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[2011] ZAFSHC 14
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Mhlongo and Others v S (A335/2010) [2011] ZAFSHC 14 (27 January 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A335/2010
In the appeal between:-
RICHARD PHILANI
MHLONGO
…...................................
First
Appellant
ZAMA CYPRIAN
MTHEMBU
…...................................
Second
Appellant
SIPHO LUCAS
MLANGENI
….........................................
Third
Appellant
and
THE STATE
….......................................................................
Respondent
_____________________________________________________
CORAM:
RAMPAI, J
et
EBRAHIM,
J
_____________________________________________________
HEARD
ON:
6 DECEMBER 2010
_____________________________________________________
JUDGMENT
BY:
RAMPAI, J
_____________________________________________________
DELIVERED
ON:
27 JANUARY 2011
_____________________________________________________
[1] The appellants were
charged in connection with their alleged involvement in two hijacking
incidents committed at Vrede on Tuesday,
23 March 2010. The two
victims were allegedly attacked and robbed of the trucks and the
cargos by armed men.
[2] On 26 July 2010 they
applied in the Vrede Regional Court for their release on bail. They
were legally represented by a certain
Mr. Sibisi during the bail
hearing. Their application was opposed. On 6 September 2010 Mr. J.J.
van der Westhuizen, the regional
court magistrate, dismissed the
application. They now come on appeal against that judgment. The
appeal is likewise opposed.
[3] The first appellant
presented his application by way of a sworn statement. The version of
this gentleman was contained in two
documents – exhibit “a”
(his sworn statement) and exhibit “b” (an Absa bank
account statement). He
gave no oral testimony and he called nobody to
testify in support of his bail application. His written version was
placed on record
by his legal representative, Mr. Sibisi.
[4] The first appellant’s
application for his release on bail, pending his trial, was opposed
in the court
a quo
. The respondent tendered the oral testimony
of warrant officer J.J. van der Merwe, the investigating officer, in
resisting the
release of the first appellant on bail. In addition to
such
viva voce
evidence against the first appellant, the
respondent also relied on certain written forms of evidence,
including but not limited
to exhibit “h” – the
first appellant’s statement before Mr. Green, the district
court magistrate at Reitz.
[5] The court
a quo
considered the two conflicting versions of the parties at length.
Having done so, it came to the conclusion that no exceptional
circumstances existed which allowed the release of the first
appellant on bail.
[6] The undisputed facts
as regards the first appellant were profiled in paragraph 6, exhibit
“a”. He averred that he
was a South African citizen, 30
years of age. At the time of his arrest he was in the employ of
Mzansi Africa Logistics where he
was employed as a truck driver. He
had worked for this particular company for one and a half years. He
was a married man with two
minor children. The first child was 10
years of age and the second 4 years of age. His wife was pregnant and
the couple was expecting
their third child.
[7] Ms Mhlongo was not
gainfully employed. He stated that he was the sole breadwinner. He
and his family had lived in a rented house
for the past three years
immediately preceding his arrest. He owned certain movable
properties, among others, a motor vehicle which
was still subject to
the hire-purchase agreement. He had no previous convictions.
[8] The undisputed facts,
as regards the respondent’s case, can be extracted from the
testimony of the investigating officer.
On 23 March 2010 two cargo
carriers were en route to Secunda from Durban. They were owned by the
company called Mzansi Africa Logistics.
The cargo of each truck was
liquid petrol. The two tankers were following each other all the way
from Durban up to Vrede. The first
driver proceeded driving towards
Standerton, when the second driver stopped to ascertain why his
tanker was losing power. The two
tankers were ambushed and hijacked
by armed men on the outskirts of Vrede.
[9] The second driver was
overpowered, tied up and placed in the boot of a white sedan. The
hijackers took control of the second
tanker and followed the first
tanker. They found the first tanker on the way. It was stationary
along the road. The first driver
was apparently waiting for the
second driver, apparently unaware that his fellow workman had been
hijacked. He too was attacked,
overpowered, tied up and placed on the
backseat of the same white sedan. From the scene of the second
hijacking the two tankers
and the sedan travelled towards Standerton.
