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[2024] ZAECMKHC 66
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Mda v S (CA&R 80/2024) [2024] ZAECMKHC 66 (11 June 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE DIVISION
– MAKHANDA)
Case No: CA & R
80/2024
In the matter between:
NDODOMZI
MDA
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. Sityana which was delivered
on 28 June 2023.
2.
The
Appellant was arrested and detained on 26 May 2021
[1]
.
The first time the Appellant made an application for bail was on 09
May 2023 in the East London Regional Magistrates’ Court.
The
bail application was unsuccessful
[2]
.
For the purposes of the bail application, two (2) cases were
consolidated, being cases with reference numbers
A273/2023
and
RC2/13/2022B
.
3.
The bail proceedings were adjudicated on
the strength of an affidavit filed in support of the application by
the Appellant and oral
evidence resisting the granting of bail, which
the Investigating Officer gave.
4.
The Appellant contends that the learned
Magistrate, Ms. Sityana, misdirected herself on several grounds in
refusing to admit him
to bail. These grounds are outlined in the
Appellant’s heads of argument, which include
inter
alia
:
4.1.
The Appellant was charged with 11 counts of
theft of motor vehicle, contained in two (2) matters which are at
various stages;
4.2.
The
nature of the charges dictates that the application falls within the
ambit of Schedule 5 of the CPA, therefore the onus is on
the
Appellant to show that interests of justice permit his release from
custody in terms of
Section 60
(11) (b) of the CPA
[3]
.
5.
The state opposes this appeal. The
basis for opposition and resisting that the Appellant be admitted to
bail is also set out
in the Respondent’s heads of argument.
6.
The Appellant, has been in custody since
his arrest on 26 May 2021 to date.
THE ISSUE
7.
Whether the Court
a
quo
was justified in denying bail to
the Appellant.
8.
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
[4]
.
BACKGROUND AND FACTUAL
MATRIX
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 Appellant in 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.
In the bail proceedings, an affidavit
deposed to by the Appellant was read to the record, in which he
states:
10.1.
He is facing two (2) cases of motor vehicle
theft, and his attorney explained to him that this makes the offence
he is facing a
Schedule 5.
10.2.
His personal circumstances are that at the
time of the bail hearing, he was 36 years of age, and his address is
Erf 37[…],
D[…] Street, T[…
10.3.
, Eastern Cape Province and he has an
alternative address at 5[…] H[…] Street, R[…],
East London; Eastern Cape
Province where his sister resides.
Before his arrest, he was renting at house number 3[…], NU
1[…], M[…],
East London, Eastern Cape Province, but had
to terminate the lease as he could not keep up with the rent, which
accumulated to
astronomical pinnacles.
10.4.
He is not married and has four (4) children
of which two (2) of those are entirely dependent on him. Before his
incarceration he
had strong ties with his children.
10.5.
He
was employed as a Taxi Driver with earnings fluctuating between R1
500.00 and R2 000.00 per month, with which he supported his
children. This is confirmed by the mother of one of his
children
[5]
.
10.6.
He has been in custody since 26 May 2021
and the trial has not commenced in both cases.
10.7.
He was advised by his attorney shortly
after his arrest not to make a bail application as the Investigating
Officer had indicated
that he wanted to charge him for other
offences. The advice was that he should wait until all the charges
have been proffered.
10.8.
He contended that he had no previous
convictions, also no pending cases except for the ones subject to the
bail proceedings and
had no knowledge of any warrants of arrest
issued against him.
10.9.
He pledged not to endanger the safety of
the public or any person in particular and would not commit an
offence whilst out on bail.
He also made an undertaking not to
interfere with any witnesses, although he was not aware of potential
witnesses for the
state and would not conceal or destroy evidence.
10.10.
He confirmed that his release on bail would
not compromise the proper functioning of the Criminal Justice System.
He would not evade
trial.
10.11.
The Appellant in his affidavit stated that
his release on bail was in the interests of justice.
11.
The State opposed the bail application and
called the Investigating Officer, Sergeant Thula Maja (“Sgt.
Maja”) as a
witness. He gave
viva
voce
evidence which comprises
approximately eight (8) volumes and his evidence spans the bulk of
the nine (9) volumes of the transcript.
12.
Briefly, the evidence of Sgt. Maja is as
follows:
12.1.
