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[2024] ZAFSHC 186
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Mukwevho and Others v S (A69/2024) [2024] ZAFSHC 186 (14 June 2024)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
NOT
REPORTABLE
Appeal
no.
A69/2024
In
the matter between:
VICTOR
MUKWEVHO
FIRST
APPELANT
TSHEPO
SAMUEL MALEKA
SECOND
APPELLANT
JABULANIDOUGLASBANDA
THIRD
APPELLANT
and
THE
STATE
RESPONDENT
Judgment
by:
VAN RHYN J
Heard
on:
31 MAY 2024
Delivered
on:
14 JUNE 2024
ORDER
On
appeal from the Magistrates' Court for the District of Bloemfontein,
held at Bloemfontein.
1.
The appeal is dismissed
JUDGMENT
[1]
This is an
appeal by three appellants, Victor Mukwevhu ("Mukwevhu"),
the first appellant (Accused 2 in the court a quo),
Thsepo
Samuel
.
Maleka
("Maleka"), the second appellant (Accused 6 in the court a
quo)
and
Jabulani Douglas Banda ("Banda"), the third appellant
(Accused
5
in the court a quo) against the refusal by the Magistrate, Mr Peyper,
presiding in the District Magistrates' Court held at Bloemfontein
on
8 December 2023, to admit the appellants to bail.
[2]
The appellants
are charged With the following offences, namely:
(a)
Five (5)
counts of attempted murder;
(b)
Two (2) counts
of robbery with aggravating circumstances;
(c)
Contravention
of section 27(1) of the Explosives Act
[1]
;
(d)
Three (3)
counts of contravention of section 120(1) read with section
4(1)(a)
of the Firearms Control Act
[2]
,
to
wit the unlawful possession of three (3) prohibited firearms which
are fully automatic assault rifles;
(e)
Contravention
of section 120(1) read with section 3(1)(a) of the Firearms Control
Act, to wit the unlawful possession of one (1)
semi-automatic
firearm;
(f)
Contravention
of section 6(2). read with section 6(1)
of
the Explosives Act and read with
section
51(2) of the Criminal Law Amendment Act
[3]
,
to wit the unlawful possession of three(3) packs of commercial
explosives, six (6) detonators and a piece of cortex;
.
(g)
Contravention
of section 120(1) read with section 90 of
the
Firearms
Control Act, to wit the unlawful possession of 495 live rounds of
ammunition.
[3]
Bail
applications and bail appeals are by their very nature urgent. In
S
v Banger,
[4]
the
Supreme Court of Appeal held that an accused person should not be
deprived of his or her constitutional rights to freedom and
to
freedom of movement for longer than is reasonably necessary
.
[4]
It
is common cause that the bail application of
the
appellants
(and their three co accused) in the district court was heard in
accordance with the provisions of Schedule 6 of
the Criminal
Procedure Act
[5]
(the
"CPA").
The
Bail application was therefore heard with the understanding that the
onus is on the appellants to show that exceptional circumstances
exist which, in the interests of justice, permit their release on
bail.
[6]
In
discharging this onus
,
the
appellants adduced evidence under oath
.
The
respondent, in opposing the granting of bail, filed the affidavit of
the investigating officer, Warrant Officer Eben van Zyl
(Van Zyl)
employed by the South African Police Service, Bloemfontein
.
The
respondent furthermore presented the oral testimony of Van Zyl during
the bail application
.
The
appellants and two of their co-accused were denied bail. The fourth
accused's application was successful and he was released
on bail.
[5]
The following
is a summary of Mukwevhu's testimony
:
(a)
He was 37
years old at the time of his bail application. He was born on […]
J[…] 1986 at Nzhelele, Limpopo Province;
(b)
He has been a
resident of 6[..], Block XX, Soshanguve East
for
the past 30
years;
(c)
He is not
married
.
He
has a son aged 15 years, a son aged 12 years and a daughter aged 9
years. The children are staying with their respective mothers
.
Mukwevho is
responsible for their support. He is taking care of his mother who
was 73 at the time of the bail application in December
2023. She
is
suffering from
high blood pressure and is on medication which he provides for her
;
(d)
Mukwevho is
the owner of a tavern and slot machines. His income is around R20 000
per month. He pays rent and employs four people
at the tavern
.
