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[2024] ZAMPMBHC 59
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Mbuyane v S (BA05/2024) [2024] ZAMPMBHC 59 (30 August 2024)
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Certain
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(MPUMALANGA DIVISION,
MBOMBELA)
CASE NUMBER BA05/2024
MAGISTRATE COURT CASE
NUMBER 347/23
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
MANTHATA AJ
30/08/2024
In
the matter between:
ABEDNIGO
DESMOND MBUYANE
APPELANT
AND
THE
STATE
RESPONDENT
BAIL APPEAL JUDGEMENT
Delivered: This
judgment was handed down electronically by circulation to the
parties’ legal representatives via e-mail. The
date and time of
hand-down is deemed to be on 30 August 2024 at 14h00.
MANTHATA AJ
[1]
This is an appeal against the refusal of
bail, by the District Magistrate Mr Hall, sitting in Mbombela court,
on the 23rd
of
April 2023. A further bail application on new facts, which the
respondent opposed, was launched on the 2nd
of October 2023, and was dismissed on the
ground that even if the facts relied on were new, exceptional
circumstances do not exist
permitting the Appellant admitted to bail.
[2]
The appellant is charged with an offence of
murder. The charge sheet stipulates that the charge of murder is read
with
section 51
of the
Criminal Law Amendment Act 105 of 1997
, it is
not clear as to which of the two subsections of
section 51
, namely
subsection (1) or (2) is applicable.
[3]
The State and the Defence, however, agreed
from the beginning of the bail application that the charge falls in
the category of offences
listed in schedule 6 of the Criminal
Procedure Act 51 of 1977 (“Act 51 of 1977”).
[4]
Section 60 (11) (a) of Act 51 of 1977
states the following:
“
Notwithstanding
any provision of this Act, where an accused is charged with an
offence referred to - (a) 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 exceptional circumstances
exist which in the interests of
justice permit his or her release.”
[5]
The legal representative of the appellant,
however, argued after evidence was presented that the murder was not
premeditated or
planned and therefore the bail application falls
within the ambit of Schedule 5 of Act 51 of 1977.
[6]
Section 60 (11) (b) of Act 51 of 1977
states the following:
“
Notwithstanding
any provision of this Act, where an accused is charged with an
offence referred to- (b) 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.”
[7]
The learned Magistrate decided in his
judgement that the charge falls within the ambit of Schedule 6 of Act
51 of 1977 and that
the appellant failed to adduce evidence on a
balance of probabilities that exceptional circumstances permits his
release on bail.
[8]
The grounds upon which the appeal is based
are the following:
8.1
The Magistrate erred that the application
falls within the ambit of Schedule 6 of Act 51 of 1977;
8.2
The Magistrate erred in accepting the
evidence of the investigating officer with regard to the grounds
mentioned in Section 60(4)
of Act 51 of 1977;
8.3
The Magistrate erred in finding that the
release of the Appellant on bail will not be in the interests of
justice.
[9]
In
adjudicating over the grounds as set out in section 60(4) the court
would have to weigh, in terms of section 60(9) of the CPA,
the
interest of injustice as against the right of the accused to personal
freedom and the extent to which detention will prejudice
him. This
exercise would have regard to the factors identified in section 60(9)
(a – g). In summary, once exceptional circumstances
have been
established by the bail applicant, the enquiry must focus on the
balance between the interest of the State as set out
in section 60(4)
– (8)A on the one hand and the applicant’s interest in
his personal freedom as set out in the section
60(9) on the other.
[1]
[10]
It is trite that the Appellant bears the
onus to convince or persuade the court
a
quo
that exceptional circumstances
exist that permits his release on bail. In an attempt to do so he
presented an affidavit in support
of the bail application.