[10] The white sedan
stopped on the way. The second driver heard gunshots. The sedan moved
on again. It stopped again, apparently
to offload the wounded second
driver. Again it restarted and drove off. Later on it again stopped.
The second driver was taken
out of the boot, marched to the veld and
tied to a tree. He was then left behind in the veld alongside a dirt
rural road between
Greylingstad and Standerton. He managed to
unfasten himself in the early hours of the next day. Subsequently he
reported the incident
to Greylingstad police. He escorted the police
to look for the first driver. The police found the first driver dead
along the said
rural road.
[11] A sworn statement
was obtained from a witness. A few days later the two tankers were
found abandoned, one at Olifantsfontein
and the other at Brits. Both
tankers were empty. Mzansi Africa Logistics lost a total of 90 000
litres (45 000 litres x 2 tankers).
The police tracked down a certain
individual who had allegedly purchased some of the stolen fuel. Again
a sworn statement was obtained
from the witness. The first appellant
was then arrested at Benoni on Monday, 19 April 2010, on the strength
of the information
obtained from the alleged buyer. The police seized
his cellular phone. He was then taken to Villiers on 19 April 2010
where he
made a statement – exhibit “l’ –
before Mr. T.J. Green, the district court magistrate. The
investigating
officer later obtained the first appellant’s
cellular communication records and the satellite tracing system
records of the
two hijacked trucks.
[12] There were two
criminal charges pending against the first appellant at the time of
this arrest and bail application. The one
charge related to the theft
of a motor vehicle belonging to Mzansi Africa Logistics, the first
appellant’s employer. The
truck involved was a petrol tanker.
It was fully loaded with such liquid cargo when it was stolen from
the depot of Mzansi Africa
Logistics. The other charge related to
robbery of a motor vehicle belonging to a company known as Vuyo
Transport. Its driver was
robbed of the truck at Viljoensdrift. The
truck concerned was also a petrol tanker. It was also loaded with the
same liquid cargo.
[13] The court
a quo
considered the two conflicting versions of the parties at length.
Having done so it came to the conclusion that no exceptional
circumstances existed, which allowed the release of the first
appellant on bail.
[14] The issue in the
appeal before us is whether the aforegoing conclusion was a correct
consideration of the facts and a correct
application of law on such
facts.
[15] On the one hand Ms
Wright, counsel for the first appellant, submitted that an overall
conclusion of the court
a quo
could not be sustained on appeal
because, as she argued, the court
a quo
failed to strike a
proper balance between the factors which favoured the release of the
appellants and those which did not.
[16] On the other hand
Mr. Harrington, counsel for the respondent, submitted that the
conclusion reached by the court
a quo
was unassailable. His
contention was that the first appellant had failed to discharge the
onus of establishing that exceptional
circumstances existed which
allowed his release on bail.
[17] Now the rules of
engagement – it is common cause that the appellants face
schedule 6 charges. That being the case
section 60(11)(a)
of the
Criminal Procedure Act, 51 of 1977
, applies. The section places the
onus on the accused person who applies for his release on bail to
adduce evidence, which satisfies
the court that exceptional
circumstances exist which, in the interest of justice, permit his
release. Unless the accused, charged
with such scheduled offence, so
satisfies the court, the court has to order that he be detained.
[18]
To avoid detention pending trial, the first appellant had to satisfy
the court
a quo
,
on a balance of probabilities, firstly, that exceptional
circumstances existed which permitted his release from detention and
secondly, if and only if he has proven the first requirement, that
such existent exceptional circumstances indicated that his release
was in the interest of justice -
S v BOTHA EN 'N ANDER
2002 (1) SACR 222
(SCA)
at 230 d – f.
[19]
The concept of exceptional circumstances, as contemplated in the
section, must not be understood to mean unique circumstances
out of
this world above and beyond and entirely different from those
enumerated in subsections (4) to (9) of
section 60
–
S
v DLAMINI; S v DLADLA AND OTHERS; S v JOUBERT; S v SCHIETEKAT
[1999] ZACC 8
;
1999 (2) SACR 51
(CC) par. 76 per Kriegler J.
