Mazibuko and Another v S (8774/09) [2009] ZAKZPHC 61; 2010 (1) SACR 433 (KZP) (19 November 2009)

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[2009] ZAKZPHC 61
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Mazibuko and Another v S (8774/09) [2009] ZAKZPHC 61; 2010 (1) SACR 433 (KZP) (19 November 2009)

REPORTABLE
IN
THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC
OF SOUTH AFRICA
Case No. 8774/09
In
the matter between:
THULANI
SIFISO MAZIBUKO FIRST APPELLANT
AMBROSE
SIMPHIWE CEBEKHULU SECOND APPELLANT and
THE STATE RESPONDENT
J U D G M E N T
RALL,
AJ.
[1] The appellants are in custody. They are
awaiting trial on three counts of armed robbery and two of murder.
The charges arise
from an incident which took place at 79 York Street
in Greytown on 1 June 2009. The State alleges that on that day the
appellants,
together with others, robbed three people and that during
the robbery one of the victims, Mr Mohammed Sayed was killed and one
of the robbers was fatally wounded.
[2] The appellants and one of their fellow accused
applied for bail in the Pietermaritzburg regional court. The State
opposed bail,
the regional magistrate refused bail to all three
applicants and the two appellants now appeal against that decision.
[3] During argument it was common cause that the
offences with which the appellants are charged are offences listed in
Schedule
6 of the Criminal Procedure Act and therefore that section
60(11)(a) of that Act applied to this case. It was also common cause