There
are four (4) cases in which the Appellant is charged. It is not true
that the Appellant was not in possession of a stolen
motor vehicle.
When he was arrested together with his cohorts, he was a passenger in
a stolen motor vehicle; therefore, indirectly,
he was in possession
thereof
[6]
.
12.2.
In
a matter of a stolen motor vehicle that was reported in Cambridge
Police Station under
CAS
349/5/2021
,
the Appellant was charged together with Vuyo Mthombeni; Bongani
Simelane and Don Mbutho (“Mbutho”)
[7]
.
12.3.
When
Mbutho was arrested, he betrayed his cohorts and informed the police
that an escort car they had hired was behind him. The
police
were then on the lookout and signalled for the hired car that was
driving behind Mbutho to stop when it appeared. The
identified
escort car sped off, and a chase ensued. When the hired car was
cornered, the Appellant and other cohorts alighted
and ran on
foot
[8]
.
12.4.
A
call was made to Mbutho at the time he was being arrested. This
turned out to have been from the Appellant. In this call,
a bribe of
R10,000.00 was offered to the police who were arresting Mbutho
[9]
.
The person using the Appellant’s cellular phone offered the
bribe directly to the police
[10]
.
12.5.
It
was contended that a
Section 205
application was made to establish
who was implicated in the actual theft of the motor vehicle
[11]
.
In a nutshell, it was established that the cellular phone that made a
call to Mbutho on the day of his arrest belonged to
the Appellant.
12.6.
The
Appellant was involved in a theft of motor vehicles as far back as
2013, when he was arrested for theft of a black Toyota Yaris
in
Oxford Street, East London. This motor vehicle was reported stolen
under
CAS167/3
.
In this matter, the police advised that the case against the
Appellant be withdrawn as they wanted him to be a
Section 204
witness
against some Mthatha duo known as Terra and Bawu. However, Sgt. Maja
could not say whether the Appellant fulfilled the
requirements of a
witness in terms of
Section 204
[12]
.
What Sgt. Maja could confirm was that the Mthatha case under
CAS
363/04/2014
was reinstated, although he was not the Investigating Officer in that
matter. In respect of this matter, there was a bench
warrant
and later a J50 warrant of arrest was issued
[13]
.
12.7.
In
2016, a motor vehicle theft was reported and registered in East
London under
CAS
685/03/2016
.
This case is still alive. According to Sgt. Maja, there is a
witness, one Mawande, who will testify that the Appellant asked
to
store the motor vehicle reported stolen in the witness’s
premises under the pretext that the car needed some mechanical
attention. When the motor vehicle was found at the said witness’s
premises, it was combed for fingerprints. The Appellant’s
fingerprints were found in the motor vehicle
[14]
.
Mawande is friends with the Appellant.
12.8.
Using the cellular phone records obtained
through the
Section 205
application, the investigation established
that the Appellant was near where the motor vehicle was stolen and
could later be located
in Scenery Park, where it was recovered. From
the motor vehicle that was reported stolen at Cambridge Police
Station and
was found at Mawande’s premises, fingerprints of
the Appellant were recovered.
12.9.
Sgt. Maja further testified that on 18 July
2019, he received a call from the Appellant who advised him to go to
West Bank.
This was without any prompting or provocation.
At West Bank, Sgt. Maja found a stolen Toyota Fortuner. According
to
Sgt. Maja, the Appellant knew what he was doing because whilst
they were in West Bank waiting to see who would come for the Toyota
Fortuner in the bushes where it was hidden, during that time a Toyota
Hilux was being stolen at Frere Hospital. This Toyota
Hilux was
found and recovered being driven by one Kumbula Fanapi (“Fanapi”).
12.10.
Fanapi
told the police who arrested him that the Appellant had hired him to
take the motor vehicle to Mthatha. The cellular
phone report
once more placed the Applicant near the crime scene as at the time
the Toyota Fortuner was stolen at Frere Hospital
[15]
.
THE
LAW
13.
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.”
14.
I
can only interfere with the Court
a
quo’s
judgment
on the bail application if I find that Ms. Sityana misdirected
herself in a material way in relation to facts or the law.
Goosen
J in
Panayiotou
cited the provisions of Section 65 (4) of the CPA in making a point
on how the appeal judge has to handle bail appeal
[16]
.
