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[2015] ZANCHC 19
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Mashalane and Another v S (CA&R27/2015) [2015] ZANCHC 19 (5 June 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division, Kimberley)
Saakno
/ Case number:
CA
& R 27/2015
Datum
verhoor/Date heard:
20
/ 05 /2015
Datum
gelewer/Date delivered:
05
/ 06 /2015
In
the matter between:
CHRISTOPHER
MAKWADI MASHALANE
Applicant
TSHIDISO
BODIGELO
Second Applicant
and
THE
STATE
Respondent
Coram:
Erasmus, AJ
JUDGMENT
ERASMUS,
AJ
[1]
The appellants lodged an appeal to this Court against the refusal by
the Magistrate, Galeshewe, to release them
on
bail pending trial. The appellants are accused number 1 and 2
in the Magistrate’s Court and they, together with another
accused (hereinafter referred to as “accused number 3”)
face charges of attempted murder and theft. Accused number
3 however
did not appeal against the refusal of his application for bail
pending trial.
[2]
The appellants were arrested on 31 March 2015. The bail application
commenced on 13 April 2015 and was concluded on 15 April
2015, when
bail was refused.
[3]
At the onset of the bail application the prosecutor placed on record
that this was a ‘Schedule 1-offence for Accused number
1 and
2’. No reference was made to the provisions of section
60(11) of the Criminal Procedure Act, No. 51 of 1977 (hereinafter
referred to as “the CPA”). From the record it
appears as if the parties, as well as the Magistrate accepted that
the bail application
fell
outside the ambit of s 60(11)
of
the CPA. The respondent thus accepted the
onus
in
the bail application to prove that the interests of justice do not
permit the release of the appellants on bail.
[4]
Although it was common cause that the appellants are members of the
South African Police Services and thus law enforcement officers
facing a charge of theft, the issue of whether the alleged offence of
theft fell within the ambit of Schedule 5 of the CPA was
never
considered.
[5]
The respondent commenced proceedings by calling the investigating
officer who
gave
evidence to the effect that on 29 March 2015 t
he
appellants, driving a police vehicle, stopped at the house where the
complainant resides. They created the impression that
accused
number 3 was a suspect and while the first appellant searched the
said house, the second appellant and accused number 3
stood
watching. After the appellants and accused number 3 had left,
the complainant found that his wallet containing R10.00,
his bank
card and pin number, as well as his cell phone and other documents
had been stolen. The appellants and accused number
3 later
returned, looking for the complainant. A female occupant of the
house accused them of theft, after which they threatened
her.
Later during the day money was withdrawn from the bank account of the
complainant – two transactions of R1,200.00
each. Video
footage showed the first appellant and accused number 3 at this
scene. The following day, af
ter
the complainant had laid a charge and pointed out the first appellant
at the police station, the appellants allegedly committed
the crime
of attempted murder by knocking the complainant from his bicycle with
a police vehicle. The complainant ran away
and entered a Pick
‘n Pay in order to escape the appellants’ attack.
He was forcefully pulled from the shop by
the appellants. There
is video footage covering the incident at the said Pick ‘n Pay.
According to the investigating
officer the complainant fears
for his life.
[6]
From the facts set out above the respondent appears
to
have a strong case against the appellants.
No
oral evidence was adduced by the appellants. Affidavits in support of
their bail application were handed in. I
n
these affidavits, the appellants
merely
denied the factual allegations pertaining to the charges against
them.
[7]
In his judgment the Magistrate indicated that he was satisfied that
it is not a ‘Schedule 5 bail application’.
He
correctly held that, for the charge of attempted murder to qualify as
a Schedule 5 offence, it had to
involve
the infliction of grievous bodily harm and that t
he
respondent had not adduced evidence to that effect. The
Magistrate further held that, because of the value of the stolen
items, the offence of theft also did not fall within the ambit of
Schedule 5. He concluded that the bail application thus
did not
fall within the provisions of section 60(11)(b) of the CPA. The
fact that the appellants are law enforcement officers
facing a charge
of theft and the circumstances under which the offence had allegedly
been committed, appear not to have been considered
by the Magistrate.
[8]
In
bail applications, other than those envisaged in section 60(11) of
the CPA, there is a burden on the prosecution to adduce evidence
or
furnish information to show a likelihood that circumstances, as
envisaged in s 60(4), existed.
