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[2015] ZAKZDHC 92
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Ntoyakhe and Another v S (12779/15) [2015] ZAKZDHC 92 (22 December 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL LOCAL
DIVISION, DIVISION
Case No 12779/15
DATE: 22 DECEMBER 2015
In the matter between :
Sabelo
Ntoyakhe
...............................................................................................................
First
Appellant
Mthokozisi Sifiso
Buthelezi
.........................................................................................
Second
Appellant
And
The
State
.................................................................................................................................
Respondent
JUDGMENT
Lopes J
[1] The appellants in this matter, who
are Sabelo Ntoyakhe aged 29 years and Mthokozisi Sifiso Buthelezi
aged 32 years, were both
arrested on the 3rd November 2015. They are
charged with one count of robbery with aggravating circumstances, the
aggravating
circumstances being the use of a firearm during the
commission of the offence, and one count of housebreaking with intent
to steal
and theft.
[2] On the 17th November 2015 and in
the District Magistrates’ Court in Durban they applied for
bail. They were both refused
bail by the learned magistrate and this
matter comes before me in terms of
s 65
of the
Criminal Procedure
Act, 1977
.
It is pertinent to note that
s 65(4)
of
the Act provides :
‘The court or judge hearing the
appeal shall not set aside the decision against which the appeal is
brought, unless such court
or judge is satisfied that the decision
was wrong, in which event the court or judge shall give the decision
which in its or his
opinion the lower court should have given.’
[3] It was common cause during the
Magistrates’ Court hearing, and before me, that the offence
with which the appellants were
charged falls under Schedule 6 of the
Act.
S 60(11)
of the Act provides :
‘Notwithstanding any provision of
this Act, where an accused is charged with an offence referred to –
(a) in Schedule 6, 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
exceptional circumstances exist which in the
interests of justice permit his or her release;
…’
[4] At the outset of the hearing in the
Magistrates’ Court, Mr Barnard, who appeared for both
appellants, handed in affidavits
deposed to by each of the appellants
setting out their personal circumstances.
[5] With regard to the personal
circumstances of the Mr Ntoyakhe :
a) he has been residing at Flat 6
Berendene, 8 Union Lane in Pinetown for the last five years. He
rents the premises;
(b) he is married and lives together
with his wife and two children, and is responsible for their
financial support;
(c) he achieved a Grade 12 level of
education and is self-employed as a grass-cutter earning
approximately R5 000 per month;
(d) he has no previous convictions,
and no cases pending against him;
(e) there was no evidence suggesting a
likelihood that he posed a risk in respect of what are described in
the affidavit as ‘any
of the traditional bail issues’.
[6] With regard to Mr Buthelezi, his
circumstances are as follows :
(a) he lives at his parents’ home
in Shongwe Road, Ntuzuma, Durban and has been residing there for 30
years;
(b) although not married, he has three
children who live with their mother and they are aged ten years,
seven years and five years
respectively. Mr Buthelezi contributes
towards their maintenance;
(c) he has achieved a Grade 12 level of
education, and is employed as a taxi driver earning approximately R4
000 per month;
(d) he has no previous convictions and
no cases pending against him;
(e) there is no evidence which suggests
that he poses a risk in respect of any of the traditional bail
issues.
[7] The evidence against the two
appellants may be summarised as follows :
(a) that Mr Ntoyakhe made a confession
to Captain Hlongwa, the police officer who arrested him;
(b) both the appellants were identified
at an identification parade on the 4th November 2015.
[8] Both the appellants indicated that
they intend to plead not guilty at the trial. They deny any
involvement in the robbery.
Both the appellants maintain that on the
3rd November 2015 and at the Brighton Beach Police Station where they
were detained,
a certain Warrant Officer Slabbert took photographs of
them using his cellphone. This was despite the fact that they
refused to
have their photographs taken, as they had already been
informed that arrangements were being made for them to attend the
identity
parade the next day. Both the appellants raised further
concerns which they had with the fairness of the holding of the
identity
parade.
[9] At the bail hearing in the
Magistrates’ Court, the prosecutor introduced into evidence two
affidavits deposed to by the
investigating officer, Warrant Officer
Grobler, in his very brief affidavit dealing with Mr Ntoyakhe,
Warrant Officer Grobler stated
that the appellants were charged with
the theft of, inter alia, R2,5M. This is in contradiction to the
charge sheets which indicate
that they are being charged with the
theft of approximately R270 000 in cash. Mr Grobler states in his
affidavit that Mr Ntoyakhe
was pointed out by Mr Buthelezi, and in
addition by both the complainant and a witness at the identification
parade. Warrant Officer
Grobler also mentioned the oral confession
made by Mr Ntoyakhe to Captain Hlongwa.
