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2024
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[2024] ZAECMKHC 59
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Williams v S (CA&R 92/2024) [2024] ZAECMKHC 59 (12 June 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
Case
no: CA&R 92/2024
In the matter between:
NKOSIKHONA
ROGERS WILLIAMS
Appellant
and
THE
STATE
Respondent
BAIL APPEAL JUDGMENT
GQAMANA J
[1] This is an
appeal in terms of section 65 (1) of the Criminal Procedure Act, 51
of 1977 (the CPA) against refusal by the
magistrate to admit the
appellant to bail. The appeal is opposed by the State.
[2]
In terms of section 65 (4) of the CPA, this Court shall not set aside
the decision against which the appeal is brought,
unless it is
satisfied that the decision was wrong. The powers of this court
to interfere with the decision of the magistrate
are largely
limited. Although this Court may have a different view, but it
should not substitute its own views for that of
the magistrate,
because that would be an unfair interference with the magistrate’s
exercise of discretion.
[1]
[3] In the matter
at hand, the appellant is charged with a Schedule 5 offence (murder).
According to the
provisions of section 60 (11) (b) of the CPA, the onus is upon the
appellant to adduce evidence which satisfies
the court that the
interests of justice permit his release.
[4] At the bail
hearing the appellant presented his evidence in the standard form
affidavit. His personal circumstances as
set out therein are as
follows: he was 33 years of age and unmarried. He has three minor
children. He was gainfully employed as
a school transport driver
earning an income of R1 500 per month. He used his income to
support his children. He has no pending
cases, or outstanding
warrants of arrest. He has no previous conviction. He handed himself
over to the police and was arrested
on 2 December 2023. He intends to
plead not guilty. He confirmed under oath that, he had made no
threats to anyone, nor did he
harbor resentment against anybody.
[5] However, the
main basis for the State to oppose his bail application is that the
appellant had threatened witnesses. Captain
Fete, in his affidavit,
made an allegation that information came to him that the appellant
threatened witnesses. That evidence
was in conflict with the
allegations made by the appellant in his affidavit. Not much evidence
was presented about this alleged
threat to witnesses. Apparently, the
witnesses reside in the same vicinity with the appellant.
[6] The reasons for
refusing bail are scant but clear. The magistrate considered the
prevalence of this type of offence in
the area concerned, the degree
of violence used during the commission of this offence and the
likelihood that the appellant would
intimidate witnesses. The
magistrate further held the view that the release of the appellant on
bail would cause an outcry in the
community.
[7] There are seven
grounds of appeal as set out in the notice of appeal. However,
the gist of the submissions on behalf
of the appellant is that the
magistrate misdirected herself in finding that it was not in the
interests of justice to permit the
release of the appellant on bail.
It was further submitted that the magistrate failed to take into
account the interest of the
appellant’s minor
children.
[8] The magistrate
is deaf silent on the interest of appellant’s minor children.
There is no evidence on whether the
appellant is the primary care
giver of his minor children. It does not appear that this issue was
considered at all by the magistrate.
To the contrary, it appears that
the magistrate over-emphasised the prevalence of the offence and
degree of violence and placed
no regard to the appellant’s
personal circumstances and the interest of his minor children.
[9]
In a bail application, the magistrate must consider all the relevant
aspects for and against the granting of bail. It
was wrong for the
magistrate to over-emphasise aspects which militate against the
granting of bail, whilst aspects in favour of
the appellant were not
given sufficient weight. In addition, it was crucial for the
magistrate to have evidence on the interest
of the appellant’s
the minor children before she could make a decision whether to refuse
or grant bail. It is clear
from section 60 (10) that the
court’s function in bail application is intended to be more
proactive than in a normal criminal
proceedings.
[2]
Further
the magistrate should have allowed the appellant to adduce rebutting
evidence on the alleged intimidation or threats to
witnesses,
especially that there were conflicting allegations on this issue
between the affidavit of the appellant
and that of Captain Fete.
[10] In
light of these misdirections, the decision of the magistrate was
wrong, and the appeal ought to succeed.
However, due to lack of
evidence on the interest of the minor children and the alleged
threats to witnesses, the appropriate order
would be to remit the
matter for the magistrate to hear evidence on such issues and to
consider the bail afresh after hearing such
evidence.
[11] In the
circumstances, the following order is issued:
1.
The appeal is upheld.
2.
The decision of the magistrate, in the bail application is set aside
and the matter is remitted to the same magistrate to consider
the
bail application afresh after hearing evidence on the appellant’s
minor children’s interest and the alleged threats
to witnesses.
3.
The State is to be afforded the opportunity to adduce further
evidence in response to any further evidence presented by the
appellant.
4.
The appellant shall remain in custody pending the finalisation of the
bail application by the magistrate.
N GQAMANA
JUDGE OF THE HIGH
COURT
APPEARANCES:
Counsel for the
Applicant:
Mr A Mgangatho
Instructed
by:
Mgangatho Attorneys, Makhanda
Counsel for the
Respondent:
Adv A A Nohiya
Instructed
by:
Director of Public Prosecutions Makhanda
Date heard
on:
12 June 2024
Delivered
on:
12 June 2024
[1]
S
v Wardle, (unreported, ECP case no. CA&R 5/2018, 10 May 2018)
and S v Panayiotou (unreported, ECG case no. 06/2015, 28 July
2015).
[2]
Sv
Green and Another
2006 1 SACR 603
(SCA) at 610b.