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[2024] ZAMPMBHC 26
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Mabuza v S (BA05/2024) [2024] ZAMPMBHC 26 (13 March 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
MPUMALANGA
DIVISION (MAIN SEAT)
Case
Number: BA05/2024
1.
REPORTABLE:
YES
/ NO
2.
OF INTEREST TO OTHER JUDGES: YES/
NO
3.
REVISED.
DATE:
13 March 2024
SIGNATURE:
[SIGNED]
In
the matter between:
SIBISISO
MABUZA
Appellant
and
THE
STATE
Respondent
This
judgment is handed down electronically by distributing same to the
parties by email and by publication on SAFLII. The date
and time of
the delivery of this judgment shall be deemed to be at 11:00 on 13
March 2024.
JUDGMENT
Roelofse
AJ:
[1]
The
appellant, Mr Sibisiso Mabuza first appeared on 9 February 2023 in
the Nelspruit periodical court with eleven other persons
on a charge
of housebreaking with intent to steal and theft.
[1]
[2]
Mr Mabuza (and the other accused) was released on bail on
condition that (amongst other conditions) Mr Mabuza:
“…
.does not
communicate with witnesses for the prosecution……..Complainant
or other s/w [state witnesses] not disclosed”.
[3]
While
on bail, and on 11 January 2024, Mr Mabuza was arrested on a warrant
that was issued on the strength of section 68 of the
Criminal
Procedure Act
[2]
, hereinafter
referred to as “the Act”. Mr Mabuza appeared in
court on the same day. The matter was postponed
to 12 January 2024
“…
.for
application for cancellation of bail”
.
[4]
The Magistrate heard evidence on the cancellation of Mr
Mabuza’s bail and the forfeiture of his bail money. Evidence
was led
by both the state and the accused. On 22 January 2024, the
Magistrate found that Mr Mabuza has contravened his bail conditions,
cancelled Mr Mabuza’s bail and declared the bail money he has
paid forfeited to the state (“the order”).
[5]
Mr. Mabuza seeks to appeal the order in terms of section 65.
[6]
The first question to be answered is whether the order
appealable. My conclusion will be that the order is not appealable in
terms
of section 65. As will appear from what is set out below, I
come to this conclusion after examining the relevant scheme of the
Act insofar as sections 65, 66 and 68 is concerned.
[7]
The appellant argues that the order was made in terms of
section 68 after the court engaged in section 66 proceedings.
Therefore,
so it was argued on the appellant’s behalf that,
referring to authorities I set out below, the order is open to this
appeal
in terms of section 65 of the Act. In the alternative, it was
argued on the appellant’s behalf that it would be on the
interest
of justice to, even if the order is not appealable,
nonetheless set aside the order on review.
[8]
The appellant argues that the magistrate “…
...stressed
the fact that the bail was cancelled in terms of section 68”
and that “…
.It must thus be accepted that the bail
was cancelled in terms of section 68.
”
[9]
This is unfortunately a misconception of the Magistrate’s
approach for in the first sentence of the Magistrate’s
judgment,
the Magistrate says:
“
This is an
application in terms of Section 66 of Act 51 of 1977 and further
Section 68 of Act 51 of 1977 as amended”
[3]
and
“
My point of
departure is that I have considered in details [sic] the application
by the state in as far as both sections mentioned
above or earlier
that is Section 66 as well as Section 68….”.
[4]
[10]
The answer to what I have to decide does not lie in what the
Magistrate perceived as the basis for his decision. It lies
elsewhere.
[11]
In
the main, the state relies on one authority
[5]
for its submission that the order is not open to an appeal but a
review.
Is
the order appealable?
[12]
In order to determine whether the order is appealable,
sections 65, 66 and 68 of the Act, more particularly the relationship
between
the sections, must be considered and analized in their proper
context.
[13]
Section 65 provides for appeals to a superior court if bail is
refused or the accused is dissatisfied with a bail condition(s) and
provides for the procedure of such appeal. Section 65 reads:
“
(1) (
a
) An
accused who considers himself aggrieved by the refusal by a lower
court to admit him to bail or by the imposition
by such court of a
condition of bail, including a condition relating to the amount of
bail money and including an amendment or
supplementation of a
condition of bail, may appeal against such refusal or the imposition
of such condition to the superior court
having jurisdiction or to any
judge of that court if the court is not then sitting.
(
b
) The
appeal may be heard by a single judge.
(
c
) A
local division of the Supreme Court shall have jurisdiction to hear
an appeal under
paragraph
(
a
)
if
the area of jurisdiction of the lower court in question or any part
thereof falls within the area of jurisdiction of such local
division.