His nett
income is about R10 000 per month;
(e)
He does not
have previous convictions nor cases pending against him
.
He will not
try to evade the trial and does not know any
of the
witnesses
in
the matter
.
He
risks losing his business
in
the event of
bail being denied
.
He instructed
the
employees
to close the tavern while he is remanded in custody pending the
trail. He owes an amount of
R 22 000 to S
A Brewery;
(f)
He does not
have a passport;
(g)
He was called
by Maleka and requested to accompany him to Banda's residence at
Thembisa. Banda asked them to accompany him to the
Free State
Province with the view of taking a vehicle to Bloemfontein. Banda was
driving the particular vehicle while Maleka and
Mukwevho followed in
another vehicle, a Nissan NP300 bakkie ("Nissan bakkie")
with a canopy. The plan was to return on
the same Sunday, however due
to problems with payment due to Banda, the return trip was delayed
until the following day. The following
morning, they returned to
Gauteng with the Nissan bakkie. Maleka was driving and Banda was
seated on the passenger seat. Mukwevho
was seated at the back.
(h)
On the way
they picked up two more people who were standing along the road. They
also sat in the back with Mukwevho. Thereafter
they picked up accused
4
.
After
leaving Welkom the Nissan bakkie was stopped by the police
.
They were
pointed with firearms and instructed to alight the Nissan bakkie and
lie on the ground
.
Mukwevho did
not see anything that was found by the police in the Nissan bakkie.
He furthermore had no knowledge of a cash in transit
robbery
.
He was forced
to sigh documents while plastic covered his face.
[6]
The following
is a summary of the Maleka's testimony
:
(a)
Maleka was 39
years old at the time of his bail application. He was born on 1[…]
J[…] 1984 at Pretoria;
(b)
He has been
residing at 2[…] K[…] Avenue, The Orchards, Pretoria
North for almost 3 years prior to his arrest;
(c)
He is married.
His wife is unemployed.
He is the
father of two boys who are 17 and 14 years respectively He has two
girls, who are both aged 12 years. The girls have got
different
mothers. Three of the children are staying with him and the one girl
is staying with her mother at Rustenburg;
(d)
Maleka is
self-employed.
He does
carpentry and aluminium work
.
His income is
around R14 000
-
R16 000 per
month.
(e)
He does not
have previous convictions and will not evade the trial. He does not
know any of the witnesses in the matter
.
He does not
have any pending cases against him. He can afford R800 for bail. He
is the breadwinner
at home
.
He pays rent
and risks losing his business in the event of bail being denied
.
He provides
work and an income to his employees and if bail is denied they will
also suffer financially;
(f)
He does not
have a passport;
(g)
He is on
medication for epilepsy as well as for […]. He has not
received medication for these conditions while being incarcerated
at
Grootvlei Correctional Centre at Bloemfontein
.
(h)
Banda
requested him on Sunday, 12 November 2023 to drive Mukwevho's Nissan
bakkie to Bloemfontein. Banda was driving a Mercedes
Benz vehicle to
Bloemfontein. Unknown people in Bloemfontein took the Nissan bakkie
and they only received the Nissan bakkie the
following morning
whereafter they returned to Gauteng. Maleka confirmed the version
presented by Mukwevho when he testified
.
On their way
to Bothaville, they were stopped by members of the SAPS and arrested
.
He also failed
to notice the items found inside the Nissan bakkie by the members of
the SAPS.
[7]
The following
is
a
summary of Banda's testimony:
(a)
He was 44
years old during November
2023
.
He was born on
1[…] A[…] 1979;
(b)
He has been a
resident at 1[…] E[…] section, Sekhakhane Street at
Thembisa for the past 30 years
;
(c)
He is married.
His wife is employed.
He has a son
aged 19 years, a son aged 10 years and a daughter aged 8 years. The
oldest child resides with Banda and his wife while
the two younger
children stay with their maternal grandmother during the week and
with the parents during weekends. He is responsible
for their
support
.
(d)
Banda earns an
income of approximately
R8000 -R12 000
per month as a loan shark.
(e)
He does not
have previous convictions. He has one pending case at Boksburg. The
charges consist of conspiracy to commit business
robbery.
