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2024
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[2024] ZAFSHC 216
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Nxumalo and Others v S (A61/2024) [2024] ZAFSHC 216 (17 July 2024)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Appeal
number: A61/2024
In
the Appeal between:
MADODA
NXUMALO
1
st
Appellant
VUSI
DAVID ZITHE
2
nd
Appellant
BONGINKOSI
THEMBINKOSI SIBIYA
3
rd
Appellant
MAKHOSONKE
DUBE
4
th
Appellant
MDUDUZI
MAKHEZA MATHENJANE
5
th
Appellant
and
THE
STATE
Respondent
HEARD
ON:
12 JULY 2024
JUDGMENT
BY:
DANISO, J
DELIVERED
ON:
17 JULY 2024
[1]
The appellants were arrested on 10 December
2022 and subsequently charged with two counts namely, the
tampering,
damaging or destroying of essential infrastructure to
wit:
Transnet fuel pipeline thereby contravening the provisions
of section 3(1) (a) read with sections 1, 3(1) and 3(2) of the
Criminal Matters Amendment Act 18 of 2015 read with of section 51 (1)
of the Criminal Law Amendment Act 105 of 1997 (count 1) and
theft of
fifty thousand litres of Transnet diesel worth R1 236 500.00
(count 2).
[2]
The charges arise from the incident which occurred on 9 December 2022
at a farm known as Kiesbeen
in Harrismith in the Free State where the
Transnet underground fuel pipeline is situated. The pipeline runs all
the way from Kwa-Zulu
Natal to Northwest, Gauteng and Mpumalanga and
is used to supply fuel (diesel, petrol and crude oil) to different
companies.
[3]
The State alleges that at all material times hereto Bidvest Protea
Coin security guards were contracted
by Transnet to patrol the
pipeline. On the day of the incident the security guards observed a
group of men tampering with the pipeline,
siphoned the fuel and
deposited it into two tanker trucks. The men then drove away with the
two tanker trucks, a Toyota Hilux and
a Toyota Fortuner towards the
N3 freeway. The security guards mobilised for reinforcements as well
as the police and gave chase
tracking the movement of the vehicles
through the surveillance cameras situated on the nearby farms and the
road leading towards
the N3 freeway. The tanker trucks were
ultimately stopped on the N3 freeway. The first appellant was found
driving the first tanker
truck. Mr. Thabiso Gabriel Molieling who is
charged with appellants as accused number 2 (he is not part of these
proceedings) was
found driving the second truck. At that time, the
tanker had been extricated from the truck as it was incinerated after
it caught
fire on the N3 freeway. The Toyota Hilux was stopped
at Standerton. It was driven by the second appellant and he was
travelling
with the rest of the appellants.
[4]
It is the State’s case that when the appellants were pulled
over by the police they tried
to flee. Mr. Molieling also attempted
to bribe the arresting officer by offering him R10 000.00 in
exchange for not arresting
him. Mr. Molieling is facing an additional
charge of corruption in that regard. The driver of the Toyota
Fortuner managed to evade
arrest. A variety of equipment used for
drilling into the valves of the pipeline as well as siphoning fuel
was recovered days later
in the veld near the scene of the crime
including a grinder, two spades, a portable generator, cutting torch,
a “monkey wrench”
and a fuel draining device referred to
as a “fitting.” The preliminary laboratory report
confirmed that the fuel found
in the tanker trucks was the diesel
siphoned from the Transnet’s pipeline.
[5]
On 9 January 2023 the appellants launched an application by way of
affidavits to be released on
bail.
[6]
It was common cause that the offences which the appellants were
charged with fell within the offences
listed under schedule 5 of the
Criminal Procedure Act (the “CPA”)
[1]
and that given their nature, the appellants were not entitled to be
released from custody pending trial unless they adduced evidence
to
convince the court on a balance of probabilities that the interests
of justice permitted their release on bail.
[2]
The learned magistrate Pratt was not so convinced. He dismissed the
application on 16 January 2023. Their subsequent
bail
application on new facts suffered the same fate on 16 February 2024.
[7]
The appellants are aggrieved by the learned magistrate’s
refusal to admit them to renewed
bail on new facts, they contend that
his decision was wrong.
[8]
This appeal is against the learned magistrate’s refusal to
admit the appellants to bail.