Therefore the test of exceptional circumstances is not as onerous as
the phrase may seem to suggest.
[20]
What
section 60(11)(a)
requires of an applicant for bail is that
s(he) must show that such usually common or ordinary factors are, in
her or his particular
case, blended with some or other peculiar
element, which gives such an ordinary factor an individualistic touch
of character -
S v VANQA
2000 (2) SACR 371
(Tk)
at 376 b – d per Jafta J, as he then was.
Broadly speaking, exceptional circumstances within the meaning of the
section will
include, but not be limited to circumstances which tend
to diminish the likelihood that the protected interest of justice may
be
undermined, frustrated or endangered by the release on bail of a
detained suspect.
[21]
It will therefore be readily appreciated that the phrase “exceptional
circumstances” means the ordinary factors
or considerations for
the grant of bail as set out in subsection (4) to subsection (9) of
section 60
, are not, without more, sufficient to permit the release
of a bail applicant in a case where his right of personal freedom has
to be considered against the backdrop of a whole range of other
factors which, in the interest of justice, dictate that the release
of such bail applicant be debarred. A bare denial or shall I rather
say a bare promise by a bail applicant that, if released from
detention, he will not abuse his freedom by offending or frustrating
or endangering any of the variety of public interests protected
in
section 60
(4) is not in itself enough -
S
v
BOTHA
,
supra
.
The five subsections (5) – (8) are important guiding factors,
which must be taken into account in deciding whether any of
the five
interests of justice in subsection (4) disallows the release of the
accused from detention or not.
[22]
The indefinable expression “exceptional circumstances” is
a very elastic concept with a boundaryless ambit. Where
a bail
applicant can show that he will probably be acquitted at the end of
the trial, such a probability may well be regarded as
exceptional
circumstances –
S v JONAS AND
OTHERS
1998 (2) SACR 677
(SE).
Where it is shown by a bail applicant, on a balance of probabilities,
that the prosecution case is so exceptionally weak
that he will
probably be acquitted, such weaknesses may be treated as exceptional
circumstances. However it is incumbent upon the
bail applicant
himself to prove such weaknesses. He cannot expect the respondent
state to do so for him -
S v MATHEBULA
2010 (1)
SACR 55
(SCA).
[23]
The onus rests on the bail applicant to satisfy the court that the
interests of justice favour his release from detention.
Until he has
made out a
prima facie
case
that there is no case for him to answer at the trial, there is no
duty on the respondent state to rebut the bail applicant’s
evidence -
S v MATHEBULA
,
supra
, 59 b –
d.
[24]
The salient principle, that every case must be decided in accordance
with its peculiar circumstances, applies. It is for the
court, seized
with a bail application, to make a value judgment informed by the
peculiar circumstances of the case at hand. The
court is then called
upon to decide, by virtue of such value judgment, whether the proven
circumstances, peculiar to that specific
case, are in degree and in
kind, of such a nature that they can be characterised as exceptional
circumstances within the meaning
of the section –
S
v BOTHA
,
supra
,
230 a – b.
[25]
We are not sitting as a court of first instance. Sitting as we are in
an appellate mode, we have no unlimited power or unfettered
discretion to interfere with the decision of the court
a
quo
.
Section 65
(4) curtails our
appellate powers. We can only interfere with the decision of the
court below, provided we are satisfied that the
court below was
incorrect. Unless it is shown by the detained suspects applying for
bail, we, on appeal, are not at liberty to
nullify the decision of
the court
a quo
.
If there is any doubt about the correctness or otherwise of such a
decision, appellate interference is impermissible and the decision
stands.
[26]
On appeal our powers to interfere with and also the decision of the
court
a quo
,
concerning bail, is restricted to cases where no doubt exists that
the court
a quo
committed
a material misdirection on either the factual matrix or the legal
principles or both in an endeavour to resolve the conflict
or contest
between the detention or release of a suspected individual -
S
v MPULAMPULA
2007 (2) SACR 133
(E).