He was
arrested on 18 August 2020
.
He will not
try to evade the trial and does not know any of the witnesses in the
matter. Banda contends that the exceptional circumstances
that he is
relying on to be released on bail is due to the fact that his eldest
son was involved in an accident when he was
years old
.
Due to
complications regarding his medical condition the child needs
constant caring
.
Banda and his
wife agreed that he should therefore remain unemployed and take care
of their eldest child. He furthermore takes care
of his sisters'
three children. Hi sister has passed away.
(f)
He does not
have a passport;
(g)
Banda
confirmed that he requested Maleka to accompany him to take a
Mercedes Benz motor vehicle, the property of Ntshebe to Bloemfontein
.
Banda borrowed
Ntshebe an amount of R10 000 but took the Mercedes as security
.
Ntshebe agreed
to pay for the costs to travel to Bloemfontein,
not only in
respect of the Mercedes but also for fuel for the Nissan bakkie.
Maleka and
Mukwevho followed
in
the Nissan
bakkie. They left on a Sunday evening and arrived at Bloemfontein
where they met Ntshebe.
Problems to
obtain payment in full from Ntshebe ensued and their departure from
Bloemfontein was delayed until the next morning.
On the way back they
picked up the other three accused. The members of SAPS pulled them
off on the road leading to Bothaville.
They were arrested.
(h)
Similar to the
testimony of Mukwevho and Maleka, he did not notice any balaclavas,
detonators, explosives or firearms in the Nissan
bakkie. He
furthermore had no knowledge of a cash in transit robbery
.
He did not
sign a warning statement.
[8]
The
application for bail was opposed by the State,
inter
alia,
on
the grounds that the accused failed to show the presence of
exceptional circumstances that will merit their release on bail.
Van Zyl read
his affidavit into the record and elaborated
on some of the
aspects during his testimony. At the time of the bail application,
which commenced on 27 November 2023, the investigation
by the members
of SAPs was incomplete. During the hearing of the bail application
further information came to hand regarding video
footage
of
the
appellants
and
their
co-accused
(excluding
accused
4)
.
The
investigating
officer envisaged that the ballistic comparison of the firearms found
in the Nissan bakkie in respect of the spent
cartridges found at the
crime scene, will in all probability strengthen the strong prima
facie case against the appellants and
their co accused
.
[9]
The background
facts regarding the commission of the crimes as placed on record by
Van Zyl are as follows:
On Friday, 13
November 2023 at 06h45, members of GSS, a cash in transit security
company were travelling in an armoured vehicle
along Vooruitsig
Street, Hamilton, Bloemfontein when the armoured vehicle was rammed
by a Mercedes Benz. The armoured vehicle came
to a stop and was fired
upon by between 10 to 14 suspects. The suspects forced the members of
G4S out of the armoured vehicle and
robbed them of three 9 mm
semi-automatic pistols. The suspects opened the armoured vehicle with
the use of explosives and robbed
an undetermined amount of cash from
the armoured vehicle. Members of SAPS appeared on the scene and were
fired at by the suspects.
The suspects fled the scene in a Toyota
double cab and Isuzu double cab. Numerous cartridges were recovered
at the scene commonly
used in AK-47, R5 and R4 assault rifles.
[10]
The SAPS received information that some of the suspects were
travelling in a Nissan NP300 single cab bakkie
to Gauteng. The Nissan
bakkie was pulled off by SAPS near Bothaville and the driver and 5
passengers were arrested. The Nissan
bakkie was searched and the
following exhibits were found:
(a)
one R5 rifle
and two AK-47 rifles found underneath the vehicle tied to the
suspension with cable ties;
(b)
one 9mm
semi-automatic
pistol barrel
and breach block;
(c)
three packs of
commercial explosives;
(d)
six detonators
and a piece of cortex;
(e)
an
undetermined amount of cash;
(f)
18 AK-47 and
RS magazines, several balaclavas and gloves;
Items
(b) - (f) were found hidden in the tailgate of the Nissan bakkie.
(g)
one AK47
magazine was found behind the seat;
(h)
495 live
rounds of ammunition were found in
the engine
compartment.