[11]
The Appellant stated in the affidavit
amongst others, the following:
11.1
He is a citizen of the Republic of South
Africa and have family ties in the country. He does not have
relatives or connections outside
the Republic of South Africa which
can make him to contemplate evading trial;
11.2
He is 37 years old, a father of four minor
children aged 17, 12, and 3 years respectively, all the children are
schooling, employed
and a breadwinner;
11.3
He is also supporting two minor children of
his wife who are 14 and 13 years old respectively;
11.4
He is a church member of Zalamani Nande
Apostolic Church in Zion, a board member and secretary of Uthando
House, an orphanage home,
and a chairperson of the Swalala Ma-50
Branch;
11.5
He is residing at Stand No. 5[...], M[...],
Hazeyview Trust, 1[…], (Masoyi). This is his marital home
registered under his
name and has been staying at the address for 10
years;
11.6
He is employed and was promoted to the law
enforcement unit in 2016 in April 2016;
11.7
He has three (3) cars that he purchased
through the banks, has credit loan with Capitec, credit cards with
ABSA and Makro, and clothing
accounts. If he is detained, he will not
be able to meet his financial obligations as he will lose his
employment;
11.8
On the merit of the case the Appellant
stated the following: On the 15th April 2023, while on standby at
work, he was around Mbombela
and needed to see his wife urgently. He
then figured that she was at kwaNyonyi Lodge. He went to see her as
she was not responding
to his calls. When he got there, he saw her
car in front of one of the rooms. He called her and she said she was
coming out. He
then pushed the door and upon entry he was confronted
by the deceased in a fighting mood. They fought and as they scuffled,
he
saw him putting a hand under his shirt and immediately feared he
was taking out a gun and he responded first and shot at the deceased
using a work gun that he was carrying since he was on standby at
work;
11.9
He acted out of fear and a strong suspicion
that the deceased was attacking him, as he recognised him as a law
enforcement officer
from another government department that he had
met around Mbombela. He knew also that as a law enforcement agent he
was ordinarily
allowed by his employment to carry a gun. When he saw
him putting his hand under his shirt after the scuffle made him
assume that
he was taking out a gun to attack him;
11.10
The State will not be able to prove beyond
reasonable doubt that he shot the deceased intentionally as the
peculiar facts of this
case point to the contrary;
[12]
The State led oral evidence of the
investigating officer of the case Warrant Officer Elbert Jacobus
Pieter De Lange. He testified
that the deceased was a Traffic Law
Enforcement Agent and was off duty on the day in question. The
deceased was in the company
of the lady and they booked into the
Lodge. The accused came to the lodge and accosted them. Accused
kicked opened a locked door
and entered. A scuffle ensued between the
accused and deceased where after the deceased ran away and accused
chased him. Accused
produced a firearm and shot the unarmed deceased
at twice, once on the shoulder and once on the back of the head.
[13]
Warrant Officer De Lange was cross-examined
and stood on his version on
how
the incident occurred without contradictions and inconsistencies.
[14]
In
S
v Bruintjies
[2]
,
Shongwe AJA, stated:
“
The
appellant failed to testify on his own behalf and no attempt was made
by his counsel to have him testify at the bail application.
There was
thus no means by which the Court a quo could assess the bona fides or
reliability of the appellant save by the say-so
of his counsel.”
[15]
In
S
v Mathebula
[3]
,
Heher JA stated at para [11]:
“
In
the present instance the appellant's tilt at the State case was
blunted in several respects: first, he founded the attempt upon
affidavit evidence not open to test by cross-examination and,
therefore, less persuasive”.
[16]
In Killian v S at para [13]. the Court
dealt with the dangers inherent in the use of affidavits in bail
proceedings where section
60(11) of the CPA applies:
“
Bail
applications are sui generis. To an extent they are inquisitorial
and, in general, there is no prescribed form for introducing
evidence
at them. But in cases where s 60(11) applies and there is
consequently a true onus on the applicant to prove facts establishing
exceptional circumstances, an applicant would be well advised to give
oral evidence in support of his application for bail. This
seems to
me to follow, because - differing from the position in which the
Plascon-Evans rule is applied – the discharge of
the onus is a
central consideration in s 60(11) applications. If the facts are to
be determined on paper, the state’s version
must be accepted
where there is a conflict, unless the version appears improbable.”
[17]
In
the
present
case
the
Appellant
did
not
testify
under
oath
but
presented affidavit evidence which could
not be subjected to test by cross-examination.
[18]
The learned magistrate when considering the
Appellant affidavit evidence pondered on many questions which remains
unanswered and
unclarified. This is not surprising as the affidavit
evidence was not open to test by cross-examination.
[19]
The State had adduced clear evidence in
regard to the occurrence of the murder and the evidence was subjected
to cross-examination.
[20]
The argument by the Appellant which was
also canvassed during oral argument is that the State will not be
able to prove beyond reasonable
doubt that the Appellant shot the
deceased intentionally as the peculiar facts of this case point to
the contrary.