[27]
In
S v BARBER
1979
(4) SA 218
(D) the court held that the approach on appeal against the
refusal by the court
a quo
to
release the bail applicant on bail from detention, was whether it
could be said that the magistrate, to whom discretion was entrusted
to order the release or further detention, had improperly exercised
such discretion. We can set aside the decision of the magistrate
on
appeal provided we are satisfied that the decision he took at Vrede
on 6 September 2010 was not compatible with a proper exercise
of
judicial discretion. We cannot interfere with the finding of the
court
a quo
and
substitute it with ours merely because we reckon that we, sitting as
a court of first instance, would have exercised that discretion
differently. To do so would boil down to unjustifiable and
unwarranted usurpation of the discretion entrusted not to us, but the
court
a quo
–
S
v BARBER
,
supra
,
at 220 E - F.
[28] The first appellant
vowed that his release would not undermine the criminal justice
system. The effective operation of the
system can be jeopardised if
the five pillars of its strength are weakened. The first appellant
declared on oath that if released
from detention he would not do
anything likely to endanger any of those five basic safeguards of the
system. A vow is of course
an indication of serious commitment. His
personal profile showed: that he had dependants whom he cared for;
that he was emotionally
tied up to his family; that he was gainfully
employed; that he provided material support to satisfy their basic
needs of subsistence;
that he owned certain movable assets in respect
of which he was financially responsible and that he had strong
emotional attachment
to the community and place of his abode.
[29] The first appellant
has been in custody since his arrest on 19 April 2010. He has been
incarcerated for seven and a half months
at the time we heard the
appeal. He has certainly suffered a huge loss of earnings occasioned
by his detention. His family is probably
struggling to make ends
meet, because he was the sole breadwinner. To all these and the
aforegoing factors must be added the weakness,
if any, in the
prosecution case. There are two aspects in this regard which stands
to favour the first appellant. The first is
that the surviving driver
cannot identify the hijackers. The second is that no identification
parade was held.
[30] These then are the
strong factors favourable to the first appellant’s case. When
they are considered in isolation they
tend to indicate that the first
appellant’s right to personal freedom is likely to suffer
prejudice if he were to be detained.
But the first appellant’s
personal freedom is not an absolute right which overrides all. In
considering his right to personal
freedom against the imperative duty
of the respondent state to protect its inhabitants from crime, we
have to decide the matter
by weighing up the interests of justice –
section 60
(9).
[31] The police have
obtained statements by certain individuals, who allegedly claimed,
that the first appellant sold to them bulks
of petrol. This is the
first strong point of the prosecution case.
[32] The mobile cellular
record of the first appellant’s cellphone indicated that
someone who was in possession of the first
appellant’s
cellphone was in the Vrede district before, during and after the
hijacking of the two fuel tankers. From Vrede
the movement of his
cellphone could be traced to Boksburg via Standerton and Germiston
where the first appellant lived.
[33] The further evidence
of the investigating officer was that before, during and after the
two armed hijackings there were cellular
contacts between the mobile
phones of the first appellant and those of the second and the third
appellants.
[34]
The satellite tracking records mapped the movements of the two
hijacked fuel tankers. According to the investigating officer
a
definite match was found between the truck satellite route and the
first appellant’s cellular route. These then are the
strong
cornerstones of the
prima facie
case against the first appellant. He made no
effort to rebut these various pieces of evidence which tended to
incriminate him.
[35] In dealing with the
strength of the respondent’s case, the weakness of the first
appellant’s case must be taken
into account. They fortify the
respondent’s case in much the same way as the weaknesses in the
respondent’s case fortified
the first appellant’s case.
[36]
The most glaring weakness in the first appellant’s case is that
he chose to place his evidence before the court
a
quo
by way of an affidavit. Because he
did not subject himself to cross-examination, his evidence did not
carry much weight. His mere
paper denial of complicity in the crimes
and lack of supporting evidence and lack of objective probabilities
in favour of the first
applicant, weakened his application -
S
v MATHEBULA
,
supra
.
