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 736
|
|
Khoza v S (A517/2016) [2016] ZAGPPHC 736 (23 August 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
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: A517/2016
DATE
:
23
AUGUST 2016
THAPELO
KH
OZA
......................................................................................................
Appellant
And
THE
STATE
.............................................................................................................
Respondent
JUDGEMENT
NKOSI:
AJ
[1]
The Appellant and his co-accused were
arrested on 13 October 2015. They are both charged with two counts of
robbery with aggravating
circumstances as defined in Section 1 of Act
51 of 1977 read with the Provisions of Section 51(2) of the Criminal
Law Amendment
Act, Act 105 of 1997, kidnapping and housebreaking with
intent to steal and theft.
[2]
They both applied on the 11 September
2015 to be released on bail. Their application was dismissed by the
presiding magistrate.
[3]
The Appellant further brought an
application for bail on new facts on the 19 May 2016. This
application was also denied. He is now
appealing to this court
against the decision of the magistrate to refuse him bail.
[4]
It is common cause that the Appellant is
facing charges which fall under Schedule 6 of the
Criminal Procedure
Act 6 of 1977
. As such he bears the onus to prove that exceptional
circumstances exist which are in the interest of justice warranting
his release
on bail.
[5]
In terms of
Section 60
(4) of the
Criminal Procedure Act, the
interest of justice does not permit the
release from detention of an accused person where one or more of the
following grounds
are established:-
a]
where there is a likelihood that the
accused, if released on bail will endanger the safety of the public
or any particular person
or will commit a Schedule 1 offence;
b]
where there is a likelihood that the
accused, if released on bail will attempt to evade his trial;
c]
where there is a likelihood that the
accused, if released will attempt to influence or intimidate
witnesses or to conceal or destroy
evidence; or
d]
where there is a likelihood that if the
accused is released, 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 a likelihood that the release of the accused will disturb
the public order or undermine
public peace or security.
MERITS
[6]
It is alleged on behalf of the
Respondent that:-
[6.1]
On 11
August 2015 at house number
[2….] [M…..] Street, [S…..]
,
the Appellant committed housebreaking and stole several items
inter
alia
, television sets, jewellery,
laptop a play station and a Toyota Corolla
with registration
number [V…. 9…
GP
]
.
[6.2]
On the 13 August 2015, the same Toyo
ta
Corolla with Registration [V… 9…..
GP
]
drove into the premises of house
number
[3…...] [A…. A….. W…..
K….]
.
[6.3]
There was a car parked in the double
garage and this Toyota parked next to that car inside the garage. The
employee of that house
was held at gun point and dragged into the
house. All the other occupants of the house were also held at
gunpoint tied up and kept
in the bathroom of the house. A
number of items were removed from the house.
Fortunately one of the occupants of the house had locked herself in
one of the bedrooms
and sent a text message through her cellphone to
the owner alerting him to call the police. The police were quick to
respond and
the suspects were arrested in the next door neighbour’s
yard.
[6.4]
The Toyota Corolla in question was found
at the scene of the robbery which had
taken place at house
number [3…. A…. A….. W….. K…..]
.
It was full of items which had been removed from the said house. The
items were identified by the house owner as his property.
[6.5]
The Appellant and his co-accused were
positively identified by the occupants of the house as the persons
who robbed them at gunpoint.
FIRST
BAIL APPLICATION
[7]
The Appellant and his co-accused did not
testify during the first bail application. They both elected to
tender into evidence their
respective affidavits. The contents of
these affidavits were well summed up in the judgment of the learned
magistrate. I quote
from page 58 of the record in the first bail
application:-
“
There
was no oral evidence adduced
both
parties proceeded by way of affidavits. There is no circumstance of
both applicants reflected on the affidavits marked as EXHIBIT
A and
B. The affidavits are about their ages being 28 and 33 years
respectively and that both applicants live in Mamelodi
which
is within the
Court’s
area of jurisdiction and both applicants indicated that the state's
case is relatively not strong. The State relies on solely
circumstantial evidence. Applicants believe they will be acquitted
during the trial. They do not have previous convictions. They
only
have one outstanding case, which is partly heard in court 8. They can
afford to pay R2 000 bail each and that they will comply
with any
conditions if bail is granted. The State in opposing their
application read out an affidavit by the investigating officer
that
the address of the accused was confirmed. ”
[8]
The Appellant stated in his affidavit
that he has no previous convictions. However, that was not true. He
later submitted a supplementary
affidavit to the effect that he does
have a previous conviction. The reason furnished by the Appellant for
the discrepancy was
that he forgot about his previous conviction. The
presiding magistrate was not impressed with the explanation and made
a finding
that the Appellant was not honest regarding his criminal
record. She further made a finding that the Appellant deliberately
withheld
crucial information. The Appellant does have a previous
conviction of theft.