[21]
In
S
v Mathebula
[4]
at para [12] the Supreme Court of Appeal set out the test in relation
to an attack on the strength of the State’s case:
“
But
a state case supposed in advance to be frail may nevertheless sustain
proof beyond a reasonable doubt when put to the test.
In order
successfully to challenge the merits of such a case in bail
proceedings an applicant needs to go further: he must prove
on a
balance of probability that he will be acquitted of the charge: S v
Botha
2002 (1) SACR 222
(SCA) at 230h, 232c; S v Viljoen
2002 (2)
SACR 550
(SCA) at 556c. That is no mean task, the more especially as
an innocent person cannot be expected to have insight into matters in
which he was involved only on the periphery or perhaps not at all.
But the state is not obliged to show its hand in advance, at
least
not before the time when the contents of the docket must be made
available to the defence; as to which see Shabalala &
Others v
Attorney-General of Transvaal and Another
[1995] ZACC 12
;
1996 (1) SA
725
(CC). Nor is an attack on the prosecution case at all necessary
to discharge the onus; the applicant who chooses to follow that
route
must make his own way and not expect to have it cleared before him.
Thus, it has been held that until an applicant has set
up a prima
facie case of the prosecution failing there is no call on the state
to rebut his evidence to that effect: S v Viljoen
at 561f-g.”
[22]
The Appellant must prove on a balance of
probability that he will be acquitted of the charge and he had failed
in that regard.
[23]
It was further argued that the Appellant
enjoys Constitutional rights to be presumed innocence until proven
otherwise. I agree with
this argument except that the right referred
to is not absolute.
[24]
In
S
v Mbaleki and another
[5]
at
para [14], the Court remarked as follows:
“
I
need however to also deal with the perception out there that the
presumption of innocence had a role to play at the consideration
of
bail. In S v Dlamini, S v Dladla and Others, our Constitutional Court
unanimously decided that the right to be presumed innocent
is not a
pre-trial right but a trial right. This has also been understood by
the learned Magistrate.”
[25]
In
Mafe
v S
[6]
at
para [95], Lekhuleni J said the following regarding the presumption
of innocence:
“
In
summary, the presumption of innocence is one of the factors that must
be considered together with the strength of the State’s
case.
However, this right does not automatically entitle an accused person
to be released on bail. What is expected is that in
Schedule 6
offences the accused must be given an opportunity, in terms of
section 60(11)(a), to present evidence to prove that
there are
exceptional circumstances which, in the interests of justice, permit
his release. The State, on the other hand, must
show that,
notwithstanding the accused’s presumption of innocence, it has
a prima facie case against the accused. In reaching
a value judgment
in bail applications, the court must weigh up the liberty interest of
an accused person, who is presumed innocent,
against the legitimate
interests of society. In doing so, the court must not over-emphasise
this right at the expense of the interests
of society.”
[26]
A
court seized of a bail application fulfils a very different function
from a trial court. Its role is not to determine the guilt
or
innocence of the accused person. The bail court’s concern with
the interests of justice, in the sense of weighing in the
balance
‘the liberty interest of the accused and the interests of
society in denying the accused bail’, will however
in most
cases entail that it will have to weigh, as best it can, the
strengths or weaknesses of the state’s case against
the
applicant for bail. A presumption in favour of the bail applicant’s
innocence plays no part in that exercise. The court
will, of course,
nevertheless bear in mind the incidence of the onus in making any
such assessment
[7]
.
[27]
The learned magistrate had considered and
evaluated the Appellant affidavit evidence and the State’s oral
evidence. The conclusion
that the learned magistrate reached is that
the murder is premeditated or planned.
[28]
In terms of section 65(4) Act 51 of 1977,
the court 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.
[29]
I find no fault on the learned magistrate
decision that the murder falls within Schedule 6 of Act 51 of 1977.
[30]
The Appellant has the onus to prove on
balance of probabilities that exceptional circumstances exist which
permits his release on
bail.
[31]
In
S
v Petersen
[8]
at
para [55] it was held as follows:
“
Generally
speaking ‘exceptional’ is indicative of something
unusual, extraordinary, remarkable, peculiar or simply different.
There are, of course, varying degrees of exceptionality, unusualness,
extraordinariness, remarkableness, peculiarity or difference.’’
