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[2016] ZAECBHC 14
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Sinqu v S (CA&R31/2016) [2016] ZAECBHC 14 (21 December 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, BHISHO)
CA&R
31/2016
In
the matter between:
NDIMBULELE
SINQU
APPELLANT
And
THE
STATE
RESPONDENT
BAIL
APPEAL JUDGMENT
MBENENGE
J:
[1]
The appellant is facing a charge of armed robbery with aggravating
circumstances. He is in custody.
His application to be admitted to
bail was refused by the Magistrate, Mdantsane on the ground that he
did not discharge the onus
resting upon him in terms of
section
60(11)
(a) of the
Criminal Procedure Act 51 of 1977
.
[2]
In support of the application, the appellant placed before the court
a quo
evidence by way of affidavit wherein he stated that he
resides at [...] N. P., W. T., Mthatha, which he regards as his
permanent
home. He is a student at the Zamukulungisa Campus of the
Water Sisulu University (WSU), where he is registered for a Diploma
in
Public Management which he hopes to complete this year. His mother
whom he visits from time to time is an employee of the Department
of
Public Works in Queenstown, where she resides. The appellant fathers
a child over whom he exercises guardianship and with whom
he stays at
his W. T. home. He claims to have no relatives outside the Republic
of South Africa. He has no passport, and has no
intentions of
relocating to another country.
[3]
The appellant has previously been convicted of having been in
possession of suspected stolen
property (a remote control device) in
respect of which he paid an admission of guilt fine of R300.00 in
Mthatha during the year
2014. He has a pending case before the
Magistrate’s Court, King William’s Town. He is out on
bail in that case. There
are no outstanding warrants of arrest
against the appellant.
[4]
Sergeant Jonathan Izak Pieters testified in pursuit of the State’s
opposition to the bail
application. He is not the investigation
officer in the relevant case. His testimony concerning how the
alleged robbery involving
a British American Tobacco (BAT) employee
was based solely on a video footage and what he was told by the
investigating officer;
after watching the video footage, the
investigating officer became of the view that the appellant was one
of the persons who committed
the subject robbery.
[1]
As a further basis for opposing bail, Sgt Pieters placed reliance on
the appellant’s pending King William’s Town case
wherein
a firearm (a toy gun resembling a Z88 firearm) is said to have been
used. On the day of his arrest, the appellant tried
fleeing “
because
he drove at a high speed
.”
Stg Pieters opined that, due to the strength of the State’s
case and the possibility of the appellant facing
a long term
imprisonment sentence (in the event of a conviction), the appellant
may evade the trial; the appellant’s previous
conviction points
to him as having a propensity to commit crime.
[5]
Under cross examination Sgt Pieters stated that the only evidence
implicating the appellant is
that gleaned from the video footage. He
had viewed the relevant snap shots taken from the video footage and
in his view 18 of the
photos clearly depict the appellant. The
questioning in this regard unfolded as follows:
“
I put it to you
Sergeant that all those photographs that you allege…show
the[appellant], they are not clear all of them ---Photographs
were
taken of the [appellant],Your Worship, and have been sent to a
facial expert who is going to confirm that that is the
[appellant]
…Your Worship.
Do you have a report from
the expert? --- Not yet, Your Worship”
Why was the video footage
sent to the expert?---As I’m standing here, Your Worship, I
am no expert to come to a complete
conclusion, Your Worship, it is
only the facial expert.”
[6]
Sgt Pieters habours no fear that the appellant will, in the event of
being released on bail, interfere
with police investigations. He also
conceded that this case was not one where, upon his release on bail,
the appellant has committed
another offence. The residential address
and occupation of the appellant were also verified as having been
correct by the police.
[7]
The Magistrate found that the State was not sure whether it was the
appellant who appeared on
the video footage; confirmation from an
expert would bring completeness to the investigations regarding the
identity of the appellant.
[8]
The Magistrate also found that no weight could be attached to the
evidence tendered by the appellant
by way of affidavit and that,
therefore, the appellant had not discharged the onus of “
adducing
strong and dependant evidence pointing at his involvement”
and
of establishing the existence of exceptional circumstances justifying
his release. The Magistrate concluded thus:
“
There is
likelihood that if the [appellant] is released on bail he will
further commit Schedule 1 offence as is evident from his
past conduct
that he has got a previous conviction and a pending case, out
on bail, although he is innocent until proven
guilty by the Court of
law. There is also likelihood that if he is released on bail will
undermine or jeopardise the proper function
of justice system
including the bail system because of his past conduct. There is also
likelihood that he will evade trial as to
the nature and gravity of
the charge on which the accused to be tried and the nature and
gravity of punishment is likely to be
imposed should the accused be
convicted.” Sic
[9]
The Magistrate’s conclusion that no weight could be attached to
the evidence tendered by way affidavit
by the appellant is not
substantiated. The evidence embodied in the affidavit related to the
factors a court is normally called
upon to consider in its decision
whether or not to grant bail. That evidence was neither controverted
nor contested by the prosecution.
