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2024
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[2024] ZAECMHC 27
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Gombe v S (CA&R06/2024) [2024] ZAECMHC 27 (2 May 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MTHATHA)
CASE
NO.:
CA&R 06/2024
In the matter between: -
MOSES LOVELADGE
GOMBE
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
Monakali
AJ
:
Introduction
[1] This is an
appeal against the refusal of bail by a Magistrate in the District of
Mthatha. The appellant was arrested on
20 September 2023 for
allegedly having committed robbery with aggravating circumstances.
Aggrieved by the refusal of bail, he approached
this court in terms
of section 65 (1) of the Criminal Procedure Act 51 0f 1977.
[2] The appellant
was legally represented in the court
a quo
. He tendered oral
evidence, which set out his personal circumstances. In opposition to
his bail application, the state led the
evidence of the Investigating
Officer.
Factual Background
[3] It is alleged
that on 25 March 2023, between 22h00 and 02h00, the appellant and
four others, acting in common purpose
with one another, robbed an
electricity equipment warehouse in Boziza Location, at Mthatha. They
accosted the security guards at
gunpoint and disarmed one guard of
his firearm. They forced the security guards to load the material
from the warehouse onto their
bakkies. At some stage during the
robbery, the guards were bound with cable ties. One of the guards
managed to untie himself
and his colleagues. They then called the
police. The police recovered all the material stolen from the
warehouse and a cell
phone which the robbers stole from one of the
guards. The faces of the robbers were not covered when they robbed
the security guards.
The security guards placed the appellant on the
scene and identified him as one of the robbers. The appellant pleads
alibi
to the charge.
The findings of the
court
a quo
[4] The Magistrate
in the court
a quo
found that:
(a)
There is a
prima
facie
case against the accused.
(b)
The community is outraged because the
appellant stole material that was meant for electricity in their
homes.
(c)
The appellant is a flight risk, he has no
fixed property, and he can easily move from his rented house to
another place.
(d)
The witnesses for the prosecution will not
be safe, and
(e)
There are no exceptional circumstances
which permit the release of the appellant in the interests of
justice.
Grounds of Appeal
[5]
The appellant submits that the Magistrate erred in reaching the
following findings, namely, that:
a)
The appellant has failed to establish
exceptional circumstances, which in the interest of justice permit
his release.
b)
The appellant’s personal
circumstances do not constitute exceptional circumstances.
c)
There is a strong case against the
appellant.
d)
The appellant is a flight risk and will
evade trial and,
e)
The witnesses would be in danger, should he
be released on bail.
Submissions by the
parties
[6]
The Appellant contends that the court
a quo
erred by not
considering the following factors, which, in his view constitute
exceptional circumstances:
a)
The appellant is a 31-year-old Zimbabwean
citizen and was awaiting the determination of his asylum seeker
permit,
b)
The best interest of his minor children are
paramount and he is their primary caregiver,
c)
His parents in Zimbabwe, and his wife, all
depend on him financially for their medication.
d)
He suffers from an ulcer; the food at
Correctional Centre is spicy and is not good for his health
condition.
e)
He is a breadwinner at home.
f)
The state case against him is weak.
g)
The above factors cumulatively viewed, are
exceptional and in the interest of justice permit his release,
pending the finalization
of his trial.
[7]
The respondent submits that the appellant has failed to discharge the
onus of establishing that exceptional circumstances exist
which in
the interest of justice permit his release on bail. The court
a
quo
properly exercised its discretion in refusing to grant bail.
The illness of the appellant with other factors, cumulatively taken,
does not establish exceptional circumstances. The fact that the best
interests of the children are paramount does not mean they
are
absolute. Like all other rights in the Bill of Rights, their
operation has to take account of their relationship with other
rights, which require their ambit to be limited.
Applicable Legal
Principles
[8]
An appeal against an order refusing bail is lodged within the purview
of
section 65(4)
of the
Criminal Procedure Act 51 of 1977
which
provides as follows:
“
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.”
[9]
The test for interfering with the Magistrate’s judgment is
whether the court
a
quo
materially misdirected itself in relation to facts or the law
[1]
.
It was appositely stated, with respect, in
S
v Barber,
[2]
“
It
is well known that the powers of this Court are largely limited where
the matter comes before it on appeal and not as a substantive
application for bail. This Court has to be persuaded that the
magistrate exercised the discretion which he has wrongly.
Accordingly,
although this Court may have a different view, it should
not substitute its own view for that of the magistrate because that
would
be an unfair interference with the magistrate's exercise of his
discretion. I think it should be stressed that, no matter what this
Court's own views are, the real question is whether it can be said
that the magistrate who had the discretion to grant bail exercised
that discretion wrongly.”
[10]
In the absence of the finding that the Magistrate misdirected him or
herself, the appeal must fail. This approach was endorsed
in cases
such as
S
v Nqumashe
[3]
,
S
v Branco
[4]
and
S
v Porthen and Others
[5]
.
[11]
In
Porthen
[6]
,
however, Binns–Ward AJ expressed the view that interference on
appeal was not confined to misdirection in the exercise of
discretion
in the narrow sense. The court hearing the appeal should be at
liberty to undertake its own analysis of evidence in
considering
whether the appellant has discharged the onus resting upon him or her
in terms of
section 60
(11) (a) of the Act.
