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2024
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[2024] ZALMPPHC 53
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Matambo v S (BA15/2024) [2024] ZALMPPHC 53 (24 May 2024)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA LIMPOPO DIVISION, POLOKWANE
CASE NO: BA15/2024
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO THE JUDGES: YES/NO
(3)
REVISED
.
DATE: 24/05/2024.
SIGNATURE
In
the matter between:
PHUTI DENDANGIKA
MATAMBO
APPELLANT
And
THE
STATE
RESPONDENT
JUDGEMENT
Heard
on 16 MAY 2024. The date and time for hand-down is deemed to be on
the 24 May 2024 at 16H00. This judgment handed down electronically
by
circulation to the parties' representatives by email and publication
and release to SAFLII.
DEANE AJ
Introduction
1.
This
is
an
opposed
Appeal
in
terms
of
the
provisions
of
section
65(1)(a)
of
the
Criminal
Procedure Act
51 of 1977 (
CPA)
.
2.
The
Appellant
appeals
against
the
refusal
by
the
Magistrates
decision
of
26
April
2024
to
refuse bail.
3.
The Appellant is facing three charges:
3.1
COUNT 1: Contravening section 80(1)(a) read
with section 81A of the
Customs and
Excise Act 91 1964
read with sections
115, 47, 54(2)(a), 65 – 67(a)(ii), 87(1), 87(2) and 95(2) of
the
Customs and Excise Act 91 1964
.
3.1.1
Where it is alleged that on or about 13
March 2024 and at or near Matlala Road in the district of Polokwane
the Appellant unlawfully
and intentionally had
in
his
possession/custody/control
illicit
cigarettes
to
the
value
of R180 000.00, whilst knowing it to be
illicit goods.
3.2
COUNT 2:
Possession of an unlicensed firearm wherein
it is alleged that the Appellant contravened section 3 read with
sections 1, 103, 117,
120(1)(a), section 121 read with schedule 4 and
section 151
of the
Firearms Control Act
60 of 2000
, and further read with
section 250
of the
CPA
.
3.2.2 In that on or
about 13 March 2024 and at or near Matlala Road in the district of
Polokwane the Appellant did unlawfully
have in his possession a
firearm without having the requisite permit or authorisation be in
possession of same.
3.3
COUNT 3: Possession of ammunition in
contravention of
section 90
read with
sections 1
,
103
,
117
,
120
(1)(a),
section 121
read with schedule 4 and
section 151
of the
Firearms Control Act 60 of 2000
further
read with provisions of
section 250
of the
CPA
.
3.3.1
In that on or about 13 March 2024, at or
near Matlala Road in the district of Polokwane the Appellant was in
unlawful possession
of ammunition to wit nine bullets without having
the requisite permit or authorisation be in possession of same.
4.
The critical question before this court is
whether the magistrate had misdirected himself in
refusing to grant bail to the Appellant.
Grounds of Appeal
5.
The grounds of appeal as indicated by the
Appellant’s representative included the following:
5.1
Whether it is in the interests of justice
to have the Appellant released on bail;
5.2
Did the Appellant show whether it is in the
interests of justice to have him released on bail;
5.3
Whether there is a
prima
facie
case against the appellant.
The Applicable Legal
Principles
6.
The statutory context for determining an
appeal relating to bail proceedings is
section 65(4)
of 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.
’
7.
The
test for interfering with the Magistrate’s judgment is whether
the
court
a quo
misdirected
itself in a material way, in relation to facts or the law.
[1]
The Court stated as follows 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. 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.
8.
If such misdirection is established, the
appeal court is at large to consider whether bail ought, in the
particular circumstances,
to have been granted or refused, and in the
absence of a finding that the magistrate misdirected him or herself
the appeal must
fail.
9.
The
grant or refusal of bail is a discretionary decision under judicial
control, and judicial officers have the ultimate decision
as to
whether or not, in the circumstance of a particular case, bail should
be granted.
[3]
10.
Since the offence with which the Appellant
is charged falls within the ambit of Schedule 5 of the
CPA
,
section 60(11)(b)
of the
CPA
is
applicable, and it provides as follows:
“
Notwithstanding
any provision of this Act, where an accused is charged with an
offence- referred to in Schedule 5, but not 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 the interests
of justice permit his or her
release
”.
11.
The effect of this provision is that the
Appellant bore an onus to establish, on a balance of probabilities,
that the interests
of justice permit her release on bail. In this
regard, section 60(4) of the
CPA
provides that the interests of justice
do not permit the release from
detention
of an accused where one or more of the following grounds are
established:
“
(a)
Where there is the likelihood that the
accused, if he or she 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
the
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 attempt to influence or intimidate
witnesses or to conceal or destroy evidence; or
(d)
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; or
(e)
where in exceptional circumstances
there is the likelihood that the release of the accused will disturb
the public order or undermine
the public peace or security.”
