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[2024] ZAECMHC 49
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Witbooi and Another v S (CA&R96/2023) [2024] ZAECMHC 49 (11 June 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE DIVISION
– MTHATHA)
Case No: CA & R
96/2023
Court
a quo
Case
No. D64/2023
In the matter between:
AYANDA
SULELO WITBOOI
FIRST APPELLANT
SOMELEZE
XHOBISO
SECOND APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
METU AJ
INTRODUCTION
1.
This is an appeal instituted in terms of
Section 65
(1) of the
Criminal Procedure Act, 51 of 1977
, “CPA”,
against the judgment and/or order of Ms. Mkumbuzi which was delivered
on 28 June 2023.
2.
The First Appellant was arrested and
detained on 16 August 2021 and the Second Appellant was arrested on
21 August 2021. The
offen
c
e
the Appellants face is a Schedule 6 and comprises charges listed
below:
2.1.
Two (2) counts of robbery with aggravating
circumstances, read with provisions of
Section 51
(2),
52
(2),
52A
,
and
52B
for the Criminal Procedure Act, 105 of 1997 (“CPA”);
2.2.
Two (2) counts of attempted murder;
2.3.
Possession of a firearm;
2.4.
Possession of ammunition; and
2.5.
Arson.
3.
In the premise, the onus is on the
Appellant to show that the interests of justice permit his release
from custody in terms of Section
60 (11) (b) of the CPA
4.
Appellants first made a bail application on
10 September 2021, which was on 06 December 2021 and was denied.
Again, on 22
September 2023, the Appellants made another bail
application ostensibly on new facts. This was also refused on
10 October
2023.
5.
This bail appeal is in respect of the last
refusal to be admitted on bail on new facts. It is common cause
that provisions
of Section 60 (11) (a) of the CPA are applicable.
Section 60 11 (a) provides:
“
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 interest of justice permit his or
her release.”
6.
In essence, the default position is that
the Appellant should be detained in custody. However, he must be
afforded a reasonable
opportunity to adduce evidence that there are
exceptional circumstances that permit his release. In this
matter, the Appellants
have had an opportunity two (2) times to make
bail applications.Hitherto, I can safely say a reasonable opportunity
was afforded.
The only remaining issue is whether the
Magistrate who was hearing the last bail application was wrong in
exercising her discretion
by refusing to admit the Appellants to
bail.
THE ISSUE
7.
What
is before me for determination is whether the Court
a
quo
arrived
at a wrong decision, in which event, I have authority and/or power to
make a decision
that
the
lower court ought to have made
[1]
.
8.
Put differently, I have to determine
whether the Court
a quo
was
justified in denying bail to the Appellants.
NATURE
OF THESE PROCEEDINGS
9.
It is apposite that if I find that the
Court
a quo
in
her discretion decided wrongly, then in such event I am at large to
consider whether bail, in the particular circumstances, ought
to have
been granted or refused. If the Court
a
quo
ought to have been granted bail,
what would be the appropriate conditions to attach to the bail?
However, in the absence
of a finding that the magistrate misdirected
herself the appeal must fail.
10.
A
bail appeal is an appeal in the ordinary sense and not a rehearing or
a review. There appears to be a departure from the
posture that
was adopted in
Mahomed
that
a bail appeal is an appeal in the wide sense
[2]
,
that is, it is a complete re-hearing and re-adjudication by a higher
court on the merits of the application, with or without additional
information, in which the appeal court will exercise its own
discretion. Trollip JA had this to say
[3]
:
“
It
would seem at the first blush that the proceedings are civil. In that
event a decision by the W.L.D. thereon would be appealable
to the
full Court of the Transvaal Provincial Division ("T.P.D.")
and not direct to this Court unless the parties consent
thereto in
writing (see sec. 20 (1) (a) and (3) of the Supreme Court Act).
However, the proceedings under sec. 97 of the Code originate
in and
are closely associated with the accused's arrest, detention and
prosecution for a criminal offence. Hence, although they
are civil in
form, they are
criminal in
substance, and must be so regarded for the purposes of the relevant
sections of the Supreme Court Act. See
Sita
's
case, supra,1967 (2) SA at pp. 448 in fin. to 449E, which is directly
in point.”
11.
Later,
Kirk-Cohen J in
Maliwa
aptly stated
[4]
:
“
In
my view the remarks by MCEWAN J in
Ho
's
case, and those in
SA
Strafproses
, demonstrate that
this is an appeal
strictu sensu
in terms of subpara (ii) of the judgment of TROLLIP JA supra.
[2] Thus, being
an appeal
strictu sensu
, the following are essential
requirements:
2.1 A notice of
appeal. This is apparent from the provisions of s 65 (3) and the
normal H procedure applying to appeals
strictu sensu
.
2.2 A true copy
of the record of proceedings in the court a quo. It goes without
saying that, on appeal, this Court is limited
to the four corners of
the record.
2.3 That the
appeal record, in proper form, be placed before the appeal Court, it
being the I duty of appellant's attorney
to do so. See Ho's case at
737C D.
12.
As contemplated in Section 65 (2) of the
CPA, the new facts were brought to the notice of the Magistrate who
again ruled against
the Appellants. This appeal therefore lies
against the refusal of bail on new facts.
13.
After the Magistrate presiding in the bail
application on new facts was served with a Notice of Appeal he
furnished reasons for
her judgment and at page 397 at paragraph 5 it
is recorded:
“
The
court noted this aspect as it is aware of what a new fact is, but it
was outweighed by the gravity of the offences the first
appellant is
facing which [if] he is convicted of will invite life or long terms
of imprisonment.
[sic].
14.
