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[2013] ZAGPPHC 317
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Nkhi v S (A20/13) [2013] ZAGPPHC 317 (1 November 2013)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE
NO: A20/13
DATE:01/11/2013
In
the matter between:
MOABI
VERNON NKHI
..............................................
Appellant
and
THE
STATE
JUDGMENT
DEWRANCE
AJ
[1]
This is an appeal against the judgment of Magistrate G Travers, the
Regional Court Magistrate for the Regional Division of Pretoria
dismissing an application for bail, which application was brought on
new facts as contemplated by the provisions of the Criminal
Procedure
Act, Act 51 of 1977 ("the Criminal Procedure Act").
[2]
The Appellant's application in the court a quo disclosed two "new
facts".
[3]
With respect to the two "new facts", the learned
magistrate, on page 170 line 24 - page 171 lines 1-6, states the
following:
"The
question therefore, that the (sic), that I must answer as the Bail
Court is whether the two pieces of information (sic),
the issue
relating to disclosure as well as the issue relating to the accused's
address taken together with all the other information
and bearing in
mind the onus rests upon Mr Nkhi to show on a balance of
probabilities that the interest of justice permit his release
on
bail, is whether those two pieces of information then do justify Mr
Nkhi's release on bail."
[4]
The first new fact was that the Appellant now has a confirmed address
where he resides. The address is situated at 201 Church
Street, 6
Elizabeth Court, Pretoria.
[5]
The property is registered in his wife's name, N N Nkosi-Nkhi.
[6]
In support of this allegation, the Appellant attached a statement of
account from Berange Inc together with a "Pre-agreement
Statement of Agreement of Loan" entered into between Nedbank Ltd
and the Appellant's wife.
[7]
The Appellant also attached a certified copy of an antenuptial
contract which records that the Appellant and his wife are married
out of community of property with exclusion of the accrual system.
The date of their marriage is 4 August 2010.
[8]
The Appellant also attaches a lease agreement concluded between
himself and his wife. In terms of the agreement, no rental is
payable, it does not provide for a lease period and does not provide
for a rental deposit.
[9]
No evidence was presented to the court a quo that the Defendant's
wife already occupies the property.
[10]
With regard to this property, the court a quo stated the following,
at page 167, line 20 of the record:
"The
Prosecution has accepted the fact that the property in question is or
has been purchased by Ms Nkhi and that it is indeed
a viable address
but as I understand their contention still (sic) oppose bail because
their contention is that the, their (sic)
is no hold on the accused
in respect of the property. It is merely an address which the accused
has put up as an address where
he will stay. It is not his property
in any way whatsoever. The accused also, or the applicant, Mr Nkhi
also put up a lease agreement
which is marked as EXHIBIT G in the new
facts bail application. There was initially an objection to the lease
agreement being received
by the Court but after an agreement that was
properly signed and dated was tendered (sic) it was received by the
Court. This was
on the 18th of June this year."
[11]
With regard to the lease agreement, the court a quo opined the
following on page 168 line 9 of the record:
"Now
what is interesting from this lease agreement so-called (sic) is that
the lease agreement specifically provides that there
will be no
deposit, in other words that the deposit that is to be made will be,
R0.00, that there will be no rental payable, that
the agreement will
be in effect for five years, that their (sic) the escalation in the
rental will be 0% of 0 (sic) and further
contains the usual
provisions that a standard lease of immovable (sic) contain. It is
dated in the case of the lessor on the 11th
of June 2012 and in the
case of the lessee on the 1st of June, correction twenty, both dates
are 2013. That is then, the evidence
that was tendered."
[12] The Court a quo rejected this new
fact and concluded, on page 172 line 11 of the record, the following:
"In
regard to the address as appears clearly from the documents the
address is registered in the name of Mr Nkhi's wife. Mr
Nkhi is not
making any contribution to the payment of the bond, at this stage him
being in custody and the lease agreement in my
view is merely a sham.
I cannot, I have never in my 23 years as a magistrate come (sic)
across a lease agreement where the rental
is nil. In fact it is
doubtful whether this can be termed a lease agreement because it is
an essential term of an agreement of
lease that there should be a, a
rental and that the rental should be more, or at least the rental
should be a figure and not a
rental of nil or zero. In my view the
fact that there is an address that the accused may go to and the fact
that the so-called
lease agreement makes provision for him to
actually stay there does not or is not sufficient to safeguard the
accused from fleeing
at some or other stage from the particular
address. There is no hold in this case on the accused to stay at the
particular address.
