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[2011] ZAKZDHC 68
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Mbaleki and Another v S (2853/2011) [2011] ZAKZDHC 68; 2013 (1) SACR 165 (KZD) (1 April 2011)
IN THE KWAZULU-NATAL
HIGH COURT, DURBAN
REPUBLIC OF SOUTH
AFRICA
Case No: 2853/2011
In the matter between
DAVID MBALEKI
….........................................................
First
Appellant
AFRICA MGQAMBI
….................................................
Second
Appellant
versus
THE STATE
…......................................................................
Respondent
JUDGMENT
Delivered on: 1 April
2011
STEYN J
[1] This is an appeal
against the refusal of the Durban district court, to grant the
appellants in the court
a
quo
bail.
1
The appellants are
charged with murder and robbery with aggravating circumstances as
intended in
section 1
of the
Criminal Procedure Act, 51 of 1977
.
2
The offences are schedule
6 offences in terms of the Act.
[2] The appellants were
arrested on 3 January 2011 and brought before the court for a bail
application on 28 January 2011, which
was refused by the district
Magistrate of Durban. Appellants now appeal against this decision.
[3] On behalf of the
appellants, Mr Mvume, submitted that the learned Magistrate erred in
fact and law. It was submitted by him
that the decision was
inter
alia
wrong
since the learned magistrate
unduly invoked
section
8A
of the Act;
that she found that the
appellants’ alibi evidence was not corroborated;
that she attached undue
weight to the pending cases against the appellants;
that she failed to duly
weigh the evidence of the investigating officer, who did not oppose
bail;
not opposing
(sic)
herself of the possible delay in the investigations which would be
far in excess of six months.
That she failed to
consider that the factors that constituted exceptional
circumstances.
In addition it is
submitted that the learned magistrate erred by not showing that she
had apprised herself of the presumption of
innocence.
[4] Mr Koyana, acting on
behalf of the Respondent, opposed the application on the basis that
the appellants failed to convince the
court
a
quo
of
any exceptional circumstances as required in terms of subsection
60(11)(a) of the Act. On behalf of the respondent it was further
submitted that recently in
Mathebula
v S
3
the SCA dealt with the
fact that an application brought on affidavit is not open to be
tested and challenged by cross-examination,
and hence it is less
persuasive.
4
[5] It is evident that
what the Act in terms of
section 65(4)
requires of this Court before
setting any decision on bail aside, is that this Court should be
satisfied that the lower court was
wrong in its decision.
5
[6] The record reveals
that the learned Magistrate applied her mind to the burden cast upon
the applicants in stating:
“
[I]n
considering all the above, I have got to give consideration to by
weighting up the interests of justice against the rights
of the
accused of his or her personal freedom and in particular the
prejudice that he or she is likely to suffer if he or she were
to be
detained in custody, taking into account various factors as indicated
during the closing argument by the drefence in the
delay in respect
of the alibi, and all other factors . . .”
[7] The success of this
appeal is dependent on whether the appellants, applicants in the
court
a quo,
discharged the
onus
in terms of subsection
60(11) of the Act.
[8] Bail is presently
defined in
s 58
of the Act and regulated by
sections 58
to
71
of the
same Act. It is also regulated by s 35(1)(e)-(f) of the Constitution,
1996, read with s 12 of the Constitution.
[9] Previously an
application for bail was regarded as
sui
generis
and
the accused bore the
onus
on a balance of
probabilities to show why he should be released.
6
After the commencement of
the interim Constitution
7
a host of decisions
followed, all considering
onus
on the parties in a bail
application.
8
[10] The Constitutional
Court, however, in the matter of
S
v Dlamini
;
S v
Dladla and Others
;
S v
Schielekat
9
did not resolve the issue
of
onus
.
Kriegler J dealt with it as follows:
“
For the
present it is unnecessary to resolve the question whether there is an
onus in bail proceedings and, if so, its incidence.
The current cases
are governed by subsection 11 where there is undoubtedly a burden
cast upon an applicant for bail.”
10
[11] In the context of s
60(11)(a) it is however necessary for an applicant to persuade the
Court that ‘exceptional circumstances’
are present that
in the interests’ of justice permit his release. The concept,
‘exceptional circumstances’ not
being defined, has meant
different things to different people.
