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
>>
2013
>>
[2013] ZAGPPHC 67
|
|
Nkuna v S (A82/2013) [2013] ZAGPPHC 67 (22 February 2013)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE
NO: A82/2013
DATE:22/02/2013
In
the matter between:
SIKHETO
ALBERT
NKUNA
....................................................
Appellant
and
THE
STATE
...............................................................................
Respondent
JUDGMENT
MAGARDIE
AJ
1.
This is a bail appeal emanating from the Mamelodi Regional Court
against the latter Court's refusal to admit the Appellant on
bail on
25 October 2012.
2.
The Appellant stands accused of murder ss contemplated in the
provisions of Schedule 6 of the Criminal Procedure Act 51 of 1S77
as
amended (the CPA).
3.
It appears from the record that the Appellant found the deceased dead
with a gunshot wound in the head in the bathtub. The evidence
of the
investigating officer was that the crime scene was tampered with;
however he could not tell if the person who tampered with
the scene
was the Appellant or otherwise. Such could only be established with
forensic evidence which was not yet in hand.
4.
The Appellant presented evidence by way of a sworn affidavit in which
he, inter alia, denies liability for the crime. He pleaded
for the
Court a quo to release him on bail because, according to him, he
intended to make funeral arrangements for his deceased
wife and that
he had to take care of his 9 year old daughter, it is apposite to
mention that the Appellant is employed as a police
officer for the
past 27 years and is apparently stationed at Wierdabrug police
station.
5.
It appears from the record that the Court a quo determined that the
charge which the Appellant was facing was one of premeditated
murder,
thus falling within the ambit of Schedule 6. That being the case, it
is trite that in terms of the provisions of section
60(11)(a) of the
CPA an Applicant for bail for a Schedule 6 offence is required to
prove that there exists exceptional circumstances
warranting his
release on bail pending the outcome of his trial. Therefore, the onus
rests on the accused to persuade the Court
that it is in the interest
of justice that he should be released on bail by demonstrating such
circumstances that are considered
to be out of the ordinary.
6.
The affidavit that the Appellant presented in me Court a quo in
support for his application for admission on bail, fell short
of
dealing with the requirements contemplated in section 60(11)(a). One
observes the regurgitation of the provision of section
60(4)(a) to
(d) in the Appellant’s affidavit. I must state that, although
during cross examination of the investigating officer
the Appellant’s
representative dealt with the strength of the prosecution case, such
was not covered in the Appellant’s
affidavit.
7.
The investigating officer however, testified that he did not think
that the Appellant would evade his trial or endanger the safety
of
the public or commit any other offence or influence witnesses.
8.
The investigating officer conceded that, without the forensic
evidence and DNA results, it could not be determined whether the
Appellant was the one who committed the crime. He went further to
state that the bulk of the evidence that would be presented against
the Appellant would be specialist witnesses. It also appears that the
prosecution intends to present evidence of the history of
conflict
between the deceased and the Appellant to prove motive for the crime.
9.
The question that has to be asked is, whether the totality of the
evidence that was presented before the Court a quo was sufficient
to
establish the exceptional circumstances as contemplated in section
60(11)(a). Inasmuch as an accused person should be presumed
innocent
until proven guilty, such is not a pre-trial right but a right which
an accused person enjoys during trial.
1
The Appellant is required to present evidence of the existence of
exceptional circumstances on a balance of probabilities. The
incident
of exceptions! circumstances should not be considered in isolation
from a!! the relevant facts “if, upon an 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 interests of justice,
warrant his release, the appellant must be granted bail”.
2
10.
in S v Botha & Another
3
it was held that proof by the accused that he will probably be
acquitted on trial can serve as exceptional circumstances. As already
alluded to hereinbefore, although in his affidavit the Appellant did
not contest the strength of the prosecution case against him,
his
legal representative dealt with the issue during cross-examination of
the investigating officer.
11.
In S v Kok
4
it was said that “in the context of section 60(11)(a) of the
Act the strength of the State case has been held to be relevant
to
the existence of ‘exceptional circumstances’ ... There is
no doubt that the strength (or weakness) must be given
similar
consideration in determining where the interests of justice lie for
the purpose of section 60(11)(b). When the State has
either failed to
make a case or has relied on one which is so lacking in detail or
persuasion that a court hearing a bail application
cannot express
even a prima
facie
view as to its strength or weakness the accused must receive the
benefit of the doubt”.
12.
I am of the view that, considering that there is no direct evidence
linking the Appellant to the crime committed and that, at
the time of
the bail application, there was also no forensic evidence linking the
Appellant to same, it follows that it may well
be that the
prosecution case against the Appellant is frail. That is not to say
that a conviction may not follow based on circumstantial
evidence.
However, such is a matter for the trial court to decide. Regard must
also be had to the fact that it was not contested
that the Appellant
was the one who called the police and also handed his firearm over to
the police.
13.
In view of the foregoing I am of the view that the Magistrate should
have found that exceptional circumstances existed and that
it was in
the interest of justice that the Appellant should be admitted on
bail. The Magistrate also considered that the evidence
that the
prosecution relies upon was mainly circumstantial.
14.
In the result, the appeal is upheld and the Court a quo’s
decision of refusing to admit the Appellant on bail is set aside
and
the following order is made:
14.1
Bail is fixed in the amount of R10 000.00;
14.2
The Appellant is ordered not to interfere with State witnesses; and
14.3
The Appellant is ordered to report to the Mamelodi police station
every Monday and Friday between 06h00 am and 18h00.
MAGARDIE
AJ
1
S
v Mbaleki & Another
2013 (1) SACR 165
2
S
v Bruintjies
2003 (2) SACR 575
at paragraph 6
3
2002
(1) SACR 222
SCA
4
2003
(2) SACR 5
SCA at paragraph 15