It is merely a so-called agreement that he will
stay there. There is no other hold that exists for him to actually
remain staying
(sic) there during the course of his trial" (my
emphasis)
[13] This leads me to the second new
fact.
[14] The Appellant states that since
15 August 2012 he has been incarcerated. The matter has still not
been allocated a trial date.
Taking
into consideration that there are 184 witnesses who must testify, the
trial will not start before the last quarter of 2013.
[15]
He was awaiting disclosure of documents and the disclosure is on a
"CD/DVD that contains 14 000 pages. He is not in a
position to
work with a CD/DVD because he does not have access to any computer.
[16]
The Department of Corrections refused him access to a computer to
prepare for his trial.
[17]
Accordingly, he will not be able to prepare for his trial and prays
that the Court a quo sees this as a new fact.
[18]
The Court a quo opined that section 60 of the Criminal Procedure Act
does make provision that a court must take into account
the various
factors pertaining to an applicant for bail, including the issue of
whether the Appellant will be able to properly
prepare for his trial.
[19]
In the Court a quo's view it is not a requirement, in a case such as
this, that an accused be afforded documentary disclosure
on DVD or
CDs. In his view, it was sufficient if the documents were given to Mr
Nkhi in the form of hardcopies as has been done
in this case.
[20]
The learned magistrate also indicates (page 171 line 20) that he
explained to the Appellant that he may apply for a single
cell for
this purpose.
[21]
The learned magistrate was of the view that it cannot be said that
the mere fact that the appellant is not given disclosure
in
electronic format can prevent him from preparing for his trial.
[22]
There may be various reasons why the' prison or correctional centre
may not in a particular case be willing or able to provide
a
particular accused with a computer.
[23]
In conclusion, he was of the opinion that if the Appellant were to be
given a single cell and if he were to be given the documents
in
hardcopy format he would then be afforded the necessary resources to
prepare his trial insofar as disclosure was concerned.
[24]
The court a quo, considering all the facts placed before it, at page
173 line 6, found the following:
"The
Court, as I have said must take into account all the factors and also
must bear in mind that Mr Nkhi bears the onus in
this particular
case. I am of the view that taking into account all the circumstances
that have been placed before me, all the
documents, as I have stated
most of the facts and these documents are common cause that Mr Nkhi
has not discharged the onus that
rests upon him to show on a balance
of probabilities that he should be released on bail and that
accordingly I find that at this
time it is not in the interest of
justice that Mr Nkhi be released on bail. Mr Nkhi if you can stand.
Your application on new facts
is refused."
[25]
At the hearing of this appeal, the Appellant informed me that
although he is not utilising the services of a legal practitioner
for
this appeal he would be appointing an attorney to represent him at
the trial. If regard is had to this submission, the State
would be at
liberty to provide the
Appellant's
new attorneys-of-record with disclosure who will then be able to
prepare and advise the Appellant accordingly.
[26]
At the hearing of this application, the respondent informed me that
the matter is ready to proceed and that the trial will
commence
shortly.
[27]
In terms of section 65(4), this Court may not interfere with the
decision of the Court a quo unless this Court is satisfied
that the
Court a quo was wrong.
[28]
I am of the view that the learned magistrate was correct in refusing
bail.
[29]
The lease agreement does not contain the essentialia of a normal
lease agreement. I agree with the learned magistrate that
it is a
sham.
[30]
I agree with the court a quo that, if regard is had to the evidence
as a whole, Mr Nkhi has not discharged the onus that he
should be
released on bail and that it is not in the interests of justice for
him to be released on bail.
[31]
At the hearing of this application, counsel for the Respondent
requested me to exercise my discretion and, as I understood
him, to
order the Department of Corrections to place the Appellant in a
single cell. The Appellant refuses to be placed in a single
cell. I
do not have such a discretion as this is an appeal.
[32]
Accordingly, this appeal is dismissed.
DEWRANCE AJ
ACTING
JUDGE OF THE NORTH AND
SOUTH
GAUTENG HIGH COURTS. PRETORIA
Matter
heard on:
Judgment
delivered on:
Representation
for the appellant: Appellant appeared in person.
Representation
for respondent: Adv Maponya