Analysis
[12]
The offence allegedly committed by the appellant falls within the
ambit of Schedule 6.
Section 60
(11) (a) of the
Criminal Procedure
Act is
applicable and provides that:
“
(11)
Notwithstanding any provision of this Act, where an accused is
charged with an offence referred to
(a) in
Schedule 6, the court shall order that the accused be detained in
custody until he or she is dealt with in accordance
with the law,
unless the accused, having been given a reasonable opportunity to do
so, adduces evidence which satisfies the court
that exceptional
circumstances exist which in the interests of justice permit his or
her release;”
[13]
The onus rests on the appellant to adduce evidence on balance of
probabilities that exceptional circumstances exist, which in the
interest of justice, permit his release.
[14]
What is required is that the court must consider all relevant factors
and determine whether individually or cumulatively they warrant
a
finding that circumstances of an exceptional nature exist which
justify his or her release. If upon an overall assessment, the
court
is satisfied that circumstances sufficiently out of the ordinary to
be deemed exceptional have been established by the appellant,
consistent with the interest of justice, warrant his release, the
appellant must be granted bail.
[7]
[15]
In
S
v Petersen
[8]
the
court
said:
“
On
the meaning and interpretation of “exceptional circumstances”
in this context, there have been wide-ranging opinions,
from which it
appears that it may be unwise to attempt a definition of this
concept. Generally speaking, “exceptional”
is
indicative of something unusual, extraordinary, remarkable, peculiar
or simply different. There are, of course, varying degrees
of
exceptionality, unusualness, extraordinariness, remarkableness,
peculiarity or difference. This depends on their context and
on the
particular circumstances of the case under consideration”
[16]
Exceptional circumstances must be circumstances which are not found
in an ordinary bail application but pertain peculiarly to an
accused
person’s specific application. What a court is called upon to
do is to examine all the relevant considerations as
wholistically, in
deciding whether an accused person has established something out of
the ordinary or unusual which entitles him
to relief under
section
60.
[9]
[17]
Section 35 (1)(f) of the Constitution acknowledges that persons who
may be arrested and detained for allegedly having committed
offences
are entitled to be released on reasonable conditions if the interests
of justice permit.
[18]
Section 60
(4) of the
Criminal Procedure Act provides
that the
interest of justice does not permit the release from detention of an
accused where one or more of the following grounds
are established:
(a)
where there is a likelihood that the accused if she or he were
released on bail, will endanger the safety of the public, any person
against whom the offence in question was allegedly committed, or any
other particular person or will commit a schedule 1 offence.
(b)
where there is a likelihood that the accused if he or she were
released on bail, will attempt to evade his or her trial or
(c)
where there is the likelihood that the accused, if he or she were
released on bail, will undermine or jeopardise the objectives
or the
proper functioning of the criminal justice system including the bail
system.
(d)
where there is a 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
(e)
Where in exceptional circumstances there is a likelihood that the
release of the accused will disturb the public order or undermine
the
public peace or security.
[19]
It is correct that bail appeals should be dealt with through the
legal prism of the Constitution. In
Mafe
v S
[10]
,
Lekhuleni J said the following regarding the presumption of
innocence:
“
In
summary, the presumption of innocence is one of the factors that must
be considered together with the strength of the State’s
case.
However, this right does not automatically entitle an accused person
to be released on bail. What is expected is that in
Schedule 6
offences the accused must be given an opportunity, in terms of
section 60(11)(
a
), to present evidence to prove that there are
exceptional circumstances which, in the interests of justice, permit
his release.
The State, on the other hand, must show that,
notwithstanding the accused’s presumption of innocence, it has
a
prima facie
case against the accused. In reaching
a value judgment in bail applications, the court must weigh up the
liberty interest of an
accused person, who is presumed innocent,
against the legitimate interests of society. In doing so, the court
must not over-emphasise
this right at the expense of the interests of
society.”
[20]
In
S
v Dlamini
[11]
,
the Constitutional Court unanimously decided that the right to be
presumed innocent is not pre-trial right but a trial right.
According
to the evidence of the Investigation Officer, the security guards
placed the appellant on the scene. Therefore,
it cannot be said
that the Magistrate misdirected himself.
[21]
When the accused is able to adduce evidence that the case against him
is non-existent or subject to serious doubt, that constitutes
exceptional circumstances. The appellant has proffered an alibi as
his defence. The Investigating Officer testified that the witnesses
managed to identify the appellant as one of the robbers as his face
was not covered. It is further alleged that the robbery continued
for
approximately six hours. In S
v
Mathebula
[12]
,
the Supreme Court of Appeal set out the test in relation to an attack
on the strength of the state’s case as follows:
“
But
a State case supposed in advance to be frail may nevertheless sustain
proof beyond a reasonable doubt when put to the test.
In order
successfully to challenge the merits of such a case in bail
proceedings an applicant needs to go further: he must prove
on a
balance of probability that he will be acquitted of the charge”.