12.
In terms of section 60(6) of the
CPA
,
in considering whether the ground in section 60 (4)
(b)
has been established, the court may,
where applicable, take into account the following
factors:
(a)
the
emotional,
family,
community
or
occupational
ties
of
the
accused
to
the
place
at
which he or she is to be tried;
(b)
the assets held by the accused and
where such assets are situated;
(c)
the means,
and
travel
documents
held by
the
accused,
which may enable him
or
her
to
leave the country;
(d)
the
extent,
if
any,
to
which
the
accused
can
afford
to
forfeit
the
amount
of
bail
which may be set;
(e)
the question whether the extradition of
the accused could readily be effected should he or she flee across
the borders of the Republic
in an attempt to evade his or her trial;
(f)
the nature and the gravity of the
charge on which the accused is to be tried;
(g)
the
strength
of
the
case
against
the
accused
and
the
incentive
that
he
or
she
may
in consequence have to attempt to evade his
or her trial;
(h)
the
nature
and
gravity
of
the
punishment
which
is
likely
to
be
imposed
should
the accused be convicted of the charges
against him or her;
(i)
the
binding
effect
and
enforceability of
bail
conditions
which
may
be
imposed
and
the
ease with which such conditions could be breached; or
(j)
any other factor which in the opinion
of the court should be taken into account.”
The Appeal
13.
The
Appellants representative submits that the strength of the state’s
case should be the overriding factor in granting bail.
[4]
I disagree.
14.
It deserves highlighting that the Appellant
has been charged with a Schedule 5 offence, an indication of the
seriousness of the
crime. The said crime is so serious that the
legislature found it necessary to prescribe a minimum sentence for
it.
15.
The
fact that the offence concerned is included in Schedule 5 means that
the Appellant possibly faces a very long term of direct
imprisonment.
The case law
[5]
indicates that
this is a relevant factor which may be taken into account when
considering whether an Appellant might be inclined
to evade trial for
purposes of bail.
16.
It is also common cause that the charge on
illicit cigarettes is ordinarily a Schedule 1 offence. However, in
this instance since
the appellant has a pending case of kidnapping
and robbery with aggravating circumstances and he also has paid a
fine amount in
a previous conviction, the matter was approached as a
Schedule 5 offence.
17.
The question is whether the Appellant has
shown, on a balance of probabilities, that the interests of justice,
would permit his
release on bail?
18.
Looking
at the circumstances of this case, the Appellant has a pending matter
where he was released on bail. One of the conditions
of the bail was
that the Appellant must not commit further offences. It is clear that
the Appellant failed to abide by this condition.
[6]
19.
In
addition, the Appellant was caught having in his possession illicit
cigarettes and the unlicensed firearm and ammunition inside
the
vehicle that he was driving.
[7]
20.
The strength of a case against Appellants
and the nature of gravity of punishment which is likely to be imposed
are some of the
grounds which, in terms of section 60(6) of the Act,
a court should consider in determining whether there is likelihood of
an Appellant
evading
trial.
21.
In
casu
,
the Appellant failed to disclose in his affidavit
[8]
that he has a passport. The investigating officer only found this out
during his investigations. It was also found, during investigations,
that the Appellant had ties in Zimbabwe.
It
is important to note that whilst the Appellant did surrender his
passport, he only did so after this information came to light.
[9]
22.
I consider this aspect to be an important
consideration in the context of bail proceedings, where there are
flight risk concerns.
It lends itself towards the probability that
there is a likelihood that the Appellant might attempt to evade
trial.
23.
It
was submitted by the State and which evidence remains uncontested
that the Appellant also attempted to flee the scene when he
was
arrested. The police only caught him after pursuing the Appellant in
a chase. The State submits that this clearly shows that
if given the
opportunity he will flee, and it will be difficult to secure his
attendance.
[10]
I am in
agreement with these submissions.
24.
In
addition, a principle that requires particular focus in this appeal
is that a bail application is not a trial. In
S
v Branco
,
[11]
the Court held that a “
bail
application is not a trial. The prosecution is not required to close
every loophole at this stage of the proceedings.”
25.
In
S
v Schietekat
[12]
the
Court held that bail proceedings are “…
sui
generis. The application may be brought soon after arrest. At that
stage all that may exist is a complaint which is still to
be
investigated. The State is thus not obliged in its turn to produce
evidence in the true sense. It is not bound by the same formality.