(2) An
appeal shall not lie in respect of new facts which arise or are
discovered after the decision against which the
appeal is brought,
unless such new facts are first placed before the magistrate or
regional magistrate against whose decision the
appeal is brought and
such magistrate or regional magistrate gives a decision against the
accused on such new facts.
(3) The
accused shall serve a copy of the notice of appeal on the
attorney-general and on the magistrate or, as the case
may be, the
regional magistrate, and the magistrate or regional magistrate shall
forthwith furnish the reasons for his decision
to the court or judge,
as the case may be.
(4) 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.”
[14]
Section 66 deals with a failure by an accused to observe
his/her conditions of bail and the procedure to be followed to
sanction
this remiss. I shall refer to the procedure in section 66 as
“the section 66 inquiry”. Section 66 reads:
“
(1) If
an accused is released on bail subject to any condition imposed
under section 60 or 62, including
any amendment or
supplementation under section 63 of a condition of bail,
and the prosecutor applies to the court before
which the charge with
regard to which the accused has been released on bail is pending, to
lead evidence to prove that the accused
has failed to comply with
such condition, the court shall, if the accused is present and denies
that he or she failed to comply
with such condition or that his or
her failure to comply with such condition was due to fault on his or
her part, proceed to hear
such evidence as the prosecutor and the
accused may place before it.
(2) If
the accused is not present when the prosecutor applies to the court
under subsection
(1), the court may
issue a warrant for the arrest of the accused,
and shall, when the accused appears before the court and denies that
he failed to
comply with the condition in question or that his
failure to comply with such condition was due to fault on his part,
proceed to
hear such evidence as the prosecutor and the accused may
place before it.
(3) If
the accused admits that he failed to comply with the condition in
question or if the court finds that he failed
to comply with such
condition, the court may, if it finds that the failure by the accused
was due to fault on his part, cancel
the bail and declare the bail
money forfeited to the State.
(4) The
proceedings and the evidence under this section shall be recorded.”
[15]
Section 68(1) gives power to any court before which a charge
is pending in respect of which bail has been granted to an accused to
cancel an accused’s bail. This court may do, whether the
accused has been released or not, upon information on oath that
the
accused has contravened his or her bail conditions (also in the
interest of justice), issue a warrant for the arrest of the
accused
and make such order as it may deem proper, including an order that
the bail be cancelled and that the accused be committed
to prison
until the conclusion of the relevant criminal proceedings.
[16]
Section 68(2) authorises any Magistrate to, in
circumstances in which it is not practicable to obtain a warrant of
arrest
under subsection 68(1), upon the application of any peace
officer and upon a written statement on oath by such officer that an
accused has contravened his/her bail conditions, or in the interest
of justice, to issue a warrant for the arrest of the accused,
and
may, if satisfied that the ends of justice may be defeated if the
accused is not placed in custody, cancel the bail and commit
the
accused to prison, which committal shall remain of force until the
conclusion of the relevant criminal proceedings unless
the court
before which the proceedings are pending
sooner reinstates the
bail (my emphasis).
[17]
The differences between section 68(1) and section 68(2) are
immediately apparent. Section 68(1) gives the power to any court
before
which the charge is pending while section 68(2) gives this
power to any magistrate; section 68(1) requires information on oath
whereas section 68(2) requires a peace officer to make a written
statement on oath; Section 68(2) gives the power to the court before
which the proceedings are pending, to reinstate the bail whereas
section 68(1) is silent on the reinstatement of an accused’s
bail. The reason for the silence on the issue of the reinstatement of
bail section 68(1) is obvious. In section 68(1) the accused
who was
arrested is brought before the court where the proceedings are
pending.
[18]
Section 68 therefore permits the immediate arrest of the
accused if one or more of the jurisdictional requirements in section
68
are met and also the power to order an accused’s further
detention until the criminal proceedings have been concluded.
Importantly,
section 68(2) makes it clear the that the court before
whom the proceedings are pending, and not the court that orders the
accused’s
further detention in terms of section 68(1), may
reinstate an accused’s bail.
[19]
Section 68 provides for the cancellation of bail under certain
circumstances including (as in this matter) if the accused has
interfered
or threatened or attempted to interfere with witnesses. It
gives power to the court to cancel an accused’s bail forthwith
and provides for the procedure to get the attendance of the accused
at court. Section 68 therefore lays down the jurisdictional
facts
that must be present before an accused who is on bail may be
arrested, upon what information he is arrested. and to summarily
cancel an accused’s bail and to forfeit the bail money to the
state or, reinstate the accused’s bail if the accused
was
brought before court in terms of section 68(2). The fact that section
68(1) is silent on the reinstatement of an accused’s
bail must
be understood in the context that the accused whose bail has been
cancelled in terms of section 68(1) will then in any
event appear
before the court where his or her criminal proceedings is pending.