[9]
It had been argued for the Appellant
that the State’s case was weak and that he had no knowledge of
the several pending cases
in various courts.
[10]
Having considered the evidence before
her, the learned magistrate concluded that the question before court
was whether the Appellant
(accused) was the candidate for bail and
whether he had discharged the onus to show the presence of
exceptional circumstances.
[11]
I find it necessary to reiterate the
presiding magistrate’s concerns about how the bail application
was presented to her.
I quote an extract from her judgement which
reads as follows:-
I
would like to express my dissatisfaction with the manner in which
this application was presented before this Court. It was not
presented properly. Affidavits presented on behalf of the Applicants
are lacking as far as their personal circumstances are concerned.
This Court does not know at this stage if they have any business or
employment links to the Court’s area. There is no information
as to whether they have any families in the area or they hold any
assets in this area. The State in opposing the application also
did
not properly present its case. "
[12]
The Appellant always had the onus of
proving that there are exceptional circumstances which are in the
interest of justice and consequently
warranting his release. The
learned magistrate in this first bail application found that the
Appellant and his co-accused failed
to satisfy the Court of the
existence of exceptional circumstances. The Appellant failed to prove
that exceptional circumstances
existed to persuade the court to grant
him bail.
[13]
I have studied the learned Magistrate’s
judgment and cannot faulter her finding that
the
Appellant was not a candidate to be released on bail. A subsequent
bail
application was brought by the
Appellant on the 19 May 2016 on the grounds that there were new
facts.
SECOND BAIL APPLICATION
[14]
The new facts are that, the state has
not made a
prima
facie
case, the investigation is
incomplete, the arresting Officer cannot give description of the
suspects, there are no fingerprints
linking the Appellant to the
firearm that was found on the scene, there is nothing that links the
Appellant to the offence and
none of the items robbed were retrieved
from the Appellant. The DNA result regarding the ring is negative.
There was no finger
prints evidence linking the Appellant. The State
witness in A1 could not identify the witness who pointed the firearm
at him. Regarding
the Sinoville house breaking or and robbery there
is nothing linking him to the offence and his fingerprints were not
found on
the car.
[15]
The correctional officer was called to
testify for the Appellant. He compiled a report in terms of
Section
62(F)
of the
Criminal Procedure Act. His
report states that the
Appellant has a monitorable address and that he meets the
requirements which should see him released on
bail subject to the
relevant conditions. He recommended that the Appellant be released on
bail, placed under the supervision of
a correctional officer and that
an electronic monitoring device be fitted to him. In response to the
said evidence the learned
magistrate found on page 9 of her judgement
that; she would have taken into account the report by the
correctional officer if the
Appellant had been found to be a
candidate for bail. I support the learned magistrate’s finding
because the correctional
officer’s recommendations are to a
large extent relevant to the issue of the terms and conditions of
bail.
[16]
The magistrate noted in her finding the
allegation that the Appellant was linked to the offence in question
by DNA found on the
jacket alleged to be belonging to one of the
victims and that the DNA retrieved from the gloves found on the next
door yard matched
that of the Appellant. She further made a finding
that it was not clear whether the finger ring was found on Accused 1
or the Appellant.
The learned magistrate noted on page 5, paragraph
10 of her judgment that the matter was trial ready. The Appellant has
a previous
conviction and an outstanding case. The offence was
committed whilst the Appellant was on bail in respect of the
outstanding matter.
