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2024
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[2024] ZALMPPHC 73
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Obinyeluba v S (BA01/2024) [2024] ZALMPPHC 73 (9 July 2024)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
CASE NO:BA01/2024
Court a quo:
DCA688/2023
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO
THE JUDGES:
YES
/NO
(3)
REVISED
Signature:
Date:
09
th
JULY 2024
In the matter between:
JOHN KENECHUKU
OBINYELUBA
APPELLANT
And
THE
STATE.
RESPONDENT
JUDGMENT ON BAIL
APPEAL
MONENE AJ
[1]
This is an appeal against the decision of
His Worship Magistrate Madavha of the Polokwane District Court taken
on 24 April 2024
in terms of which the Learned Magistrate denied the
appellant’s application to be admitted to bail on new facts
which application
had been prosecuted in terms of section 65 of the
Criminal Procedure Act 51 of 1977 (“the Act”) as amended.
[2]
The initial application preceding the
application for bail on new facts which had been denied was
unsuccessfully appealed before
Muller J of this division on 12
January 2024.
[3]
Pithily the new facts relied upon by the
appellant before the lower court and sought to be seen as grounds for
his admission to
bail on appeal before this court are the following:
3.1
That his continued detention, as a
breadwinner for his family, visits economic hardships on his family
in the form of bond repayment
hiccups and school fees shortfalls for
his offspring.
3.2
That he is suffering from an undisclosed
chronic illness.
3.3
That his wife is pregnant, and he needs to
be there for his wife during the pregnancy.
[4]
The appeal is opposed by the respondent on
the general ground that none of the averments hoisted by the
appellant as new facts qualify
as new for the purposes of a finding
that the appellant deserves admission to bail.
[5]
The backdrop to all these is that the
appellant is currently detained following his being arrested and
charged with two counts of
dealing in drugs and one count of
corruption being offences for which an accused bears the onus to, in
terms of section 60(11)(b)
of the Act prove on a balance of
probabilities that it is in the interests of justice that he be
granted bail.
THE APPLICABLE LAW
AND ITS APPLICATION IN BRIEF
[6]
Section 65 of our criminal code provides
inter alia that:
“
(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…
(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.”
[7]
It being clear from section 65 that new
facts in the context of a bail application are not listed anywhere in
the Act but are defined
by the legislature as facts which “arise
or are discovered after the decision against which the appeal is
brought”,
it behooves of this court to briefly look into what
law has developed in our courts as to the concept of new facts.
[8]
In
S v Yanta
(CC44/2021) {2023] ZAWCHC 23 (1 March 2023)
at
paragraph 15 it was held that the
Criminal Procedure Act
(“the
Act”) does not prescribe or define what constitutes new facts
and further that there is no prescribed procedure
for renewed bail
applications. I was further held that that with reference to case law
certain general principles have been identified
as relevant, when a
court is faced with an application for an accused’s release on
bail on new facts. These are:
8.1
Whether the facts indeed arose or came to
light after the denial of bail.
8.2
Whether the said new facts are sufficiently
new in character, distinguishable from facts earlier presented and
are not merely a
reshuffling or embroidery of evidence already
tendered in the initial bail application.
8.3
Whether the “new facts” are relevant
in that when considered with the facts averred in the initial
application, they
militate for reconsideration of the bail
application.
8.4
Whether in the light of the new facts read
with the facts already adduced in the initial application the onus
applicable to the
offences implicated is discharged.
8.5
That care should be taken to avoid the
abuse of the bail application procedure by piecemeal presentation of
evidence in repetitive
bail applications where some facts which were
known or ought to have been known earlier is doled out in tranches as
if it is new.
[9]
In
S v Mpofana
1998 (1) SACR 40
(Tk) at 44g-45a
it was
held per Mbenenge AJ (as he then was) as follows:
“…
Whilst
the new application is not merely an extension of the initial one,
the court which entertains the new application should
come to a
conclusion after considering whether, viewed in the light of the
facts that were placed before court in the initial application,
there
were new facts warranting the granting of the bail application.”
[10]
In
S v
Mohammed 1999(2) SACR 507 (C)
it was
observed and again emphasized that there indeed is no
numerus
clausus
as to the nature of new facts
which may warrant the granting of bail previously refused.
