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[2016] ZAGPPHC 54
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Mabusela and Another v S (A909/2015) [2016] ZAGPPHC 54 (9 February 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
/ES
(
GAUTENG
DIVISION, PRETORIA
)
CASE
NO: A909/2015
DATE:
9/2/2016
NOT
REPORTABLE
NOT OF
INTEREST TO OTHER JUDGES
REVISED
IN
THE MATTER BETWEEN
LESEGO
MABUSELA APPELLANT
1
AUBREY
MALOSE
CHUENE APPELLANT
2
AND
THE
STATE RESPONDENT
JUDGMENT
MSIMEKI,
J
[1]
The two appellants together with accused 1 (Thulani Masemola) face
three charges in the Atteridgeville magistrate's court.
They
are charged with one count of robbery with aggravating circumstances
as intended in section 1 of the Criminal Procedure Act
51 of 1977
("the CPA"), one count of attempted murder and one count of
possession of two firearms without holding a licence,
permit or
authorisation issued in terms of the
Firearms Control Act, 60 of
2000
.
[2] On
12 October 2015 accused 1 and the two appellants applied for bail
before district magistrate Ms E van Biljoen. Accused
1
approached the court by way of an affidavit while the two appellants
testified. The second appellant, Mr Aubrey Chuene,
testified
and called a witness. The State called the investigating
officer.
[3] On
19 October 2015, the court, at the end of the application, refused
the application and the accused were remanded in custody
until the
case is finalised.
[4]
The first appellant, Mr Lesego Mabusela, and the second appellant, Mr
Aubrey Chuene, brought an appeal against the judgment
of the
magistrate's court (the court
a quo
). Accused 1
decided not to appeal.
[5]
The appeal against the refusal of bail is based on almost identical
grounds. The differences relate to the appellants'
personal circumstances only. These grounds are that:
1. The learned magistrate erred in finding that the appellants failed
to prove that exceptional circumstances warranting their
release on
bail exist.
2. The learned magistrate refused them bail on the basis that members
of the community would obviously expect the court to refuse
the
application for bail.
3. The learned magistrate misdirected herself by failing to balance
the factors referred to in
section 60(4)
to
60
(9) of the CPA.
4. The court failed to adequately consider the following
circumstances as constituting exceptional circumstances:
4.1 the fact that first appellant has three children;
4.2 the fact that no evidence was adduced proving that first
appellant is a flight risk;
4.3 the fact that first appellant takes care of his grandmother who
is unable to move around and do things for herself.
5. The learned magistrate failed to have regard to:
5.1 the fact that first appellant is a first offender with no pending
cases against him;
5.2 the fact that first appellant is self-employed running a car
wash;
5.3 the fact that first appellant has an alternative address; and
5.4 the fact that first appellant is prepared to abide by any
conditions which the court may impose.
[6]
Regarding second appellant, the further grounds of appeal are that:
1. The court should have found that the following constitute
exceptional circumstances:
1.1 the fact that second appellant is a breadwinner with four
children to support;
1.2 the fact that second appellant's fiancée is six months
pregnant and unemployed and that she is unemployable;
1.3 the fact that second appellant is gainfully employed as a taxi
driver; and
1.4 the fact that second appellant's wife is entirely dependant on
him.
2. The learned magistrate failed to adequately have regard to the
fact that:
2.1 second appellant only has one previous conviction with no pending
cases;
2.2 second appellant, in the case he was convicted of and sentenced,
attended court without fail;
2.3 second appellant's address was confirmed and that he is not a
flight risk; and that
2.4 second appellant is prepared to abide by any conditions that the
court may impose.
[7]
Coming to the order of testifying in court the State gave itself the
duty to begin even though appellants were the ones to begin
and show
the court, on a balance of probabilities, that exceptional
circumstances exist which in the interests of justice permit
their
release. (See
State v Rudolph
2010(1) SACR 262 (SCA) at
[9] and
Jacobs and others v S
[2004] All SA 538
(T) at [5].)
[8] It
is noteworthy that where an accused, taking into account what is
already on record, does not even make out a
prima facie
case,
there is no duty on the prosecution to present evidence in rebuttal.
This again demonstrates that the accused must
start and not the
State. (See
S v Mathebula
2010(1) SACR 55 (SCA) at [12]
and
S v Viljoen
2002(2) SACR 550 (SCA) at [25].)
[9] It
is common cause that
section 60(11)(a)
of the CPA finds application
in this case as the court here has to deal with a Schedule 6 offence.
[10]
For the purposes of this appeal it is important to quote
section
60(11)(a).
The section reads:
"(11) 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 exist which in the interests of justice
permit his or her release
." (My emphasis.)
[11] A
proper reading of the judgment of the court
a quo
, in my view,
does not show that the court
a quo
regarded public opinion as
being a definitive factor which caused the court to refuse bail.
[12]
The court had due regard to the seriousness of the offences that the
two appellants and accused 1 are facing. Regard
was also paid
to the fact that violence was involved in that firearms were used in
the robbery.
[13]
The evidence of the investigating officer, Seargeant Lebohang
Monareng, was duly considered by the court
a quo
. It is
clear from the reading of the judgment that the court
a quo
regarded the investigating officer as a good witness. The court
said:
"In this matter the court can accept the evidence of the
investigating officer since there seems (
sic
) no apparent
reason not to when evaluated according to the applicable criteria."
[14]
The court, referring to the use of firearms, said:
"This could indicate that the accused
are a danger or will be
a danger to society and/or to these victims. It is also indeed
so that if convicted the accused will
have to serve a substantial
sentence of direct imprisonment
."