The court may take account of whatever information is placed before
it in order to form what is essentially an opinion or value
judgment
of what an uncertain future holds. It must prognosticate. To do this
it must necessarily have regard to whatever is put
up by the State in
order to decide whether the accused has discharged the onus of
showing that 'exceptional circumstances exist
which in the interests
of justice permit his release'.
”
26.
The
Magistrate correctly found that “…
the
interests of justice entails that the court must assess the totality
of the evidence before it by weighing up the personal circumstances
of the applicant against the countervailing potential interest of the
society and the seriousness of
the
offences…
”
[13]
27.
After
weighing up the evidence before it, the court
a
quo
correctly
found that there was “
a
possibility that should the accused perhaps be released out on bail
he may go to his father in Zimbabwe and that may call for
extradition
of the accused person…
”.
[14]
28.
The
court
a
quo
also
found that the Appellant’s release on bail, considering that he
was already out on bail for a pending matter when he
committed the
current offences, would
show
that the “
court
[is] relating a wrong message to the public to say that once people
are out on bail they can be arrested for offences or commit
offences
and then they will still be released out on bail
”.
[15]
The court went further to state that “
there
is a likelihood that that will effect the proper functioning of the
criminal justice system…..So based on those two
reasons as I
have indicated the court finds that it will not be in the interest if
justice that at this stage you be granted bail
and as such the
application for bail is denied
”.
[16]
29.
Looking at the factors before the court
a
quo
, the conclusion reached by the
Magistrate
herein
cannot be faulted.
30.
Indeed, in terms of Section 60(4) of the
CPA
, it is
not in the interest of justice to release an accused if one or more
of the consequences listed in paragraphs (a)-(e) therein
are
established.
31.
In
S
vs Scott- Crossely
[17]
it was held that the court had to consider all relevant factors and
determine whether individually or cumulatively they would justify
the
Appellant’s release. Section 65(4) of the Act provides that:
“
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
the judge shall give the decision which in its or
his opinion, the
lower court should have given.”
32.
This Court finds that the Appellant has not
successfully discharged the onus as contemplated in section 60 11(a)
of the
CPA
that
the interest of justice does permit his release on bail. The
Appellant has accordingly failed to discharge the onus resting
upon
them to establish that it is in the interests of justice for them to
be released on bail, and the Magistrate rightly rejected
bail. I have
found no misdirection in the decision of the Magistrate. Based on the
evidence before him, the Magistrate correctly
utilised his judicial
discretionary power to reject bail.
33.
This is especially the case given the
personal circumstances of the Appellant and the nature and gravity of
the punishment which
is likely to be imposed should the Appellant be
convicted of the charges against him.
34.
The learned Magistrate’s refusal was
justified considering the facts of this case together with the
findings made above and
having regard to the relevant authorities.
35.
There is accordingly no reason to interfere
with the Magistrates refusal of bail which was the decision appealed
against.
Order
1. The Appeal is
dismissed.
DEANE AJ
ACTING JUDGE OF THE
HIGH COURT, POLOKWANE; LIMPOPO DIVISION
APPEARANCES
FOR
THE APPELLANT :
Adv MJ
Rameetse
INSTRUCTED
BY:
Ramusi
Attorneys
FOR
THE RESPONDENT :
Adv SP
Mphasha
INSTRUCTED
BY:
State
DATE
OF HEARING :
16 May
2024
DATE
OF JUDGEMENT :
[1]
Panayiotou
v S Panayiotou v S
(CA&R
06 /2015) [2015] ZAECGHC 73 (28 July 2015), para [26] – [27].
[2]
S
v Barber
1979
(4) SA 218
(D) at 220 E – H.
[3]
S
v Dlamini
;
S
v Dladla and others
;
S
v Joubert
;
S
v Schieteket
[1999]
ZACC 8
;
1999
(2) SACR 51
(CC)
at
88H – I , 89 E and 90B-D.
[4]
Appellants
Heads of Argument: p 3.
[5]
See
S v Hudson
[1980]
1 All SA 130
(D) at 131;
S
v Nichas
1977
(1) SA 257
(C).
[6]
Record:
p 65, para 20.
[7]
Record:
p 66, paras 10-20.
[8]
Record:
p 199.
[9]
Record:
p 129, paras 10-20.
[10]
Respondents
Heads of Argument: p 5.
[11]
2002
(1) SACR 531
(W) at 535 D-E.
[12]
1998
(2) SACR 707
(C) at 713 H-J.
[13]
Record:
p 194, para 10.
[14]
Record:
p 213, para 20.
[15]
Record:
p 214, para 10.
[16]
Record:
pp 214-215, para 20.
[17]
2007
(2) SACR 470
SCA.