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[2010] ZAFSHC 127
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Sibanda v S [2010] ZAFSHC 127 (23 September 2010)
FREE
STATE HIGH COURT , BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case No. : A117/2010
In
the case between:-
F.
P. SIBANDA
and
THE STATE
CORAM:
CILLIé,
J
et
KAHN, AJ
_____________________________________________________
JUDGMENT:
KAHN,
AJ
_____________________________________________________
HEARD ON:
13
SEPTEMBER 2010
_____________________________________________________
DELIVERED ON:
23 SEPTEMBER 2010
[1] The appellant, Samuel
Paulus Sibanda, was arrested on 10 February 2010 and subsequently
charged with armed robbery together
with a second accused,
Nkosinomuso Ngulwane.
[2] Both accused applied
for bail before the magistrate
a quo
on 16 March 2010 at
Welkom, who found that no exceptional circumstances had been proven
by the said accused and accordingly refused
the bail application.
[3] Both accused applied
for leave to appeal against the court
a quo
’s judgement
denying them bail; leave having duly been granted.
[4] However, on the day
of the bail appeal hearing, the other appellant was not represented
and the appeal hearing commenced on
the basis that only the present
appellant’s appeal would be heard.
[5] In consequence, the
other appellant’s appeal was struck from the court roll.
[6] It is trite law that
the appellant bears the onus to prove on a balance of probabilities
that exceptional circumstances exist,
which, in the interest of
justice, permits his release.
[7] Exceptional
circumstances have not and cannot be extensively defined, in that
determining such circumstances necessitates the
execution of a
judicious function in each and every case. The appellant was denied
bail in the court
a quo
on the grounds that he failed to
adduce any evidence which satisfied the court that exceptional
circumstances prevailed together
with the fact that the investigation
of the offence was still ongoing.
[8] The appellant in the
court
a quo
tendered an affidavit wherein he essentially
relied on the allegation that the state’s case against him was
so weak (citing
various reasons) that in consequence it constituted
exceptional circumstances.
[9] Two further
affidavits relative to his places of residence and employ
respectively were also handed in as documentary evidence.
The state,
on the other hand, submitted
viva voce
evidence, duly
presented by the investigating officer.
[10] I stress that a bail
application is a unique interlocutory procedure, distinct from that
of a trial hearing. The issue is
not guilt, but that of the interest
of justice.
[11]
Argument
advanced on behalf of the appellant
1. The other accused took
the police to the applicant but he subsequently denied that he did
so.
2. A further person
identified both accused on an identification parade but the length of
time such person took to identify the
appellant rendered the
identification questionable.
3. He remained silent
about the fingerprints.
4. He pointed out that
other suspects identified at the I.D. parade were not arraigned.
5. He claims that he was
present during a search of his residence and nothing was found, in
particular the set of keys.
6. The issue of a
photograph of appellant having been removed from his home in and
during the search process and that nothing came
of it.
[12] The evidence
produced by the state at the bail application was that the appellant
was identified by his co-accused and that
both of them were further
identified at an I.D. parade by another person. Furthermore, that he
was arrested as a result of information
gathered from an informant
and his fingerprints were found on an escape vehicle
.
[13] There is clearly
evidence which links the appellant to the crime. In
casu
, it
is not beholden upon the court to adjudicate the veracity of the
allegations. Instead, the court must take cognisance of the
strength
of the state’s case, and if it
prima facie
appears to be
exceptionally weak, then it could comprise exceptional circumstances.
[13] However, having
regard to the points mentioned
supra
, I am of the view that
there is indeed a
prima facie
case against the appellant. The
strength of the state’s case is thus not an exceptional
circumstance
in casu
as the court
a quo
correctly
concluded. In addition, the appellant opted to adduce evidence in
the form of an affidavit, which could not be tested
via
cross-examination. I stress furthermore that the investigation is
still pending and that the offence allegedly committed is
serious.
[14] I am of the view
that the appellant’s application is somewhat premature in that
the investigation may still uncover facts
which may weaken or
strengthen the state’s case. Nothing prevents the appellant
from re-newing his bail application at any
time in the future.
However, judging on the evidence placed before the magistrate it
cannot be said that the magistrate came to
a wrong conclusion.
[15] In consequence, I
make the following order:
The appeal is dismissed.
___________
G. KAHN, AJ
I concur.
_____________
C. B. CILLIé, J
On
behalf of the appellant: Adv Van Eck
Instructed by:
Bloemfontein
On
behalf of the state: Adv M. Strauss
Instructed by:
The Director: Public
Prosecutions
BLOEMFONTEIN
/eb