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[2016] ZAGPPHC 852
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Sibeko and Others v S (2/2016) [2016] ZAGPPHC 852 (15 September 2016)
In
the High Court of South Africa
Gauteng
Division, Pretoria
Case
number: 2/2016
DATE:
2/2016
In
the matter between:
SIBUSISO
SEBEKO
...........................................................................................
1
st
Applicant
TEBOGO
MAHLANGU
......................................................................................
2
nd
Applicant
STEMBISO
MTHEMBU
....................................................................................
3
rd
Applicant
TSHEPO
SEBEKO
........................................................................................
…..
4
th
Applicant
and
THE
STATE
…................
Respondent
JUDGMENT:
BAIL APPEAL
MNGQIBI
SA-THUSI, .J
[1]
The applicants are appealing against the decision of Mr Nkomo in the
Wolmaransstad Regional Court, handed down on 22 March 2016,
dismissing their application for bail.
[2]
The applicants have been charged with aggravating circumstances.
The
aggravating factor being that a firearm was used.
[3]
The offence for which the applicants have been charged falls within
the offences listed under schedule six of the Criminal Procedure
Act
[1]
(the Act).
[4]
Section 60 (11) of the Act provides that:
"Notwithstanding
any provision of this Act, where an accused is charged with an
offence referred to-
(a)
in schedule six, the court shall order that the accused be detained
in custody un
til
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.
"
[2]
[5]
At the hearing of the bail application in the court
a quo,
none
of the applicants gave oral evidence. The applicants filed affidavits
in which they set out their personal circumstances
and the
reasons why they feel they should be granted bail.
[6]
The applicants' personal circumstances set out in their respective
affidavits are as follows:
Sibusiso
Sibeko
(1
st
Applicant)
6.1
He is 36 years old married with eight children, aged between eight
years and three months. His address is [3…] Zamotalingisa
Street, Emdeni, Soweto. He went to school up to Grade 11 and is a
taxi owner with a monthly income of approximately R6 000. He
is the
sole breadwinner as his wife is unemployed. He has no valid passport.
He has a previous conviction for robbery but no pending
case. Mr
Sibeko further alleges that he will be able to pay bail for RS 000.
Teboho
Dumisani Mahla
ngu
(2
nd
Applicant)
6.2
He is 34 years old and married with two children, aged two years and
six months. His wife is employed as a police officer. His
stays at
[3..] Extension 1, Lenasia. He went up to Grade 9 at school and has
studied electrical mechanic at Molapo FET College.
He further alleges
that he is employed as a part-time consultant by Old Mutual,
Johannesburg, with a salary of approximately R3
500 per month. Mt
Mahlangu further alleges that he runs a business of buying and
selling vehicles. He does not have a passport.
He has one previous
conviction for robbery and has no pending cases. He further alleges
that his current surname is Mteche, although
he has applied to the
Department of Home Affairs to change his surname to Mahlangu.
Stembiso
Mthembu
( 3
rd
Applicant)
6.3
He is 39 years old, single with seven children, with ages ranging
between two and 17 years. The children. however, live with
their
mothers who are self-employed. His residential address is 1607
Mhlongo Street, Mofolo, Soweto. He passed Grade 11 at school
and is
self-employed as a taxi driver owner. earning approximately
R6
000 per month. He also runs h is own bakery. He does not have a
passport. He has two previous convictions for housebreaking and
one
for theft ( 1997). Mr Thembu further alleges that at the time of
their arrest, they were traveling in his kombi which was driven
by a
certain Fixo.
Tshepo
Sibeko
(4
th
Applicant)
6.4
He is 33 years old, married under customary law and has four
children, ranging in age from six months to 12 years. His residential
address is indicated as [1..] Tsenele Street, Emdeni, Extension 2,
Soweto. He is self-employed, transporting learners to school
and his
income is as approximately R8 000 per month. He does not have a
passport. He has two previous convictions of receiving
stolen
property and at the time of his arrest he was on parole. He also has
one pending case. He can afford bail in the amount
of R.5 000.
