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2024
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[2024] ZAMPMBHC 73
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Shungube v S (BA06/2024) [2024] ZAMPMBHC 73 (1 October 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA
CASE
NO: BA06/2024
(1)
REPORTABLE:NO
(2)
OF INTEREST TO OTHER JUDGES: YES
(3)
REVISED: YES
DATE 01/10/2024
SIGNATURE
In
the matter between:
ELIJAH
SHUNGUBE
APPELLANT
and
THE
STATE
RESPONDENT
This judgment was
handed down electronically by circulation to the parties and/or
parties’ representatives by email. The date
and time for
hand-down is deemed to be 01 October 2024 at 10:00.
JUDGMENT
Mashile
J
Introduction
[1]
On 9 January 2023, the Komatipoort Magistrate’s Court (“the
court a
quo
”) per Ms Tsotetsi refused to admit the
Appellant (“Shungube”) to bail. Dissatisfied with the
decision of the
Court a
quo
, on 19 July 2023, Shungube
appealed the decision. The apprehension and subsequent detention of
Shungube derive from two separate
counts, one of culpable homicide
and the other, murder as read with
section 51(2)
of the Criminal Law
Amendment Act 105 of 1997.
Factual Matrix
[2]
The facts upon which the court
a
quo
premised its
decision to deny admission to bail have been briefly set out in the
judgment of the Court a
quo
from which I proceed to borrow
extensively. Shungube is a 37-year-old married man with children who
are still minors. He was employed
as a security officer guarding
people not to illegally cut wood from the forest on the date of the
incident. His motor vehicle
broke-down. In consequence, he borrowed
another motor vehicle from his friend, Mr Mathebula (“Mathebula”).
[3]
Acceding to the request, Mathebula provided the vehicle as requested.
Shungube left in the company
of Mathebula’s now deceased son
who was also the driver. The two fetched another security officer and
a watchman following
which, all four drove to the forest. On arrival
at the forest, the driver got off the vehicle. Confronted by a wild
animal emerging
from the bush, he ran back to the vehicle. Shungube
took out a homemade gun to shoot the animal. He missed it and
inadvertently
shot Mathebula’s son.
[4]
Suddenly, the watchman who was part of the crew, took-off and ran
away. To stop the watchman from
doing so, Shungube shot him. Both
Mathebula’s son and the watchman died at the scene of crime.
Shungube and the other security
officer ran to the owner of the
forest for help but could not find anyone let alone the owner. The
two returned to the scene of
crime where Shungube took-off his
bloodstained shirt, cut it up and threw it into the river. He left
the scene of crime to change
his clothes and headed straight to the
police station to report the case. When doing this, he lied to the
police by telling them
that they were attacked by strangers from whom
they had run away to obtain assistance.
Grounds of Appeal
[5]
Insofar as I could decipher, there are only two grounds upon which
Shungube challenges his denial
to admission to bail by the Court a
quo
. One of these grounds is based on the provisions of
section 60(11) of the Criminal Procedure Act, 51 of 1977 (“the
Act”).
The Court
a
quo
is said to have erred in
its finding that the admission of Shungube to bail would not be in
the interest of justice.
[6]
Although not in so many words, the Court
a quo
is further said
to have erred in finding that there was evidence that, if admitted to
bail, Shungube would probably engage in the
risks envisaged in
section 60(4)
(a)
to
(e)
of the Act.
Assertions
by the Parties
[7]
Shungube asserted that in denying bail, the Court
a quo
leaned
heavily on the evidence of the investigating officer who stated that
if admitted to bail Shungube would, as he has already
done, continue
to threaten the only eyewitness and other people such as those who
protested outside the court.
[8]
The Court
a
quo
, without any critical scrutiny of the
evidence of the investigating officer, accepted that it would be
unsafe to admit Shungube
to bail given the hostility against him. In
this regard, the Court a
quo
pointed out to the fact that
Shungube’s house had already been gartered by fire started by
members of the community among
which he lives. In any event, it was
also the Court
a quo’s
concern that the mere fact that
Shungube had made threats to the protesters, is sufficient to think
that the other people involved
in the case too would not be safe were
he to be admitted to bail.
