About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Bhisho
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Bhisho
>>
2024
>>
[2024] ZAECBHC 14
|
|
Burwana v S (CA & R 82/2024) [2024] ZAECBHC 14 (7 June 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, BHISHO)
CASE
NO. CA & R 28/2024
In
the matter between:
MZIWEBONGO
BURWANA
Appellant
and
THE
STATE
Respondent
BAIL
APPEAL JUDGMENT
COLLETT
AJ:
Introduction
[1]
This appeal is brought pursuant to the Magistrate at Mdantsane
Magistrate’s Court
refusing the appellant to be admitted to
bail.
[2]
The appellant is charged with public violence, 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, unlawful possession
of a firearm and ammunition.
[3]
The appellant brought a formal bail application, and the proceedings
were adjudicated on
the strength of an affidavits filed by the
appellant and the
viva voce
evidence of the investigating
officer, Warrant Officer Maka on behalf of the state.
[4]
It is common cause that the appellant is charged with offences listed
in
Schedule 6
of the
CPA
. Accordingly, the onus rests
upon the appellant at the bail hearing to establish
exceptional
circumstances
which would render it in the
interests of
justice
for him to be released on bail.
[5]
The appellant is required to not merely regurgitate his personal
circumstances in a hope
that these will morph into exceptional
circumstances and to deny that he 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 his 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 his
discretion wrongly.
[2]
[8]
The Magistrate must have misdirected himself 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’s
grounds of appeal
[9]
The appellant’s grounds for appeal can be summarized as
follows:
(i)
The Magistrate misdirected himself in
failing to hold that the ‘
ordinary
circumstances’
of the appellant
cumulatively constituted exceptional circumstances as envisaged by
section 60(11(a)
of
the
CPA.
(ii)
The Magistrate erred in holding that the
bail application was in terms of
schedule
6
of the
CPA
and/or that exceptional circumstances
in terms of
section 60(11)(a)
were
not established notwithstanding that:
a.
no evidence was presented that the appellant will endanger the
life
of the public or a particular person; and
b.
no evidence was presented which could indicate a likelihood that
the
appellant, if released on bail, would attempt to evade standing
trial, and
c.
no evidence was presented which could indicate a likelihood
that the
appellant, if released on bail, would interfere with witnesses or
evidence, and
d.
no evidence was presented which could indicate a likelihood
that the
appellant, if released on bail, would commit
Schedule 1
offences, or would endanger the public, and
e.
no evidence was presented which could indicate that the appellant’s
release on bail would disturb the public order or undermine public
peace or security
(iii)
The Magistrate misdirected himself in not
making findings pertaining to 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 appellant was 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 appellant is charged with are
Schedule
6
offences.
(ii)
The onus is upon the appellant to adduce
evidence which satisfies the court that there are
exceptional
circumstances
in the
interests
of justice
that permit his release from
custody which he failed to do.
(iii)
There is a likelihood that the appellant’s
release on bail will undermine the criminal justice system.
(iv)
There is a likelihood that the appellant
will not stand trial as the police were looking for him and could not
establish his whereabouts
prior to ultimately arresting him.
(v)
There is a likelihood that he or people
acting on his behalf may interfere with witnesses.
Evidence before the
court a quo
[11]
At this juncture, it is necessary to summarize the evidence placed
before the court
a quo
in a bid to satisfy the requirement of
exceptional circumstances
by the appellants.
[12]
The Appellant submitted an affidavit in support of his bail
application. He is a 47-year-old
South African citizen with no
travel documentation. He was born and bred in Cathcart, where
he has a fixed address.
He is currently employed as a security
officer in Cathcart. He is married with children and has an
84-year-old mother.
He owns both moveable and immovable
property. He has no previous convictions or pending cases.
He intends to plead
not guilty at trial.
[13]
He stated that he will not endanger the safety of the public or any
person or commit an offence if
released on bail. He will also
not influence or intimidate any person or destroy evidence. He
further stated that he
would not undermine the proper functioning of
the criminal justice system or disturb public order.
[14]
He stated that the state’s case is weak, questionable or open
to doubt and that there is a real
possibility that he will be
acquitted. He presented
viva voce
evidence about what occurred
on the day in question. He testified that he was chairperson of
SANCO.
[15]
Warrant Officer Maka presented evidence on behalf of the state.
