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2024
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[2024] ZAECMKHC 113
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Mzonywa v S (Bail Appeal) (CA&R161/2024) [2024] ZAECMKHC 113 (22 October 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
Case
Number: CA&R161/2024
In the matter between:
MCOSELELI MZONYWA
and
THE STATE
JUDGMENT – BAIL
APPEAL
Beshe
J
[1]
This is an appeal against the refusal by the Magistrate, East London
to admit the appellant
to bail. The Appellant, a 61-year-old male
person from Openshaw Village, Chalumna/Tsholomnqa, is facing charges
of: Count 1 –
Rape in contravention of Section 3 of Act 32 of
2007 and Count 2 – Attempted rape in contravention of Section
55(a) of Act
32 of 2007. The offences are alleged to have been
perpetrated on a victim who is under the age of 16 years. It appears
to have
been common cause during the bail hearing that it was one to
be conducted in terms of Section 60(11)(a) of the Criminal Procedure
Act
[1]
since it involved an
offence referred to in Schedule 6 of the Act.
[2]
Having heard evidence from the
appellant as well as Warrant Officer Jasi who was standing
in for
Investigating Officer, the Magistrate concluded that it would be
risky to admit the appellant to bail. This was on 24 January
2024. He
cited amongst other things that counted against the appellant; the
fact that there appeared to be a
prima facie
case that
somebody did something to the complainant as would appear from the
medical evidence. Appellant and the complainant stay
in neighbouring
houses. A possibility was raised of him moving elsewhere which may or
may not solve the problem. The fact that
the accused was drunk on the
day in question. He expressed some reservations about appellant’s
mental state. The fact that
appellant’s concern about the
safety of his home and his livestock in his absence cannot be
categorised as an exceptional
circumstance. Although elderly, he is
not particularly so, so the Magistrate held.
[3]
In broad strokes, the
Magistrate’s decision is impugned on the following grounds:
·
He failed to properly consider whether the grounds listed in Section
60(4)
of the Act are present in this matter.
·
The Magistrate erred in holding that moving to a different address by
the
accused might not solve the problem, presumably of the risk of
intimidation or undue influence to complainant should appellant
return to his house which is next door to complainant’s house.
·
He failed to take account of appellant’s personal circumstances
together
with the circumstances of the case which cumulatively
dictated that exceptional circumstances existed that in the interest
of justice
permitted appellant’s admission to bail.
·
The Magistrate was dismissive towards the appellant throughout the
hearing
which unduly influenced him to properly consider appellant’s
case.
[4]
The decision of the Magistrate
is supported by the state on the following basis:
·
Appellant’s personal circumstances are common-place and do not
constitute
exceptional circumstances for purposes of Section
60(11)(a) of the Criminal Procedure Act.
[5]
Both parties aptly outlined the
principles that are applicable to bail applications governed
by
Section 60(11)(a) of the Criminal Procedure Act and referred the
court to decided cases which were all helpful.
[6]
Section 60(11)(a) provides that
where an accused is charged with an offence referred to
in Schedule
6, the court shall order that the accused be detained in custody
until he/she is dealt with in accordance with the
law, unless the
accused adduces evidence which satisfies the court that exceptional
circumstances exist which in the interest of
justice permit his or
her release. Section 60(4) enumerates the grounds which if one or
more are established, the interests of
justice do not permit the
release of the accused on bail. One such ground is the likelihood
that accused will attempt to influence
or intimidate witnesses or
conceal or destroy evidence. In turn, Section 60(4)(c) provides that
in determining whether this ground
has been established, the
following factors
inter alia
may be taken into account:
·
accused’s familiarity with the identity of witnesses/evidence.
·
effectiveness and enforceability of bail conditions prohibiting
communication
between accused and witnesses.
·
the relationship between the accused and witnesses and the extent to
which
they can be intimidated or influenced.
As
I indicated earlier, it was common cause or not in dispute that
appellant’s home is next to that of the complainant. According
to the stand in Investigating Officer Warrant Officer Jasi,
information at state’s disposal was that complainant did not
report the rape immediately. She only did so a while later, weeks
later when complainant’s mother sent her on an errand to
accused’s place. She then stated that she was scared of going
to accused’s place. When asked why she was afraid of
accused,
she disclosed that accused had raped her and threatened to kill her
if she disclosed that to anyone.