[37] At paragraph 5,
exhibit “a” the first appellant stated that he would
plead not guilty to the charges but ventured
to say nothing about the
merits of the case. He said no word about his exact whereabouts at
the time the two fuel tankers were
hijacked at Vrede, far away from
his place of residence at Germistion. He said nothing about his
cellphone or its apparent incriminating
movement before, during and
after the incident or the equally incriminating cellular contacts
between his cellphone and those of
his co-appellants at all times
material to the hijacking.
[38]
It was incumbent upon the first appellant to make out a
prima
facie
case that there was no substance
in the respondent’s case against him –
S
v MATHEBULA
,
supra
,
at 59 g – h. An evasive appellant who shies away from dealing
with the facts, as alleged by the prosecution and the probabilities
inherent in such factual allegations, does so at his own peril.
[39]
It is common cause that the first appellant was on R2 000,00 bail
when the two fuel tankers were hijacked at Vrede on Tuesday,
23 March
2010. At that time a case was pending against him in the Germistion
Regional Court. The case relates to two trucks which
were found in
his possession. The one truck was stolen from the depot of Mzansi
Africa Logistics, the first appellant’s employer.
The other
truck belonged to Vuyo Transport whose lawful driver was robbed and
unlawfully dispossessed of the truck. Both trucks
had petrol cargos
at the time they were stolen and hijacked. The similarities between
the Germiston-case and the Vrede-case are
obviously striking. It
cannot be said that the suspicion that the appellant was involved in
both cases, is without any substance.
[40]
It is of outmost importance to bear in mind that, at this juncture,
it was neither the task of the court below nor ours up
here to make
any provisional diagnosis of guilt. Ours is to consider whether the
court
a quo
misdirected
itself, on the facts or law, in assessing the strength and the
weaknesses of the prosecution case -
S v VAN WYK
2005 (1) SACR 41
(SCA) at 45 a – b.
[41]
Ms Wright submitted that the prosecution case against the first
appellant was not as strong as the court
a
quo
found. The basis of counsel’s
argument was that, on a number of occasions the evidence of the
respondent’s witness was
that a possibility existed that the
first appellant would again commit a crime if released on bail,
whereas
section 60
(4) requires a likelihood and not a possibility.
Although the argument was factually correct, I am not persuaded that
the respondent’s
case was thereby fatally weakened. During the
course of argument, ms Wright conceded that, notwithstanding certain
weaknesses in
the respondent’s case, it could not be said that
the first appellant had established that the respondent’s case
was
so weak that there was no
prima
facie
case to warrant his detention.
[42] I
am of the firm view that the concession was correctly made. Objective
examination and analysis of the undisputed factual
matrix,
compellingly justifies the apprehension of the investigating officer
and the finding of the court
a quo
that the likelihood exists that the first
appellant is likely to commit a similar offence again if he were
released on bail. The
release of the first appellant from detention
is likely to undermine the proper functioning of the criminal justice
system. I have
to stress that I reached this conclusion without
taking into account the averments contained in the first appellant’s
statement
before the magistrate – exhibit “a”.
[43] The finding of the
court
a quo
that the first appellant had failed to prove, on a
balance of probabilities, that exceptional circumstances existed
which permitted
his release from detention, is a finding which, on
appeal, I cannot hold to be wrong. The testimony of the first
appellant fell
short of the requirements of
section 65
(4) of the
Criminal Procedure Act, 51 of 1977
. The balancing act in this matter
tends to support the conclusion that the interests of justice are
more likely to suffer greater
prejudice if the first appellant were
to be released than if he were to be detained pending the trial. On
the facts I am inclined
to dismiss the appeal.
[44] In the second place
I turn to the second appellant’s application. He has narrated
his version by way of an affidavit
– annexure “c”.
His profile was set out in paragraph 6 thereof. He stated that he was
a 28 year old South African
citizen. His highest formal schooling
level was grade 12. He was a married man and a father of two minor
children. The first child
was 8 years of age and the second one 2
years of age. He and his family lived in a rented house for the past
six years. His wife
was gainfully employed. At the time of his arrest
he was in the employ of Unitrans Easigas where he was employed as a
truck driver.
He owned certain movable assets. Besides household
furniture he also owned a motor vehicle. He had no previous
convictions. Moreover,
there were no pending cases against him at the
time.