[1]
Th
e
refusal to grant bail and the subsequent detention of an accused
shall be in the interests of justice where one or more of the
grounds
listed in section 60(4) of the CPA are established. This is
subject further to the provisions of section 60(9) and
the due
consideration of an accused’s constitutional rights.
[9]
The Magistrate, after evaluation of all the evidence, found that it
was not in the interests of justice to release the appellant
and
accused number 3 on bail.
Although
not stated as such, the Magistrate appears to have refused to grant
bail because the respondent had proved that there is
the likelihood
that the accused, if released on bail, ‘
will
attempt to influence or intimidate witnesses’,
as
envisaged in section 60(4)(c) and/or ‘
will
undermine or jeopardise the objectives or the proper functioning of
the criminal justice system, including the bail system’,
as
envisaged in section 60(4)(d) of the CPA
.
[2]
[10]
The
appellants appeal against the order of the Magistrate on the basis
that he had misdirected himself in disregarding the favourable
personal circumstances of the appellants and that he had further
failed to take into account or properly take into account the
factors
set out in section 60(4)(a) to (e) of the CPA. It is alleged
that the Magistrate also failed to weigh up the interest
of justice
against the right of the appellants to their personal freedom and in
particular the prejudice that they are likely to
suffer if they were
to be detained in custody, as envisaged in section 60(9) of the CPA.
Mr. Nel, for the appellants, in
detail addressed the issues
raised in the Notice of Appeal.
[11]
During argument Ms. Van der Byl, on behalf of the respondent, raised
the issue that the charge of theft in
casu
falls within the ambit of Schedule 5. This issue had not been
raised in her heads of argument. During argument she
submitted
that the bail application should have been approached on the basis of
the provisions of section 60(11)(b) of the CPA
and that the
appellants therefore should have been burdened with the
onus
to
adduce
evidence which satisfied the Court that the interests of justice
permit their release on bail. She referred to the
case of
STATE
v GCWABE
[3]
.
In this matter the bail application proceeded in terms of section
60(1)(a) of the CPA. The State assumed the
onus
and
commenced adducing evidence. On appeal the Court came to the
conclusion that the bail application should have been proceeded
with
in terms of section 60(11)(b) of the CPA. The court, in this
matter, had dismissed the appeal on the facts and found
that the
magistrate was correct in his decision that the interests of justice
do not permit the release of the appellant.
[12]
Mr. Nel was obviously caught by surprise by this new argument
advanced at the hearing of the bail appeal. After
perusal of
the relevant schedules, he conceded that the charge of theft in this
instance falls within the ambit Schedule 5 and
that section 60(11)(b)
of the CPA is indeed applicable. Mr. Nel also referred to
certain unreported decisions of this Division,
where the parties and
Court
a
quo
had
erred in respect of the
onus
in a bail application. In the first matter
[4]
the magistrate misdirected himself in finding that section 60(11)(a)
of the CPA was applicable. The learned Judge then, after
her
own assessment of the evidence, came to the conclusion that the
appellant was entitled to be released on bail and proceeded
to give
the decision which, in her opinion the lower court should have
given.
[5]
In the other
matter
[6]
the learned magistrate
regarded the offences facing the appellant to fall under Schedule 5
of the CPA and that section 60(11)(b)
was thus applicable and Lacock,
J was not convinced that the magistrate was correct in accepting that
the offences fell under Schedule
5, but approached the appeal on that
basis. After his own assessment of the facts, he found that the
appellant had nonetheless
discharged the onus placed on him and
ordered the release of the appellant on bail.
[13]
The
offence of theft falls under Schedule 5 if it is alleged that the
offence was committed by any law enforcement officer as a
member of a
group of persons, syndicate or any enterprise acting in the execution
of furtherance of a common purpose or conspiracy.
[14]
Given the facts, as set out above, I agree with the submissions of
both counsel that the charge of theft falls within
the ambit of
Schedule 5 of the CPA. In my view the evidence, as presented by
the respondent, shows that the appellants and
accused number 3 acted
together when committing the offence of theft, in the furtherance of
a common purpose. The
onus
would thus have been on the appellants to satisfy the Court
a
quo
that the interests of justice permit their release on bail. The
sequence of evidence would also have been affected because
of the
shift in the
onus
in that the appellants and accused number 3 would have had to adduce
evidence before there was any need for the respondent to do
so.