He testified that the police
attempted in vain to arrest the
appellant prior to 26 February 2024 until they deceived him into
coming to the charge office with
his attorney.
[16]
He stated that if the appellant is admitted on bail, he and his
followers will pose a danger to the
witnesses, some of whom reside in
the area where the appellant lives. He stated further that as
the appellant stole a police
firearm is thus capable of anything.
[17]
The farmers’ association directed a letter indicating their
concerns because of the unrest in
Cathcart that blocked the N6 route
and interfered with their business.
[18]
He testified that the appellant is known to him. The police
attended a complaint of burning of
trucks and stones being pelted
next to the Caltex garage in Cathcart. They tried to remove the
people by shooting rubber
bullets. People tried to run away,
and the police chased after them. During this incident the
appellant managed to
grab the complainant’s firearm and a
struggle ensued between them during which time the complainant was
overpowered, fell
down and stones were hurled at him.
[19]
The disruption continued, and the police again fired rubber bullets.
The appellant was hit on
the shoulder and tried to discharge the
firearm, but it was locked - but for this, the appellant may have
shot the complainant.
He then ran away.
[20]
Warrant Officer Maka testified that the applicant is the one who
incited the violence using the community
and the damage caused cost
more than a billion rand. He is thus a danger to the safety of
the people. He and his followers
are a danger to witnesses.
The appellant tried to evade arrest.
[21]
When the appellant had his first appearance at court, there was havoc
which caused the prosecutor to
withdraw and the magistrate to recuse
himself. The people blocked the entrance to the police
station. There was toyi-toying
in front of the magistrate’s
court with people saying that their leader cannot be incarcerated.
Accordingly, he testified
that public peace will be undermined if the
appellant is released on bail.
Analysis of the
refusal of bail by the magistrate
[22]
As the Magistrate’s reasoning is pivotal to the determination
whether this court should set aside
the decision, it is necessary to
analyse same, mindful of the alleged misdirections advanced by the
appellant.
[23]
The Magistrate considered the submissions made on behalf of the
appellant that there was no identification
parade and concluded that
as the appellant and the complainant knew each other and the
appellant indeed placed himself at the scene,
this rendered the
further identification unnecessary.
[24]
Regarding the appellant’s protestations that the state’s
case against him was weak and
that he was likely to be acquitted, the
Magistrate reasoned that the appellant had a duty to demonstrate the
weakness and the mere
assertion was not sufficient to be regarded as
an
exceptional circumstance.
[25]
The grounds advanced by the appellant as
exceptional circumstances
relating to the appalling conditions in the prison, the length of
time he had been there and his inability to earn an income before
the
trial were rejected by the Magistrate as not being exceptional.
[26]
The Magistrate requested the parties to address him on
Section
60(4)
of the CPA relating to the likelihood of endangering the
safety or committing a
Schedule 1
offence inclusive of the
maintenance of law and order and public safety which would be a valid
ground for refusing bail.
The appellant’s legal
representative declined to address this issue.
[27]
The Magistrate highlighted the evidence led regarding the blocking
and disruption at court, the barricading
of the N6 and concluded that
this referred to endangering the maintenance of law and order.
[28]
Regarding
Section 60(4)(b)
the magistrate reasoned the fact
that the appellant, supposedly afraid of POPS members, did not report
to the police when summoned
is an admission that he avoided the
police and there is no evidence why he could not have attended
earlier with his attorney.
This translates into evading the
law.
[29]
The Magistrate considered that the likelihood of the criminal justice
system being undermined had already
been demonstrated by the
community having closed the court at the appellant’s first
appearance, consequent hereto the matter
had to be moved from
Cathcart to another district – this was not disputed under
cross examination. This the Magistrate
reasoned fell with the
ambit of
Section 60(4)(d).
[30]
In considering
section
60(4)(e),
the Magistrate relating to the release of the appellant and the
likelihood of disturbing public order or undermining public peace
or
security, the Magistrate concluded that the barricading of roads, the
recusal of the magistrate, and the withdrawal of prosecutors
fearing
for their lives demonstrated this likelihood. In addition, the
Magistrate referred to the numerous cases that had
been opened since
the unrest had commenced. The magistrate referred to
S
v Miselo
[4]
in
support of his reasoning.