The appeal is opposed by the State.
[9]
It
has been held that new facts must be “sufficiently different in
character from the facts presented at the earlier unsuccessful
bail
application and must not constitute simply a reshuffling of old
evidence.”
[3]
[10]
The new facts upon which the bail on new facts was predicated were
essentially that the State’s case
against them is weak and the
delay in the commencement of the trial including the impact of
prolonged incarceration pending trial.
[11]
In the grounds of appeal the appellants contend that the learned
magistrate misdirected himself by:
“
1.2.
finding that, no new facts were presented to warrant the release of
the applicants on bail;
1.3.
finding that, the State did not have an opportunity to cross-examine
the applicant (sic)
whilst they testified under oath in the
application for bail on new facts;
1.4.
not having due regard to the new fact that the State did not have
video footage that link
the applicants despite the evidence from the
State in the initial bail application that such footage exists; and
1.5.
not having sufficient regard to the legal principle that an accused
person is presumed
innocent until proven guilty.”
[12]
The learned magistrate also erred by:
1.6.
not having due regard to the absence of fingerprints, DNA results and
no expert evidence
on cell phones more than a year after the arrest
of the applicants;
1.7.
not releasing the appellants on bail after making the following
finding: “Although
not as strong as the Court believed during
the bail application, during the main application”; and
1.8.
by not having due regard to the cumulative effect of a weaker State’s
case, the delay
in the commencement of the case and the impact of
prolonged incarceration of the appellants.”
[13]
Counsel for the appellants Mr. Simpson, argued that post the refusal
of the initial bail, the defence was
provided with copies of the
docket and it was then that the defence discovered that the State did
not have the video footage linking
the appellants to the crimes
including DNA, fingerprints and cell phone evidence and this is
despite the State’s testimony
at the initial bail hearing that
there was such evidence. As regards the appellants’
prolonged
incarceration, Mr. Simpson confirmed that the matter has been set
down for trial to be heard in a month’s time from
5 to 7 August
2024. He however argued that there are many issues that can hamper
the finalization of the matter during that period
such as load
shedding and the unavailability of water in that area.
[14]
On the other side, Mr. Harrington was adamant that the magistrate’s
decision was correct. It was his
submission that
the
onus was on the appellants to provide sufficient evidence that the
State’s case is weak but the appellants simply made
the
allegations regarding the purported weakness of the State’s
case without providing any evidence. He stated that the appellants
had ample opportunity to do so when they testified during the renewed
bail hearing. They placed themselves in the area of Harrismith
and
except to aver that they were in that area to look for work they
deliberately avoided to explain why they chose to come so
far away
from their respective residences to look for jobs in a small rural
town of Harrismith. They did not even call witnesses
or submit
affidavits of the people they went to when looking for the supposed
jobs. With regard to the absence of video footage
identifying the
appellants, DNA and fingerprints evidence Mr. Harrington countered
that the appellants have misinterpreted the
testimony of the State’s
witness, warrant officer Zwane because he clearly stated the reasons
why that evidence was unavailable
namely that: the video footage was
of bad quality, fingerprints were not lifted and the DNA and cell
phone evidence was still not
yet available.
[15]
It was his submission that there is nothing untoward about the video
footage identifying the vehicles at
the scene of the crime hence the
security guards were able to track the movement of the motor vehicles
and followed them till the
appellants were arrested. Mr. Harrington
pointed out that the appellants are silent regarding this piece of
evidence including
the witnesses’ statements obtained from the
security guards who observed the crimes being committed and also
assisted in
tracking the appellants.
[16]
Mr. Harrington maintained that despite the absence of the video
footage identifying the appellants, DNA,
fingerprint and cell phone
evidence the State has a strong case against the appellants and this
also evidenced by the fact that
trial dates have since been
allocated. The appeal must accordingly fail.
[17]
In his judgment it is clear that the learned magistrate considered
the State’s contention that despite
the unavailability of the
video footage identifying the appellants and the fingerprint, DNA and
cell phone evidence the State’s
case against the appellants was
strong as the situation could change during trial. I cannot fault him
for this conclusion. It must
be borne in mind that on the available
facts, aside from the video footage identifying the appellants at the
scene including fingerprint,
DNA and cell phone evidence there are
other pieces of evidence which the State intends to rely on to link
the appellants to the
crimes namely, eye witness evidence and the
evidence confirming that the fuel found in the tanker truck matches
the fuel in the
Transnet pipelines- therefore, the appellants failed
to discharge the onus of proving their assertion that they will
probably be
acquitted at the trial on a preponderance of
probabilities.