The said Section 64 provides:
“
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 is wrong, in which event, the court or
judge shall give the decision which in its or his opinion,
the lower
court should have given”.
15.
At paragraph 27 of
Panayiotou
Goosen J had this to say:
“
This
approach has been approved in a number of decisions. In order
to interfere on appeal it is accordingly necessary to find
that the
magistrate misdirected himself or herself in some material way in
relation to either fact or law (see
S
v Ali
2011 (1) SACR 34
(E) at
para 14; cf. also
S v M
2007 (2) SACR 133
(E)). 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. In the
absence of a finding that the magistrate misdirected him or herself
the appeal
must fail (cf.
S v
Porthen and others
2004 (2) SACR
242
(C) at par [11])”.
16.
The
Court
in
S
v Barber
succinctly
depicted the role of the Court in a 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
[17]
,
“
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.”
17.
The real question is whether it can be said
that the Magistrate had the discretion to grant bail but exercised
that discretion wrongly.
18.
It is apposite that where I find that there
was misdirection by the Court
a quo
then
in such event this Court is at large to consider whether bail ought,
in the particular circumstances, to have been granted
or refused.
If it ought to have been granted, 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.
ANALYSIS
19.
I am in agreement with the Court
a
quo
that the offence of theft of motor
vehicle contained in the two charge sheets that the Appellant is
charged in the two (2) matters
fall within the ambit of Schedule 5 of
the CPA.
20.
In the premise, provisions of Section 60
(11) (b) become applicable. Therein it is provided:
“
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.”
21.
Therefore, the Appellant bears the onus to
establish, on a balance of probabilities, that it is in the interests
of justice that
he be admitted to bail.
22.
No evidence was brought before the Court
showing that the Appellant had previous convictions, nor was there a
history of evading
trial. Further, at the time of making the
bail application, there was no record of pending charges against the
Appellant.
23.
It was submitted by Ms. Phikiso for the
Respondent, that the appellant faces 11 counts. Mr. Malala for the
Appellant, retorted that
there was no documentary evidence before
this Court proving such 11 counts. A closer examination of the
charge sheet which
is appended to the bundle in these proceedings
does not reflect the alleged 11 counts.
24.
It is settled law that the correct approach
to bail against the constitutional rights of an accused is founded in
Section 35 of
the Constitution of the Republic of South Africa Act,
108 of 1996. This section provides:
“
Section
35(1)(f) presupposes a deprivation of freedom – by arrest -
that is constitutional. This deprivation is for
the limited
purpose of ensuring that the arrestee is duly and fairly tried. But
s35(1)(f) neither expressly nor impliedly
requires that in
considering whether the interests of justice permit the release of
that detainee pending trial, only trial-related
factors are to be
taken into account. The broad policy considerations
contemplated by the 'interests of justice' test, in
that context, can
legitimately include the risk that the detainee will endanger a
particular individual or the public at large.
Less obviously, but
nonetheless constitutionally acceptable, a risk that the detainee
will commit a fairly serious offence can
be taken into account. The
important proviso throughout is that there has to be a likelihood,
i.e. a probability, that such risk
will materialise. A
possibility or suspicion will not suffice. At the same time, a
finding that there is indeed such a likelihood
is no more than a
factor, to be weighed with all others, in deciding what the interests
of justice are. That is not constitutionally
offensive. Nor does it
resemble detention without trial, the reprehensible institution
really targeted when one speaks of preventive
detention. Absent a
proper basis for the original arrest, it will be set aside. But if
there was a proper cause, one cannot justify
release solely on the
absence of trial-related grounds.”
25.
Mr. Malala submitted that the trial has not
started after three (3) years of the Appellant’s incarceration.
He further contended
that even when the trial start, it would be a
trial of long duration. Mr. Malala put in issue the fact that the
Appellant was never
apprised of the Schedule of the offence he was
facing. According to Mr. Malala, this must be done at the
outset of the proceedings.
The Schedule was not dealt with in
the Charge Sheet.
26.
It was further submitted on behalf of the
Appellant that when the accused was arrested:
26.1.
He was never found in possession of any
of the motor vehicle allegedly stolen;
26.2.
There is no witness to adduce evidence
that he saw the Appellant stealing any of the motor vehicles;
26.3.