In the transcript of record, at page 381 at
lines 7 – 25 and continued at page 382 at lines 1 – 17 it
is stated:
“
In
this application the Court finds that indeed the ailment of accused 1
is a new fact. But the Court finds that his ailment
has been
treated while he is in prison, and it continues to be treated at
All
Saints Hospital
according to the
medical records that have been submitted before this Court. But
now as regards to accused 2, I find that
it is just say so of him and
there is no medical evidence regarding his alleged sickness as there
is no medical record or medical
history from either prison or
elsewhere which suggest that he is not well. I find that the
ailment of accused 1 can properly
be treated in prison as it is doing
currently. There is no medical evidence from a medical practitioner
to the effect that his
ailment cannot be treated while in prison. One
should understand that prison always keeps a lot of people, those who
are awaiting
trial and those who are convicted. The prison has got a
medical facility wherein if they are unable to treat a person, they
would
refer him to a medical practitioner from outside the prison
premises. That is why even if sickness befalls those people who have
been convicted, they are not taken out so they that they would not
serve their sentence because they are ill, but they are treated
in
prison sick bays or prison hospital and if the ailment is too big for
them, they would refer them to hospital outside the prison.
Recently
this court has been hearing the bail application of
S
v
D
uma
and another which is B171/2022. One of
the accused had a medical condition which the prison have been
treating and when they
felt they were not able to treat him they
referred him to Nelson Mandela Academy Hospital. And I know for
a fact that one
has got the right to be visited by a medical
practitioner of their own choice if that is what they want. And even
if I choose one
has got a particular medical doctor whom he wants to
be treated by, he can be taken on the order of the court to be taken
by the
prisoner authorities or the investigating of the case to that
medical practitioner or that hospital outside the prison premises.”
15.
With the foregoing, it is clear that the
learned Magistrate considered the new fact but was not pe
rsua
ded
that this was an exceptional circumstance warranting the release of
Appellant 1. Ms. Mkumbuzi was even less impressed
by Appellant
2’s evidence. She indicated that there were no medical
records backing up his contention that he was ill.
16.
In essence, the Appellants have to remain
in custody until they show
that
exceptional circumstances permit that they be
released on bail. The Appellants in their application for bail
on new facts
had to adduce evidence and show that exceptional
circumstances exist, which are in the interest of justice, that they
be released
on bail. According to the Respondent, they failed
to do that.
DISCUSSION
17.
Mr. Tutu representing the State, submitted
that the health of Appellant 1 improved and his medical record showed
that he was diagnosed
with a urinary tract infection which was
successfully treated. At page 228 of the bundle is a report by
a professional nurse,
Ms. B Mketo, to the effect that he was seen on
13 June 2023 complaining of burning urine. He was given
treatment. Appellant
1 came back again on 27 August 2023
complaining of urinary retention and lower abdominal pain. He
was wearing a catheter,
which he said was inserted at All Saints
Hospital on 12 August 2023. The catheter was removed and a new one
was inserted.
He was given medication. Ms. Mketo reported
further that Appellant 1 never reported any health problems
afterwards.
18.
Mr. Songelwa, representing the Appellants
did not dispute the depiction of Appellants’ medical condition
that they have improved.
However, he submitted that even though
he was not a doctor, during his consultations with the Appellants,
Appellant 1 looked sickly.
19.
Mr. Songelwa stated that if Appellant 1
were to be admitted to bail he would not interfere
with
evidence
or intimidate state witnesses.
To that end, he was willing to go to Lusikisiki and stay with his
relatives away from his home
where the witnesses were in the same
village.
THE
LAW
20.
The statutory context for determining an
appeal relating to bail proceedings is Section 65 (4) of the Criminal
Procedure Act 51
of 1977 (“the CPA”), 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.”
21.
I
can only interfere with the Court
a
quo
judgment
on the bail application if I find that Ms. Mkumbuzi misdirected
herself in a material way in relation to facts or the law
[5]
.
22.
The
Court
in
S
v Barber
succinctly
depicted the role of Court in bail appeal. Accordingly, the Court
encapsulated the approach to a bail appeal. It
propounded that
while an appeal 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 its
discretion. The Court held that
[6]
,
“
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. 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 review for that of the magistrate because that would be
an unfair
interference with the magistrate’s exercise of its discretion.
I think it should be in 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 but
exercised that discretion wrongly.”
23.
The real question is whether it can be said
that Ms. Mkumbuzi had the discretion to grant bail but she exercised
that discretion
wrongly.
FINDING
24.
The evidence before me pertaining to the
medical condition of the Appellants is not persuasive that it amounts
to exceptional circumstances
justifying that they be released on
bail.
25.
I cannot fault the decision of Ms. Mkumbuzi
in denying bail to the Appellants. She did not exercise her
discretion wrongly.
26.
In the circumstances, the appeal must fail.
27.
Therefore, the bail appeal is dismissed.
B. METU
ACTING JUDGE OF THE
HIGH COURT
APPEARANCES:
Attorney
for the Appellants:
Mr Songelwa
Songwelwa
& Associates Inc.
C/o
Graham Messrs Mpeto & Associates
No. 26
Madeira Street
MTHATHA
(REF.:
KMS/tm/6025 & 7092)
Counsel
for Respondent
Adv. Tutu
C/o
National Director of Public Prosecutions
Broadcast
House
Lower
Sisson Street
MTHATHA
Date
Heard
07 June 2024
Date
Delivered
11 June 2024
[1]
Ho
v State
1979
(3) SA 734 (W).
[2]
State
v Mahomed
1977
(2) SA 531 (A).
[3]
Ibid
@
539H – 540A.
[4]
Maliwa
v State
1986
(3) SA 721 (W).
[5]
S
v Panayiotou
CA&R06/2015
.
[6]
S
v Barber
1979
(4) SA 218
(D)at 22 E – H.