The Court
A
Quo
’s Reasons for Denying Bail
[9]
It is noticeable from the judgment that when denying bail to
Shungube, the following weighed heavily
on the Court
a
quo
:
9.1
Given the history of the case, the possibility of intimidation of
witnesses always lurked. It also could
not be ruled out that he would
not engage in some other form of interference with the witnesses
especially because Shungube knew
the only eyewitness, and everyone
involved in the case;
9.2
The Court
a quo
was also concerned that Shungube could conceal
and or destroy evidential material, as he had already done by
throwing his shirt
into the river albeit that it was later recovered
and evidence secured;
9.3
Shungube’s life would be imperilled if the burning of his house
was anything to determine this;
9.4
Equally, the lives of other people would be endangered as Shungube
had allegedly declared that he would
deal with protesters;
9.5
Shungube did not reveal his defence during the bail application; and
9.6
The charges involved violence and were serious. As such, there
existed a chance of a severe sentence
ensuing in the event of
conviction.
[10]
Perhaps I should indicate at this juncture that the reasons for the
denial of bail to Shungube as outlined
above include those that the
State has put forward as grounds for this Court to uphold the
decision of the Court
a
quo
. In the main, those are the
reasons put forward by the investigating officer.
Issues
[11]
The first obvious issue to confirm is the lack of determination of
the question whether the bail was to be
decided based on Schedule 5
or 6. It is evident that the Court a
quo
simply dealt with the
matter as one that fell under Schedule 6 without accounting for its
decision. It is common cause between
the parties that the Court
a
quo
should have properly gone through the exercise and trouble
of probing and verifying why it thought Schedule 6 was applicable in
these circumstances.
[12]
The second issue is whether the Court a
quo
misdirected itself
by denying to admit Shungube to bail in circumstances where he
deserved to have been released. In other words,
could it be that the
Court a
quo
regarded its denial of bail as an anticipatory
punishment if Shungube is subsequently found guilty and convicted?
Legal Framework
[13]
To the extent that admission to bail is
governed by Section 60 of the CPA, it will be instructive to cite
some of the provisions
in full. Section 65(a) provides:
“
An
accused who considers himself aggrieved by the refusal by a lower
court to admit him to bail or by imposition by such court of
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.”
[14]
Section 65(4) 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 should have given.”
[15]
Section 60(11)
(b)
provides that:
“
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.”
[16]
Section 60(4) deals with instances where it will not be in the
interest of justice to admit an accused person
to bail. It provides
as follows
:
“
The
interests of justice do not permit the release from detention of an
accused where one or more of the following grounds are established:
(a)
where there is the likelihood that the accused, if he or she were
released on bail, will endanger
the safety of the public, any person
against whom the offence in question was allegedly committed, or any
other particular person
or will commit a Schedule 1 offence;
(b)
where there is the likelihood that the accused, if he or she were
released on bail, will attempt
to evade his or her trial; or
(c)
where there is the likelihood that the accused, if he or she were
released on bail, will attempt
to influence or intimidate witnesses
or to conceal or destroy evidence; or
(d)
where there is the likelihood that the accused, if he or she were
released on bail, will undermine
or jeopardise the objectives or the
proper functioning of the criminal justice system, including the bail
system;
(e)
where in exceptional circumstances there is the likelihood that the
release of the accused will
disturb the public order or undermine the
public peace or security.”
[17]
Turning to case law on the subject of bail, counsel for Shungube
referred this Court to the matter of
S
v C
,
[1]
where the Court held that “it could not have been the intention
of the Legislature that an alleged offender must be detained
when he
has established conclusively that he will attend his trial, that he
will not interfere with the administration of justice,
and that he
will commit no further wrongdoing… As soon as more is required
of him, the procedure becomes punitive”.