that as a result, the appellants bore the onus of proving on a
balance of probabilities that exceptional circumstances existed
which
required their release in the interests of justice. Finally, it was
common cause that in order to succeed on appeal, the
appellants were
required to satisfy me that the decision of the magistrate was wrong.
[4] What was not common cause was what was meant
by the expression "
exceptional
circumstances
" in section 60. At the outset I should
point out that the magistrate was of the view that by using that
expression the legislature’s
intention was to make it extremely
difficult or almost impossible for an accused to make out a case for
bail.
[5] The magistrate found that the ordinary
grammatical meaning of the word "
exceptional
"
should be given to it and therefore that it meant "
unusual
"
or “
different
". On
appeal, counsel for the State, Mr Dunywa supported this
interpretation. On the other hand, Mr Barnard, who appeared for
the
appellants, contended that it was not required of an applicant for
bail to show that any particular factor counted exceptionally
in the
applicant's favor. Instead, all that was required was that the
applicant had to show, taking into account the factors mentioned
in
subparagraphs (5) to (9) of Section 60, that all of the factors in
subsection (4)(a) to (e) counted in the applicant's favour,
or to put
it differently, that none of the grounds for refusing bail set out in
subsection (4) existed. He conceded however, that
if an applicant
failed to discharge the onus on one of those five grounds, the
application had to fail.
[6] In advancing this argument, Mr Barnard
referred to a number of cases. He relied firstly on the following
statement made at page
678I in S v Jonas 1998(2) SACR 677 (SEC):
"I
do not believe that it could have been the intention of the
legislature, when it enacted the amending provisions of Section
60
(11) of the act to legitimize the at random incarceration of persons
who are suspected of having committed schedule 6 offences,
who, after
all, must be regarded as innocent until proven guilty in a court of
law."
This proposition can hardly be faulted. There
clearly ought to be no randomness about the incarceration of accused
persons.
[7] Secondly, he relied on S v C 1998(2) SACR 721
(C). In that case it was held that all that subsection (11) (a)
required of an
accused was to prove that he or she would stand trial,
would not defeat the ends of justice and would not commit crimes if
released
on bail.
[8] Thirdly, Mr Barnard relied on the unreported
judgment of Hugo J in S v Khan, a bail appeal in this division under
case number
7200/1998. At page 9 of the judgment the following was
stated:
"They must, according to the
definition, be circumstances which are the exception, rather than the
rule. The unlikelihood that
the accused will flee or interfere with
witnesses would hardly qualify. These are circumstances one meets
with in every single
bail application. Indeed, it is questionable
whether any of the circumstances which are mentioned in Section 60
(4), (5), (6),
(7), (8) or (9) would qualify. Perhaps it would be
exceptional if a number of favorable circumstances to the accused are
found
to be present
together.
"
Mr Barnard
emphasized the last sentence quoted above.
[9] Fourthly, Mr Barnard sought support in the
judgment in S v Vanqa
2000 (2) SACR 371
(Tk), in which it was held
that it was not required of an applicant to prove factors which are
exceptional in the sense of being
unusual and different to those
enumerated in subsections (4) to (9). It was held further that it
was wrong to attach the ordinary
grammatical meaning to the phrase
"
exceptional circumstances
".
In coming to this conclusion, the court approved the following dictum
from S v Yanta
2000 (1) SA CR 237
(Tk) at 243H -- 24 4 a:
"The
approach adopted by Kriegler J in the Dlamini case suggests that the
exceptional circumstances as envisaged by subsection
(11)(a) are not
to be construed as requiring an accused to place before a court
factors or circumstances in addition to those
provided for in
subsections (4), (9) and (10) of the act. The enquiry remains the
same, namely, a weighing of the considerations
referred to in
subsections(4), (9) and (10) of Section 60 and then to exercise a
value judgment according to all the relevant criteria
on the facts
placed before a court. At the end of the day the court has to decide
if those factors which have been found to exist
and which favor the
release of an accused from detention are such, weighed against the
interests of justice, so as to constitute
exceptional circumstances
for the purposes of subsection (11)(a). There can be as many
circumstances which are exceptional as the
term in essence implies.
So for example factors such as an urgent serious medical operation,
terminal illness or the lack of evidence
implicating the accused in
the charge may constitute exceptional circumstances when weighed
against the factors set out in subsection
(4)."
[10] It is important to bear in mind that the
comments of Hugo J in the Khan case were clearly obiter because it
was held that the
offences which the appellant faced were neither
schedule 6 nor schedule 5 offences. Secondly, it was clear that in
the last sentence
quoted above, Hugo J was not purporting to make a
definitive statement of the law but was merely mentioning a
possibility.
[11] The
Khan and C cases were decided before the Constitutional Court gave
its judgment in S v Dlamini and Others
[1999] ZACC 8
;
1999 (4) SA 623
(CC). One
therefore has to decide whether the statement in S v C , relied upon
by the appellants, is still good law. In S v Mohammed
1999 (2) SACR
507
(C) the question was answered in the negative. I am in respectful
agreement with this conclusion. It follows therefore that Hugo
J’s
tentative suggestion of what the law might be, cannot be accepted as
correct.
[12] What was held in S v C amounts to putting
schedule 6 accused on the same footing as schedule 5 accused.
Subsection (11) clearly
distinguishes between the two categories of
accused and to place them on the same footing would render this
distinction meaningless.
It was expressly held in Dlamini’s case
(at para [65]) that whereas in the case of schedule 5 accused the
only factor which distinguishes
those bail applications from those
involving less serious offences is the question of the onus, Section
60(11)(b) imposes an additional
requirement, namely, proving
exceptional circumstances. I accordingly find that the interpretation
contended for by Mr Barnard
is not correct.
[13] What
then is meant by the expression "
exceptional
circumstances
" ? Firstly, in Dlamini’s case it was held
that the subsection does not say that there must be circumstances
above and beyond,
and generally different from those enumerated in
subsections (4) to (9). By this I understand the learned judge to
mean that it
is not required of an accused to prove the existence of
factors in addition to those enumerated in those subsections. This is
evident
from the examples given in paragraph [76] of the judgment.
Each one of the final paragraphs in subsections (5) to (9) is a
"
catch all
"
paragraph reading "
any other
factor which in the opinion of the Court should be taken into
account
." In effect therefore the Constitutional Court
decided that an accused is entitled to rely on any factor expressly
mentioned
in subparagraph's (4) to (9) or any factor which is covered
by the last paragraphs of subsections (5) to (9).
[14] I am in respectful agreement with the
approach adopted in the Mohamed case. In my opinion, in order to give
a meaning to the
phrase "
exceptional
circumstances
" it is essential to ascribe a meaning to
"
exceptional
",
and a good starting point is the dictionary meaning or meanings of
the word.
[15] It was held by Comrie J in Mohammed’s case,
that "
exceptional
"
has two shades or degrees of meaning. It can either mean unusual or
different, or markedly unusual or specially different.
Although
Comrie J held that it was not necessary to plump for one or the other
of the two shades of meaning, he appeared to place
the emphasis on
the degree of deviation from the usual. This is apparent from the
following statement at page 515 of the judgment:
"So the true enquiry, it
seems to me, is whether the proven circumstances are sufficiently
unusual or different in any particular
case as to warrant the
applicant's release. And "sufficiently" will vary from case
to case."
[16] It
seems to me that “
exceptional
”
can firstly denote the rarity of something (i.e. the infrequency with
which something occurs) as in “
It
is exceptional to find a nocturnal animal walking around during the
day
”. Secondly, it can denote the extent or degree to which
a quality or characteristic is present, as in (to use the example of
Comrie, J ) “
The musician has
exceptional talent
.“ The two meanings are however
interlinked. Once again employing Comrie J’s example, the more
talented a musician is, the more
unusual or rare that musician would
be.
[17] A reading of the cases indicates that the
meaning apparently preferred by Comrie,J in the Mohammed case is
widespread. So for
example one sees that meaning used in Director of
Public Prosecutions v Nkalweni 2009(2) SACC 343 (Tk) where the word
was given
the meaning “
unique,
unusual, rare and peculiar
”. In the present case the
magistrate used the same meaning.
[18] With respect, I am of the view that the
emphasis should be placed on the degree to which any circumstance is
present. This
is the terminology used by Kriegler J in Dlamini's case
(in footnote 103) where the following was stated “
There
is no reason to believe that courts will find it impossible to find
that release on bail is justified where “ an “ordinary