[20]
The procedure whereby it is decided whether to confirm or set
aside the accused’s continued detention in terms of section 68
is provided for in section 66. Sections 66 and 68 therefore do not
operate in tandem. The section 66 inquiry follows upon an arrest
and
appearance in terms of section 68.
[21]
Orders open to an appeal in terms of section 65 are the
refusal of bail and a challenge to a bail condition. Section 65 does
not
once refer to the cancellation of bail as a basis for a challenge
on appeal.
[22]
In
the unreported judgment in
D[....]
v S
[6]
Mudau J said:
“
[21]
That the judgment and order of the Magistrate in terms of section
66(3) is not appealable
and could only be challenged on review has
been the subject of judicial consideration in a number of matters. In
this division,
in Pillay v Regional Magistrate, Pretoria, and
Another, the full bench held that, a withdrawal of bail does not
amount to 'refusal’
of bail and the matter cannot therefore be
brought under s 65 by way of such artificial reasoning.
[22]
From the above judgments, it is clear that the weight of authority
favours the view that
the proceedings in terms of s 66 are only
reviewable and not appealable.” (Footnotes omitted)
[23]
Inasmuch as Mudau J, in
D[....] v S
, differentiated
between the procedures in sections 66, 67A and 68 and found that “
The
procedures referred to in sections 66,67A and 68 of the CPA are
distinct”
, the accessory relationship between sections 66
and 68 was not considered as I do in this judgment.
[24]
In
S
v NKOSI EN ANDERE
[7]
,
Harms J, in respect of section 67, that provides for the cancellation
of bail should an accused fail to appear at a hearing, said:
“
Dit volg uit
voorgaande dat ek van oordeel is dat 'n intrekking van borgtog en
verbeurdverklaring van borggeld ingevolge art 67
nie 'n nuwe aansoek
om borgtog ingevolge art 60 onontvanklik maak nie. Die feit dat die
borgtog ingetrek is sal natuurlik 'n relevante
feit wees wat in
aanmerking geneem kan word by die oorweging van die nuwe aansoek om
borgtog.”
[25]
In terms of section 67, bail is provisionally cancelled and
bail money is provisionally forfeited to the state pending the
accused
satisfying the court that his or her failure to appear or to
remain in attendance was not due to fault on his part. If an accused
does so, his or her bail is restored and he or she does not forfeit
the bail money. If not, the accused’s bail is finally
cancelled
and his or her bail money forfeited to the state.
[26]
In my view there is no difference between section 66 and
section 67 in respect of the cancellation of an accused’s bail
save
for in section 67 the order may be provisional and in section
68, the order may become final after the accused had an opportunity
to be heard during the trial court’s section 66 inquiry.
[27]
As soon as a person is arrested and taken into custody, such
person may apply to be released on bail in terms of section 59 or
section
60. Section 60(1) provides that an accused is entitled to be
released on bail at any stage preceding his or her conviction in
respect
of an offence, if the court is satisfied that the interests
of justice so permit. If an accused’s bail is cancelled in
terms
of section 66, he or she remains in custody. The accused is in
no different position as a person who is under arrest. Therefore,
he
or she can once again apply for bail afresh.
[28]
The
appellant’s reliance upon
PORITT
v S
[8]
does not assist for in
PORRITT
,
the place and purpose of section 66 in the Act was not considered.
Same applies to
S
v NQUMASHE
[9]
,
also relied upon by the appellant.
[29]
I am mindful of
S v NQUMASHE
, where at 313B-E where it
was found that:
“
[13] Soos blyk uit
die voorafgaande, kon ek geen gesag vind in die tyd tot my beskikking
dat 'n bevel ingevolge art 68 van die Wet
waarvolgens 'n laer
Hof 'n beskuldigde se borgtog intrek wel appelleerbaar is nie. Ek is
dit egter eens met beide mnr Robertson
en me Van Dyk dat dit wel,
anders as die mening voorgehou in Hiemstra, appelleerbaar is en
verder dat sodanige reg van appèl
outomaties is. Ek kom tot
hierdie bevinding omrede:
13.1
Die intrekking van borgtog het, soos die weiering van borgtog, die
effek dat 'n individu se vryheid van hom/haar
ontneem word. Só
beskou, behoort dieselfde gevestigde beginsels tog te geld by die
oorweging van die intrekking van borgtog
as wat sou geld by die
weiering van borgtog. Sien S v Kyriacou (supra te 711b).”
