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[2016] ZAGPPHC 565
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Mahlangu v S (A261/2016) [2016] ZAGPPHC 565 (17 May 2016)
IN THE HIGH COURT OF SOUTH AFRICA (GAUTENG DIVISION, PRETORIA)
Case number:
A261/2016
Date: 17 May
2016
In the matter between:
SIBUSISO SIDWELL MAHLANGU
APPELLANT
And
THE STATE
RESPONDENT
JUDGMENT (BAIL APPEAL)
PRETORIUS
J.
(1)
The
appellant has been charged with murder read with the
provisions
of section 51(1) and 51(2) of the
Criminal
Law Amendment Act
[1]
.
He
was also charged with defeating the ends of
justice.
(2)
The
magistrate, Mr Thage, heard an application for bail in the
Kwa-Mhlanga
Magistrate's Court and refused the application on 8
January
2016. The appellant was represented by Mr Mabena throughout
the
proceedings.
(3)
The
appellant
now
approaches
the
High
Court
on
appeal
for
the
granting
of bail. It is not clear whether the appellant faces a Schedule 5 or
a Schedule 6 charge. In the instance of a Schedule
6 crime,
the
appellant has to show exceptional circumstances exist on a balance of
probabilities that he should be released on
bail.
(4)
In
the instance of a Schedule 5 crime the appellant has to show, on
a
balance
of probabilities, that it will be in the interest of justice to
release
him on bail.
(5)
It
is common cause that the appellant did not give
viva
voce
evidence,
in
his application for bail, but that his legal representative
had
furnished
the court with an affidavit, deposed to by the
appellant.
(6)
The
State presented
viva
voce
evidence
by Sergeant
Ndlala.
His
evidence was that on
27
October
2014
the deceased's body was found under a bridge at Van Dyk
Spruit. She was identified as Ms Nomya Paletla. According to Sergeant
Ndlala
an occurrence book entry was made on
26
October
2014
where the appellant had reported that the deceased, his
wife, had left the home to jog, but did not return. On the
2ih
of October
2014
the police requested the appellant to attend at the
police station, which he did.
(7)
On
27
October
2014
the
police went to appellant's home
and
investigated.
Traces of blood were found at the house and in the
appellant's
bakkie. The
post
mortem
examination
indicated that the
deceased
had sustained serious injuries, as she had a blood stain in her face,
a fractured skull, abrasions on the abdominal region,
loose
teeth
and subdural bleeding on the
brain.
(8)
Once
more, after receiving the
post
mortem
report,
the appellant was
requested
to attend the police station, which he did. After
being
interviewed
by the police, he was sent home. When the blood
tests
confirmed
that the blood found in the appellant's house and
bakkie
was
that of the deceased, the police went to the appellant's house to
arrest
him. The appellant was arrested at his house on
21
December
2015
-
almost fourteen
(14)
months after the body of the deceased
had been found.
(9)
The
reasons by Sergeant Ndlala for opposing bail were that,
although
they went to the appellant's house on several
occasions, they did not find him; he is facing a serious charge of
murder; that he
may interfere with witnesses and that the police
investigation had not been completed as the SAP69 was still
outstanding.
(10)
Appellant's
affidavit set
out
the
following
personal
circumstances:
he
is
a widower with a child, aged eight (8) years; he was arrested on
21
December 2015; he owned his home where he lived at number 349,
Section BA at Kwa-Mhlanga since 2005; he is 35 years old; his
parents
live close by; the investigating officer has his cellphone number;
he
has no previous convictions and is self-employed as aNcar
salesman
and he manufactures fences and gates earning approximately R5 000 per
month. He intends pleading not
guilty.
(11)
In
5
v
Botha
[2]
Viviers
AJ
held:
"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 vo/doende 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.
Artikel 60(11)(a) meld nie die aard
van die vereiste"buitengewone omstandighede" nie. Dit word
nie vereis dat "buitengewone
omstandighede" verskillend van
aard,
of andersoortig moet wees as die omstandighede
wat
in subartikels (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 (TkH) op 376 b-d). Dit is vir die hot
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.
"
(12)
In
S
v Branco
[3]
Cachalia
AJ
held:
"The fundamental objective of
the institution of bail in
the democratic society
based
on freedom is to maximise
personal
liberty.
The proper approach to
a
decision
in the
bail
application is that: The court will
always grant bail
where possible, and will lean in
favour of and not against the liberty of the subject provided that it
is clear that the interests
of justice will not be prejudiced
thereby."
(Court emphasis)
(13)
The
court
a
quo
in
the judgment found: "This means that
minimum
sentence
is applicable in schedule six offences only and not
on
schedule
offence". This is patently incorrect. The further finding
by
the
court that the murder was pre-meditated is not sustained by the
evidence
which is purely circumstantial. The fact that a different set of
fingerprints
was uplifted where the deceased was found cannot justify
the
finding that more than one person was involved in the
murder.
(14)
The
magistrate found that
"It
is common cause that there is no direct
evidence
linking the accused to the commission of this offence".
The
evidence
is
circumstantial.
(15)
It
is clear that the appellant is not a flight risk. He has a
permanent
home
where he lives with his young daughter. His parents live close by. He
was arrested at his home fourteen (14) months after the
death
of
the deceased. There is no reason to believe that the appellant
will
interfere
with witnesses as the witnesses are members of the
police
force.
If the appellant intended absconding he would have done so in the
fourteen months between the death of the deceased and his
arrest.
(16)
The Director of Public Prosecutions ("OPP")
opposes the application due to the fact that, according to the OPP,
it was
a pre-meditated murder and therefor Schedule 6 applies. In
S
v
Lulane and Others
[4]
Didcott
J remarked:
"Although the
opinion of the Attorney-General
always
commands respect because of his experience and
the responsibilities of his office, it
seems to me that, once it is evident that he is no better informed
than the Court, it is
in
as
good
a
position as he to assess the
likelihood or otherwise
that
an accused person will abscond."
(17)
It is also
clear that there is no indication on the charge sheet that Schedule 6
applies.
(18)
I have
considered
all the facts
and
the
arguments
and
I
have come to the
conclusion
that
the
State
has
not proved that
this
is a
Schedule
6 offence. The DPP's case is based on
circumstantial evidence,
the
appellant has co-operated with the police, reported to the police
when requested to do so, was only arrested fourteen (14) months
after
the deceased's death and cares for his daughter who is eight (8)
years old. Each of the provisions of section 60(4) (a -
e) have been
taken into consideration and there does not seem a reason for not
granting bail.
(19)
Therefor I find that it
will not be in the interest of justice to keep the appellant
incarcerated in these
circumstances.
(20)
I make the following
order:
1.
The
appeal is allowed and the magistrate's order, refusing bail,
is set aside;
2.
Bail is fixed in an amount of
R3 000, subject to the
following conditions:
a)
The appellant shall report on a
Monday and a Friday
between
18h00
-
19h00 at the Kwa-Mhlanga Police
Station;
b)
The appellant shall not leave
the district of
Kwa-Mhlanga
without the prior permission of the investigating
officer.
Case
number :
A261/2016
Matter heard
on : 16 May 2016
For the
Appellant : Adv
Aphane
Instructed
by: AJ Masingi
Attorneys
For the Respondent : Adv
Sono
Instructed
by: Director of Public Prosecutions
Date of
Judgment : 17 May 2016
[1]
Act 105 of
1997
[2]
2002( 1) SACR 222
(SCA) at paragraph 18 and 19
[3]
2002(1) SACR 531 (SCA) at page
533
[4]
1976(2) SA 204 ( N ) at 211 F-G