No one came up to claim to be the owner
of the allegedly stolen motor vehicles;
26.4.
No evidence was presented showing that
the Applicant was a flight risk;
26.5.
Also, there was no evidence led at the
bail hearing that the Appellant had committed either a crime of
murder or armed robbery;
26.6.
The Appellant was not out on bail and
was only incarcerated for the offences he was applying to be admitted
to bail for;
26.7.
Other than the two (2) cases that were
consolidated for the purpose of bail application, the Appellant
did
not have any pending cases against him; and
26.8.
There was no evidence or any reason to
believe that the Appellant would commit a Schedule 1 offence whilst
out on bail.
27.
Mr. Malala submitted that the provisions of
Section 60 (4) (b) must be read with Section 60 (6) of the CPA in
making a determination
whether or not the Court
a
quo
exercised her discretion wrongly by
not taking into account the factors enumerated in Section 60 (6)
.
28.
The Appellant had attested to an affidavit
in support if his bail application. At the time of making the
bail application,
the Appellant was 36 years of age, and had been
renting a place in Mdantsane, which he had to give up as he could not
afford to
pay rent whilst in prison.
29.
At Volume 1, page 6 at lines 1 - 6, the
Applicant avers:
“
Witnesses
and investigations. There is not threat to any of the State witnesses
as I do not know them or their residential addresses.
If there
is a concern that the witnesses may be intimidated, I undertake to
relocate to an alternative address. I confirm
that I will not
interfere with
t
he
investigation.
30.
Then in the same page at lines 7 - 9 the
Appellant states:
“
Flight
risk. I do not have any travel documentation, I am not a flight
risk, I will attend court at all times when required.
31.
In the affidavit, at the very same page 6,
in lines 11 - 15, the Appellant testified that he was arrested on 26
May 2021 when he
was on his way to Ngcobo driving a hired car.
He went on to say that he was charged
with
theft of a motor vehicle which was not even in his
possession. He had been appearing at Court without fail and was
intending to
plead not guilty at the appropriate time because he
disputes the charges levelled against him.
32.
In the affidavit, the Appellant further
pledged that he would not commit any offen
c
e
whilst released on bail. He also committed not to conceal or
destroy evidence. The Appellant further made an assurance
that
he would not endanger the safety of the public or the witnesses. He
would not disturb or undermine public order or undermine
public peace
or security.
33.
The
Appellant made a plea that his re
lea
se
on bail was in the interests of justice
[18]
.
34.
In
this division in the case of
S
v Ndjadayi
Jenett
J aptly stated
[19]
:
“
Under
the new Constitution a bail application is an application to enforce
the right of an arrested person to his release from detention
even if
that right is not unlimited. The effect of the new Constitution is to
make the application for release from detention with
or without bail
a species of the
interdictum de
libero exhibendo
and, as such,
in my view, civil proceedings within the meaning, not only of s 3 of
Act 45 of 1988 to which I have referred, but
also of s 20 of the
Supreme Court Act 59 of 1959, with the result that I consider that
the refusal of bail is appealable, but only
with leave of the Court
that refused such bail.”
35.
Turning
to the question of whether I find the Court
a
quo
to
have exercised its discretion wrongly. I find that the Court
a
quo
did
not take into cognisance the fact that the Appellant had been
incarcerated for a long period of time and on the other hand the
contention that he was facing 11 counts was not supported by any
indictment
[20]
.
36.
In as much as the evidence of the Appellant
was by way of an affidavit and could not be tested through
cross
-
examination,
the evidence led by the State through the Investigating Officer did
not discredit the Appellant’s version as
improbable or
far-fetched. In the premise, I find the Appellant’s
version to be reasonably probably true. There
was no
corroboration of the evidence of Sgt. Maja and no proof of his
evidence that it was reasonably probably true that the Appellant
was
likely to undermine or jeopardise the objectives and proper
functioning of the criminal justice system.
37.
The
State contended that the Appellant had intimidated one Mawande,
however a closer reading of the transcript the threat complained
of
came from Mbutho who is allegedly said to have told Mawande that if
the Appellant was arrested, he would be killed
[21]
.
In no way could this be imputed to the Appellant.
38.
On the other hand, there is no cogent
explanation why the Appellant has not been brought to trial in three
(3) years.
39.