[11]
Looking at the three grounds listed
supra,
and further regard being had to the
submissions of the appellant’s counsel before me, I am unable
to find that the magistrate
exercised his discretion wrongly in
finding that the appellant had not adduced any new facts which
militated for his admission
to bail. That is so because of the
following considerations:
11.1 Economic hardships
being visited upon a person denied bail and/or upon his kith and kin
are an expected consequence of denial
of bail. They do not suddenly
unexpectedly befall an accused person denied bail and like in all
matters where bail is denied they
do not arise nor are they
discovered as a novelty after the denial of bail. This alleged new
fact is just a non- starter. That
is this court’s finding
regardless of the appellant’s gallant but ill-advised attempt
at taking refuge behind the interests
of his child and arguing that
his continued detention harms his child’s best interests
regarding school fees et cetera. While
the best interests of the
child must be catered for and must weigh heavily on any court
deciding a matter where children are involved,
I do not, to put it
bluntly, understand our law to be that bail should only be denied
against those that have not sired or given
birth to offspring. In
S
v Peterson 2008(2) SACR 355(C) at para 63
it was held as follows:
“
When,
as in the present case, the special circumstances relied on by the
accused include the constitutionally protected interests
of a minor,
this court must, in terms of section 28(1)(b) of the Constitution of
the Republic of South Africa take cognizance of
the child’s
right ‘to family care or parental care, or to appropriate
alternative care when removed from the family
environment’. In
as much as a decision in regard to an accused’s bail
application and subsequent appeal (if the application
is refused)
will, of necessity, impact upon a child of the accused, it may not be
lost sight that the child’s best interests
are, in terms of
section 28(2) of the Constitution, paramount. This does not, of
course, mean that such interests will simply override
all other
legitimate interests, such as the interests of justice or the public
interest. It must, however, always be taken into
consideration as a
relevant factor and a general guideline in assessing such competing
rights.”
11.2. Looking at the fact
that the appellant’s child, although currently without the
father, still has the gainfully employed
mother and juxtaposing that
with the charges faced by the appellant about which the default
position in the interests of justice
is that one accused thereof must
be held in custody unless he adduces evidence militating for his
release, I am unable to fault
the magistrate’s decision to
decline the application for bail on new facts.
11.3
The appellant’s ill-health ground is
shrouded in mystery as to what exactly it is, with the court not
being taken into his
confidence as to what it is other than it being
referred to flippantly as chronic. Worse still it was not proven by
evidence nor
at least averred by the appellant that the detaining
authorities are incapable of or failing to avail requisite medical
attention
to the appellant in attendance to his “chronic”
ailment.
Furthermore,
the pregnant wife ground while perhaps a new discovery by the
appellant post his being refused bail, can hardly
be deemed to tip
the scales in the interests of justice for the appellant’s
admission to bail. As correctly argued by
the respondent’s
counsel, it is to be expected that spouses of persons lawfully in
custody would be alone whether pregnant
or not and that if
pregnant, they can avail themselves to the support and care of not
only medical practitioners but their
available kith and kin. It
surely cannot be that our courts are seen to be sending an
unintended message that all a would-be-criminal
has to do to ensure
post arrest release on bail is to ensure that he leaves a spouse
expectant with child. Something more in
the form of newness
regarding this ground was needed to persuade this court that the
fact of a discovered pregnancy seen in
the light of the evidence
previously led militate for the admission of the appellant to bail
in the interests of justice. From
the record none such is
forthcoming. In this regard therefore and perhaps even regarding
the breadwinner angle reflected upon
supra, counsel for the
respondent was correct to point this court to paragraph 16 of
S
v Lekgau 2011 JDR(GNP)
where it was,
inter alia, stated as follows:
“…
the
magistrate considered the marriage and his business and concluded,
relying on S v Van Wyk these are not new facts. I agree with
the
finding of the magistrate in this regard. An incarceration of a
married person has a potential of placing strains on the marriage
right from the very moment of arrest. This is an inherent and
perennial problem those who expose themselves against the law face.”
CONCLUSION
12.
Interacting the powers of a court of appeal
in bail matters Bins-Ward AJ (as he then was) in
S
v Porthern and Others 2004(2) SACR 242 (C)(“Porthern”)
held as follows:
“…
an
appellate Court will give due deference and appropriate weight to the
fact that the court or tribunal of first instance is vested
with a
discretion and will eschew any inclination to substitute its own
decision unless it is persuaded that the determination
of the court
or tribunal of first instance was wrong.”
13.
In the same vein at para 17 of
Porthern
Justice Binns-Ward held that it remains
necessary to be mindful that a bail appeal goes to the question of
deprivation of personal
liberty stating further that:
“
In
my view, that consideration is a further factor confirming that
section 65(4) of the CPA should be construed in a manner which
does
not unduly restrict the ambit of an appeal court’s competence
to decide that the lower court’s decision to refuse
bail was
wrong.”
14.
For all the reasons stated above, I am not
persuaded that His Worship Magistrate Madavha exercised his
discretion wrongly. That
is so notwithstanding the high premium this
court places on liberty; it also being so that section 35(1)(f) of
the constitution
does bestow the right to be released on bail as one
bestowed on “everyone”. There were simply no new facts
before the
magistrate a consequence of which is that the appeal must
fail.
15.
In the result I make the following order:
15.1
The appeal is dismissed.
M S MONENE
ACTING JUDGE OF THE
HIGH COURT,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES
Heard
on
:
28 June 2024
Judgment
delivered on
:
09
th
July 2024
For
the Appellant
:
Adv. T Mokgoatsane
:
Instructed by Mahlaule Attorneys Inc
:
Tel: - 087 093 1279
:Email:
portialaw@mahlauleincattorneys.co.za
For
the Respondent
:
Adv. E Hartnick
:
Instructed by DPP Limpopo
:
Tel: 015 045 0250
:
Email:
Lmashiane@npa.gov.za