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[2024] ZAECBHC 13
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Mani and Others v S (CA & R 22/2024) [2024] ZAECBHC 13 (6 June 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, BHISHO)
CASE
NO. CA & R 22/2024
In
the matter between:
AYABONGA
MANI
First
Appellant
LIVOKUHLE
VENA
Second
Appellant
ZIPHOZIHLE
NASE
Third
Appellant
QHAVELILE
NASE
Fourth
Appellant
NTUNZI
GXOWA
Fifth
Appellant
and
THE
STATE
Respondent
BAIL
APPEAL JUDGMENT
COLLETT
AJ:
Introduction
[1]
This appeal is brought pursuant to the Magistrate at the Alice
Magistrate’s Court
refusing the appellants to be admitted to
bail.
[2]
The appellants are charged with the crime of robbery with aggravating
circumstances as enunciated
in
section 1
of the
Criminal
Procedure Act 51 of 1977
(hereinafter referred to as the ‘
CPA
’),
attempted murder of Constables Mitchell and Blaauw, unlawful
possession of a firearm and possession of stolen property.
[3]
The appellants brought a formal bail application, and the proceedings
were adjudicated on
the strength of affidavits filed by all
appellants supplemented by the
viva voce
evidence of second
and fifth appellants and the opposing evidence of the investigating
officer, Sergeant Mpitimpiti on behalf of
the state.
[4]
It is common cause that the appellants are charged with offences
listed in
Schedule 6
of the CPA. Accordingly, the onus rested
upon the appellants at the bail hearing to establish
exceptional
circumstances
which would render it in
the interests of
justice
for them to be released on bail.
[5]
The appellants are required to not merely regurgitate their personal
circumstances in a
hope that these will morph into exceptional
circumstances or to simply deny that they will act as described in
section
60(4) (a)
to
(d)
of
the
CPA.
[1]
[6]
Section 65 (4)
of the CPA provides that:
“
The
court or judge hearing an 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.
”
[7]
The powers of the appeal court are limited, and the court must be
persuaded that the Magistrate
wrongly exercised her discretion. Even
if the appeal court shares a different view, it cannot substitute its
own view for that
of the Magistrate as that would be tantamount to an
unfair interference with the Magistrate’s discretion. The
overriding
consideration is whether the Magistrate exercised her
discretion wrongly.
[2]
[8]
The Magistrate must have misdirected herself in some material manner
in relation to either
fact or law and, in event of this being
established, the appeal court can consider whether bail ought to have
been refused or granted.
In the absence hereof, the appeal must
fail.
[3]
Appellant’
grounds of appeal
[9]
The appellants’ grounds for appeal can be summarized as
follows:
(i)
The Magistrate misdirected herself in
failing to hold that the
ordinary
circumstances
of the appellants
cumulatively constituted
exceptional
circumstances
as envisaged by
section
60(11)
of the
CPA.
(ii)
The Magistrate misdirected herself in
failing to arrive at a decision as to whether the appellants were
likely to evade their trial.
(iii)
The Magistrate made no finding on the
likelihoods
set out in
section 60(4)
(a)
to
(e)
of
the
CPA.
(iv)
The Magistrate erred in holding the view
that in
schedule 6
bail
applications, the appellants were expected to show that there are
chances of acquittal when the case goes to trial.
[10]
The respondent’s response can be summarised as follows:
(i)
The appellants are charged with are
Schedule 6
offences.
(ii)
The onus is upon the appellants to adduce
evidence which satisfies the court that there are
exceptional
circumstances,
and it is in the
interests of justice
to permit their release from custody which they failed to do.
Evidence before the
bail court
[11]
At this juncture, it is necessary to summarize the evidence placed
before the court
a quo
by the appellants in a bid to satisfy
the requirement of
exceptional circumstances
.
[12]
The first appellant submitted an affidavit in support of his
application. He is 22 years old, unmarried,
has no children and is
unemployed. He has no previous convictions or pending cases. He
resides and has resided at N[…] Street,
NU9, Motherwell,
Gqeberha since birth.
