Maimela v S (A 263/16) [2016] ZAGPPHC 687 (21 July 2016)

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[2016] ZAGPPHC 687
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Maimela v S (A 263/16) [2016] ZAGPPHC 687 (21 July 2016)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
CASE NO: A 263/16
In the
matter between:
SIPHO
PIET
MAIMELA
..................................................................................................
Appellant
A
nd
THE
STATE
............................................................................................................................
Respondent
JUDGMENT
MAAKANE A J
1.
This is a bail appeal in terms of
Section 65 of the Criminal Procedure Act, Act 51 of 1977 (“the
CPA”).
2.
The
Appellant, together with four (4) co-accused are standing trial in
the Regional Court of Pretoria on a number of charges. He
is the
second accused in the main trial. These charges include:
2.1
Theft
of a motor vehicle;
2.2
Robbery
with aggravating circumstances;
2.3
Kidnapping
2.4
Possession
of a firearm;
2.5
Possession
of ammunition;
2.6
Possession
of firearm;
2.7
Possession
of ammunition.
3.
Their
arrest and charges emanate from their alleged involvement in an armed
robbery that took place on 12 April 2012 at Cullinan,
in the district
of Pretoria. In that armed robbery, one Karabo Ndupe Ngeng is the
complainant. He was employed by a company known
as the British
American Tobacco Company, as a driver delivering cigarettes.
He was
allegedly ambushed, attacked and robbed at gun point of his delivery
vehicle described as a Volkswagen, cash, and a quantity
of
cigarettes, among others.
The
Appellant and his co-accused were arrested a few minutes after this
incident. During their arrest, all the stolen goods were
found in the
possession of the suspects and therefore recovered.
On
the 6
th
July 2012, the Appellant was granted bail in the
amount of R5,000.00. This was done subject to certain conditions
which include
firstly, that he reports to the Soshanguve Police
Station twice a week on Thursdays and Fridays. Secondly, he was not
allowed to
leave the Magisterial District of Pretoria without
permission from the investigating officer.
What
transpired thereafter is dealt with later in this judgment. Suffice
it to state that the Appellant failed to honour his bail
conditions
and to appear in court for his trial. A warrant of arrest was
authorised against him and his bail money was finally
forfeited to
the State. He was later arrested in execution of the said warrant of
arrest, and kept in detention.
8.
Following
his re-arrest on a warrant of arrest, the Appellant unsuccessfully
applied for bail in the Regional Court of Pretoria.
9.
It
was common cause at the hearing of the bail application that the bail
application fell under Section 60(ii)(a) of the CPA and
that the
Appellant therefore bore the onus of satisfying the Court that
exceptional circumstances exist and that the interests
of justice
will be served if he is released on bail pending his trial. The
Regional Court Magistrate found that he has failed to
discharge this
onus, and dismissed his application for bail.
10.
The
Appellant’s grounds of appeal have been set out in some length.
There has been reference to argument and also, to some
authorities in
the same document. Be that as it may, paragraph 11 of the Notice of
Appeal seems to be a summary and provides as
follows:
“11. It is submitted that the Honourable Magistrate is wrong
in the judgment to refuse bail in the following respects;
• As pointed out in paragraph 1 supra the appellant was never
given sufficient opportunity to explain his absence from court.
The
State cannot find that the evidence of the state gainsays his
explanation in this bail application.
As pointed out in paragraph 2 and in
paragraph 6 of the Honourable Magistrate is wrong in not executing
the duty in terms of subsection
60(9) and subsection 60(10) to weigh
up the personal interests of the accused against the interests of
justice. Subsection 9 provides
amongst other as follows in
considering the question in subsection 4 the court shall decide the
matter by weighing up the interests
of justice against the right of
the accused to his or her personal freedom and particularly the
prejudice he or she is likely to
suffer if he or she were to be
detained in custody. The Honourable Magistrate discarded a monitoring
system on dubious grounds.
The main issue is apparent and that is
whether the appellant will stand his trial. The State does not rely
on any of the other provisions
of section 60(4) of the CPA.
The magistrate failed to consider the
strength of the State’s case but focussed prophetically on
appellants shall one, say
failure to adhere to stringent bail
conditions."