[11]
Van Zyl
explained that the explosives, detonators, balaclavas, gloves and
assault rifles found inside the Nissan bakkie are utilised
by
perpetrators
in the
commission of cash in transit robberies. The suspects used a hijacked
Mercedes Benz to ram the armoured vehicle. Witnesses
place between 10
and 14 suspects on the scene. These crimes are committed by loosely
affiliated criminal groups who operate nationally
across the
provincial borders. In this matter all the arrested suspects
including the three appellants are
from Gauteng. Several
of the suspects including the appellants have been arrested
previously in respect of other cases as referred
to by the
investigating
officer.
[12]
Van Zyl
explained that Mukwevho provided a different address at Soshanguve as
his place of residence. A search was conducted and
it was found that
no such address existed.
A check on the
SAPS system identified another address, namely 6[…], Block
XX
Soshanguve. At this address Mukwhevu's adoptive mother was located
who informed the SAPS that her son is not married and unemployed.
Mukwevho informed the SAPS that he is married
.
According to
his mother he has three children who resides with their respective
mothers. His mother indicated that she is unaware
of the fact that
her son provides for his children as he is unemployed
.
According to
Van Zyl the concern with Mukwevho relates to his use of different
surnames, being Mokoena and Mukwevho.
He has two
vehicles registered in his name.
[13]
Maleka
informed the investigators that he is single, yet at his address his
wife was locc;1ted.
She informed
the SAPS that they have been residing at the address at The Orchards
since 12 March 2021. According to his wife, Maleka
has two children
aged 17 and 21 who resides with them. She furthermore confirmed that
her husband is unemployed. Maleka has immovable
property registered
in his name which he purchased during January 2021 for R940 000
.
He has one
2015 model vehicle registered in his name.
[14]
In respect of
Banda, Van Zyl testified that he provided his residential address as
1[…] E[…], Sekhakhane, Dennilton.
The SAPS at Dennilton
denied the existence of the said address. A search on the SAPS system
revealed another address being 1[…]
E[…] Section,
Sekhakhane Street Thembisa. At this address Banda's mother was
located who confirmed that he has been residing
at this address since
his birth. Banda indicated to
the SAPS that
he is married which was contradicted by his mother.
According
to the mother, Banda has one child aged 20 who resides with his
mother at a different
address.
According
to the mother
her
son is
unemployed.
Banda has no
·
immovable
property
or
vehicles
registered
in his name.
He is on bail pending
an attempted
robbery case at Boksburg.
[15]
The appellants
noted an appeal against the refusal of bail and the grounds for such
appeal are recorded in the notice of appeal.
Mr Tshole, who appeared
on behalf of the appellants, argued that the appellants discharged
the onus resting upon them and that
their personal circumstances
and the fact
that the case against the accused is based upon circumstantial
evidence ought to have been regarded as a combination
of exceptional
circumstances and, as such, qualify as exceptional circumstances
warranting their release on bail.
[16]
On behalf of
the appellants it is submitted that there are no eye witnesses or any
other form of independent forensic evidence that
places the
appellants on the crime scene
.
Mr Tshole
argued that the court a
quo
misdirected
itself in failing to find that the appellant's personal
circumstances, specifically Banda's circumstances regarding
the
caring of his son as the primary care giver, qualify as exceptional
circumstances warranting their release on bail.
[17]
An appeal
against the refusal of bail is governed by section 65(4) of the CPA
which 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
judge shall give the decision which in its or his
opinion the lower
court shall have given".
[18]
The
approach of a court hearing a bail appeal is trite. In
S
v Barber
[7]
it
was held as follows:
"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 for bail. 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 view for that
of the magistrate because it
would be an unfair interference with the magistrate's exercise of his
discretion.
I
think it 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 exercised that
discretion wrongly ... "
[19]
It is
unnecessary, for purposes of this judgment, to set out all the
considerations listed by the Legislature that should be taken
into
account when assessing bail applications. Suffice to say that, while
the magistrate was required to consider them all, he
retained a
discretion to decide the weight to be given each.