[7]
The reasons given by the applicants as to why it would be in the
interest of justice that they be released on bail and the
circumstances leading to their arrest are set out in the affidavit of
the first applicant. The other three applicants align themselves
with
the reasons set out by the first applicant in his affidavit. The
following reasons are given:
7.1
he does not pose a threat to the community:
7.2
he will not evade their trial:
7.3
he is prepared to abide by any bail conditions set by the court, for
instance, reporting to a police station;
7.4
the prison conditions are not conducive to consultation with his
legal representative;
7.5
he will not interfere with any witnesses.
[8]
With regard to the circumstances leading to their arrest and which
would not lead to his conviction, the first applicant alleges
that:
8.1
on the day of the alleged commission of the offence, he together with
the other applicants \Vas travel ling to Schweizer-Renecke
in his
kombi which was driven by Fixo. The purpose of going to
Schweizer-Renecke was to buy a kombi which they were informed was
cheap;
8.2
they met Fixo in Soweto and on their way to Schweizer-Renecke, they
stopped at Wolmaransstad where they bought alcohol before
travelling
to Schweizer-Renecke;
8.3
as it was rain ing, Fixo suggested that they take a shortcut; and
8.4
they were stopped by a group of white people who assaulted them with
sticks and firearms and some of them were shot. However,
nothing was
found in their possession.
[9]
The applicant contended that the case against them was weak in that
their arrest is due to mistaken identity and they were likely
to be
acquitted at their trial.
[10]
In tum, they investigating officer, warrant officer Lorry Lawrence,
gave evidence for the State. In brief: his evidence is
as follows On
18 November 201 5 (on a Wednesday) at around 17h00, a certain Mr
Barney Fourie was driven off the road by a vehicle
which came from
the front.
In
order to avoid colliding head-on with this vehicle, he swerved his
vehicle (a double cab bakkie) to the left. However,his vehicle
was
hit at the rear right side by the oncoming vehicle. As a result of
the collision he momentarily lost consciousness. When he
regained
consciousness, he saw smoke and steam coming from the bonnet
of his vehicle. When he opened the
door to climb
out of his vehicle, he was met by a person who pointed a firearm (a
rifle) at his face. He was ordered to lie on
the ground next to the
bakkie. He was dispossessed of his firearm and a safety box which
contained diamond gravel. He was then
dragged across the road. Other
people whom he cannot identify were made to lie next to him. Within
three minutes, he realised that
the robbers had left the scene with
his bakkie.
[11]
As information relating to the incident involving Mr Fourie had been
circulated and community farm patrols blocked off all
back roads in
the area. One of the patrol vehicles recognised Mr Fourie's vehicle
and the occupants pursued it. When the occupants
in Mr Fourie's
vehicle realised that they were being followed, they stopped and
started shooting at the patrol vehicle. When fire
was returned, the
robbers climbed into their vehicle and sped off. However, the vehicle
in which the robbers were travelling got
stuck in mud as it was
raining and its occupants fled into a nearby maize field. The
applicants, including a fifth suspect who
has since passed away, were
arrested by members of the community and handed over to the police.
The following morning, with the
assistance of their dogs, the police
found three firearms, two AK47s and a 9mm. The diamond gravel stolen
from Mr Fourie was also
recovered.
[12]
Mr Lawrence also testified that ,witnesses ,were afraid to attend an
identity parade or give evidence. Furthermore, it was
Mr Lawrence
evidence that despite the applicants' assertion that they were going
to buy a kombi, no large sum of money was found
on them to make the
possibility of a purchase real.
[13]
In dismissing the applicants application to be released on bail, the
court
a
quo
stated
that
[3]
:
·'But
we are sitting here with nothing which can produce except that the
accused have been claiming all of them that they
have identity as the
issue i n question. Nothing else was said how this identity is
mistaken, how this identity could be misinterpreted
we do not know
because the accused could not enter the witness box tell us exactly
why do we say the identity is not right when
we say this and this and
this and this. That is the problem. the cou1t is having. If that was
not the problem the cou1t would have
said okay we release you on bail
but definitely I will be doing an injustice to the society if I say
the accused quali fy for bail
on the basis of what has been said."