circumstance”
(ie one of those mentioned in subsections (4)
to (9))
is present to an
exceptional degree
.” This appears to be logical because by
definition an ordinary circumstance cannot be exceptional unless it
is present to an
exceptional degree.
[19] For the circumstance to qualify as
sufficiently exceptional to justify the accused’s release on bail
it must be one which
weighs exceptionally heavily in favour of the
accused, thereby rendering the case for release on bail exceptionally
strong or compelling.
The case to be made out must be stronger than
that required by subsection (11)(b), but precisely how strong, it is
impossible to
say. More precise than that one cannot be. Applying
this approach, the process of deciding a bail application would be
the same
as in a case governed by subsection 11(b), save that the
additional requirement of exceptional circumstances must be
satisfied.
This means that if an accused does not satisfy the
subsection 11(b) test, it is not even necessary to consider whether
the additional
requirement imposed by subsection 11(a) has been met.
[20] As I read the Yanta judgment, particularly
the passage quoted above, this was in effect the approach taken by
the learned judge
in that case.
[21] In the example used by Van Zyl, J in the
Yanta case, namely, a medical operation or illness, what would make
the circumstance
exceptional is not the rarity of the operation or
illness, but the seriousness thereof and the impact it has on the
grounds for
refusing bail or the prejudice the accused will suffer if
bail is refused. This, in my opinion, would be the case whether the
circumstance
is one expressly mentioned in subsections (5) to (9) or
not. It goes without saying of course that any circumstance relied
upon
by the accused must be relevant to the question of whether the
accused should be released on bail, that is, it should relate to
one
of the grounds set out in subsection (4) or to the question of the
interests of the accused, dealt with in subsection (9).
[22] In
the Vanqa case, although the learned judge stated that the
circumstances must be blended with an element of exception or

difference and it might appear at first glance therefore that what he
meant was that the circumstances simply had to be different,
a closer
reading of the case indicates otherwise. The magistrate’s finding
that the appellant had failed to discharge the onus
simply because
the factors he had relied on, namely, his loss of income and his
deteriorating health, are “
ordinary
factors generally expected in cases of incarceration
“ was
wrong. The court held that the magistrate misdirected himself by
requiring circumstances to be unusual and different to
those
enumerated in subsections (4) to (9). The court then analyzed the
appellant’s health and although the appellant was suffering
from a
relatively common illness, asthma, it was found that the appellant’s
condition was serious and was exacerbated by the
lack of treatment he
was receiving in prison. These the court found to be exceptional
circumstances. In effect therefore, it found
that an otherwise
ordinary circumstance was exceptional because it was present to an
exceptional degree.
[23] Applying this test, it is insufficient for an
accused who for example wishes to rely on the weakness of the State
case to simply
show that the State's case is weak. The accused must
go further, i.e., show that the case is exceptionally weak and this
must be
done by showing on a balance of probabilities that the
accused will be acquitted (S v Botha 2002(1)SACR (222) (SCA) at para
[21]).
[24] Subject to two qualifications, the approach
of the magistrate in the present case was correct. The first
qualification is that
"
exceptional
circumstances
" has the meaning given to it by me and the
second is that the magistrate’s statement that the legislature
intended that
it should be nearly impossible to obtain bail is to set
the bar too high. Whilst it is apparent that the legislature intended
that
it should be more difficult, perhaps exceptionally difficult, to
obtain bail, it did not intend to make it as difficult as suggested

by the magistrate.
[25] Before I deal with the evidence in this case
I should emphasize, as has been stated repeatedly by our courts, that
each case
should be dealt with on its merits. Furthermore the amount
of evidence which an accused is required to put before the court and