[45] It was contended on
behalf of the second appellant that the court
a quo
did not
properly take into account his personal circumstances. He had been
residing at Germiston for six years prior to his arrest.
He was
employed as a truck driver by Unitrans Easigas at Garfield Street,
Alrode. He has been working there for the past two years.
His
previous employer was Sun Salt at Alrode where he also worked for two
years. His wife was employed at Glenwood Hospital in
Benoni. His
parents lived at 184 Osizweni, Newcastle in KwaZulu Natal.
[46] The second appellant
declared on oath that, if released from detention, he would not do
anything likely to jeopardise any of
the five basic safeguards of the
criminal justice system. His vow was an indication of his serious
commitment and must be seriously
considered. At the time this appeal
was heard, he had been incarcerated for seven and a half months. His
wages supplemented the
family income in no small way. He has surely
suffered a huge loss of earnings following his arrest and detention.
Although he was
not the sole breadwinner, his family has probably
been struggling to survive without his contribution to the family
income.
[47] The second appellant
had no previous convictions. There were no pending cases against him.
The weaknesses in the prosecution
case counted in his favour. The
surviving truck driver was not in a position to identify the
hijackers. These then were the strong
factors favourable to the
second appellant’s case. They tended to support the contention
that his right to personal freedom
was likely to suffer prejudice if
he were to be detained. However, these favourable factors cannot be
considered alone. His right
to personal freedom must be considered
together with the constitutional imperative of the respondent as a
state to protect its
inhabitants from crime. We are required to
decide the matter by weighing up the interests of an individual
versus
the interests of the general public –
section 60
(9).
[48] The second
appellant, like the first and the third appellants, has no emotional,
family, community or occupational ties to
Vrede or the Free State
where he is to be tried. He has no fixed property anywhere. By the
time the bail application was launched
in the court
a quo
, the
second appellant had already lost his job at Unitrans. Apparently he
has no relative anywhere in this province. These then
are some of the
weaknesses of his application. Obviously they must be taken into
account in weighing the strength of the prosecution
case against him.
[49] The investigating
officer testified that the investigation showed that the crimes were
thoroughly planned; that the hijackers
were armed and that they did
not hesitate to end human life in order to achieve their criminal
objective. The hijacked motor vehicles
were trucks. The second
appellant, like his co-appellants, were employed as truck drivers.
The second appellant did not dispute
the evidence of the
investigating officer that he was familiar with the fuel energy
industry and how it operated. He was fingered
out by the third
appellant. He and the third appellant were friends, former school
mates and fellow workers. They were in the employ
of Unitrans Easigas
and Unitrans Total at Alrode at the time of the arrest. The second
appellant was the first appellant’s
brother-in-law. I have
already found that there was
prima facie
evidence which
implicated the first appellant. The second appellant was directly
implicated by his friend, the third appellant.
All these facts were
undisputed by the second appellant.
[50] It was also common
cause that the second appellant’s cellular phone was seized by
the police. His cellular records revealed
that before, during and
after the hijackings the second appellant’s cellphone was used
in the district of Vrede. Moreover,
his cellular record also showed
that there were cellular contacts with those of the men accused with
him namely, the first and
the third appellants. The person who
allegedly purchased the stolen petrol, has made witness statements to
the police in which
they implicated the second appellant’s
brother-in-law, the first appellant, as well as the second
appellant’s friend,
in other words, the third appellant. Those
witnesses now know that one of the drivers of the trucks whose fuel
cargo they bought,
was killed. The killing of the one truck driver,
the fastening of the other to a tree, coupled with the threat to come
back and
to shoot him demonstrated just how high the degree of
violence implicit in the hijackings incidents was. Naturally such
witnesses
can be expected to be concerned about their own safety in
these circumstances now that they have implicated the sellers of the
cargos.
[51] The second appellant
lived at Germiston. The satellite tracing systems of the hijacked
fuel tanker showed that from Vrede they
travelled to Standerton,
Germiston and Boksburg. One of the tankers was emptied at Germiston,
the second appellant’s place
of residence. The second appellant
made a statement to Captain Mosoaliba. I refrain from making any
comments as regards this statement.