[14]
As alluded to in paragraph 4 above, the offence with which the
applicants have been charged is a schedule 6 offence. Therefore,
the
applicants bear the onus of proving, on a balance of probabilities,
that exceptional circumstances exist which justify in the
interests
of just ice their release on bail.
[15]
In
S v
Dlamini: S v Dladla & others: S v Joubert: S v Schietekat'
[4]
the
constitutional court in relation to what is meant by
exceptional
circumstances under section 601 ( 11) stated that:
"An
applicant is given broad scope to establish the requisite
circumstances, whether they relate to the nature of the crime,
the
personal circumstances of the applicant, or anything else that is
particularly cogent. . ..In any event one can hardly expect
the
lawgiver to circumscribe that which is inherently incapable of
delineation. lf something can be imagined and outlined in advance,
it
is probably y because it is not exceptional."
[16]
Mr Pistorius, counsel for the applicants submitted that the
personal
circumstances of the applicants amounted to exceptional circumstances
in that they had fixed addresses which were confirmed
by the
investigation
officer and that the applicants were unlikely to evade their trial in
that
the
State's case was weak, mainly because there was no
positive
identification of the applicants as the perpetrators of the offence.
Mr Pistorius argued that because the State's case
was weak, in all
likelihood
the applicants would be acquitted during their tri al
[5]
.
[17]
On behalf of the State Mrs Roos argued that the appeal should be
dismissed in that the applicants had failed to provide evidence
that
exceptional circumstances existed permitting their release in the
interest of justice. Mrs Roos argued that the State's case
against
the applicant was strong enough in that a conviction was likely to
follow. Further, it
strength
of the State's case has been held to be relevant to the existence of
'exceptional circumstances," was argued on behalf
of the State
that should the applicants be convicted, they were faced with
prospects of long term imprisonment and would therefore
be inclined
to evade their tri al.
[18]
In
S v
Scott-Cross!ey
[6]
the
court held that an applicant for bail's
personal
circumstances do not constitute exceptional circumstances in the
context of section 60(1 l )(a) of the
Act.
[19]
In as much as there is no direct evidence in which the applicants are
positively identified as Mr Fourie's assailants, I am
of the view
that the applicants have not shown that the State has a weak case
against them which will invariably lead to their
acquittal during
their trial. According
to
the evidence of the investigating officer, the applicants were
arrested in a maize field in which the people who had robbed Mr
Fourie had disappeared into. The pol ice found not only the gravel
robbed from Mr Fourie, but also rifle. According to the investigating
officer, Mr Fourie was pointed with a rifle when he got out of his
vehicle after the collision he ,vas forced into. It is for this
reason that I am of the view that the State does have a
prima
facie
case against the applicants.
[20]
Taking into account the serious nature of the offence the applicants
are faced with, their previous convictions and the likelihood
that
should they be convicted, they are likely to face long terms jail
sentences, I am not convinced that the applicants would
not evade
their trial. I am satisfied that the applicants have failed to show
that there are exceptional circumstances justifying
their release on
bail.
[21]
Accordingly the appeal is dismissed.
__________________
NP
MNGQIBISA-THUSI
Judge
of the High Court
Advocate
Pistorius, instructed by Schoeman Steyn Attorneys appeared for the
applicants and Adv Roos appeared for the State.
[1]
Act 51 of 1977.
[2]
Section 35 ( 1 )( t) of the Constitution provides that: "Everyone
who is arrested for allegedly committing an offence has
the right-
to be released from detention if the: interests of justice permit.
subject to reasonable conditions."
[3]
Page 20 l : line l 7- 202. line 4.
[4]
1 999 (2 J SACR 51 (CC) at[75].
[5]
In 5 v Kok 2003 (
2) SACR 5
(SCA) at [15], the court held that "in
the context of section 60(11) (a) of the Act the
[6]
2007 (2) SACR 470
(SCA) at para [12].