Those factors were elicited by the
accused’s attorney and not placed in dispute when Sgt Pieters
testified. For this reason,
the Magistrate ought to have accorded the
evidence due and proper consideration, and weighed the evidence in
determining whether
the interests of justice warranted the
appellant’s admission to bail.
[10]
In
Xolani
Mfeketho & 2 Others v The State
[2]
Goosen J held that it is not
impossible for an applicant in bail proceedings to discharge the onus
resting upon him/ her if evidence
is tendered by affidavit alone. The
fact that such evidence may be less persuasive does not mean that it
has to be disregarded.
[11]
In light of what I have said above, the Magistrate misdirected
herself in the exercise of the discretion conferred
on her, with the
result that this court is at large to consider the matter afresh.
[12]
The Magistrate’s conclusion that if the appellant were to be
released on bail he is likely to commit a Schedule
1 offence appears
to be based on the appellant’s previous conviction and the
pending criminal case against him. The previous
conviction relates to
a charge of possession of stolen property, which is not a Schedule 1
offence. Moreover, the appellant has
been released on the robbery
charge pending in the King William’s Town Magistrate’s
Court. He committed no offence
whilst so released. The
conclusion is therefore speculative. A possibility or suspension that
if released on bail the accused will
commit further offences is not
sufficient.
[3]
[13]
There is no factual support for the conclusion that if the appellant
is released on bail he will undermine or jeopardise
the proper
function of the justice system including the bail system because of
his past conduct. On Sgt Pieters’s own showing,
the appellant
will not interfere with investigations.
[14]
It is common cause that the appellant is a permanent resident of
Mthatha, where he was arrested; he has no
passport and is currently a
student at WSU. It was not the case of the prosecution that the
appellant is a flight risk. The prosecution’s
contention is
rather that there is a strong case against him which would encourage
him not to stand trial, if released on bail,
for fear of
imprisonment. It remains to be seen whether a strong case was made
out. Sgt Pieters’s mere
ipse dixit
that the person
appearing on the photos, without confirmation from the relevant
expert whose opinion is being awaited, can hardly
be considered as
constituting
prima facie
evidence of the appellant’s
involvement in the commission of the offence in question.
[15]
I am in the circumstances of the view that the Magistrate exercised
her discretion wrongly and that, therefore,
the appeal must succeed.
[16]
The State made no submissions regarding the amount of bail or
conditions to be imposed in the event of the
appeal being successful.
Sgt Pieters contented himself with merely saying that would be a
matter for the court to decide.
[20]
I accordingly make the following order:
(a)
The appeal is upheld.
(b)
The decision of the Magistrate, Mdantsane refusing to admit the
appellant to bail is set aside
and substituted with the following:
“
1.
The applicant –
1.1
is admitted to bail and shall be released upon payment of R1000.00;
1.2
shall present himself at court at 08:30 or such time as the
presiding
officer may dictate, on every date to which the case may be
postponed;
1.3
shall report to the Ngangelizwe Police station at Mthatha between
06:00 and 18:00 on each every Friday, except on the days on which he
is required to appear in court;
1.4
shall remain residing at [...] N. P., W. T., Mthatha until
such time
as the trial is finalized; and
1.5
is precluded from leaving the Magisterial of Mthatha until
the
pending criminal trial is finalized.
2.
Should the applicant wish to –
2.1
change his residential address, he is obliged to advise the
investigating officer of his intention
to do so; and
2.2
leave the Mthatha Magisterial District for any period of time, the
permission of the investigation
officer shall be obtained
beforehand.”
S
M MBENENGE
JUDGE
OF THE HIGH COURT
Counsel
for the appellant :
J R
Koekermoer
Instructed
by
Zepe
& Company Attorneys
Queenstown
c/o
Pope Attorneys
King
William’s Town
Counsel
for the respondent:
C de
Kock
Office
of the DPP
Bhisho
Date
heard 14 December 2016
Date
Delivered 21 December 2016
[1]
It is alleged that the appellant at some point drove the BAT vehicle
during the commission of the offence
[2]
(CA& R 193/2014) [2014] ZAECGHC 67 (21 July 2014)
[3]
S v
Dlamini; and Othes Cases
[1999] ZACC 8
;
1999 (2) SACR 51
(CC) 79 f-g