The
Appellant presented evidence in support of his bail application, by
way of an affidavit. This can be briefly summarised as follows:
He is a
South African citizen, 33 years
old. He is married to N M
,
who at some stage worked for the City of Tshwane as a member of
Tshwane Metro
Police. He resides at 1 T S, D
from 2013. The house belongs to him and his wife. They have four
children;
He
was the sole owner of a business entity known as Seun Barker
Enterprises, which specialised in designer clothes. He also had
a
taxi business. His income was approximately R20,000.00 per month;
He has two
previous convictions. One is for an armed robbery which apparently
occurred more than ten (10) years ago, and for which
a suspended
sentence was imposed. The other one is a housebreaking with intent to
steal and theft, and for which he was sentenced
to a term of
imprisonment in terms of Section 276(1 )(i) of the CPA;
He
at the time had two pending criminal cases. One was a robbery with
aggravating circumstances. The second was the unlawful possession
of
a firearm. He states that in both cases the State has a weak case
against him;
He
undertook not to communicate with State witnesses, nor will he
endanger the safety of any person. He has no travel documents
to
leave the Republic of South Africa. He has no intention to evade his
trial;
He stated
that he was initially unable to abide by his bail conditions in this
matter, because he was hospitalised and later arrested
on another
unrelated matter;
While
he concedes that the charges he is facing are of a serious nature, he
states that the State does not have a strong case against
him;
The trial is
likely to take some time to be finalised, and further detention will
impede the preparation for his trial. He can afford
R5,000.00 as
bail.
In
opposing the bail application the State called Ominus Mashego
(“Mashego”) as a witness. He testified that he is the

investigating officer of the case. He is a constable and attached to
a Police Unit known as BAT, which stands for British American
Tobacco
Company. This unit was established after a
series
of armed robberies in which drivers and or delivery staff of this
cigarette company were targeted and robbed at gun point.
They were
mostly robbed of cigarettes, vehicles and cash.
13.
On
the 12
th
April 2012, the police received information and report of an armed
robbery which took place at Cullman that morning at about 09H45.
A
driver of the BAT cigarette company, was robbed of his delivery
vehicle, cash, and the entire quantity of cigarettes. He was
also
kidnapped and taken along against his will.
14.
Following
this and further information, the police sprang into action. Shortly
thereafter and following prompt police action, five
suspects were
arrested. These are the Appellant and his
caucused
in this matter. The robbery took place at about 09H30, and the
Appellant and his co-accused were arrested at about 09H45.
15.
After
the arrest of the suspects, the police officers searched their
vehicle and therein found firearms as well as ammunition. The
police
also recovered the vehicle that was hijacked, as well as the
cigarettes that were loaded therein. An identification parade
was
held. The Appellant was positively identified and pointed out by
witnesses, as one of the armed robbers.
The
investigating officer also referred to a Rietgat case, Rietgat CAS
37/03/2012. This relates to counts 10 and 11 in the charge
sheets. He
says that the Appellant, was also positively linked to this case. He
was positively identified at an identity parade.
This the witness did
with relative ease. He has therefore formally been charged in respect
of that case as well.
After
their arrest in the Cullinan matter, the Appellant and his co­accused
were kept in custody. On 6 July 2012, he was granted
bail in the
amount of R5,000.00. The granting of the bail was subject to the
condition that he reports to the Soshanguve Police
Station twice a
week on Thursdays and Fridays. Secondly, that he was not allowed to
leave the province of Gauteng without permission
of the investigating
officer.
On
the 11
th
January 2013, the accused failed to appear before
court and a warrant of arrest was authorised against him. His mother
was present
in Court and she told the Court that the accused was
admitted at Ga-Rankuwa Hospital receiving treatment for burn wounds.
Since then
the accused never attended court again and all the efforts to try and
trace him were fruitless.
On
the 13
th
October 2013, Applicant was arrested at Dendron,
which is in the province of Limpopo. This was now about nine months
after the
warrant of arrest was authorised. He was accused of and
charged with robbery with aggravating circumstances in which one
Prafo
Patel was robbed of R95,000.00 in cash, laptop, cigarettes, and
cellphones. He was ambushed on the road and robbed at gun point.
