About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2009
>>
[2009] ZAKZPHC 83
|
|
Magcaba v S (8223/09) [2009] ZAKZPHC 83 (2 November 2009)
IN THE KWAZULU-NATAL
HIGH COURT, PIETERMARITZBURG REPUBLIC OF SOUTH AFRICA
Case No: 8223/09
In the matter between
SAKHILE MICHAEL
MAGCABA
…..........................................
Appellant
versus
THE STATE
…......................................................................
Respondent
JUDGMENT
Delivered on: 2 November
2009
STEYN J
[1] This is an appeal
against the refusal of the Ntuzuma district court, to grant the
appellant who is the fourth accused in the
court
a
quo
bail.
1
The appellant and his
co-accused are charged with robbery with aggravating circumstances as
intended in
section 1
of the
Criminal Procedure Act, 51 of 1977
.
2
The offence is a schedule
6 offence in terms of the Act.
[2] The appellant was
arrested on 23 January 2009 and he brought a bail application on 2
February 2009, which was refused by the
district Magistrate of
Ntuzuma. Appellant now appeals against this decision.
[3] On behalf of the
appellant, Mr Mkhize, submitted that the learned Magistrate erred in
fact and law. It was submitted by him
that the decision was wrong;
“
1. In
respect of the aspects pertaining to the application for release on
bail which was before the court a quo, as highlighted
in the grounds
of appeal;
2. In making a finding that the
appellant had not succeeded on proving exceptional circumstances; and
3. In finding that the appellant
was not entitled to be released on bail.”
In addition it is
submitted that the following factors warrant in favour of the
appellant’s release on bail:
“
1. The
appellant has no previous convictions and no pending charges against
him;
2. He was a scholar, that he has a
bursary with a very well-known company, Alexander Forbes (“the
company”), that he
had already registered with the college and
that he needed to return to study, as he did not want to let the
company down;
3. He is able to afford bail;
4. He has very strong ties with the
district of Inanda; and
5. He is not a flight risk.”
[4] Mr du Preez, acting
on behalf of the Respondent, opposed the application on the basis
that the appellant 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 an affidavit evidence 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 applicant in stating:
“
As I have
indicated, the only issue the Court needs to consider is, if there is
(sic) exceptional circumstances, which, in the interests
of justified
permit the applicant’s release.”
[7] The success of this
appeal is dependent on whether the applicant 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, albeit not framed in so many words, the respondent opposed
bail on grounds of s60(4)(a) and to a lesser
degree relied on s
60(4)(e). In support of its opposition the state tendered viva voce
evidence of inspector Ngcube, the investigating
officer in the case.
In my view the court a quo considered all the relevant
considerations, the strength of the state’s case,
the
circumstances presented on behalf of the applicant and ultimately
found that the circumstances do not qualify as ‘exceptional’.
[13] It must necessary
follow, that on an analysis of the evidence as a whole, the probative
value of the statement produced by
the appellant and the burden of
‘exceptional circumstances’ that rested on the appellant
in the court a quo, that the
appellant had not succeeded in
demonstrating that the court below was wrong and that the decision
should be set aside.
13
[14] In the event the
appeal is dismissed.
____________________________
Steyn, J
Date of Hearing: 29
October 2009
Date of Judgment: 2
November 2009
Counsel for the
applicant: Adv M. I. Mkhize
Instructed by: N T
Mshengu & Associates
Counsel for the first
respondent: Adv R Du Preez
Instructed by: Director
of Public Prosecutions,
Pietermaritzburg
1
See
case number 633/09.
2
Hereinafter
referred to as ‘the Act’.
3
SCA
unreported decision case number 431/2009 delivered on 11 September
2009.
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].