the form that this evidence must take will vary from case to case. In
this regard, it is important to bear in mind that the evidence

presented by the accused cannot be considered in isolation but must
be considered in the light of the attitude of the State to
the
application and the evidence tendered by the State. Whilst a court is
not bound by the State's attitude to bail, a statement
by the accused
which may be regarded as too brief and therefore inadequate in the
face of a denial or contradictory evidence by
the State, may be
sufficient when admitted or left uncontradicted by the State (as was
the case in Jafta’s case) .
[26] The appellants and their co-accused elected
not to testify at the bail application. Instead, an affidavit by each
of the applicants
was handed in. Thereafter, the investigating
officer, Captain Pillay gave evidence under oath. Although, in the
light of the Dlamini
judgment, the appellants were free to put
further evidence before the court, they did not do so. This has
implications for the
appellants. Firstly, evidence on affidavit is
less persuasive than oral evidence (S v Pienaar
1992 (1) SACR 178(W)
at 180H; S v Mathebula, an unreported Supreme Court of Appeal
judgment under case number 431/2009). Secondly, a considerable amount

of damaging evidence given by Capt Pillay stood uncontradicted.
[27] The State opposed bail on the ground that the
appellants were flight risks. Accordingly, it can be assumed, as
appeared to
have been the case in the regional court, that the
appellants discharged the onus on them in respect of all of the
grounds mentioned
in subsection (4), save for that in paragraph (b).
The Appellants averred that they would stand trial. In addition, the
appellants
contended that if they were to remain in custody, they
would suffer prejudice, inter alia, because they would not be able to
run
their businesses and would therefore suffer a loss of income. The
magistrate found that in respect of neither issue did the appellants

prove exceptional circumstances.
[28] Mr Barnard did not contend that any of the
circumstances placed before the regional court by the appellants were
exceptional.
Instead, he contended that because the appellants had
shown on a balance of probabilities that none of the grounds set out
in subsection
(4) applied in this case, they had shown that
exceptional circumstances existed. For the reasons that I have
already mentioned,
even if they did discharge that onus, that would
have been insufficient. They would only have succeeded if they had
proved that
exceptional circumstances existed. This they could only
have done if they proved that one or more factor relevant to the
issues
before the court was exceptional in the sense mentioned above.
[29] As
far as their personal circumstances are concerned, the appellants
stated in their affidavits that they were self-employed,
earning
R7000.00 and R6000.00 per month respectively, that they had permanent
residences, in the case of the first appellant that
he owned an
immovable property, that they both owned vehicles and household
possessions, and that they had dependents. However,
the evidence of
Pillay, which was not contradicted, cast serious doubt on the
truthfulness of these assertions. Firstly, he stated
that the first
appellant had told him that he was unemployed. Secondly, despite
being requested to do so, the second appellant
was unable to supply
Pillay with the registration number of the vehicle which he allegedly
owned and used in his taxi business.
Pillay was therefore unable to
verify that the second appellant in fact owned a motor vehicle.
Thirdly, Pillay established that
the first appellant did not in fact
own the property he claimed to own.
[30] The second appellant put up no documentary
evidence to prove the existence of his taxi business. The first
appellant did put
up a document which showed that he was the sole
member of a close corporation. However, the only documentary proof
which he put
up to prove that this corporation was operating, were
unsigned letters from two firms which purported to show, not that the
corporation
had any contracts, but that the first appellant was an
employee of the firms in question.
[31] It
was argued on behalf of the appellants, both in the regional court
and before me, that the State had a weak case against
them. The only
evidence which the appellants put up in support of this contention
was a denial that they were involved in the crimes,
an allegation by
each of them that their defence was one of mistaken identity and a
statement by the second appellant that his
defence was also that of
an alibi. Despite knowing where and when the offences with which they
were charged, were allegedly committed,
neither appellant stated
where he was at that time.
[31] In
the circumstances, I am by no means satisfied that the appellants
made out a case that they were not flight risks, let alone
a case
that there was an exceptionally good chance that they would stand
trial. I am also by no means satisfied that they would
suffer
exceptional prejudice were they to remain in custody.
[32] I am accordingly not persuaded that the
magistrate was wrong in concluding that no exceptional circumstances
had been proved.
[33] In the
circumstances, the appeals of both appellants are dismissed.
___________________________
A.J. RALL, AJ
Date of
Hearing: 22 October 2009
Date of
Judgment: 19 November 2009
Appearances
For Appellant
: L. Barnard
Instructed
by Ngubane Wills Inc.
For
Respondent : N. Dunywa