[30]
In
NQUMASHE
, the court did not refer to nor did it
consider
S v NKOSI EN ANDERE
where it was found that the
cancellation of bail does not exclude a fresh bail application,
albeit that the cancellation of the
accused’s bail will be a
consideration in such fresh bail application. In addition, the court
in
NQUMASHE
considered the cancellation of bail in terms of
section 68 of the Act and not a cancellation following a section 66
inquiry, as
in the present matter. The court therefore considered
section 68 as the final procedure to determine the accused’s
further
detention whereas, as I have set out above, section 68 is the
precursor to section 66 where the accused’s further detention
or release is considered through a section 66 inquiry.
[31]
I therefore find that no appeal lies against the cancellation
of bail or the forfeiture of bail money in terms of section 56. An
accused’s remedy under these circumstances lies in a new bail
application or in a review of the decision to cancel the bail
and/or
to forfeit the bail money to the state.
[32]
In the event that I am wrong in this regard, I proceed to deal
with the merits of the appeal.
Merits
of the appeal
[33]
The appellant’s grounds of appeal mainly challenge: the
magistrates’ finding that Mr Mabuza has contacted a state
witness
in circumstances where the identities of the state witnesses
were not disclosed as part of the bail conditions; the state relied
upon evidence on affidavit whereas Mr Mabuza testified viva voce,
consequently more weight had to be given to Mr Mabuza’s
testimony which was open to a challenge under cross examination; the
time delay between the phone caal to the state witness and
the
application for Mr Mabuza’s warrant of arrest; Mr Mabuza and
the state witness had known each other for a long time and
had
regular contact prior to Mr Mabiza’s arrest; and, the
Magistrate has failed to consider the forfeiture of Mr Mabuza’s
bail money as a separate issue.
[34]
I find that the grounds of appeal are meritless.
[35]
First of all, it was not disputed that the persons who
were allegedly called by were indeed a state witnesses, one of which
was the complainant. This, coupled with the evidence of the content
of the threat that the witness would be killed and his and
other
persons’ homes. There would be no other plausible reason to
call the witness and make the threats if Mr Mabuza had
not known that
the witness was a witness or a potential witness in the pending
criminal proceedings. This is reinforced by the
fact that Mr Mabuza
also called and threatened the complainant in the criminal
proceedings.
[36]
Secondly, the state did not only rely on affidavit evidence of
the witness and the complainant. The investigating officer and a
colonel who works with the investigating officer and who is involved
on an anti-gang unit testified
viva voce
. They interviewed the
witness and the complainant. To the extent that the colonel’s
testimony over the calls and the threats
may be hearsay, same is
corroborated by the affidavits of the witness and the complainant.
[37]
Thirdly, the mere fact that Mr Mabuza and the witness know
each other rather confirms that Mr Mabuza exactly knew who the
witness
was and where and how to contact him.
[38]
Lastly, in my view, the Magistrate had considered the issue of
the forfeiture of the bail money as part of the section 66 inquiry.
[39]
The
appellant had to establish that the Magistrate was wrong
[10]
in cancelling his bail and forfeiting his bail money. This the
appellant failed to establish. There is no reason for this court
to
interfere.
[40]
In the premises, I made the following order:
The appeal is dismissed
with costs.
Roelofse AJ
Acting Judge of the High
Court
DATE
OF HEARING:
08
March 2024
DATE
OF JUDGMENT:
13
March 2024
APPEARANCES
For
the Appellant,
Mr Du
Plessis on instructions of Coert Jordaan Attorneys.
For
the state,
Mr
Shongwe.
[1]
However, the evidence of the investigating officer who testified in
the proceedings that are subject to this appeal that Mr Mabuza
is
charged with kidnapping and attempted murder.
[2]
51 of 1977. All sections referred to in this judgment are sections
of this Act.
[3]
Record
at page 206 lines 1-3.
[4]
Record
page 206 lines 6 – 10.
[5]
See
the authority upon which the state relies in para. 20 below.
[6]
(A53/2021) [2021] ZAGPJHC 71 (25 June 2021).
[7]
1987 (1) SA 581
(T) at 586A-B.
[8]
(A202/2018) [2018] ZAGPJHC 698 (10 December 2018).
[9]
2001 (2) SACR 310 (NC).
[10]
See
section 66(4) which reads:
“
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.”