CONSIDERATION
OF SUBMISSIONS
[17
]
The Court stated in S v
Bruintiies
2003 [21 SACR at 577 that:-
“
If
upon overall assessment, the court is satisfied that circumstances
sufficiently out of the ordinary to be deemed exceptional
have been
established by the Appellant and which, consistent with the interest
of justice, warrant his release, the Appellant must
be granted
bail
”
[18]
The court sufficiently considered and
dealt with the new facts submitted by the Appellant. The court
concluded that there was evidence
linking the Appellant to the
offence committed at the house in Waterkloof. The evidence of the
arresting officers, the DNA, and
the finger ring which was found in
Appellant’s possession were all, among other factors which was
found in one of the accused’s
possession were all, among other
factors which lead her to the conclusion that the case against the
Appellant was not weak as argued
by the Appellant.
[19]
The Appellant was out on bail pending
the matter in Court 8 when the offence in the Waterkloof house took
place. He has a previous
conviction of theft which is relevant to the
present charge. In the first bail application the learned Magistrate
made a finding
that the Appellant was not honest in the first place
about his criminal record. She maintained that view during the
subsequent
bail application. The court concluded that the Appellant’s
past and present criminal record show that he has a disposition
to
commit a Schedule 1 offence consequently he should not be released on
bail as envisaged in
Section 60
(4) (a) of the
Criminal Procedure
Act. The
court went further and made a finding that his failure to
disclose his previous conviction was intended to mislead the court
and
falsely induce it to consider the bail application in his favour.
[20]
It does appear from the record that the
matter is trial ready and the DNA results are available. The fact
that the identity parade
was not held is irrelevant in light of the
fact that the matter is trial ready. The Appellant’s
submissions suggesting otherwise,
cannot stand.
[21]
It was argued for the Appellant that he
has already spent almost a year in custody and therefore bail should
be considered in his
favour. I am not persuaded by this argument. The
period spent in custody before the commencement of the trial cannot
on its own
constitute an exceptional circumstance warranting his
release. An overall assessment of the evidence before the court
should be
undertaken. The learned Magistrate’s assessment is
that the Appellant if released on bail is likely to commit a Schedule
1 offence. The case against him is likely to result in a conviction
and the sentence is likely to be a lengthy one.
[22]
I have been referred to the case of Mooi v S
[2012] ZASCA 79
[SCA
Case Number 162/2012, 30 May 2012].
The
circumstances of the case at hand are distinguishable from the
circumstances in the Mooi case. Firstly, there is no argument
before
me indicating that the state delayed in prosecuting the Appellant or
commencing with the trial. To the contrary the record
indicates that
since June 2016, the matter was trial ready. Secondly, the learned
magistrate made a finding that the state case
was not weak as alleged
by the Appellant. Thirdly, the Appellant was not honest about his
criminal record. Fourthly, the Appellant
has a disposition to commit
Schedule 1 offence if released on bail.
[22]
It was also submitted that the Appellant
has received an offer for employment and that this fact and other new
facts should be considered
in his favour for the granting of bail.
The other new facts placed before court were efficiently and ably
dealt with by the learned
Magistrate. I shall not repeat the court’s
findings
supra.
The job offer remains the only new fact which was not disputed.
However, in light of the totality of the evidence before court,
this
fact on its own is insufficient to persuade me as it did not convince
the court
a
quo
that it warrants that bail be
granted.
[23]
I therefore find that the factors
referred to in
Section 60
(5) of the
Criminal Procedure Act appear
from the record of the bail application and were taken into account
by the Magistrate namely:-
[a]
Any
disposition to commit offences
referred to in Schedule 1 as is evident from the Appellant’s
past and present conduct.
[b]
The
prevalence of the particular type of
offence.
[c]
Any
evidence that the Appellant
previously committed an offence referred to in Schedule 1 while
released on bail.
The
learned Magistrate did not err in refusing bail. I agree with her
finding that the Appellant is likely to commit an offence
in Schedule
1 as indicated in
Section 60(4)
of the
Criminal Procedure Act,
>
[24]
I therefore make the following order.
[
A
]
The appeal against the Magistrate
’s decision refusing
bail is dismi
ssed.
N
NKOSI. AJ
Acting
Judge of the High Court, Pretoria
22
August 2016