[32]
In
the matter of
S
v H
[9]
,
it was held that:
“…
Exceptional
circumstances must be circumstances which are not found in an
ordinary bail application but pertain peculiarly ... to
an accused
person's specific application. What a Court is called upon to do so
is to examine all the relevant considerations ...
as a whole, in
deciding whether an accused person has established something out of
the ordinary or unusual which entitles him to
relief under section
60(11)(a)."
[33]
In
S
v Josephs
[10]
at
668I it was held: "Showing 'exceptional circumstances' for the
purposes of
section 60(11)
of the
Criminal Procedure Act does
not
post a standard which would render it impossible for an
unexceptional, but deserving Applicant to make out a case for bail."
[34]
The Appellant contends in the Heads of
Argument admitted into evidence as Exhibit “C” that the
following constitute
exceptional circumstances:
34.1
The charge against him involves an affair
that his wife had with the deceased. He found her with him in a
rented room. He had just
been married to her for less than a year and
when he discovered this he lost control;
34.2
this has badly affected his emotional
health and he needs to get marriage counselling urgently as he is
struggling to come to terms
with the fact that the woman he so dearly
loves could have an affair with another man. He needs to safe his
marriage and unfortunately
the people who are assisting him in prison
in this regard are just ordinary pastors not trained marriage
counsellors;
34.3
He needs to get psychological counselling
to deal with trauma of the shooting incident as well as the
‘catching’ of
his wife with another man;
34.4
He fears that if he does not get
professional psychological counselling he stands to either lose his
marriage and he needs professional
help to come to terms with what
happened within his marriage;
34.5
If not released on bail to be attended by
psychologist he might also lose his mind from the memories of the
events and from mental
anguish;
34.6
He is kept in a separate cell in prison
from the rest of the inmates and eats separately from the rest of the
inmates due to the
nature of the offence he is facing;
34.7
Keeping him separately from other inmates
does not help him but depresses him further as he cannot talk to
anyone about what happened
and this is haphazard to his mental
health;
34.8
Suffering from post-traumatic stress
disorder cannot be excluded as a possibility in the absence of
medical help of counselling;
34.9
It will be to the benefit not only of him
but even the Prosecution to be admitted into bail so that he can get
medical help he needs
in order to face trial in his full mental
capacities. Being kept in custody will only serve to defeat the very
purpose of his detention
which is to face trial;
[35]
The exceptional circumstances that the
Appellant argued exist, only emerged in the Heads of Argument filed
in support of the bail
application. They were not included in the
affidavit evidence the Appellant presented in support of the bail
application. Even
if the said exceptional circumstances had been
included in the affidavit evidence they would still not be tested
under cross-examination,
the concern raised by the learned
magistrate.
[36]
It is my view that the purpose of Heads of
Argument and/or oral argument is not and must not be an opportunity
to raise new facts.
The argument must confine or limit itself to the
facts, evidence or issues raised in the hearing or trial.
[37]
For Counsel for the Appellant to introduce
or raise new facts in the Heads of Argument and allowed to argue on
that was tantamount
to adducing evidence from the bar which is
unacceptable.
[38]
The learned magistrate had considered the
above grounds which are deemed to constitute exceptional
circumstances. He dismissed the
grounds as not constituting
exceptional circumstances as the Appellant failed to produce medical
proof to support his medical condition.
I cannot find any fault on
the decision raised by the learned magistrate.
[39]
The personal circumstances of the Appellant
are fully outlined in paragraph [11] [11.1. ]- [11.7.] of this
judgement.
[40]
In
S
v Mazibuko and another
[11]
,
at para [19]:
“
As
far as the appellant’s personal circumstances are concerned,
they are commonplace and not out of the ordinary ─ none
of
these factors constitutes exceptional circumstances.” it was
held that: “… for the circumstance to qualify
as
sufficiently exceptional to justify the accused's release on bail it
must be one which weighs exceptionally heavily in favour
of the
accused, thereby rendering the case for release on bail exceptionally
strong or compelling.”
[41]
The learned magistrate had considered the
personal circumstances of the Appellant and still arrived at the
conclusion that they
do not constitute exceptional circumstances.
Again, I cannot find any fault on the conclusion reached by the
learned magistrate.
[42]
As stated above in paragraph [8][8.2] the
Appellant contends that learned Magistrate erred in accepting the
evidence of the investigating
officer with regard to the grounds
mentioned in
Section 60(4)
of Act 51 of 1977.