[10] Warrant Officer Grobler opposed
bail in the case of Mr Ntoyakhe, because he needed to obtain DNA
samples for comparison, and
Mr Ntoyakhe had refused to provide DNA
samples. In addition he stated that the previous arrest record and
pending cases of Mr
Ntoyakhe needed to be verified because he had
refused to hand over his identity documents. In addition Warrant
Officer Grobler
pointed to the fact that there was a possibility that
Mr Ntoyakhe could again commit the crimes for which he was charged
and alleged
that he had a pending housebreaking case under Durban
North CAS 329/1/15.
[11] With regard to Mr Buthelezi,
Warrant Officer Grobler made the same allegation of R2,5M having been
stolen, and suggested that
Mr Buthelezi had been pointed out by Mr
Ntoyakhe and also identified by the complainant and a witness at the
identity parade.
In opposing bail for Mr Buthelezi, he relied on the
need to obtain DNA samples, the verification of his previous arrests
and pending
cases, the fact that Mr Buthelezi was pointed out at the
identity parade, the fact that Mr Buthelezi was a flight risk and
that
he may again commit the crimes for which he is charged.
[12] Warrant Officer Grobler also
referred to an affidavit deposed to by Captain Hlongwa stating that
when he had arrested Mr Ntoyakhe
in the early hours of the 3rd
November 2015, he had told Mr Ntoyakhe that he was being arrested in
connection with an ATM bombing.
In discussing the matter Mr Ntoyakhe
allegedly told Captain Hlongwa that he, Captain Hlongwa, was
confusing cases and that Mr
Ntoyakhe could not have been involved in
the ATM bombing because at the time he was committing the robbery on
the Bluff. According
to this confession approximately R2,8M in cash
was stolen. Captain Hlongwa told Mr Ntoyakhe that he had no
knowledge of the other
case, and confirmed that there was such a case
with the police officials at the Brighton Beach Police Station.
[13] At the hearing in the Magistrates’
Court, and after the affidavits were handed in, Warrant Officer
Grobler testified.
He described the circumstances of the robbery
which involved a 60 year old female and her helper. Six men, all
armed with firearms
entered the premises at night and took away two
safes and other items. The safes allegedly contained the money which
the State
alleges was taken by the appellants.
[14] In his evidence Warrant Officer
Grobler stated that after Mr Ntoyakhe was arrested, he had taken
Captain Hlongwa to point out
Mr Buthelezi, who was then also
arrested. In addition he gave the names of the four other person
involved in the house robbery.
They have not been located.
[15] During the cross-examination of
Warrant Officer Grobler :
(a) he was unable to dispute that
another charge, which had been brought against Mr Ntoyakhe had been
withdrawn, and that there
were no pending cases against Mr Ntoyakhe.
According to Warrant Officer Grobler he had been unable to finalise
his investigation
with regard to the outstanding cases faced by Mr
Ntoyake ‘due to the festive season duties’. When pressed
on this
Warrant Officer Grobler gave the excuse that this was not the
only case he was working on.
(b) Warrant Officer Grobler’s
statement that the appellants had refused to co-operate with the
taking of DNA samples was challenged
by Mr Barnard who pointed out
that samples had been taken by one Mr Fink, in the presence of
Warrant Officer Grobler. Warrant
Officer Grobler appeared to deny
that this had happened in his presence, but nonetheless admitted that
DNA swabs had been taken
by Mr Fink, but because he was not trained
to take those samples, they were not used. Mr Barnard made it clear
that both appellants
consented to having DNA samples taken and would
provide them if requested to do so by the police officials.
(c) With regard to why no proper
confession had been taken from Mr Ntoyakhe, Warrant Officer Grobler
stated that he had been arrested
in the early hours of the morning
and police officials wanted to get the identity parade done,
presumably that day. When they
had discussed the issue of a
confession with both appellants, they had denied any involvement in
the matter and refused to make
any written confession.
(d) It was pointed out to Warrant
Officer Grobler by Mr Barnard that the ATM bombing matter had
happened in August of 2015, whereas
the robbery for which the
appellants stand charged occurred in October of 2015;
\(e) Although fingerprints were taken
at the scene of the crime and sent away on the 4th November 2015,
they had not been returned.