[4]
[18]
In quoting the learned magistrate’s reasoning that: “
although
not as strong as the Court believed during the bail application...
”
Mr Simpson ignored
the magistrate’s basis for this finding because immediately
above this finding the learned magistrate reasoned
as follows:
[5]
“
...but apart
from that the public prosecutor is certain that the State has a case,
has a strong case despite that evidence, that
some evidence will not
be represented (sic). This might of course change should the defence
cross-examine the witnesses, and I
have to accept that the state has
a case, although not as strong as the Court believed during the bail
application...”
[19]
Evidence tendered at the initial bail must be compared the evidence
relied upon in the renewed bail application
to judge whether the
renewed bail hearing raises new facts. In
Davis
and Another v S
[6]
it
was pointed out 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.
”
[20]
Evidence carries more weight when its veracity has been tested under
cross-examination.
In
this matter, the appellants elected to submit affidavits instead of
leading oral evidence at the initial bail hearing. Evidence
relayed
by way of affidavits is less persuasive
[7]
for that reason the learned magistrate was correct in taking into
account the fact that the appellants’ evidence was not
tested
under cross-examination when he was judging whether the evidence
raised at the renewed bail application was new evidence
or not.
[21]
There is no truth to the appellants’ contention that: “no
single word” pertaining to the
legal principle that an accused
person is presumed innocent until proven guilty is mentioned in the
learned magistrate’s
judgment. The record of the proceedings,
page 3802, line 16 to 20 reflect that the magistrate made the
following remarks:
“
In his address
Mr Thusi said the presumption of innocence is still part of the law.
That is correct but for certain types of offences
there has been made
exceptions
” (sic).
[22]
Regard must be had that as with all the other rights enshrined in the
Bill of Rights, the right to be presumed
innocent until proven guilty
is not absolute.
[23]
I agree that a prolonged period of incarceration pending trial is a
factor that must be taken into account
when considering whether the
interest of justice permits the appellants’ release on bail.
The bail proceedings were finalized
during February this year, 2024.
In the record of the proceedings it is does not appear that the delay
in the commencement of the
case is attributable to the State.
Instead, there was a period where one of the appellants’
erstwhile legal representative
was unavailable due to being highly
expectant. Nevertheless, the delay is not extreme.
[24]
I am alive to the issues raised by Mr. Simpson pertaining to
electricity and water shedding that may hamper
the finalization of
the matter however, it is my view that these are some of the hazards
of trials which cannot discount the seriousness
of the offences the
appellants have been charged with and the probability of mandatory
long prison sentences in the event of conviction.
[25]
In conclusion, I am not persuaded that the magistrate exercised his
discretion wrongly in refusing the appellants’
bail. There is
thus no basis to overturn the decision of the magistrate.
[8]
ORDER
[26]
I make the following order:
1.
The appeal against refusal of bail is
dismissed.
NS
DANISO, J
On
behalf of appellants:
Adv.
A. Simpson
Instructed
by:
Richter
van der Watt Attorneys
C/O
Mariechen Martins Attorneys
BLOEMFONTEIN
On
behalf of respondent:
Adv.
J. Harrington
Instructed
by:
Office
of the Director: Public Prosecutions
BLOEMFONTEIN
[1]
Act 51 of 1977.
[2]
Section 60 (1) (a) of the CPA.
[3]
S
v Mohamed
1999
(2) SACR 507
(C)
at 512
;
S v Petersen
2008
(2) SACR 355
(C)
at 57.
[4]
S v
Mathebula
2010
(1) SACR 55
(SCA)
at 59 para 12.
[5]
Record
of the proceedings page 360 line 20 to 25.
[6]
(2888/2015)
[2015] ZAKZDHC 41 (delivered on 8 May 2015).
[7]
Para 11 to 13 supra at fn 4.
[8]
S
v Barber
1979
(4) SA 218
(D);
S
v Faye
2009
(2) SACR 210
(TK).