[15]
In terms of section 65(
4)
of the CPA a court of appeal shall not set aside the decision against
which the appeal is brought, unless such court is satisfied
that the
decision was wrong. In such event the Court shall give the
decision which, in its opinion, the lower court should
have given.
This does not necessarily mean that a Court of Appeal should merely
order that appellants should or should not
be released on bail.
In my view, the order to be given will depend on the circumstances of
each case.
[7]
[16]
In this matter the misdirection of the Magistrate (and legal
representatives) in respect of the
onus
and
the application of the provisions of section 60(11)(b) of the CPA
operated in favour of the appellants. The Magistrate,
after an
assessment of the evidence before him, found that the respondent had
discharged its
onus.
I
am not allowed to interfere with his factual findings unless I am
convinced that it was wrong.
[8]
I am only to interfere with the exercise of his discretion if I
am satisfied that he was wrong.
[9]
After my own assessment of the evidence, I am not convinced
that the Magistrate was wrong in the evaluation of the evidence
and
his refusal of bail.
[17]
On the other hand, it cannot merely be accepted that the appellants
would have approached their case on the same basis,
had they been
aware of the correct legal position. In terms of section
60(11)(b)
the
court shall order that the accused be detained in custody until 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 the interests of
justice permit his
release.
The appellants should be given the opportunity to do so, given
their fundamental right to be released on bail, as envisaged
in
section 35(1)(f)
of
the Constitution of the Republic of South Africa, 1996.
[18]
Counsel for the appellants, as well as counsel for the respondent
submitted that the bail application should be remitted
to the
Magistrate. I agree. The appellants should be given the
opportunity to supplement their evidence. Should
they elect to
do so, then obviously the respondent should be given the opportunity
to adduce further evidence in response thereto.
[19]
Legally there appears to be no objection to an order that the bail
application be remitted to the court
a
quo
.
[10]
WHEREFORE
I MAKE THE FOLLOWING ORDER:
1.
THE
DECISION OF THE MAGISTRATE, GALESHEWE, IN THE BAIL APPLICATION UNDER
CASE NUMBER GAL 538/2015 IS SET ASIDE.
2.
THE
BAIL APPLICATION IS REMITTED TO THE MAGISTRATE, GALESHEWE, TO BE
ADJUDICATED IN TERMS OF THE PROVISIONS OF
SECTION 60(11)(b)
OF THE
CRIMINAL PROCEDURE ACT, NO. 51 OF 1977
.
3.
THE
APPELLANTS ARE TO BE AFFORDED THE OPPORTUNITY TO ADDUCE FURTHER
EVIDENCE IN SUPPORT OF THEIR BAIL APPLICATION.
4.
THE
RESPONDENT IS TO BE AFFORDED OPPORTUNITY TO ADDUCE FURTHER EVIDENCE
IN RESPONSE TO ANY FURTHER EVIDENCE PRESENTED BY THE APPELLANTS.
5.
THE
APPELLANTS SHALL REMAIN IN CUSTODY PENDING THE FINALIZATION OF THE
BAIL APPLICATION BY THE MAGISTRATE, GALESHEWE.
_________________
SL ERASMUS
ACTING JUDGE
For
the Applicants:
Adv. I.J. Nel
(oio Legal Aid Board)
For
the Respondent:
Adv.
A.P. van der Byl (oio NDPP)
[1]
S
v Tshabalala
1998
(2) SACR 259
(C)
at
269
e
–
f
[2]
S
v Acheson
1991
(2) SA 805
(Nm
HC) at 822;
S
v Hlongwa
1979
(4) SA 112
(D)
at
113H;
S
v Yanta
supra
at
247g–h;
.
[3]
2012
JDR 0688 (ECP)
[4]
Eden
Harmse v S
CA
& R 13/07 delivered on 30 March 2007
[5]
Section
65(4)
of the CPA
[6]
Charles
Kasinja Modise v S
CA
& R 22/08 delivered on 23 May 2008
[7]
S
v Green and Another
[2006] ZASCA 3
;
2006
(1) SACR 603
(SCA) par [23] and [25]
[8]
R
v Dhlumayo
1948(2)
SA 677 (A)
[9]
S
v Barber
1979(4)
SA 218 (D) at 220E-H
[10]
S
v Kock
2003
(2) SACR 5
(SCA) par [25]