[7]
To determine whether exceptional
circumstances exist, a court will consider the merits
or facts of the
case before it makes a judgment call based thereupon. Appellant’s
personal circumstances were placed before
court presumably as
constituting exceptional circumstances justifying his admission to
bail as envisaged in Section 60(11)(a):
·
The fact that he was 61 years old and therefore an elderly person.
·
He was unmarried.
·
He resides at Openshaw.
·
He supports three children who are in Cape Town from his old age
pension/grant
of R2000.00 whose ages range between 33 years and 19
years.
·
He is concerned about the safety of his house and livestock since
there
is no one left at his home to look after them.
·
He has an alternative address being his sister’s home and that
he
is willing to move to move to his sister’s home together
with his livestock.
There
was however no evidence where in relation to complainant’s home
his sister’s homestead was or what his sister’s
attitude
was to the appellant’s moving to her homestead.
[8]
Appeals to the Superior Court
with regards to bail are governed by Section 65 of the Criminal
Procedure Act. Subsection (4) provides that a court or judge hearing
the appeal shall not set aside the decision against which
the appeal
is brought, unless such court is satisfied that the decision was
wrong, in which event the court or judge shall give
the decision
which in its opinion the lower court should have given.
[9]
In argument before me, the
appeal assumed a somewhat different slant. Counsel for the appellant
suggested that there was information that was not placed before the
Magistrate during the bail application. That if such information
was
before the Magistrate, he would have found that exceptional
circumstances which in the interest of justice justified his release
on bail existed. That some of that information came to light when the
contents of the docket became available. The fact that the
legal
representative who moved the bail application was a candidate
attorney attached to LASA who did not do justice to appellant’s
case, resulting in appellant being under-represented. It being argued
that this resulted in a miscarriage of justice. That had
this not
been the case before the Magistrate, he would have found that
personal circumstances of the appellant together with the
fact that
the state has a weak case against the appellant would have swayed the
Magistrate to conclude that there were exceptional
circumstances
warranting appellant’s admission to bail. The issue of the
Magistrate having expressed reservations about appellant’s
mental state without following that up in terms of Chapter 13 of the
Criminal Procedure Act was also highlighted by appellant’s
counsel.
[10]
It in noteworthy that it was not appellant’s
case before the Magistrate that the state had a weak
case against
him. Maybe this is due to the fact that the docket was not at hand
yet, had not been disclosed to the appellant. But
the fact of the
matter is that this was not a factor the court was required to
consider. This distinguishes the matter from that
of Twaise v The
State, Case Number A168/24, a decision of the Western Cape High Court
to which I was referred by counsel for the
appellant. In that case it
was conceded on behalf of the state that at that stage “the
strength of the state’s case
is questionable”.
[11]
Section 65(2) provides that 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 placed before the Magistrate against whose decision
the appeal is
brought, and such Magistrate has made a decision against the accused
on such new facts. I am inclined to agree with
counsel for the
respondent that the appellant jumped the gun the correct forum to
have approached was the Magistrate’s court
on the basis of new
facts having emerged.
[12]
In my view, the Magistrate’s decision that
there were no exceptional circumstances which in the interest
of
justice permitted appellant’s release cannot be faulted.
[13]
Accordingly, the appeal against the refusal to
admit the accused to bail is dismissed.
N G BESHE
JUDGE OF THE HIGH
COURT
APPEARANCES
For
the Appellant :
Adv: Z L Mapoma
Instructed
by
:
GANTOLO
ATTORNEYS
C/o MGANGATHO ATTORNEYS
7 Somerset Street
MAKHANDA
Ref: Mr A Mgangatho
Tel.: 073 524 3586
For
the Respondent :
Adv: S F Baartman
Instructed
by
:
NATIONAL DIRECTOR
OF PUBLIC PROSECUTIONS
94 High Street
MAKHANDA
Ref.: Mr S F Baartman
Tel.: 046 – 602
3000
Date
Heard
:
18 October
2024
Date
Reserved :
18 October
2024
Date
Delivered :
22 October
2024
[1]
Act
51 of 1977.