[18]
This Court per Legodi JP in the unreported matter of
Petrus
Khoza v The State
,
[2]
commenting on the strength of the case of the State had this to say
at Para 8 of the judgment:
“
The
fact that there is a strong case against an accused person, does not
mean the end of the road for an accused person in a bail
application.
The critical issue is whether he or she will stand his trial despite
the strength of the state case and the resultant
punishment if found
guilty. For this purpose, the accused’s flight risk was to be
considered.”
[19]
Commenting on the provisions of section 60(4)
(a)
to
(c)
,
Kubushi J in the case of
S
v Diale and Another
,
[3]
held that:
“
A
court cannot find that the refusal of bail is in the interest of
justice merely because there is a risk or possibility that one
or
more of the consequences mentioned in s 60(4) will result. The court
must not grope in the dark and speculate; a finding on
the
probabilities must be made. Unless it can be found that one or more
of the consequences will probably occur, detention of the
accused is
not in the interest of justice, and the accused should be released”.
Analysis
[20]
The starting point must be the issue concerning the characterisation
of this case as falling under Schedule
6 and not 5 by the Court
a
quo
. I note that both parties agree that to the extent that
the Court
a quo
treated this matter as a Schedule 6, it has
misdirected itself. In other words, no exceptional circumstances need
be establish
as though this were a Schedule 6 before Shungube can be
admitted to bail. It will suffice to demonstrate on a balance of
probabilities
that it will be in the interest of justice that he be
admitted to bail, as intended in section 60(11)
(b)
of the Act.
Save to agree with the parties that given the facts, the Court
a
quo
should have proceeded on the basis that it was a Schedule
5.
Intimidation and/or
Interference
[21]
The Court a
quo
found that it was disquieting that the
possibility that Shungube could interfere with and/or intimidate the
only eyewitness could
not be excluded. While this concern is genuine,
the Court
a
quo
ought to have considered it against
what had already happened. It is useful when engaging in this
exercise to bear in mind that
it will be futile for Shungube to
intimidate the eyewitness because the latter’s testimony has
already been secured in the
form of a sworn statement, which has also
been supplemented. Thus, the allegation of intimidation or
interference is irrational
considered against that backdrop.
[22]
The allegation that the eyewitness is distraught and fears that
Shungube may attempt to take his life cannot
be correct. This must be
so because the eyewitness did not display such fear when he narrated
what transpired on that eventful
day when the lives of two people
were cut short especially because he did so before the arrest of
Shungube. I therefore agree with
Counsel for Shungube that the issue
relating to fear is contrived and this Court should not entertain it.
[23]
Other than the above, the Court a
quo
seem to have disregarded
the testimony of the investigating officer that the eyewitness has
moved from his usual address and that
he has changed his contact
numbers. Shungube will not be able to find the eyewitness unless of
course the investigating officer
discloses his whereabouts, something
that the eyewitness specifically requested the investigating officer
not to do. The intimidation
or interference mentioned in the judgment
is therefore misguided.
[24]
Lastly on this issue, Shungube testified that he would relocate from
Tonga to Matsulu where he would stay
with his daughter. His evidence,
corroborated by his daughter, was not challenged at all. It was also
not contested that Matsulu
is approximately 70 Kilometres away from
Tonga. The distance allays fears that the witnesses and/or the
eyewitness will be intimidated.
I agree that the Court
a
quo
should have considered placing appropriate conditions that would
ensure that Shungube would not leave Matsulu or that he would
not be
allowed to visit Tonga.
Destruction and/or
Concealment of Evidence
[25] I
note the argument of Shungube that the State did not contend or levy
any evidence that Shungube was likely
to destroy or conceal
evidentiary material if admitted to bail. That said, this Court must
deal with it as it is one of the matters
that distressed the Court
a
quo
. It appears from the testimony of the investigating
officer that the exhibits have been acquired, protected, booked into
the SAP
13 register and sent for analysis. It is against that
background that Shungube asserted that it is not possible to
interfere with
evidentiary material that is not within his reach
anymore.