[43]
In consideration to the grounds mentioned
in Section 60(4) of Act 51 of 1977, the learned magistrate considered
the nature and the
gravity of the charge on which the accused is to
be tried; the nature and gravity of the punishment which is
likely to be
imposed should the accused be convicted of the charges
against him or her; and the relationship of the accused with the
various
witnesses and the extent to which they could be influenced or
intimidated and arrived at the conclusion that it will not be in the
interests of justice to admit the Appellant into bail.
[44]
The
effect of s 60(11), as substituted by s 4(f) of the Criminal
Procedure Second Amendment Act 85 of 1997 (with effect from 1 August
1998), is that sub-secs 60(4) to (9) have to be applied differently.
The signal difference is the obligation placed on the applicant
for
bail to show exceptional circumstances justifying a departure from
the legislative determination that continued detention should
be the
norm for persons charged with Schedule 6 offences. A court’s
evaluation of the facts with regard to the considerations
in sub-secs
60(4) to (9) is required to be undertaken in accordance with the
aforementioned statutory precept
[12]
.
[45]
There is no doubt that premediated or
planned murder is a serious charge and upon conviction a life
imprisonment would be imposed
unless substantial and compelling
circumstances exist justifying deviation from imposition of life
imprisonment.
[46]
The key state’s witness is the
Appellant’s wife. The deceased was with her at the time he was
shot death. The Appellant
used her affidavit in support of his
release into bail. The circumstances under which the affidavit was
obtained is mysterious.
[47]
Counsel for the State argued that the fact
that it is not known how the affidavit was obtained from the State’s
witness raises
a concern that she might be influenced or intimidated
as a witness.
[48]
In
S
v Dlamini, Dladla, Joubert, Schietekat
[13]
the
Constitutional Court held that:
“…
The
focus at the bail stage is to decide whether the interests of justice
permit the release of the accused pending trial; and that
entails, in
the main, protecting the investigation and prosecution of the case
against hindrance.”
[49]
The test in terms of Section 60(4)(c) of
Act 51 of 1977 is whether there is a likelihood that, if the
Appellant was released, that
he would attempt to influence or
intimidate witnesses. The court had to look if there would be an
attempt to that effect.
[50]
The eye witness in this case is the
Appellant’s wife and her affidavit in support of the
Appellant’s release was obtained
without the State not knowing.
The wife had moved away from the marital home. She is the one who
apparently had witnessed the incident
and without her the State would
not be able to prove the case against the Appellant.
[51]
If the Appellants is to be released on
bail, then the main aim of “protecting the investigation and
prosecution of the case
against hindrance” would be defeated.
[52]
The learned magistrate conclusion on the
likelihood of interference with the witness(s) cannot be faulted.
[53]
The Appellant lodged bail application on
new facts on the 2nd of October 2023. He presented affidavit evidence
which outlined the
following:
53.1
He is employed as a law enforcement officer
in Mbombela and his salary has been stopped since 17 April 2023. He
has been suspended
from duty;
53.2
He bought a VW Polo TSI from Volkswagen
Financial Services. He pays instalment of R7 966.42. on the 21st
January 2023 it had had
arrears of R16 057.95;
53.3
He also owns a Toyota Hilux which is
financed by Motor Financial Institution a division of Nedbank
Limited. He is in arrears and
an agreement was made with MFC that
payment be postponed to 22 August 2023 to effect the arrears. He
would not be in a position
to honour the agreement since he is still
in custody;
53.4
His wife is unable to pay school fees for
their children;
53.5
His wife received stipend of plus or minus
R2 500 per month from the mother’s business trading by selling
meat and porridge.
The R2 500 is insufficient to cover his family
expenses including payment for their motor vehicles;
53.6
After he was denied bail his elder sister
Thuli Regina Mahunye moved to his resident to look after his property
hence his wife moved
to her parental home as a result of this case.
His sister Thuli Regina Mahunye has since left his house due to
marital commitment;
53.7
His niece Banzi Lesley Mbuyane also assist
him in looking after his property and aiding his extra marital
children financially.