[13]
The second appellant submitted an affidavit in support of his
application. He is 24 years old, unmarried
and has one child. He has
no previous convictions or pending cases. He resides and has resided
at 2[…] M[…] Street,
Zinyoka, Missionvlei, Gqeberha
since birth.
[14]
The third appellant submitted an affidavit and
viva voce
evidence
in support of his application. He is 23 years old, unmarried, has no
children and is not permanently employed. He assists
his father in
the family business and earns R 500.00 to R 1000.00 per month. He has
a pending case where he is charged with hijacking,
possession of
stolen property and possession of a firearm and ammunition. He
resides at 6[…] M[…] Street, NU9, Motherwell,
Gqeberha.
[15]
The fourth applicant submitted an affidavit in support of his
application. He is 23 years old, unmarried,
has no children and not
permanently employed. He assists in the family business and earns R
500.00 to R 1000.00 per month. He has
no pending cases or previous
convictions. He resides at 6[...] M[…] Street, NU9,
Motherwell, Gqeberha.
[16]
The fifth appellant submitted an affidavit and gave
viva voce
evidence in support of his application. He is 22 years old,
unemployed, unmarried and has no children. He has no previous
convictions
or pending cases. He resides at 4[…] N[…]
Street, NU9, Motherwell, Gqeberha.
[17]
The respondent led the evidence of Sergeant Andile Mpitimpiti, an
investigating officer, stationed
at East London Serious and Violent
Crime who had 19 years’ experience as a police officer. His
evidence is described briefly
as follows:
(i)
All five appellants were known to
Mpitimpiti, and he confirmed that third appellant had a pending case
of hijacking, possession
of stolen property and possession of a
firearm and ammunition. The remaining appellants had no pending cases
or previous convictions.
(ii)
He opposed the release of all the
appellants on bail regarding them as dangerous and a flight risk. He
testified that they failed
to stop at a highway patrol in Cookhouse
and were pursued by the police. During the pursuit, one of the
appellants seated on the
back seat was shooting at the police.
(iii)
A robbery of cash and cell phones occurred
at Ackermans. A person recorded the license plate of the vehicle
involved in the robbery,
which was circulated to the police. The
vehicle in question (and in which the appellants were found) had been
hijacked at Ikamvehlihle
on 24 November 2023.
(iv)
Except for fifth appellant who managed to
flee the scene of arrest, all the appellants were arrested in the car
which had been pursued
by the police. The police found two firearms
and a bag of cell phones which were identified as the property of
Ackermans by its
manager.
(v)
Fifth appellant was apprehended by the
police the following day after having been pursued, located and
recognised by the police.
(vi)
He further testified that third appellant
committed the present case whilst on bail in a pending case. In
addition, second appellant
initially provided an incorrect address to
the police.
(vii)
He testified that crimes of this nature are
prevalent in the area and, particularly the victims in the Ackermans
robbery were severely
traumatised by the event.
(viii)
The appellants were linked to the alleged
offences by the vehicle, firearms and property found in their
possession on arrest. The
fifth appellant was recognised by the
police as having fled the previous day and thus arrested.
Analysis of the
refusal of bail by the magistrate
[18]
What remains is an analysis of the reasoning advanced by the
Magistrate in arriving at the decision
to refuse bail, mindful of the
misdirections submitted by the appellants.
[19]
The Magistrate, in referring and dealing individually with the
evidence presented by the appellants,
concluded that the personal
circumstances of the appellants did not constitute
exceptional
circumstances
for the purposes of
section
60(11)(a)
as
they were commonplace.
[4]
This
is in accordance with the approach adopted by our courts.
[20]
The Magistrate further considered the fact that second and fourth
appellants had children in terms
of the
Constitution
[5]
and
the best interests of the child referring to
S
v Pietersen.