[22]
It cannot be found that the state case in relation to the alibi
defence is non-existent or weak. The appellant has not been able
to
show that he will be acquitted. I cannot find fault with the
court
a quo
’s evaluation.
[23]
However, I find that it is highly improbable that the appellant would
interfere or intimidate witnesses. There is no evidence that
the
appellant threatened the witness or did attempt to influence them. In
my view, the Magistrate erred in in finding that the
appellant will
interfere with witnesses.
[24]
The appellant arrived in South Africa in 2021 for economic reasons,
or to secure employment. He was not persecuted in his homeland
or
fled to South Africa to save his life. He had stayed in South Africa
for more than 10 years without seeking asylum. He failed
to apply for
the asylum seeker permit upon his arrival. There is no satisfactory
explanation as to why he remained with no valid
documents. In 2017 he
was convicted in terms of section 49 (1) of the Immigration Act and
in 2021 his passport also expired. He
is not detained for purpose of
deportation nor has he expressed his intention to seek asylum permit
while waiting to be deportation.
It cannot be said that the
status of the appellant constitute exceptional as argued. The
appellant has no valid documentation.
[25]
In my view the case of
Ashebo
v Minister of Home Affairs
[13]
which the court
a
quo
referred to, is distinguishable from this case. In
Ashebo
the issue was about the lawfulness of detention in terms of section
34 of the Immigration Act, once an intention to apply for asylum
has
been expressed.
[26]
The appellant has conceded that he has access to adequate treatment
where he is detained. There is no evidence that a request was
made
for a special diet and was refused by Correctional Officers. His
health condition cannot be considered in isolation.
[27]
The appellant testified that his family solely depends on him
financially. His business was still in the process of having all
the
valid documents. It is not yet lawfully registered. It is evidence
that his income is not stable; sometimes he can stay for
a period of
three to four months without any work to do. Therefore, there is no
proof that his business interests will be financially
prejudiced by
his continued detention.
[28]
The interests of minor children were dealt with in S v Petersen
[14]
where it was held that:
“
When,
as in the present case, the special circumstances relied on by the
accused include the constitutionally protected interests
of a minor
child, this court must, in terms of s 28(1)
(b)
of the
Constitution, take cognisance of the child's right 'to family care or
parental care, or to appropriate alternative
care when removed from
the family environment'. Inasmuch as a decision in regard to the
appellant's bail application and subsequent
appeal to this court
will, of necessity, impact upon a child, it may not be lost from
sight that the child's best interests are,
in terms of s 28(2) of the
Constitution, paramount. This does not, of course, mean that such
interests will simply override all
other legitimate interests, such
as the interests of justice or the public interest. It must, however,
always be taken into consideration
as a relevant factor and a general
guideline in assessing such competing rights.”
[29]
I am not convinced that the minor children are or will be destitute.
They are in the care of their mother. They still enjoy their
right to
family, family care or parental care. The mother was not defined as
unemployable.
[30]
In the circumstances set above, I am convinced that the appellant’s
personal circumstances are not in any way exceptional.
I cannot find
that the decision of the court a quo was wrong.
Order
[31]
In the result, I make the following order:
1.
The appeal is dismissed.
MONAKALI
ACTING
JUDGE OF THE HIGH COURT EASTERN CAPE DIVISION
APPEARANCES:
Counsel for the
Appellant
Adv.
Tyengulana
Instructed
by
Robert Lubowa Incorporated
No 22
Blakeway Street
Mthatha
Tel:
047 531 6600
Counsel for the
Respondent
Adv. T Dease
Office
of the DPP
94
Lower Sission Street
Fortgale,
Mthatha
Tel:
047 501 2665
Email:
TDease@npa.gov.za
Date
Heard
19 April 2024
Date
delivered
02 May 2024
[1]
Panayotou
v S [CA&R 06/2015] ZAECGHC 73(28 July 2015) at para [26] –[27].
[2]
S
v Barber
1979 (4) SA 218
(D) at 220 E- H
[3]
2001
(2) SACR 310
(NC) at para 20.
[4]
2002
(1) SACR 531
(W) at 533j.
[5]
2004
(2) SACR 242
(C) at para [3] – [7].
[6]
Supra
n
5 at para 16.
[7]
S
v Bruitjies
2003 (2) SACR 575
(SCA) at 577.
[8]
2008 (2) SACR 355
(C) at para 55.
[9]
S
v H
1999 (1) SACR 72
(W) at 77E- F.
[10]
Mafe v S (A49/22)
[2022] ZAWCHC 108
(31 May 2022) At para [143] (in
a dissenting judgment).
[11]
1999
(2) SACR 51 (CC)
[1999] ZACC 8
; ,
(1999 (4) SA 623
; see also S v Mbaleki
and another
2013 (1) SACR 165
(KZD) at para 14.
[12]
2010
(1) SACR 55
(SCA) at para 12.
[13]
Ashebo
v Minister of Home Affairs (CCT 25/22}
[2023] ZACC 16
,
2023 (5) SA
382
(CC)
2024 (2) BCLR 217
(CC) ( 12 JUNE 2023) at para 59.
[14]
2008
(2) SACR 355
(C) at para 63.