He is now having financial constraints in
assisting him;
53.8
His AVBOB policy has lapsed after his
incarceration. He will be able to reinstate the police if he is
outside prison;
53.9
The Toyota Hilux 2.5 D4D has not been paid
for since May 2023 until to date. The arrears are R51 670.48;
53.10
His Mercedes Benz C200 is in arrears of R76
287.10;
53.11
He has since lost a considerable amount of
weight since his incarceration. He is undergoing medical treatment
for stress related
issue which affect his eyes, headache and back
pains. He does not have the medical records which are in the hands of
Correctional
Services health officials;
53.12
He is a South African citizen and has spent
his whole life since birth in the Republic. All his ties are within
the Republic;
53.13
The doctrine of innocent until proven
guilty in terms of the Constitution still prevails upon him. He is
not a flight risk. He is
a South African citizen with a fixed
address. He has no pending cases, no previous convictions. He has
never lived outside the
Republic of South Africa.
[54]
In
S
v Mpofana
[14]
the
court explained the approach to be taken in applications for bail
based on new facts as follows:
“
In
considering an application for bail allegedly brought on the strength
of new facts, the court’s approach is to consider
whether there
are, in the first instance, new facts and, if there are, reconsider
the bail application on such new facts, against
the background of the
old facts.”
[55]
In
S
v Mohammed
[15]
,
the court stated that:
“
it
seems logical that any renewed application based on new facts or
changed circumstances should only be able to be properly judged
with
reference to those facts and circumstances which were placed before
the court in the first instance. There can of course be
no numerus
clauses as to the nature of new facts or changed circumstances that
may legitimately warrant the grant of bail previously
refused. The
newly discovered evidence of a witness who may prove the accused’s
innocence, as was in this case, is an example.”
[56]
In
the matter of
Davis
and Another v S
[16]
,
it was held that:
“
If
the evidence is adjudged to be new and relevant, then it must be
considered in conjunction with all the facts placed before the
court
in previous applications, and not separately”.
[57]
New
facts must be ‘sufficiently different in character’ from
the facts presented at the earlier unsuccessful bail application
[17]
and
must not constitute simply a reshuffling of old evidence
[18]
[58]
The learned magistrate found that the
arrear amounts the Appellant accrued on his finances constituted new
facts. He, however, refused
bail on new facts he finds exists on the
basis that when new facts are considered with the old facts in the
initial bail application,
do not constitute exceptional
circumstances.
[59]
I cannot find any fault on the decision of
the learned magistrate in this regard but I have a different view as
to whether the issue
of the Appellant accruing arrear amounts to his
accounts constitute new facts. My view is that they do not.
[60]
During the initial bail application, the
Appellant said that he has three (3) cars that he purchased through
the banks, has credit
loan with Capitec, credit cards with ABSA and
Makro, and clothing accounts, he has minor children who are schooling
and if he is
detained he will not be able to meet his financial
obligations as he will lose his employment.
[61]
Logic dictates that the learned magistrate
knew or ought to have known that if the cars are not paid, arrears
would be accumulated
on failure to pay the cars as the Appellant
would be in detention and if the Appellant is in detention school
fees would not be
paid. What the Appellant brought as new facts is
simply a reshuffling of old evidence.
[62]
The Appellant raised an issue of medical
condition in para. [53] of this judgement. The learned magistrate
dismissed the health
issue as not constituting exceptional
circumstance.
[63].
The
question
of
a
detainee’s
ill-health
due
to
conditions
in
our
prisons
was
considered in the matter of
S
v Mpofana
[19]
and
it was stated in this regard, as follows:
“
Upon
a proper construction of s 35(2)(e) and (f) of the said Constitution,
one whose detention has been pronounced lawful and in
the interests
of justice cannot simply resort to a further bail application merely
because he has been detained under inhumane
and degrading conditions
or on the ground that his right to consult with a doctor of his own
choice has been infringed. It is,
however, available to such person
firstly to apply to the prison authorities concerned and call upon
them to remedy whatever complaints
he/she has with regard to the
conditions of his/her detention. Should the prison authorities fail
to remedy such complaints, it
is available to the detainee concerned
either to challenge the detention before a court of law as being
unconstitutional or obtain
a court interdict to force the prison
authorities to comply with the law. In any event, in hoc casu, the
magistrate has, quite
correctly in my view, ordered that the prisons
officials should afford appellant the right to consult with a medical
practitioner
of his choice and appellant's concern in this regard
should be laid to rest.”
[64]
In
Solomons
v S
[20]
the
held that:
“…
bail
in general is not a remedy to the failures of prison authorities to
detain inmates in conditions consistent with human dignity.”
this Court held that: “I do not believe much can be made of the
conditions of detention in a case such as the present one.