11
In my view, what is
expected of a court is to exercise a value judgment in accordance
with all the evidence and applying the relevant
legal criteria.
12
[12] In the present
matter, the learned magistrate fully apprised herself of her duties
and in doing so she summarily questioned
the investigating officer,
his answers in court reveal the strengths and the weaknesses of the
state’s case. In my view,
the learned magistrate would have
failed in her duty, had she merely accepted the attitude of both the
state prosecutor and that
of the investigating officer. It is evident
from the record that neither are
au
fait
with
the implications of the amended bail legislation. The legislature
considered it necessary to burden the accused with an
onus
in Schedule 6 cases, and
hence the answer is very simple, did the appellant succeeded in their
onus. Neither of the applicants,
nor the so called alibi witness,
adduced any
viva
voce
evidence.
I fail to see how they could be convinced that they have discharged
the
onus
that rested on them.
[13] It must necessary
follow, that on an analysis of the evidence as a whole, the probative
value of the statements produced by
the appellants and the burden of
‘exceptional circumstances’ that rested on the appellants
in the court
a
quo
,
that the appellants had not succeeded in demonstrating that the court
below was wrong and that the decision should be set aside.
13
[14] I need however to
also deal with the perception out there that the presumption of
innocence had a role to play at the consideration
of bail. In
S
v Dlamini, S v Dladla and Others
,
14
our Constitutional Court
unanimously decided that the right to be presumed innocent is not a
pre-trial right but a trial right.
This has also been understood by
the learned Magistrate.
[15] In the event the
appeal is dismissed.
____________________________
Steyn, J
Date of Hearing: 1 April
2011
Date of Judgment: 1 April
2011
Counsel for the
applicant: Adv Mvume
Instructed by:
Counsel for the first
respondent: Adv M M Koyana
Instructed by: Director
of Public Prosecutions,
Durban.
1
See
case number 2853/2011.
2
Hereinafter
referred to as ‘the Act’.
3
2010(1)
SACR 55 (SCA).
4
See
Mathebula
at para [11].
5
See
subsection 65(4) of the Act that reads:
“
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.” Also see S v Barber
1979 (4) SA 218
(D) 220E-H.
6
See
S v Hlongwa
1979 (4) SA 112
9(D).
7
The
interim Constitution of the Republic of South Africa, Act 200 of
1993
.
8
See
Ellish v Prokureur-Generaal
, Witwatersrand Plaaslike Afdeling
1994 (2)
SACR
579
(W);
Magano and Another v District Magistrate Johannesburg
and Others
(1)
1994 (2) SACR 304
(W)
S v Mbele and Another
1996 (1) SACR 212
(W);
S v Vermaas
1996 (1) SACR 528
(T).
9
[1999] ZACC 8
;
1999
(2) SACR 51
(CC).
10
Op
cit
at para [45], footnote 74 of the judgment.
11
See
S v C
1998
(2) SACR 720
(C);
S v H
1999
(1) SACR 72
(W) at 77b-i;
S v
Schietekat
1999 (1) SACR 100
(C);
S v Mokgoje
1999 (1) SACR 233
(NC);
S
v Botha en ʼn Ander
2002 (1) SACR 222
(SCA) at 2291 –
2300;
S v Bruintjies
2003 (2) SACR 575
(SCA) at 577 c-i.
12
See
section 60(4) of the Act that provides for the grounds to be
considered:
“
a)
Where there is the likelihood that the accused, if he or she were
released on bail, will endanger the safety of the public
or any
particular person or will commit a Schedule 1 offence; or [Para (a)
substituted by s. 4(c) of Act 85 of 1997.]
(a)
Where there is the likelihood that the accused, if he or she were
released on bail, will attempt to evade his or her trial;
or
Where
there is the likelihood that the accused, if he or she were
released
on bail, will attempt to influence or intimidate witnesses or to
conceal or destroy evidence; or
(c)
Where there is the likelihood that the accused, if he or she were
released
on bail, will undermine or jeopardize the objectives or the proper
functioning of the criminal justice system, including
the bail
system;
(d)
Where in exceptional circumstances there is the likelihood that
the
release of the accused will disturb the public or undermine the
public peace or security; or [sic]”.
13
See
S v Porthen and Others
2004
(2) SACR 242
(C), at para [17].
14
1999(2)
SACR 51 (CC).