[26]
Insofar as there remains outstanding investigation, I need to
indicate that the evidence of the investigating
officer was that it
pertains to forensic results, pathology results and photo albums. The
nature of the unresolved investigation
is such that Shungube cannot
interfere with any of the processes or procedures involved in
securing the outcome. The argument of
the State in this regard does
not find favour with this Court.
Fear for the Safety of
the Community and Shungube
[27] It
was asserted on behalf of the State that Shungube’s life would
be in danger if admitted to bail.
In this regard, the State pointed
out that his house had already been brought down by fire. Besides,
the State also argued that
Shungube on his own threatened to get to
the members of the community who protested him once released. This
should not have been
a concern to the Court
a
quo
because the evidence is that Shungube’s house was set on fire
by the family of one of the deceased individuals and not the
general
community.
[28]
The evidence of Shungube is that he will not endanger the safety of
the community nor his own. In this regard,
it is worth reiterating
that, if released on bail, he has said that he would stay in Matsulu
with his daughter. The trick here
is to set conditions that would
prevent him from visiting the area of Tonga to avoid confrontation.
It was also Shungube’s
testimony, even though not confirmed by
his employer, that he could be moved to work for the same company at
a different location
away from the area of Tonga. In the
circumstances it is improbable that both the lives of the community
and Shungube would be in
danger were he to be admitted to bail.
Shungube’s
Failure to Disclose his Defence
[29]
The finding of the Court
a
quo
on this issue is
somewhat startling. I say so because, as pointed out by counsel for
Shungube, there was no duty on Shungube to
disclose his defence
during bail proceedings. The finding goes against Shungube’s
testimony before the Court
a
quo
though. There is an
indication that he will deny the charges preferred against him.
The State’s case
against Shungube is strong and a lengthy sentence may ensue in the
event of conviction
[30] It
is proper to revert to the matter of Petrus Khoza decided by this
Court
supra
. A consideration of the strength of the case of
the State against an accused person is misguided if the Court does
not ask itself
whether the accused person will attend court the
strength of the case against him and possible lengthy sentence that
may follow
in the event of conviction notwithstanding. It could be
that the case of the State is very strong but that does not
necessarily
imply that Shungube will not attend court for trial.
[31] I
agree that reference to the strength of the case of the State and
possible lengthy period of incarceration
against Shungube undermines
the presumption of innocence until proved otherwise beyond reasonable
doubt. With all the above points
having been legitimately shown to be
unfounded, fallacious and without a finding that Shungube was a
flight risk, it is confounding
that the Court
a
quo
refused
to admit Shungube to bail.
[32]
Given that Shungube is married with minor children and that he is a
breadwinner for his family, it will be
prejudicial not only to him
but to those who depend on him to perpetuate his incarceration. This
will be aggravated by the length
of time it may take to have the
investigation concluded.
[33] It
is against the above background that I have concluded that the
interest of justice demands that Shungube
be admitted to bail. As
such, I make the following order:
The order of the Court
a
quo
is set aside, and it is substituted for the following:
“
1.
Shungube is granted bail in the amount of
R3
000.00
;
2.
Shungube shall, for as long as the case against him remains
outstanding, stay with his daughter
in Matsulu;
3.
Shungube shall report to the Matsulu Police Station every morning at
7:00 and every evening
at 7:00;
4.
Shungube is prohibited, for the duration of his case, to visit the
area of Tonga.”
B A MASHILE
JUDGE OF THE HIGH COURT
OF SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA
APPEARANCES
Counsel
for the Applicant:
Adv R
Kriel
Instructed
by:
Vusi
Segodi Attorneys
Counsel
for the Respondent:
Adv IM
Phathudi
Instructed
by:
Director
of Public Prosecution
Date
of Judgment:
01
October 2024
[1]
1998 (2) SA 721
(C) at 722G-H.
[2]
Case number A 09/2017.
[3]
2013
(2) SACR 85
(GNP) para 14.