[6]
She concluded that in this instance the court had to
weigh up the best interests of the child with the interests of
justice and public interest.
[21]
The Magistrate further referred to the constant assertion by the
appellants’ legal representative’s
that the ‘
State
had no strong case and at the end of the trial, the five applicants
would be acquitted’
stating that the only evidence before her was that of appellants’
affidavits other than what she referred to as - ‘
testimony
from the bar by the legal representative’
.
Whilst it was recognised by the Magistrate that proof by an applicant
that he would likely be acquitted could amount to an
exceptional
circumstance,
there
was no such evidence in this matter from the appellants despite that
they carried the burden of proof in terms of the provisions
of
section
60 (11)(a)
of
the
CPA
.
[7]
[22]
The State opposed the bail of the appellants asserting that they were
a danger to the community and
a flight risk. The evidence of the use
of violence both during the alleged robbery and during the pursuit by
the police was correctly
viewed by the Magistrate as violence
translating into danger to the community. The fact that the police
gave chase and that fifth
appellant saw fit to flee, are certainly
indications of flight risk. Just to add to the mix, fifth appellant’s
false identification
of himself to the police and second appellant’s
false address speaks for itself. All these facts were considered by
the Magistrate.
[23]
Lastly, the Magistrate specifically recognised the appellants’
right to freedom in terms of the
Constitution
but concluded
that the appellants had not discharged the onus of showing on a
balance of probabilities that
exceptional circumstances
existed which in the
interests of justice
permitted their
release on bail. The factors submitted by the state vitiated any
prejudice the appellants may suffer due to their
continued
incarceration.
Evaluation of the
appeal
[24]
I do not propose to embark on a re-evaluation of the evidence,
submissions and reasons of the court
a quo
but rather to
highlight the issues that are of relevance in considering whether
this appeal should succeed.
[25] The
appellants’ counsel strenuously argued that the Magistrate
misdirected herself in not considering
that the personal
circumstances taken cumulatively, did not amount to
exceptional
circumstances
because she did not ‘
tie them up’.
He further submitted that she did not deal with them at all. He
persisted with submissions relating to the strength of the State’s
case despite the lack of evidence advanced by the appellants during
the bail proceedings.
[26]
He further submitted that the Magistrate misdirected herself in
concluding that the appellants’
conduct prior to arrest in
fleeing from the police was indicative of them being a flight risk
and that this factor could in any
event be alleviated by bail
conditions such as placing the appellants under house arrest which
the Magistrate failed to consider.
[27]
His further submission that there was no indication of violence
because only one occupant in the vehicle
was the shooter and the
firearms found have not been proven to be firearms, is somewhat
novel, to say the least, given the evidence
of the investigating
officer. Furthermore, it was submitted that despite the appellants
being found in the vehicle that had been
identified at the scene of
the Ackermans robbery, this did not mean that they were involved as
there was a lapse of two hours and,
by implication, that this
violence could not be considered.
[28]
As a somewhat surprising final submission, whilst quoting from the
Constitution,
regarding the appellants’ rights to
freedom and equality, counsel for the appellants submitted that the
appellants seem to
have been denied bail because they are from poor
backgrounds.
[29]
Counsel for the state persisted with his submission of the
two-pronged approach to be adopted in accordance
with
section
60(11)(a)
of the
CPA
stating that the enquiry was firstly
into
exceptional circumstances
and that should these be found
to exist, the consideration would be
the interests of justice
.
He submitted that the appellants bore the onus in this regard, and
they had failed to establish the
exceptional circumstances.
[30]
He expanded his submission on
the interests of justice
with
reference to the pre-arrest conduct of the appellants which he
contended was indicative of them being both a flight risk and
dangerous. Regarding the imposition of bail conditions to address
these fears, he referred to the circumstances of third appellant
who
was on bail for similar offences when these offences occurred,
indicating that bail conditions are not necessarily useful in
this
regard. Accordingly, he submitted that the Magistrate did not
misdirect herself and produced a well-reasoned judgment in refusing
bail.
