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[2013] ZAGPPHC 527
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Leshilo v S (A 168/13) [2013] ZAGPPHC 527 (19 March 2013)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
Date:
19 March 2013
Case
Number: A168/13
In
the matter between:
S
S N LESHILO
Appellant
and
THE
STATE
Respondent
JUDGMENT
A
B ROSSOUW A J
[1]
This is an appeal against the refusal by
the magistate at Tzaneen to grant bail to the appellant pending his
trial. The bail application
was brought on 11 December 2012 and the
appellant was legally represented.
[2]
On 8 December 2012 the appellant, a man of
32 years and a co-accused were arrested on charges of armed robbery
with aggravating
circumstances as intended in section 1 of the
Criminal Procedure Act 51 of 1977 (‘the Act’). It is
alleged that the
appellant and his co-accused robbed the complainant
of R300 000 in cash, a watch valued at R60 000 and that a firearm was
used
in the commission of the crime
[3]
Section 60 (11) (a) of the Act obliges the
court in the case of a Schedule 6 offence to order that an accused be
detained in custody,
until dealt with in accordance with the law,
unless he adduces evidence to satisfy the court that exceptional
circumstances exist,
which in the interest of justice permit his
release on bail.
[4]
As the main charge against the appellant
was a Schedule 6 offence, he undertook the task of adducing evidence,
which would satisfy
the court that exceptional circumstances existed,
which, in the interest of justice, would permit the court to release
him.
[5]
He sought to discharge the onus by adducing
viva voce
evidence, without calling any other witnesses to corroborate his
version. The evidence given by the appellant can be briefly
summarised
thus:
1.
He resides at […], […]
Street, C[…] and he ocassionally visits his mother at M[…]
in the M[…]
district. He was also arrested at the latter
address.
2.
He is 32 years old and married with one
child.
3.
He generates income by selling fruit and
clothing and his income is between R6000 and R7000 per month.
4.
He has no assests.
5.
He possesses no passport and he has no
relatives outside the Republic of South Africa.
6.
He met the co-accused in prison, but after
his release, he never met or communicated with him.
7.
After his arrest he was ‘heavily
assaulted’ by the police, but no confession could be extracted
from him. The day after
the assault he was taken to hospital for
treatment.
8.
The appellant has never been in Tzaneen
where the crime was allegedly committed.
9.
The appellant was charged on different
occasions for theft of a motor vehicle, possession of stolen property
and other charges,
but all these charges have been withdrawn. The
appellant was found guilty of an offence and sentenced to 25 years
imprisonment.
His appeal against the judgment and sentence was
successful and he was released after having served one year in
prison.
10.
On 10 November, ie the day of the alleged
crime, the appellant was in Cullinan and that there was no cellular
communication between
him and his co-accused.
11.
His cellular phone number is 072 […]
and that is his only phone.
12.
On the day of his arrest, the police also
confiscated his brother’s phone, which the appellant had with
him. (It is the latter
phone that is linked to the alleged crime). In
this regard, the appellant testified as follows during
cross-examination:
‘
So
after your arrest the police confiscated that cell phone from you?
--- Yes.
What type of phone
was it that was taken by the police? --- 1100 and then the other one
belongs to my younger brother.
So you deny that the
E63 was confiscated from you by the police? --- Yes they took it from
me yes.
That
it was checked from a cell phone and the number was 076 […]?
--- Since I got it from the Indian shop in August the one
E63 it was
used when it was a demo
.’
13.
He has no previous convictions, he is not
going to plead guilty, he does not know the witnesses, he will not
pose a danger to the
public, evade his trial, interfere with the
witnesses or evidence and his release will not jeopardise the
functioning of the criminal
justice or bail system or public peace
and order.
[6]
The state called the investigating officer
who testified that the appellant was implicated by his co-accused and
that the appellant
was also linked to the offence with cellular phone
records. Regarding the E63 cellular phone, the investigating officer
testified,
inter alia
,
as follows under cross-examination:
‘
I
am coming to that, one thing at a time. Now this cell phone which you
mentioned ever so many times, all right, according to you
it was not
found in possession of accused 2 the accused before court? ---
Correct your worship the accused before court when I
interviewed
about this cell phone he said it got lost while he was on board of a
taxi from Kimberley.
’
[7]
Mr Pitso, who appeared for the appellant
relied heavily on the fact that the phone is question was not found
in possession of the
appellant. The fact that the said phone was, on
the appellant’s own version, taken from him could not be
explained by Mr
Pitso, save to argue that is was possibly a
misunderstanding on the part of the appellant when he answered the
aforesaid question.
[8]
Although the evidence given by the
investigating officer regarding the link between the appellant and
the E63 cell phone is not
very clear, there appears to be some link
between the E63 cellular phone, the appellant and his co-accused.
[9]
The investigating officer also testified
that the appellant does not reside at […], […] Street,
Cullinan and that
he could not find any proof of the appellant's
alleged business. He further testified that the appellant was unable
to take him
to his wife and child. These facts were however never put
to the appellant.
[10]
The gist of the appellant's grounds of
appeal is that the cumulative effect of the aforesaid circumstances,
with particular emphasis
on the weakness of the State’s case,
renders them exceptional for the purpose of justifying the
appellant's release on bail.
[11]
Exceptional circumstances must be
circumstances, which are not found in the ordinary bail application.
Generally speaking, ‘exceptional
circumstances’ is
indicative of something unusual, extraordinary, remarkable, peculiar
or simply different. (See
S v H
1991 (1) SACR 72
(W) and
S v Peterson
2008 (2) SACR 355
(C)).
[12]
The court’s powers are largely
limited when the matter comes before it on appeal. The court should
not substitute its own
view for that of the magistrate, because that
would be an unfair interference. No matter what the court's own views
are, the real
question is whether it can be said that the magistrate
who had the discretion to grant bail exercised that discretion
wrongly.
(See
S v Barber
1979 (4) SA 218
(D))
[13]
The appellant’s defence is in essence
an
alibi
.
[14]
The vulnerability of unsupported
alibi
defences is notorious, depending as it does, so much upon a court’s
assessment of the truth of the accused’s testimony.
In order
successfully to challenge the merits of the State's case in bail
proceedings an applicant needs to go further: he must
prove on a
balance of probability that he will be acquitted of the charge. This
is no mean task, the more especially as an innocent
person cannot be
expected to have insight into matters in which he was involved only
on the periphery or perhaps not at all. (
S
v Mathebula
2010 (1) SACR 55
(SCA)).
[15]
The appellant’s denial of complicity
and his
alibi
defence rested solely on his say-so with neither witnesses nor
objective probabilities to strengthen them. The appellant gave very
little information regarding his movements on the day of the alleged
offence in support of his case. The appellant’s evidence
regarding the E63 cellular phone was also vague and sketchy. In the
absence of witness corroboration, or at least an explanation
as to
why corroborating evidence could not be produced, regarding his
alibi
and in the absence of full details regarding the history and use of
the two phones that were taken from the appellant, the magistrate
was
left no wiser as to the strength or weakness of the State’s
case. In this regard the appellant did not contribute anything
to
establishing the existence of exceptional circumstances.
[16]
The remainder of the factors were neither
unusual nor such as to singly or together warrant the release of the
appellant in the
interest of justice. (See
S
v Scott-Crossley
2007 (2) SACR 470
(SCA))
[17]
In view of the aforesaid, this court cannot
find that the magistrate exercised her discretion wrongly.
[18]
In the result, the following order is made:
The
appeal is dismissed.
________________________
A
B ROSSOUW A J
DATE:
2013-03-19