[31]
Accordingly the Magistrate concluded that the appellant failed to
prove the existence of
exceptional circumstances
or to show
that his release on bail would be in the
interests of justice.
Evaluation of the
Appeal
[32]
I do not propose to embark on a re-evaluation of the evidence,
submissions and reasoning of the court
a quo
except insofar as
the issues may impact or be of relevance in considering whether this
appeal should succeed.
[33]
The purpose of a bail application is to decide whether the interests
of justice permit the release
of an accused on bail pending the
trial. Whilst the possible guilt of an accused may inform the
interests
of justice
to a certain extent, the bail enquiry is not a pre-hearing of the
trial to follow.
[5]
[34]
A formal onus rested on the appellant to satisfy the court and adduce
evidence in terms of
section
60(11)(a)
as
the evidential burden was upon the appellant.
[6]
In assessing
section
60(11)(a),
the Magistrate concluded that it was double pronged encompassing the
exceptional
circumstances
and the
interests
of justice
.
This position was accepted by both counsel during their submissions
on appeal.
[35]
The Magistrate, in considering whether
exceptional circumstances
existed in accordance with
section 60(11)(a),
considered
and discounted the issue of the identification parade, that the
appellant denied being involved in the offences, the
strength of the
state’s case, the conditions in prison and the length of time
that he had already been incarcerated.
[36]
Despite the fact that the Magistrate in addition raised the issue
that the appellant was being financially
prejudiced as he could not
earn an income and that he was compromised in his preparation for
trial, he made no finding in this
regard. Regrettably, the Magistrate
failed to consider any of the further factors that the appellant
placed before the court in
a bid to establish
exceptional
circumstances.
Whilst
I am mindful of the submission made by counsel for the state that
there is no such thing as a perfect judgment,
[7]
I am not comforted by the submission made by counsel that the
Magistrate had received the evidence from the appellant,
had been
addressed by counsel regarding the facts placed before the bail court
but found that that the appellant failed to adduce
exceptional
circumstances
to
show that his release on bail will be in the
interests
of justice
.
[37]
In reality, the Magistrate demonstrates nowhere in his judgment that
he considered the other factors
either individually or cumulatively
and made a value judgment thereon as to whether they should or could
be considered as
exceptional circumstances.
[38]
Thereafter, the Magistrate turned his attention to
section
60(4)(a), (b), (d) and (e).
It deserves mention that the
Magistrate invited the appellant’s legal representative to make
submissions regarding
section 60(4),
but the latter declined
to so which is most unfortunate and unbecoming conduct of an officer
of this court. Nonetheless, it is incumbent
upon this court to assess
the reasoning of the Magistrate in this regard.
[39]
It is trite that
exceptional circumstances
found to exist must
be balanced with the
interests of justice.
The Magistrate
embarked upon a consideration of the
section 60(4)(a).
He
turned his attention to the evidence that had been presented, in
summary, that there had been extreme disruption outside the
court
when the appellant had appeared, that the proceedings had been moved
to different courts due to this, that withdrawal of
the prosecutors
and recusal of the Magistrate from the matter and then commented,
without further reasoning or conclusion:
‘
Now
the question is, does that do not talk to endangering the maintenance
of law and order or public safety?’
[40]
The Magistrate continued with the reference to the activities of the
public in considering
section 60(4)(d) and (e)
and
particularly regarding the latter, again posed a question:
‘
With
what has been testified on, the events that has unfolded the
barricading of roads, the recusal of the Magistrate, the withdrawal
of prosecutors, because they are fearing for their lives, can we then
say there is no likelihood of that?’
[41]
The Magistrate thereafter referred to
S
v Miselo
in
considering the evidence in this matter. The Constitutional Court in
S
v Dlamini etc
[8]
emphasised the need for a cautious approach and highlighted the
limited field of application in refusing bail on account of the
provisions of
section
60(4)(e)
and
(8A).
T
his
clearly postulates the need for
exceptional
circumstances
in
this regard which is indicative that the application of these
sections should be limited to rare cases where the circumstances
are
justified. Furthermore, even if such
exceptional
circumstances
are
established in respect hereof, they must be weighed against the
section
60(9)
before
a decision to refuse bail is taken.
[42]
The Magistrate was enjoined in considering the
interests
of justice
in
terms of
section
60(4)
not
to unduly elevate their significance but to consider them in
conjunction with the factors contained in
section
60(9).