[20]
In
S
v Porthen and Others
[8]
Binns-Ward
AJ
held as follows:
"On
the
issue on the existence of
'extraordinary
circumstances'
within
the
meaning
of s 60(11)(a) of
the
CPA,
there is a" formal
onus'
of
proof on the applicant for bail. The ordinary equitable test of the
interests of
justice
determined
according to the exemplary list of cons
i
derations
set out ins
60(4)-(9)
of the Act has to be applied differently
.
See
S
v Dlamini (supra
in
para [61]
.
In
my
view,
a
court making the determination whether or not that
onus
of
proof has been discharged exercises a discretionary power in the wide
sense of discretion. The appellate Court is,
in
terms
of s 65(4) of the CPA, enjoined to
interfere
with
the lower court's decision of a bail application if
i
t
is satisfied that the lower court's
decision
was
wrong"
[9]
[21]
Ms Moroka,
counsel on behalf of the respondent, contended that the investigation
has been completed and the indictment in respect
of the matter is
being finalised. The matter has been remanded to 20 June 2024 and a
trial date will be determined within the near
future. On behalf of
the respondent
it
was argued
that the appellants' personal circumstances, regarding being
breadwinners, their employment or lack of formal employment
and the fact
that their continuous detention will affect such employment or
business and the wellbeing of their families and children
do not
qualify as exceptional circumstances
.
Their personal
circumstances
and medical
conditions are not of such a nature that it will be in the interest
of justice that they should be released on bail.
[22]
I
now turn to consider if the court a quo misdirected himself in
finding that there were no exceptional circumstances which in the
interests of justice permitted the appellants' release on bail. I
approach this question conscious of the fact that where an accused
adduces strong, independent evidence pointing to
his
innocence, in so doing, he establishes exceptional circumstances.
[10]
[23]
The court a
quo dealt with the medical conditions of the appellants and their co
accused and concluded that
medication for
[…] was provided at Grootvlei Correctional
Centre.
If the name of any required medication for other illnesses has not
been revealed to the medical officer at Grootvlei Correctional
Centre, this fact can hardly be regarded in itself as exceptional
circumstances as there was no evidence before the court a quo
that
the appellants
have been
deprived of such medication
.
[24]
The magistrate
dealt with the testimonies of the appellants regarding the fact that
they in effect aver to be the breadwinners and
not the primary
caregivers of their respective children
.
The testimony
of Banda, that he takes care of his son who has special needs
,
was also taken
in to consideration by the court a quo.
With reference
to case law the court a quo, remarked that it is concerning that,
although Banda was supposed to take care of his
son
,
he left his
child at home and travelled to Bloemfontein. I agree with the finding
of the magistrate that it can therefore only be
assumed that somebody
else was indeed available to care for his son during his absence.
[25]
I am of the
view that the State's case against the appellants and their
co-accused, appears to be
prima
facie,
reasonable
strong. There is no onus on the State to disprove the existence of
exceptional circumstances
.
I agree with
the finding by the court a quo that the facts presented by the
appellants do not give rise to the presence of exceptional
circumstances which show
that the
appellants should be released on bail.
[26]
I therefore
cannot find any misdirection on the part of the court a quo in
finding that there were no exceptional circumstances,
which in in the
interests of justice permitted the appellants' release on bail.
[27]
In the result
the following order is made: The appeal is dismissed.
I
VAN
RHYN
JUDGE
OF THE HIGH COURT,
FREE
STATE DIVISION, BLOEMFONTEIN
On
behalf of the Appellants:
ADV.
M E
TSHOLE
Instructed
by:
THABO
MALGAS ATTORNEYS
BLOEMFONTEIN
On
behalf of the Respondent:
ADV.
M
MOROKA
Instructed
by:
THE
DIRECTOR OF PUBLIC PROSECUTIONS,
FREE
STATE PROVINCE
BLOEMFONTEIN
[1]
Act
26
of
1956
.
[2]
Act
60 of 2000.
[3]
Act
105 of 1997
.
[4]
2016
(1) SACR 115
(SCA) para 14.
[5]
Act
51 of 1977
[6]
Section
60(11)(a) of the Criminal Procedure Act.
[7]
1979
(4)
SA218
(D)
at220
E-H.
[8]
2004
(2) SACR 242
(CPD).
[9]
Porthen
(supra)
at
[14].
[10]
S
v Mohammed supra