He
testified that this robbery was carried out in the same manner as is
the case with Karabo Ngeng (Cullinan case) and Kaya Nkosi
(Rietgat
case). In that case, Patel was also an employee of BAT on duty
delivering cigarettes. In all these cases, the modus operandi
was the
same.
According
to Mashego, in the Dendron case Appellant was granted bail, and the
Court attached the following conditions:
He
must report to the Pretoria West Police Station;
He
is confined to the area of Pretoria West, except when he comes to
court in Dendron;
Otherwise he
has to obtain permission from the Investigating Officer if he has to
leave Pretoria West.
24.
Mashego
also referred the Court to a document attached to the record which
reveals that the accused was placed on parole on the
19 June 2009,
that was supposed to expire on 17 December 2012. The parole
conditions were among others that during that period,
he was under
house arrest, confined to and not to leave his magisterial district
without permission, not to commit further crimes,
not to abuse
alcohol and to commit to compulsory community work.
25.
The
effect of this he testified, is therefore that at the time the
Cullinan and the Rietgat robberies were carried out, Appellant
was on
parole and still bound by the conditions set out above. The two
robberies were committed on the 12 April 2012 and 2 March
2012
respectively. Both of them were committed before the 17 December
2012.
Despite
the length of time and all attempts, they were unable for a period
well in excess of a year, to arrest the Appellant, on
the strength of
a warrant of arrest. They were only able to execute the warrant of
arrest, after he was arrested by the police
on another charge, the
unlawful possession of a firearm.
The
investigating officer was cross-examined at length by the attorney
for the Appellant. He stuck to his version especially as
regards the
fact that the State has a strong case against the Appellant and the
fact that if granted bail, he will according to
him not stand his
trial.
Having
considered the evidence, the Magistrate dismissed the bail
application.
A subsequent
bail application was made on 24 July 2015, based on new facts. The
new facts relied on was that the Pretoria case,
in which the
Appellant was charged with the unlawful possession of a firearm was
withdrawn.
He
submitted further affidavits, including that of his wife. Ayatola
Matseke, (“Matseke”) an official in the Department
of
Correctional Services, was also called to testify. In essence, he
testified that it is possible to tag the Appellant, for the
purpose
of monitoring him if bail was granted. According to him the Appellant
was such a candidate and qualified to be tagged.
He also explained
how the said monitoring device operates.
31.
Having
considered all the new evidence the Magistrate again dismissed the
application for bail and gave his reasons.
32.
Counsel
for the Appellant has argued that the Appellant had made a good case
to be released on bail with appropriate bail conditions,
and that the
Appellant had discharged the onus that rests on him. He submitted
that Appellant has satisfied the court that there
are exceptional
circumstances justifying his release on bail and that such the
interest of justice require that he be so released.
33.
On
the other hand counsel for the State argued that there was no
misdirection and that the Magistrate has taken into account all

relevant factors and circumstances of this case. He submitted that
the Magistrate was correct in dismissing the bail application.
LEGAL
POSITION AND APPROACH:
34.
In
terms of Section 65(4) of the CPA, the court hearing the appeal may
not set aside the decision against which the appeal is sought,
unless
such court, that is the appeal court, is satisfied that the decision
of the court a quo was wrong. Consequently, my powers
are limited for
the reason that this matter comes before me on appeal and not as an
application for bail to determine whether the
magistrate who had the
discretion to grant bail exercised the discretion wrongly.
34.1
The
Appellant bears the onus, pursuant to the provisions of Section
60(11)(a) of the Criminal Procedure Act to produce
“evidence
which satisfies the court that exceptional circumstances exist which
in the interests of justice permit his or her
release.”
34.2
This
is so by virtue of the fact that, as is common cause, the charges
which the Appellants face fall within the purview of Schedule
6 of
the CPA.
34.3
Furthermore, in order to successfully challenge
the merits of the state’s case in bail proceedings the
Appellant must prove
on a balance of probabilities that he will be
acquitted (S v Botha 2002 (1) 222 SCA at 23 h)
CONSIDERATION
AND ANALYSIS IF THE FACTS/EVIDENCE:
35.