A
failure to do so conflicts with the jealously guarded right to
freedom as entrenched in our
Constitution.
[9]
Moreover,
it remains necessary for the court to enquire as to whether the
‘
likelihood’
referred
to in
section
60(4)
exists even if such
exceptional
circumstances
are
found.
[10]
[43]
Firstly, the Magistrate’s reasoning was based on the events
that had unfolded outside the courts
by persons who were clearly
dissatisfied with the arrest and incarceration of the appellant,
drawing inferences from such activity.
There was no objective
evidence to suggest that such conduct would persist should the
appellant be released on bail and, in fact
the converse would
probably result. The Magistrate’s finding in this regard is
speculative and untenable. A further significant
salient fact is that
the appellant was not the author of these activities and to impute
such conduct on him in a bid to deny him
the right to freedom surely
vitiates the spirit and objectives of our
Constitution.
Regrettably,
the Magistrate appears to have paid lip service to the statutory
provisions which is not in accordance with justice.
[11]
This is clearly a misdirection.
[44]
Furthermore, the Magistrate misdirected himself in failing to weigh
the considerations in
section 60(9)
despite there having been
evidence from the appellant on various of the enumerated factors and
other factors presented which should
have been considered. This is a
further misdirection by the Magistrate.
Conclusion
[45]
In considering the evidence presented in the court
a
quo
and the reasoning of the
Magistrate, I am of the view that the Magistrate misdirected himself
materially on both the facts and the
law. In these
circumstances,
Section
65(4)
of
the
CPA
empowers
this court to set aside the decision of the Magistrate and give the
decision which the lower court should have given.
[46]
Having
considered the evidence led by
the appellant and the respondent in the court
a
quo,
I am satisfied that the
appellant discharged the onus of establishing
exceptional
circumstances
and that the
interests
of justice
permit his release on
bail. I am further satisfied that the basis of opposition by
the state will be adequately addressed
by the imposition of
appropriate bail conditions. Both counsel submitted that conditions,
such as house arrest would be appropriate
should the appellant be
released on bail and that an amount of R 5000.00 would be
appropriate.
[47]
I therefore make the following order:
1.
The appeal is upheld and the Magistrate’s order refusing
the appellant’s
bail is set aside.
2.
Pending the outcome of the trial, the appellant is granted bail in
the amount
of R 5000.00.
3.
The appellant’s release is subject to the following conditions:
3.1
The appellant must appear in court on each and every date to which
his trial has been remanded.
3.2
The appellant shall report to the Cathcart Police Station once a day
between the hours of
06h00 and 18h00.
3.3
The appellant may not leave the magisterial district of Cathcart
without the written permission
of the investigating officer in this
matter.
3.4
The appellant may not participate in any unlawful gathering and/or
exercise any influence
over any persons at any gathering which will
have the effect of disrupting public peace and order and/or cause
damage to property
and/or the safety of persons.
3.5
The appellant may not incite and/or cause any person to incite or
cause the disturbance
of public tranquillity and/or safety.
3.6
The appellant shall not directly and/or indirectly and/or via a third
party have contact
with any state witnesses.
S
A COLLETT
ACTING
JUDGE OF THE HIGH COURT
APPEARANCES:
For
the Appellants
Mr
Mvinjelwa
Instructed
by
Mongoato
Mavuso & Associates
East
London
For
the Respondent
Mr
Gula
Instructed
by
Office
of the Director of Public
Prosecutions,
Bhisho
Date
heard
6
June 2024
Date
judgment delivered
7
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]
2002(1) SACR 649
[5]
S
v M
(CCT
53/06) [2007] ZACC 18
[6]
Skietekat
v S
[1999] ZACC 8
;
1999 (2) SACR 51
(CC) at p 84
[7]
Barendse
and Another v S
(A01/2023)
[2023] ZAWCHC 125
(22 May 2023) para 21
[8]
(CCT 21/98; CCT 22/98; CCT 2/99; CCT 4/99)
[1999] ZACC 8
at
[57]
[9]
Act
108 of 1996 section 35(1)(f)
[10]
S
v Mohammed
1999(2)
SACR 507 (C)
[11]
S
v Nel & Others
2018(1)
SACR 576 (GJ)