Whilst
unsatisfactory, I believe that the State is correct in its argument
that the conditions of detention is really a separate
issue which
needs addressed through the Office of the Inspecting Judge or some
other process. Such conditions cannot in my view
constitute
exceptional circumstances justifying the release of the Applicant.”
[65]
The Appellant says he is undergoing medical
treatment for stress related issue which affect his eyes, headache
and back pains.
[66]
The
appeal court is at liberty to consider its own analysis of the
evidence in order to conclude whether an accused person has
discharged the onus on him as set out in section 60(11)(a) of the
CPA.
[21]
[67]
The
Appellant is not saying that the prison cannot provide him with the
necessary medical treatment but instead is saying that he
is
undergoing treatment. If the Appellant is raising this issue on the
ground that he wants to consult with a doctor of his own
choice, it
cannot stand. I agree with what was said in
Solomons
v S
[22]
,
and considering
S
v Mpofana
[23]
that
this cannot be an exceptional circumstance.
[68]
I therefore cannot find any fault on the
decision of the court
a quo
in
dismissing the issue of ill-health as not constituting exceptional
circumstance.
[69]
In conclusion the powers of this Court are
largely limited in that it cannot interfere with the exercise of the
magistrate discretion
in refusing bail unless if the discretion was
exercised wrongly.
[70]
The
above was clearly expounded in
S
v Barber
[24]
where
Hefer J held:
“
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 that
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.”
[71]
I find that the Appellant failed to
successfully discharge the onus that exceptional circumstances exist
in terms of Section 60(11)(a)
of Act 51 of 1977 that permits his
admission into bail. I find that the court
a
quo
correctly denied his application to
be admitted into bail.
[72]
Accordingly, the following order is made:
1.
Appeal is dismissed.
MANTHATA AJ
ACTING
JUDGE OF THE HIGH COURT
MPUMALANGA DIVISION,
MBOMBELA
APPEARANCES:
For
the Applicant:
Mr
V Segodi
Instructed
by:
Vusi
Segodi Attorneys
Counsel
for the Respondent:
Adv
TD Mahasha
Instructed
by:
Director
of Public Prosecutions Mpumalanga, Mbombela
[1]
See
Keevy v S (A66/2013)
[2013] ZAFSHC 53
(2 April 2013)
[2]
2003
(2) SACR 575
(SCA) at 577 paragraph [7]
[3]
2010
(1) SACR 55
(SCA) at 59b-c
[4]
2010
(1) SACR 55 (SCA)
[5]
2013
(1) SACR 165 (KZD)
[6]
[2022]
ZAWCHC 108
(31 May 2022)
[7]
S
v Barendse and Another (A01/2023)
[2023] ZAWCHC 63
(22 May 2023)
Conradie v S
[2020] ZAWCHC 177
(11 December 2020) at paras
[19]-[20].
[8]
2008
(2) SACR 355 (C)
[9]
1999
(1) SACR 72
(W) at 77E–F
[10]
2001
(1) SACR at 659 (C)
[11]
2010
(1) SACR 433
(KZP); See also S v Scott-Crossley
2007 (2) SACR 470
(SCA) at para [12]
[12]
See
Barense and Another v S (A01/2023)
[2023] ZAWCHC 125
;
[2023] 3 All
SA 381
(WCC) (22 May 2023).
[13]
[1999]
ZACC 8
;
1999 (2) SACR 51
(CC) at para
[11]
[14]
1998
(1) SACR 40
at 44(G – I)
[15]
1999
(2) SACR 507 (C)
[16]
(2888/2015)
[2015] ZAKZDHC 41 (8 May 2015)
[17]
S
v Mohamed
1999 (2) SACR 507
(C) at 512b)
[18]
S
v Petersen
2008 (2) SACR 355
(C) at [57].
[19]
1998
(1) SACR 40 (TK)
[20]
[2019]
2 All SA 833
(WCC) at para [30]. See also Lin and another v S
2021
(2) SACR 505
(WCC) at para [73]
[21]
See
S v Porthen and Others
2004 (2) SACR 242
(C) at paras [16]-[17], S v
Botha, 2002 (1) SACR
222
(SCA)
[22]
[2019] 2 All SA 833 (WCC)
[23]
1998 (1) SACR 40 (TK)
[24]
1979
(4) SA 218
(D) at 220E - H