The
following factors count strongly in favour of the Appellant:
35.1
He
is a South African citizen with strong family ties;
35.2
He
is married with 4 children and have fixed property in Pretoria west;
35.3
He
also conducts a designer clothes as well as taxi businesses from
which he earns an income of approximately R20,000.00.
36.
On
the other hand, the following factors count strongly against any
suggestion that the State case against the Appellant is weak:
36.1
The
Appellant, together with his co-accused were arrested only a few
minutes after the Cullinan armed robbery. The robbery took
place at
about 09H30 and they were arrested at about 09H45. All stolen items
were also recovered from them. On searching the vehicle
in which they
were travelling, the police also found more than one firearm.
Appellant’s
version that he was merely a passenger on his way to deliver clothing
to a client, is not supported by any evidence
or circumstances of the
case. The client has not been named or even called as a witness.
There is no evidence that these clothes
were found in the car. This
was not even suggested to Mashego, the investigating officer during
cross-examination.
36.3
36.2
In
my view therefore, the Appellant’s denial of his involvement in
the armed robbery at Cullinan is not substantiated by objective

facts.
37.
Over
and above that, the Appellant’s previous conduct and complete
failure to comply with parole and or bail conditions strongly
count
against him.
37.1
Both the
Cullinan and the Klipgat armed robberies in respect of which he is
now in custody and standing trial on, were committed
while he was on
parole. He has, therefore violated his parole conditions. This is
common cause.
37.2
Again,
after his conditional release on bail of R5,000.00 in respect of this
matter, he was, while on bail arrested on charges
of armed robbery
in Dendron. After his release on bail in the Dendron case and while
same was pending, he was again arrest for
unlawful possession of a
firearm in Pretoria. Both incidents occurred while he was on bail.
37.3
In
the third place, his bail was subject to the condition that he
reports twice a week to the police, on Thursdays and Fridays.
He was
also not allowed to leave the Magisterial district of Pretoria
without the consent of the investigating officer. Once again,
he
completely disregarded all these conditions and travelled freely
until he was arrested in Dendron.
38.
The
whole situation is summarised by the Magistrate in his judgment as
follows:
“ Then the Court also took into
consideration that he at some period he was on parole and before his
period of parole
was
up,
in April 2012 he wad involved in the commission of another offence in
February 2012. In the current offences the Court took
into
consideration what he is facing, his involvement in the use of a
firearm, acts of dishonesty and despite being granted bail
or even
being on parole he still found himself involved in the alleged
commission of various offences involving dishonesty and
violence. ”
39.
Unfortunately the Appellant has given no
explanation or evidence whatsoever, for this apparent propensity.
40.
In
S v Rudolph
2010 (1) SACR 262
SCA, Snyder JA, while referring to this
type of propensity held:
“None of these allegations are
addressed by him. He has also not tendered any explanation for the
charges of attempted murder
............................
Those charges also involve acts of violence. Thus the
unchallenged allegations against him show that he has a propensity to
violence.
In those circumstances S60(4)(a) and (d) of the Act
prohibits his release from detention"
at
paragraph [12]
41.
Section
60(4) of the CPA provides as far as is necessary that:
11
(4) the interests of Justice do not permit the
release from detention of an accused where one or more of the
following grounds
are established.
(a)
where 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 schedule 1 offence;
or
(b)
where 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)
where there is the likelihood that the accused, if
he or she were released on bail, will attempt to influence or
intimidate witnesses
or to conceal or destroy evidence; or
(d)
where there is the likelihood that the accused, 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;
(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 or [sic}'
42.
From the evidence on record and facts
that are common cause
between
the parties, at least three of the grounds listed under Section 60(4)
have been established. In my view grounds (a),
(b)
and (d) have been established, based on
the Appellant’s previous conduct. This was also the evidence of
the investigating
officer which was not in this regard, challenged.
43.2
43.