This,
seen in context, clearly shows that the court was worried that the
accused may, because of the sentence, be induced to evade
their
trial. The offences the three accused are facing are indeed
very serious and carry heavy sentences. The State's
case, also,
appears to be very strong.
[15]
The court
a quo,
when dealing with public opinion, merely
expressed the view of society which, according to the court
a quo,
should be considered in light of the earlier court decisions. I
see no contradiction in the court's dealing with public opinion.
The court specifically said:
"The court however takes notice of the fact that the community
could in many instances, they also do overreact and already
see the
accused as being guilty and convicted."
This
demonstrates no contradiction at all on the part of the court
a quo
.
[16]
It is important to touch on what the term "exceptional
circumstances" means. In
S v Jonas
1998(2) SACR 673 (SEC) the court held that "exceptional
circumstances" are established by the accused adducing
acceptable
evidence that the prosecution's case against him is
non existent or subject to serious doubt.
At
678e-i, the court said that the term "exceptional circumstances"
is not defined and that there could be "as many
circumstances
which are exceptional as the term in essence implies".
In
S
v Peterson
2008(2) SACR 355 (C), a full bench case, Van Zyl J, at
[55], said that there are wide-ranging opinions which do not
encourage one
to define the term "exceptional circumstances".
According to him, "exceptional" denotes something "unusual,
extraordinary, remarkable, peculiar or simply different".
He noted that there are varying degrees of exceptionality,
unusualness, extraordinariness, remarkableness, peculiarity or
difference". Of course each case will have its peculiar
circumstances. For the court to be persuaded, the circumstances
must be such that they demonstrate that it would be in the
interests
of justice that the release of the accused be ordered. Courts
must be flexible in their judicial approach of the
issue of
exceptional circumstances. They have to exercise a value
judgment and have regard to all the relevant facts and
circumstances
of each case as well as all the applicable legal criteria. (See
S v Mahomed
1999(2) SACR 507 (C) and
S v Rudolph
(supra)
at [9].)
[17]
What the court has to ask itself is whether the circumstances of each
appellant are such that these "exceptional circumstances"
which in the interests of justice permit their release exist.
First
appellant under cross-examination when challenged to demonstrate that
exceptional circumstances exist in his case, answered
that he only
wanted to be free so that he could be with his family just like the
prosecutor. Asked if he could give more
exceptional
circumstances he answered that he did not have.
His
answers to the prosecutor's questions, regarding his children, led
the prosecutor to doubt if he has children. The court
a quo
touched on this in its judgment.
First
appellant testified that he has three children aged 8, 3 and 1.
He supported them until his arrest with money which
he generated at
his car wash business. From the business he could make R500,00
to R1 000,00 per month depending on whether
the month was good
or bad. He also assisted his grandmother who is a pensioner
when she needed something from different places.
It appears
that his children are living with their mothers. The children
appear to be well cared for. The grandmother
too is a pensioner
and, in my view, can be assisted by others.
[18]
Second appellant, Mr Aubrey Chuene, testified telling the court that
he is a taxi driver. The investigating officer's
evidence
revealed that second appellant had informed him that he was
unemployed. His attorney, cross-examining the investigating
officer, put it to him that second appellant did not regard being a
taxi driver as formal employment.
Second
appellant was not arrested together with accused 1 and first
appellant, Mr Lesego Mabusela. He was arrested two
or
three days after their arrest. The Avanza motor vehicle which
he said he used as a taxi was impounded by the police on
the day of
the commission of the offences. The investigating officer
explained that second appellant had been on the run.
The Avanza
motor vehicle, according to the investigating officer, was used as a
get-away motor vehicle. The owner of the
taxi has been traced
and is a witness in the case.
Second
appellant has four children aged 8, 6, 6 and 2. The children
seem to be well cared for during second appellant's incarseration.
These children together with first appellant's children seem to be
legible for child grants.
Second
appellant has a previous conviction of possession of firearms.
Approximately fifteen days after his conviction and
sentence, the
current offences were committed. The offences are
inter alia
robbery with aggravating circumstances, attempted murder where a
firearm was used to shoot an innocent lady cashier working for
Koto
Supermarket and possession of firearms. This simply means that
second appellant has a record of a related offence.
[19]
The State led evidence which demonstrated that the offences that
accused 1 and the two appellants are facing are very serious.
In the
process of the robbery an innocent woman was shot and injured. She
remained in hospital for some time after the incident.
She, in fact,
according to evidence, is lucky to be alive. Should they be convicted
they stand to be punished severely and this
simply means that they
are likely to be given long terms of imprisonment. This may lead to
their attempting to evade their trial.
The court dealt with all of
this.
[20]
Having regard to all that I have referred to above, the court
a
quo
found that no exceptional circumstances exist which in the
interests of justice permit their release. I do not agree that the
court
a quo
misdirected itself in so finding. The appeal
against the refusal of bail by the learned magistrate Ms E van
Biljoen should fail.
[21]
I, in the result, make the following order:
The appeal, in respect of the two appellants, is dismissed.
______________________
M W
MSIMEKI
JUDGE OF THE
GAUTENG DIVISION, PRETORIA
HEARD
ON: 29 JANUARY 2016
FOR
THE APPELLANTS: Ms M MOLOI
INSTRUCTED
BY: LEGAL AID SOUTH AFRICA
FOR
THE RESPONDENT: ADV C PRUIS
INSTRUCTED
BY: STATE