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[2009] ZAGPPHC 242
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Mathebula v S (A254/09) [2009] ZAGPPHC 242 (7 April 2009)
NOT
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG HIGH COURT PRETORIA
DATE:0
7/04/2009
CASE
NR: A254/09
In
the matter between:
AMBROSE
SIKHETHO
MATHEBULA
.....................................................
APPELLANT
versus
THE
STATE
…...............................................................................................
RESPONDENT
JUDGMENT
- BAIL APPEAL
MAKHAFOLA,
AJ:
INTRODUCTION:
[1]
Sikhetho Ambrose Mathebula appeared in the district court of Bolebedu
sitting at Ga- Kgapane as accused 4. The accused are facing
one count
of murder for allegedly killing one Lebeko Michael Malatji on or
about 14 March 2008. The appellant applied for bail
on 7 April 2008.
The application was refused. On 25 July 2008 the appellant together
with accused 3 appeared in court for the second
time for bail
application on new facts. The new facts relate to the evidence of the
appellant’s wife. In summary form she
spelt out her health
conditions of stress after the arrest of the appellant. She was 4
months pregnant at the time of her testimony
and under
cross-examination she had expressed her insistence that the appellant
should be admitted to bail. She had also expressed
her not being able
to run the appellant’s taxi business.
[2]
This application for bail falls to be decided under SECTION 60 (11)
(a) of ACT 51 of 1977 because the appellant is facing a
schedule 6
offence. On each occasion the state had vehemently opposed the bail.
[3]
The prime factor which the court considers in a bail application is
whether the accused or applicant will stand or evade his
trial.
Vide:
S V VERMAAS
1996 (1) SACR 529
(T).
[4]
But the court hearing a bail application cannot ignore other factors
tabulated in SECTION 60 (4) (a)-(e). The applicant in terms
of
Section 60 (11) (a) has an onus to be discharged on a balance of
probabilities that exceptional circumstances exist that he
or she be
released on bail. That is, the applicant must show by evidence that
it is in the interests of justice that he or she
be admitted to bail.
[5]
In considering other factors for bail the court cannot ignore the
strength or weakness of the state case against the applicant.
This
factor cannot be isolated from the fact of the seriousness of the
case and the fact that if convicted the accused is likely
to be
sentenced to a long period of imprisonment. Other factors like the
safety of the applicant, and the witnesses, the threat
to placing the
legal system into dispute and many other factors required to be met
in terms of the Act all come into play.
[6]
Gleaned from the cross-examination of the appellant’s wife the
alleged killing involved hired and paid men from Hillbrow
in
Johannesburg. From that cross-examination it has emerged and it is on
record that accused 3 has made a “confession”
which in
some parts confirms the “confessions” of accused 1 and 2
as the hired hitmen who were paid to carry the alleged
killing.
[7]
With such pre-trial evidence on which the state firmly relies, the
strength or weakness of the state case can be measured. In
terms of
that evidence the appellant has the money and capability to hire and
pay hitmen without himself carrying out the actual
killing. This
factor on its own counters exceptional circumstances.
[8]
It is clear that no bail condition can restrict the appellant in any
way from interfering with the witnesses. In terms of the
“confessions” apparent from the cross-examination of
Tsakani Shivambu the appellant did not need to be physically at
the
scene of the crime.
[9]
The appellant’s wife did not show in which way the appellant,
if released, would assist her to be healthy. She is also
not on
record to say in which way the appellant if released on bail, will
comply with the conditions thereof. The new facts brought
about by
the appellant’s wife did not advance exceptional circumstances
required by SECTION 60 (11) (a) of the Act.
[10]
The following decided cases are to the point as far as new facts and
factors that permit the release on bail are concerned:
S
V VERMAAS
1996 (1) SACR 528
(T)
S
V ESSACK
1965 (2) SA 161
(D) at 162 C-E
S
V DLAMINI
[1999] ZACC 8
;
1999 (2) SACR 51
(CC) at 63 f-64 a par. 11
S
V VAN WYK 2005 (1) SASV 41 (SCA) par [16] at 44i-45c
S
V VILJOEN
2002 (2) SACR 550
(SCA)
S
V PORTHEN AND OTHERS
2004 (2) SACR 242
(C)
GADE
V S
[2007] 3 ALL SA 43
(NC).
[11]
I cannot fault the manner in which the court on both occasions had
assessed and evaluated the facts before it when it refused
to admit
the appellant on bail. The appellant is facing a very serious crime
of hired killing and this is based on common purpose
with his other
co-accused. SECTION 60 (10) of the Act requires that facts be weighed
up against the personal interests of the appellant/accused
and the
interests of justice which was done by the court a quo and this is
apparent from its judgment.
[12]
As a result I find as follows:
(i)
that the refusal of the bail on both occasions was justified because
the facts before court do not meet the requirements of
SECTION 60
(11) (a) of the Act;
(ii)
that the cross-examination of the appellant’s wife has revealed
a strong state case against the appellant;
(iii)
that on both occasions the appellant has failed to discharge an onus
he bears that the interests of justice permit his release
on bail.
In
the circumstances, I am of the view that the appeal should be
dismissed and it is so ordered.
K.
MAKHAFOLA
ACTING
JUDGE OF THE HIGH COURT
Advocate
for the Applellant: Adv. RC Krause
Advocate
for Respondent:: Adv. LA More