About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 685
|
|
Khumalo v S (A262/16) [2016] ZAGPPHC 685 (11 August 2016)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
[REPUBLIC
OF SOUTH AFRICA]
CASE
NUMBER: A262/16
DATE:
11 AUGUST 2016
IN
THE MATTER BETWEEN:
L
T
KHUMALO
.................................................................................................................
APPELLANT
A
nd
THE
STATE
....................................................................................................................
RESPONDENT
JUDGMENT
APPEAL AGAINST REFUSAL OF BAIL
MAKAMU
AJ:
[1]
This is an appeal against refusal of
bail in the Regional Court at Kwamhlanga by Magistrate Combrink, when
he refused to release
the accused on bail based on new facts, as he
was refused bail initially and his appeal was unsuccessful.
I
am not going to deal with issues that were dealt with on his previous
bail application and the appeal thereof.
[2]
The appellant brought an application for
bail on new facts before Regional Magistrate Combrink yet he had
appeared before Mr Du
Preez on his first two bail applications and
decided not to bring his bail application before, Mr Du Preez as he
was ill and was
operated on, and other factors which were not
canvased in this application why Mr Du Preez could not hear his
application on new
facts, it would appear the Counsel for the
appellant had some reservations however Mr Combrink went ahead to
hear his application
on new facts.
[3]
The main new facts were based on two
main issues, the report by Dr Botha that the appellant's health
condition is deteriorating
in the Correctional facility and Dr Botha
is specialist physician who examined the records to come to the
conclusion that the appellant's
condition was indeed deteriorating.
The
second part is that the police or State did not assist the appellant
with photos of the vehicle in which the appellant is alleged
to have
been travelling and it only came to the fore after a while which the
appellant feel it is unfair, that the State had the
information but
decided not to disclose to the appellant.
[4]
The appellant deposed of an affidavit in
support of his bail application and according to the decision by SCA
in S v Mathebula
2010 (1) SACR 55
(SCA) the appellant relied on
affidavit which was not open to test by cross examination and,
therefore, less persuasive. The appellant
was never subjected to
cross examination and his affidavit could not be tested.
[5]
The appellant complained that The State
withheld the information of photos of the vehicles concerned and
according to the SCA referred
to the case of S v Botha en 'n ander
2002 (1) SACR 222
(SCA) and to S v Viljoen
2002 (2) SACR 550
(SCA)
"that is no mean task, the more especially as an innocent person
cannot be expected to have insight into matters in
which he was
involved only on the periphery or perhaps not at all. But the State
is not obliged to show its hand in advance, at
least not before the
time when the contents of the docket must be made available to the
defence. An attack on the prosecution case
at all necessary to
discharge the onus; the applicant who chooses to follow that route
must make his own way and not expect to
have it cleared before him,
thus it has been held that until an applicant has set up a prima
facie case of the prosecution failing
there is no call on the State
to rebut his evidence to that effect".
[6]
The question of photos of the vehicles
were available at the time of the first bail application or second
bail application and cannot
now be considered to be new facts, the
magistrate made no mistake in that regard.
[7]
The appellant says his medical condition
is deteriorating and relies on the evidence of Dr Botha after the
criticism by Judge Kollapen
in the first appeal and then the
applicant went to obtain this evidence, it is clear that the evidence
was already available and
could have been brought before court then,
but the applicant failed to do so. It is very clear from S v Van Wyk
2005 (1) SACR 41
(SCA) that medical condition should be taken into
account together with other factors in order to be considered to be
exceptional
circumstances in existence to allow the applicant out on
bail and it cannot be the only factor as the appellant has other
remedies
to deal with the situation rather than bail to be a remedy.
[8]
The appellant or his counsel relied on
the fact that Mr Mlangeni was released out on bail on appeal, however
that does not discharge
the onus placed on the appellant to prove
exceptional circumstances exist. I would like to refer to the case of
S Van Wyk supra,
where seven other accused were released out on bail
and were attending court regularly, this does not make it an
exceptional circumstance
to be considered, the appellant then still
had to discharge onus that is placed before him and in that case bail
was refused and
the appeal also failed.
[9]
The appellant argues that he has brought
new facts before regional magistrate Combrink however, all these
factors were already in
existence when he brought bail application.
In S v Petersen
2008 (2) SACR 355
(C) "When in a second or
subsequent application for bail, the accused relies on new facts
which have come to the fore since
the first, or previous, bail
application, the court must be satisfied, first, that such facts are
indeed new and secondly, that
they are relevant for purposes of the
new bail application. They must not constitute simply a reshuffling
of old evidence or an
embroidering upon it The medical records were
available during the initial bail applications however the applicant
did not source
them in order to prove his medical condition then and
it does not make the facts to be new at this stage. In this case it
is clear
that this is the situation as all these facts were already
in existence when initial two bail applications were brought and
subsequent
appeal thereof, as the magistrate said in his judgment on
page 47 of his judgment, '"as a whole, it is clear that the same
stale old facts which other courts ruled upon were polished and
embellished upon and given new coat of varnish, that does not make
these to be new facts".
Under
this circumstances the appeal fail and make the following order.
ORDER
The
appeal is dismissed.
M
S MAKAMU
ACTING
JUDE OF THE HIGH COURT
DATE
OF THE
JUDGEMENT:
11/08/2016
APPELLANTS
COUNSEL:
ADV D P VAN DEN BERG
STATE'S
COUNSEL : ADV G J C MARITZ