These then were the strong
pillars of strength in favour of the respondent’s
prima
facie
case against the second appellant.
[52] The court
a quo
commented about the strength of the prosecution case:
“
Mnr. Sibisi
val glad nie die ander getuienis aan wat die applikante 1, 2 en 3 met
die pleging van die misdryf verbind soos deur
die ondersoekbeampte
getuig nie.”
These comments by Mr Van
der Westhuizen, regional court magistrate, cannot be faulted in any
way.
[53] The case against the
second appellant, and indeed all the appellants, did not revolve
exclusively around the so-called confessions
as embodied in exhibit
“h”, exhibit “i” and exhibit “j”
by the first appellant, second appellant
and third appellant
respectively. The gravamen of the respondent’s case derived a
whole lot more persuasive force and probative
value necessary for the
making of a value judgment from the undisputed extrinsic evidence.
[54] The weaknesses in
the second appellant’s case have to be taken into account in
determining the strength of the respondent’s
case. I have
already pointed out the negative effect and the limitation of
presenting a written bail application. The comments
and views I
expressed in respect of the first appellant, apply equally well to
the second appellant. Like the first appellant,
the second appellant
was not candid to the court
a quo
. He too chose to play his
cards close to his chest – paragraph 5, exhibit “c”.
The court was in the dark as to
the exact whereabouts of the second
appellant at the time the two fuel tankers were hijacked at Vrede,
far away from his place
of residence. He elected to say nothing about
his cellphone or its apparently suspicious use at Vrede or its
suspicious movements
before, during and after the incidents from
there to the East Rand or its equally questionable contacts with the
cellphones belonging
to the first appellant and the third appellant,
the two gentlemen who appeared to be seriously implicated in this
entire episode.
[55] I am not persuaded
that the court
a quo
misdirected itself in refusing the second
appellant’s application to be freed on bail. The second
appellant dismally failed
to discharge the onus of establishing, on a
balance of probabilities, that exceptional circumstances existed
which warranted his
release and that releasing him would have been in
the interests of justice. I am not satisfied that in circumstances
such as these
it can be said that the decision of the court
a quo
was so wrong as to justify our interference. In the circumstances we
have no reason to interfere with the decision of the court
a quo
–
S v BARBER
,
supra
.
[56] In the third and
final place I turn to the third appellant. He placed his version
before the court
a quo
by way of an affidavit – exhibit
“f”. His profile is outlined in paragraph 7 thereof. He
stated that he was born
at Newcastle. He was a citizen of the RSA. He
passed grade 12. He was a married man. He had three dependent minor
children. He
lived at Orange Farm south of Johannesburg with his
family. He had been living there for the past six years. He rented
the place
from his uncle. His wife was pregnant. She was expecting
their fourth child. He was employed by Unitrans Total at Alrode. He
was
a truck driver at the time of his arrest. He owned movable
property, which consisted of household furniture, domestic appliances
and a motor vehicle, among others.
[57] He stated on oath
that, if he were released on bail, he would not abscond; that he
would not intimidate witnesses; that he
would not conceal or destroy
evidence; that he would not endanger public safety; that he would not
commit any crime; that he would
not undermine the objectives of the
criminal justice system or its proper functioning and that he would
be willing and able to
comply with bail conditions.
[58] His vow was an
indication of his serious commitment to do or to refrain from doing
something unlawful. Therefore a statement
made on oath must be
seriously considered. The third appellant had been held in custody
since his arrest on 20 April 2010. At the
time this appeal was heard
he had been incarcerated for seven and a half months. During that
period he certainly suffered a huge
loss of earnings, following his
arrest. It seemed he was the sole breadwinner. His family has
probably gone through trying times
and the hardship will probably
worsen with the passage of time.
[59] The second appellant
has no previous convictions or pending cases. The weaknesses of the
prosecution case must count in his
favour. The surviving victim was
apparently not in a position to identify any of the hijackers, which
was why no identification
parade was held.
