proven unexplained delays in that particular case,
that exceptional circumstances
existed which in the interests of
justice required that the appellant be released on bail.
[42]
In the instant appeal, it could not be fairly said that the delays
were unexplained. They were explained. The respondent’s
explanation revealed that the delays complained of were occasioned by
the requests of the appellant. Consequently, I am persuaded
that there was nothing much for the appellant to complain about.
It seemed to me that the gentleman was too happy to trim
his sail to
suit his cloth. Given the respondent’s acceptable
explanation, I am inclined to dismiss the submission.
[43]
In the third place, Mr Kambi submitted that the evidence of the three
hitmen would not strengthen the respondent’s weak
case against
the appellant. Counsel’s submission was premised on the
fact that the three were convicts, whose evidence
was of no probative
value. In developing his argument, he contended that before
they were convicted, their stance was that
they did not know the
appellant. However, after their conviction they said the
opposite.
[44]
Mr Bontes countered the above argument. He submitted that the
three hitmen, now state witnesses, were the appellant’s
accomplices. It is trite that the evidence of an accomplice may
be corroborated by other evidence aliunde or objective facts.
Counsel indicated that the appellant’s own warning statement
was in corroborative harmony with the witness statements by
the three
convicts or hitmen or accomplices. He further indicated that
further corroboration for the accomplices would be
found in the
testimony of Shakes, a witness from Reitz as well as the evidence by
cellular data expert witness(es). I am
persuaded by these
submissions.
[45]
In the fourth place, Mr Kambi submitted that all the evidence about
the alleged corroboration of one accomplice by the other,
by the
witness from Reitz, by Shakes and by any cellular data expert was
hearsay. Mr Bontes correctly submitted that, in
bail
proceedings, hearsay was admissible evidence.
[46]
As it is in a bail application governed by schedule 6, our law places
the onus on the detained person seeking to be released
on bail to
show that, on the evidence, he is likely to be acquitted at the end
of the pending criminal trial. On the facts,
the implicit
finding by the magistrate that the onus was not discharged, is a
finding which I cannot disturb on appeal.
[47]
It must be borne in mind that the appellant did not adduce oral
evidence to discharge the onus of proving that exceptional
circumstances existed which warranted his release on bail.
Instead he relied on his affidavit, not that it was wrong to do,
but
such affidavit was devoid of any substance. Most of his
affidavit generates much heat but little light on the cardinal
question. On what substantive grounds can it be found that he
is likely to be acquitted?
[48]
Mr Kambi submitted that the deficiencies in the appellant’s
affidavit were cured by the cross examination of the state
witness by
the defence attorney. He relied on
S
v Nkuna
(A82/2013)
(2013) ZAHSA (NGP) (22.02.2013) par [10] that the respondent’s
case against the appellant was hopelessly weak.
On the contrary
Mr Bontes submitted that the respondent’s case against the
appellant was formidable. In
S
v Nkuna
,
supra
Magardie AJ said the following:
“
10.
In
S
v Botha & Another
it was held that proof by the accused that he will probably be
acquitted on trial can serve as exceptional circumstances.
As
already alluded to hereinbefore, although in his affidavit the
Appellant did not contest the strength of the prosecution case
against him, his legal representative dealt with the issue during
cross-examination of the investigating officer.”
[49]
Considering that the appellant is facing, among others, a charge of
premeditated murder, an offence legislatively listed in
schedule 6;
that the remaining charges were, after all, also not petty offences
and that the bulk of the elements of evidence
tends to point to the
guilt rather than the innocence of the appellant – I am
satisfied that it was justifiable in law to
deprive the appellant of
his civil liberty for the duration of his trial. He is standing
trial on a crime of serious magnitude
and moral turpitude. The
decision in
S
v Nkuna
,
supra
is
clearly no authority for proposition that a bail applicant, who bears
the onus of proving that he will probably be acquitted
on trial, can
avoid dealing with the substantive strength of the case against him
in his affidavit with the hope or belief that
the substantive
weakness of the case would be revealed by his legal representative’s
cross examination of the respondent’s
witness.
[50]
The following passage is instructive:
“
Ingevolge
beide art 60(11)
(a)
en
(b)
is
daar 'n formele bewyslas op 'n beskuldigde wat om borgtog aansoek
doen '
om
getuienis aan te bied wat die hof oortuig
'.
Die verskil in die twee subartikels lê in die vereiste dat
'n
Bylae 6 beskuldigde getuienis moet aanbied wat die hof oortuig dat
'buitengewone omstandighede' bestaan wat sy of haar vrylating
veroorloof
,
terwyl 'n Bylae 5 beskuldigde slegs getuienis hoef aan te bied wat
die hof oortuig dat die belang van geregtigheid sy of haar
vrylating
veroorloof. Artikel 60(11)
(a)
bevat
twee afsonderlike vereistes waarvan die beskuldigde die hof op 'n
balans van waarskynlikhede moet oortuig: eerstens
dat daar
buitengewone
omstandighede
bestaan wat sy of haar vrylating toelaat en, tweedens, dat sodanige
buitengewone omstandighede die vrylating in die
belang van
geregtigheid verloorloof. Ek stem met die Hof
a
quo
saam
dat die vereistes nie in 'n bepaalde volgorde oorweeg hoef te word
nie.”
This
the appellant failed to do so. For instance he did not
expressly deny involvement. He did not explain the
relationship,
if any, between him and the killers. He did not
say where he was on the day of the incident. Neither the
appellant
nor his legal representative ventured to disclose his
defence. Instead his legal representative suggested a very
remote motive
why the hitmen might have killed the victim.
[51]
The strength of the respondent’s case against the appellant is
likely to be derived from the following important factors:
·
The
alleged abortive attempt to contract Shakes a the hitman;
·
The
alleged cellular contact between the appellant and the now convicted
killers;
·
The
alleged visit of the appellant to Vereeniging where they lived;
·
The
alleged version of each of the actual killers;
·
The
alleged statement made by the appellant to the police;
·
The
alleged consistent harmony between the statement by appellant and
those by the actual hitmen or accomplices.
[52]
In my view, not enough was done by the appellant’s legal
representative during the course of his cross examination of
the
respondent’s witness to discharge the nous. The gravamen
or the formidable strength of the respondent’s case
remained
unshaken. In my view the facts which I have outlined above do
not justify a finding that the appellant, as the accused,
will
probably be acquitted.
S
v Botha
,
supra
.
The court
a
quo
also did not make such a finding. Moreover, I could find
nothing in his personal circumstances, including but not, limited
to
his emotional or health condition, to objectively compel the
conclusion that exceptional circumstances exist that render it
in the
interest of justice to have him released on bail notwithstanding the
gravity and strength of the case against him.
[53]
Accordingly I make the following order.
(a)
The
appeal against the magistrate’s refusal to release the
appellant on bail is dismissed;
(b)
The
decision of the magistrate is confirmed.
_____________
M.H.
RAMPAI, J
On
behalf of appellant: Adv SS Kambi
Instructed
by:
The
Justice Centre
Bloemfontein
On
behalf of respondent: Adv D Bontes
Instructed
by:
Director
of Public Prosecutions
Bloemfontein