43.1
In my view therefore
there
is no support for the
grounds upon which this appeal is based
period of absence his business operations were prejudicially
affected. In any event, the
fact that his business was likely to be
detrimentally affected by his detention, cannot be regarded as an
exceptional circumstance
(S v Mokgoje 1999 (1) SACE 233 (NC).
Evidence
clearly shows that from his previous conduct, Appellant’s
release on bail is prohibited by the provisions of Section
60(4). He
continued to disregard his bail conditions and was arrested on other
charges for crimes allegedly committed while on
bail.
It
is common cause that the Appellant and his co-accused were arrested
almost immediately after the Cullman robbery. The robbery
occurred at
09H30 and they were arrested at about 09H45. All stolen goods were
recovered, firearms were also found in the vehicle
in which they were
travelling. The State case against the Appellant, is therefore not
weak.
The
Appellant bears the onus to prove the presence of exceptional
circumstances, in order to be released on bail. Unfortunately
the
evidence led in the matter show that he has a propensity to violence.
There is nothing from his side to, in the form of evidence
to suggest
that he will not continue to act in
accordance
with his propensity to violence as he did in the past. There is
therefore a likelihood, given his previous conduct and
disregard of
the bail and parole conditions that he will evade his trial and or
commit schedule 1 offences ..
45.
It
is also clear that even stringent bail conditions such as house
arrest or reporting to the police station have failed to deter
the
Appellant. He was arrested for crimes allegedly committed while on
parole and also, while he was still on bail in respect of
this very
matter. These crimes have elements of violence and dishonesty.
46.
In
S
v Peterson and Another
1992 (2) SACR 52
(C),
the
accused
person was on several occasions arrested on drug dealing and then
released on bail. The Court held:
“The purpose of granting an
accused bail is to minimise interference in his lawful activities.
But where there is evidence
that the inference to be drawn is that
the accused has abused the grant of bail by indulging in the same
criminal conduct, ....
society is entitled to be protected against
the risk of repetition of
,
of
the same criminal behaviour. Then the interests of society outweigh
the right of the lawless individual
.....................
47.
The
Learned Judge continues and concludes that:
“
................................
it is not in the interests of society that the Appellants who
have displayed complete disregard for
the law, be granted bail.”
48.
Petersen
(supra) was referred to with approved in S v Mwaka
2015 (2) SACR 306
(WCC) where Le Grange J expresses himself as follows:
“
22.
Even though the above matter was decided prior to the
commencement of the constitutional era, and before the amended s60 of
the
CPA, I fully agree with thee sentiments and they are still
relevant today. In the present instance, the Appellant showed a
flagrant
disregard for the law and unashamedly continued with the
possession and trafficking of drugs of which he
was
subsequently found guilty and sentenced. In my view in
consideration of all the relevant factors, to release the Appellant
on bail
again under these circumstances would bring the
administration of justice into disrepute. ”
Through
his previous conduct, the Appellant has shown complete disregard for
the law. This he demonstrated by the fact that he was
arrested for
crimes allegedly committed while on parole and or bail. He has failed
to honour all his previous bail conditions in
this matter. Arresting
him on warrant of arrest proved futile, until he was arrested on
another unrelated matter. Only then could
the warrant of arrest be
executed.
In
my view, Appellant has failed to discharge the onus that rests on
him, of establishing, on a balance of probabilities, that exceptional

circumstances existed which warranted his release and that his
release on bail would have been in the interests of justice.
Consequently,
I am not persuaded that the Court a quo misdirected itself in
refusing the Appellant’s application to be released
on bail
pending his trial.
I
am not satisfied that in circumstances such as these it can be said
that the decision of the Court a quo was so wrong as to justify
my
interference. In the circumstances I have no reason to interfere with
the decision of the Magistrate.
53.
Consequently, the following order is made:
1.
The
appeal is dismissed.
2.
The
Appellant shall remain in detention pending finalisation of his
trial.
S
S MAAKANE Acting Judge of the High Court of South Africa North
Gauteng, Pretoria
Counsel
for the Appellant Instructed by Counsel for Respondent Instructed by
Adv.
A C Klopper
Heinrich
Moldenhauer Attorneys
Adv.
Fourie
Director
of Public Prosecutions Pretoria