[60] The factors outlined
in the aforegoing paragraphs were strong factors favourable to the
second appellant’s case. They
tended to support the contention
that his rights to personal freedom was likely to suffer prejudice if
he were detained. However,
these favourable factors could not be
considered alone in a separate compartment. His assurances or
undertaking or denials must
be substantiated by objective facts and
inherent probabilities. A proper balance has to be struck between his
interests, as an
individual, and the interests of the public at large
–
section 60(9).
[61] The investigating
officer testified that the investigation showed that the crimes were
thoroughly planned; that the hijackers
were armed’ that they
did not hesitate to break the slightest resistance of one truck
driver by shooting him dead; that the
charge of murder would probably
be added to the two charges of robbery with aggravating circumstances
and that the incidence of
hijacking fuel tankers was on the increase
on the highways. The hijacked motor vehicles were trucks. The third
appellant was employed
by an oil company as a truck driver. He did
not dispute that he was familiar with the fuel energy industry and
how it generally
operated. He was fingered out by the first
appellant. He and the second appellant were boyhood friends, former
school mates and
co-employees of the same oil company. I was at pains
earlier to show how the first appellant and the second appellant were
implicated
by the unchallenged evidence of the investigating officer.
[62] Besides the cellular
records of the third appellant’s cellphone, the satellite
records of the trucks, his arrest by virtue
of the information
received from a highly implicated suspect - the surviving truck
driver apparently informed the police and gave
them a statement to
the effect that the hijackers were using a white Polo. It is common
cause that the third appellant was the
owner of a white Polo Classic
sedan. The sedan was traced at a panelbeating place at Orange Farm
with a bullet hole in the roof,
body resprayed with a different
colour paint and stripped off of the rear seat and a spent cartridge
was found inside the car.
[63] Now all this
suspicious conditions of the third appellant’s sedan tallied
very well with the version of the surviving
truck driver that the
other truck driver was immobilised and placed on the back seat of the
white Polo; that he heard a gunshot
inside the sedan before the
wounded truck driver was dumped along the road. According to the
panelbeater’s statement when
the third appellant delivered the
sedan to him for repairs, its backseat had already been removed. It
is probable that the backseat
was removed because it was bloodstained
by the wounded truck driver. The third appellant made no attempt to
explain all these suspicious
circumstances in which his car was found
within four weeks after the hijacking.
[64] The question which
arose from these undisputed facts, was what weight could the court
have attached to the solemn oath of a
man that he will not conceal or
destroy evidence when there is already
prima facie
evidence
that such a man was suspected and associated with such an elaborate
scheme to destroy evidence –
section 60(4)(c)?
[65] The suspicious
conditions of the third appellant’s car coupled with his
election to give no oral evidence, were serious
weaknesses in his
application. Such weaknesses bolstered the respondent’s case.
The views I have already expressed in connection
with the first
appellant apply equally well to the third appellant. He made no
effort to rebut the adverse cellphone evidence,
which indirectly
suggested that at the critical moments of the fateful night, he was
not home at Orange Farm, but at Vrede. Moreover,
the further evidence
of the investigating officer was that the third appellant pointed out
to the police a buyer to whom a total
of 50 000 litres of petrol was
sold by the hijackers. This aspect alone strongly militates against
any contention that the respondent’s
case against the third
appellant had no substance.
[66] Once again I am not
persuaded that the court
a quo
committed any material
misdirection in dismissing the third appellant’s application
for his release on bail. He too has not
discharged the onus. There
are no proven exceptional circumstances in existence which permit his
release. This was the finding
of the court
a quo
. Instead, the
interests of justice, which emerged from the comparative analysis of
the objective balancing of the interests at
stake, dictate that it is
necessary to have the third appellant further detained to ensure a
fair trial to all concerned.
[67] Accordingly I make
the following order:
67.1 The appeal in
respect of all the three appellants is dismissed.
67.2 The appellants shall
remain in detention pending the finalisation of their trial.
______________
M.H. RAMPAI, J
I
concur.
_____________
S. EBRAHIM, J
On
behalf of appellants: Adv. G.J.M. Wright
Instructed
by:
Richter-Van
der Walt
FRANKFORT
On
behalf of respondent: Mr. W.J. Harrington
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN
/sp