In examining whether the grounds set out in
Section 60 (4) (b) of the CPA, I have taken into account the factors
enumerated in Section
60 (6) of the CPA. Of importance is the
fact that the Appellant does not possess a passport which may enable
him to leave
the country.
40.
The State did not adduce evidence showing
the strength of its case, which would enable this Court to weigh
whether as a consequence
thereof the Appellant might be tempted to
attempt to evade trial.
41.
Ms. Phikiso submitted that the Appellant
did not adhere to conditions that were placed when in one matter
under
CAS 362/04/2013
he
had been turned to be a Section 204 witness. When I explored
this issue with Ms. Phikiso, she indicated that the matter
was
withdrawn. In the circumstances, the notion that the Appellant
could evade trial was watered down.
42.
Ms. Phikiso also submitted that the
Appellant had supplied false information to the police when he was
arrested relating to his
name. Mr. Malala retorted that the warning
statement was not signed by the Appellant. Upon my enquiry about
whether the Appellant
was furnished with a copy of the said warning
statement, none of the legal representatives could assist in this
regard.
43.
When juxtaposing provisions of Sections 60
(4) (b) and 60 (6) of the CPA, I am of the view that the interests of
justice permit
the release of the Appellant from detention and be
admitted to bail.
ORDER
44.
I therefore issue the following order:
44.1.
The Appellant is admitted to bail upon
posting of a bail bond in the amount of Three Thousand Rand (R3
000.00).
44.2.
The Appellant must report in person at
Tsolo Police Station once fortnightly (every two weeks), not unless
he is attending trial
in East London.
44.3.
The Appellant must not leave his homestead
in Tsolo for three (3) consecutive days without informing the
Investigating Officer.
45.
The Appellant is restricted and restrained
from visiting or communicating with State witnesses, which include
but are not limited
to the following:
45.1.
Odwa Mda;
45.2.
Bongiwe Ncula;
45.3.
Kumbula Fanapi; and
45.4.
Mawande (whose surname was never revealed
or mentioned in the bail proceedings in the Court
a
quo
).
46.
The Appellant is restricted from applying
for a passport whilst out on bail.
B. METU
ACTING JUDGE OF THE
HIGH COURT
APPEARANCES:
Attorney
for the Appellant: Mr
Malala
Mvuzo
Notyesi Inc.
C/o
Gilindoda Attorneys
83
High Street
MAKHANDA
(REF.:
MR JIKIJELA/MR MALALA
Counsel
for Respondent: Adv.
Phikiso
C/o
National Director of Public Prosecution
High
Street
MAKHANDA
Date
Heard:
31 May 2024
Date
Delivered:
11 June 2024
[1]
Vol
9 @ p 34 para 8.
[2]
Vol
8 @ p 311; line
[3]
See
also Respondent’s Heads by Adv. Phikiso @ p 2; para 2.
[4]
Ho
v State
1979
(3) SA 734 (W).
[5]
See:
Vol 9; Exhibit “F” @ p 48 – 49.
[6]
Vol
1, p14 – 16 @ lines 13 – 23.s
[7]
Loc
cit
@
p14, line 21 & p15, lines 3 – 4.
[8]
Loc
cit
@
p16, lines 14 – 17.
[9]
Loc
cit
@
p17, lines 17 – 25. r/w p19, lines 18 – 21.
[10]
Loc
cit
@
p20, lines 2 – 4.
[11]
Loc
cit
@
p18, lines 13 – 16.
[12]
Loc
cit
@
p24, lines 17 – 25 & p 25, lines.
[13]
Loc
cit
@
p24, lines 17 – 25 & p 25, lines 1 – 25.
[14]
Loc
cit
@
p29, lines 4 – 18.
[15]
Loc
cit
@
p41, lines 2 – 23.
[16]
S
v Panayiotou
CA
& R 06/2015 @ para 25.
[17]
S
v Barber
1979
(4) SA 218
(D)at 22 E – H.
[18]
Vol
1, p7 @ lines 19 – 22.
[19]
S
v Ndjadayi
1995
(2) SACR 583
€ @ 584 G – H.
[20]
See
charge
sheet @ p1 – 3 r/w with appearance notices @ p4 – 30 of
Vol 9.
[21]
Vol
2, p61 @ lines 18 – 24.