(f) With regard to the production of
their ID documents, Mr Barnard produced the identity document for Mr
Buthelezi and handed it
to Warrant Officer Grobler at the bail
hearing. With regard to Mr Ntoyakhe, Mr Barnard also put to Warrant
Officer Grobler that
the identity document of Mr Ntoyakhe was still
in possession of the police officers at Durban Central Police
Station.
[16] According to Warrant Officer
Grobler, the docket has been fully investigated and the only matter
outstanding are the results
of the fingerprint analysis. In his
heads of argument, and in argument before me, Mr Barnard submitted
that there was no evidence
whatsoever to suggest that the appellants
were likely not to stand trial, or to interfere with the witnesses.
Mr Barnard submitted
that Mr Ntoyakhe had appeared at each of the
hearings in the matter in which he had previously been charged. Mr
Barnard relied
on the authority of Mooi v S
[2012] JOL 29148
(SCA)
for the proposition that where an appellant had faced previous
prosecutions and had attended court, that was an inclination
contrary
to a reluctance to stand trial.
[17] The circumstances in Mooi are
somewhat distinguishable from the present circumstances. Mooi had
been in custody for a considerable
period of time and the State had
not concluded its case. The court held that the apparent weaknesses
in the State case, together
with the history of the accused in not
avoiding standing trial, constituted exceptional circumstances
showing that it is in the
interests of justice that he be released on
bail.
[18] In her judgment on bail in this
matter, the learned magistrate focussed on the following aspects :
(a) that the appellants had been
identified at the identification parade;
(b) that Mr Ntoyakhe had allegedly made
a confession to Captain Hlongwa and given Captain Hlongwa information
which he, Captain
Hlongwa, was unlikely to have been in possession of
when the confession was made to him.
The learned magistrate found in the
circumstances that the appellants had not shown that exceptional
circumstances existed which,
in the interests of justice, permitted
their release on bail. The learned magistrate was of the view that
the circumstances placed
before the court by the appellants were
ordinary circumstances and not peculiar to the appellants. House
robberies had reached
endemic proportions in the whole of South
Africa, and the release of the appellants would undermine or
jeopardise the objectives
or proper functioning of the criminal
justice system including bail. The interests of justice in her view
far outweighed the interests
of the appellants. Bail was accordingly
refused.
[19] Mr Barnard submitted that it is
significant that Mr Ntoyakhe denied the confession he had made to
Captain Hlongwa at the first
opportunity given to him. Mr Barnard
pointed to the improbability, as he put it, that the appellants would
choose to become fugitives
for the rest of their lives rather than
dealing with a matter that seemed capable of being challenged at the
trial. It is also
significant, in my view, that the appellants both
challenged the holding of the identity parade on the basis that a
certain Warrant
Officer Slabbert had taken photographs of them using
his cellphone on the day of the identity parade and prior to it being
held.
These allegations were not in any way dealt with at the bail
hearing, and no reason was given by the State as to why those matters
could not have been dealt with. If Warrant Officer Slabbert denied
having taken the photographs, it would have been a simple matter
for
him to have been called, and for him to have said so. If he had
taken the photographs he could have proffered his reasons
for doing
so and explained that to the court. None of this occurred.
[20] In S v Dlamini, S v Dladla and
Others, S v Joubert, S v Schietekat
[1999] ZACC 8
;
1999 (2) SACR 51
(CC), the
Constitutional Court dealt with the concept of bail and described the
starting point as being s 35(1)(f) of the Constitution
which provides
that any person who is arrested for allegedly committing an offence
has the right to be released from detention
if the interests of
justice permit it, and subject to reasonable provisions. The
Constitutional Court stated that s 35(1)(f) made
three things plain :
(a) that the Constitution expressly
acknowledges and sanctions that people may be arrested for allegedly
having committed offences,
and may for that reason be detained in
custody;
(b) that notwithstanding lawful arrest,
any person has the right to be released from custody subject to
reasonable conditions, albeit
that the right is a circumscribed one;
and
(c) the criterion for release is
whether the interests of justice permit it. The court emphasised
that a bail application is concerned
with the question of an
accused’s guilt only to the extent that that may indicate where
the interests of justice lie in regard
to bail. The primary focus in
this aspect is to protect the investigation and prosecution of the
case against hindrance.