[31]
A formal onus rested on the appellants to satisfy
the court and adduce evidence in terms of
section
60(11)(a)
as the evidential burden was upon the appellants.
[8]
In assessing
section
60(11)(a),
the magistrate concluded that it was double pronged encompassing the
exceptional circumstances and the interests of justice. The
Magistrate was mindful of the appellants’ right to liberty as
enshrined in the
Constitution.
[9]
[32]
In the final analysis, the court
a quo
concluded that the
appellants had failed to discharge the onus of demonstrating the
existence of exceptional circumstances which
were in the interests of
justice, thus permitting their release on bail.
[33]
The evidence presented at the bail hearing clearly demonstrates a
prima facie
case against the appellants and the Magistrate was
correctly mindful of the salient features of violence, the
appellants’
attempts to evade arrest and the prevalence of the
crime in the area.
[34]
The Magistrate’s judgment contains a full and appropriate
discussion of the nature and onus that
rested upon the appellants who
are charged with
Schedule 6
offences with reference to several
relevant authorities in substantiation thereof.
[35]
I consider it necessary to address the contention of appellants’
counsel that for some sinister
reason the appellants were denied bail
because of their impoverished circumstances. Not only is there no
indication whatsoever
that this factor was under consideration by the
Magistrate, but it certainly falls foul of the constitutional
prescripts of our
democratic society. The constitutional right to
liberty is all encompassing and is not dependent upon the wealth or
poverty of
a person. The limitation thereto as contained in
section
60(11)(a)
casts the same onus on all persons to which it is
applicable. To hold otherwise would be a constitutional travesty as
all persons
are equal before the law.
[36]
Both legal representatives accepted that in the absence of a material
misdirection or error on the
part of the magistrate, having the
effect that the decision to refuse bail was incorrectly taken, this
appeal cannot succeed.
[10]
[37]
I am satisfied that the Magistrate adequately considered all the
factors which are ordinarily considered,
in conjunction with those
advanced by the appellants in accordance with the statutory
prescripts.
Conclusion
[38]
On the totality of the evidence that was presented, the court
a
quo
concluded that the appellants had not discharged the onus to
establish, on a balance of probabilities, that
exceptional
circumstances
existed which, in the
interests of justice
permitted the appellants to be release on bail.
[39]
Moreover, there is nothing to suggest that there was any misdirection
or error at instance of the Magistrate
in refusing to release the
appellants on bail. Accordingly, there are no grounds upon which this
court can interfere with the decision
of the court
a quo.
[40]
I therefore make the following order:
1.
The appeal is dismissed.
S
A COLLETT
ACTING
JUDGE OF THE HIGH COURT
APPEARANCES:
For
the Appellants
Mr C.
Jacobs
3
rd
Floor, Africa House
6
Graham Street, North End
Port
Elizabeth
For
the Respondent
Mr
Gula
Instructed
by
Office
of the Director of Public
Prosecutions,
Bhisho
Date
heard
5
June 2024
Date
judgment delivered
6
June 2024
[1]
Mthombeni
v S
(CA&R
55/23)
[2023] ZANCHC 96
(8 December 2023)
[2]
S v
Barber
1979
(4) SA 218
at 220 E–H.
[3]
S
v Ali
2011(1) SACR 34 (E);
S
v M
2007 (2) SACR 133
(E);
S
v Porthen and Others
2004 (2) SACR 242 (C).
[4]
S
v Scott-Crossley
2007 (2) SACR 470
(SCA) para [12].
[5]
Act
108 of 1996 sections 28 & 36
[6]
2008(2)
SACR 355
[7]
S
v Mazibuko and Another
2010 SACR 433
(KZN) para [23].
[8]
Skietekat
v S
[1999] ZACC 8
;
1999 (2) SACR 51
(CC) at p 84.
[9]
108 of 1996.
[10]
S
v Barber supra
,
S v
Porthen and Others supra
.