[21] In analysing the provisions of s
60(11)(a) of the Act dealing with Schedule 6 offences, the court
stated that the sub-section
contemplated an exercise in which the
balance between the liberty interests of the accused and the
interests of society in denying
bail, will be resolved in favour of
the denial of bail unless ‘exceptional circumstances’ are
shown by the accused
to exist. The effect of this is to make bail
more difficult to obtain than it would ordinarily otherwise be.
[22] At paragraph 76 of Dlamini, the
court stated :
‘In requiring that the
circumstances proved must be exceptional, the sub-section does not
say that they must be circumstances
above and beyond, and generally
different from those enumerated.’
In the final analysis, a judicial
evaluation must be made involving an examination of substance, and
not form.
[23] In the present case the appellants
were given every reasonable opportunity to place evidence before the
court which would satisfy
the court that the necessary ‘exceptional
circumstances’ existed.
[24] In these circumstances, I might
find myself hesitant to suggest that the appellants should be
released on bail. In this matter,
however, the State led no evidence
whatsoever to suggest that the appellants would pose a flight risk.
On the contrary the appellants
put up evidence which demonstrated
that they had lived in their current residences for five and 30 years
respectively and that
they had employment and families.
[25] There was also no evidence to
suggest that the appellants would interfere with the State case or
pose a risk to witnesses.
In this regard Warrant Officer Grobler
recorded that the investigation of the case had been finalised, save
for the fingerprint
evidence. I find it surprising that the
fingerprint comparisons had not been carried out by the time the bail
application was
heard. Indeed, it may well be suggested that the
entire bail application was somewhat shoddily dealt with by the State
representatives.
Warrant Officer Grobler gave vague and
contradictory information, and what may be viewed as unacceptable
reasons for being unable
to obtain information. That criticism may
be somewhat unfair insofar as it may be suggested that police
officers carry a heavy
caseload which makes the prompt resolution of
their investigations difficult. Unfortunately no evidence in this
regard was placed
before the learned magistrate.
[26] In my view the learned magistrate
erred in focussing on the nature of the crime allegedly committed and
paid insufficient attention
to the improbability of the confession to
Captain Hlongwa given the dates of commission of the alleged
offences, and the fact that
Warrant Officer Slabbert was not called,
when it was open to the learned magistrate to have done so.
[27] In all the circumstances I would
conclude that the learned magistrate was wrong in finding that the
appellants had not demonstrated
exceptional circumstances which, in
the interests of justice, would have warranted their release on bail.
The view I have taken
is based solely upon the facts of this matter
and I do not consider that the matters set out above which
demonstrate the personal
circumstances of the appellants would, in
every case, constitute exceptional circumstances.
[28] In anticipation of the possibility
that I might grant the appeal, Ms Vahed who appeared for the State
kindly provided me with
a draft order which she and Mr Barnard had
agreed upon in the event that the appeal were to be upheld. It is
that order that I
grant.
[29] I accordingly make the following
order :
1. The appeal against the learned
magistrate’s refusal to grant bail in case no 23/19618/15 is
hereby upheld.
2. The appellants are granted bail in
the sum of R10 000 (ten thousand rand) each, subject to the following
conditions :
(a) that the appellants appear in the
Durban Magistrates’ Court or such other court on all dates and
times to which this matter
is postponed until it is finalised.
(b) that the first appellant shall
report to the Pinetown Police Station, and the second appellant shall
report to the Ntuzuma Police
Station, every Monday and Friday between
6am and 6pm until the trial is finalised.
(c) that the appellants shall not leave
the region of KwaZulu-Natal without the prior consent of the
investigating officer nor shall
they enter the Bluff,
Treasure Beach, Westville and
Austerville suburbs in Durban, until this matter has been finalised.
(d) the appellants shall not directly
or indirectly communicate or attempt to communicate with any State
witnesses.
(e) the appellants shall not, for the
duration of the proceedings, change their residential addresses from
Flat 6, Berendene, 8
Union Lane, Pinetown in respect of the first
appellant, and G256, Shongwe Road, Ntuzuma in respect of the second
appellant, without
first informing the investigating officer of such
intended change.
Counsel for the Appellants : L
Barnard (instructed by Ncama Zungu and Associates).
Counsel for the Respondent : Ms Y
Vahed (instructed by the Director of Public Prosecutions).
Date of hearing : 18th December 2015
Date of judgment : 22nd December
2015