IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION – MTHATHA
Case No: CA&R97/2024
In the matter between:
INGA SOGIDASHE 1ST APPELLANT
OSBORNE FUMILE LOLO 2ND APPELLANT
SIPELELE NTSHIYANA 3RD APPELLANT
And
THE STATE RESPONDENT
REASONS FOR JUDGMENT
Mhambi AJ
INTRODUCTION
[1] This is an appeal in terms of section 65 (1) of the Criminal Procedure Act 51
of 1977, “ the Act ”.
[2] The appeal is brought pursuant to the Magistrate at Butterworth Magistrates’
court refusing the Appellants to be admitted to bail.
[3] The Appellants are charged with six counts of murder, possession of fire-
arms, po ssession of ammunitions, and conspiracy to commit murder.
[4] During the bail application in the court a quo , it was common cause between
the defence legal representative and the State Prosecutor that the Appellants
are charged with offences listed in schedule six of the Act. Consequently, the
onus rests on the Applicants, now appellants during bail hearing to establish
exceptional circumstances which render it in the interests of justice for them to
be released out on bail.
THE LEGAL POSITION ON BAIL APPLICATION PROCEEDI NGS
[5] The authorities are clear on the legal nature of bail application proceedings as
I will tabulate hereunder.
[6] In S v Schietekat1 Slomowitz AJ stated:
“Bail proceedings are sui generis. The application may be brought soon after
arrest. At that stage all that may exist is a complaint, which is still going to be
investigated. The State is thus not obliged in it’s turn to produce evidence in
the true sense. It is not bound by the same formality. The court may take into
account of whatever information is placed before it in order to form what is
essentially an opinion or value judgment of what an uncertain future holds . It
must prognosticate. To do this it must necessarily have regard to whatever is
put up by the State in order to decide whether the accused has discharged
the onus of showing that exceptional circumstances exist which in the interest
of justice permit his release” .
[7] In S v Lupuwana2, Kahla AJ, held that:
“This court is not concerned with pr oving guilt or innocence of the appellant, it
only looks at pointers in the direction to arrive at a decision as to whether it
can be said that the State’s case is so weak or the State has failed to submit a
prima case against the accused”.
1 1998 (2) SACR 707 © 713
2 2015 JDR 0455 (ECP)
[8] This accords with what the Constitutional court said in S v Dlamini3:
“There is a fundamental difference between the objective of bail proceedings
and that of the trial. In a bail application the inquiry is not really concerned
with the question of guilt. That is the task of the trial court. The court hearing
the bail applic ation is concerned with the question of possible guilt only to the
extent that it may bear on where the interests of justice lie in regard to bail.
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”
[9] The court stated further at paragraph 49 as follows:
[49] “ …. the manner in which a court enquiry into bail is to be conducted,
remain substantially unaltered. It remains unique interlocutory
proceedings where the rules of formal proof can be relaxed and where the
court is obliged to take initi ative if the parties are silent, and the court has
to be proactive in establish ing the relevant factors. More pertinently, the
basic enquiry remains to ascertain where the interests of justice lie . In
deciding whether the interests of justice permit the release on bail of
an awaiting trial prisoner, the court is advised to look to five broad
considerations mentioned in paras (a) – (e) of ss (4), as detailed in the
succeeding subsections. And it then has to do the final weighing up of
factors for and against bail required by ss (9) and (10)”.
THE POWERS OF BAIL APPEAL COURT
[10] Section 65 (4) of the Act provides that :
“ The court or judge hearing an appeal shall not set aside the decision against
which the appeal is brought, unless such court or judge is satisfied that the
3 1999 (4) SA 626 -627
decision was wrong, in which event the court or judge shall give the decision
which in it’s or his opinion the lower court should have ”
[11] The c ourt in S v Barber 4, Hefer J remarked as follows :
“ It is well known that the powers of this court are largely limited to here
he matter comes before it on appeal ….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 it’s own view for that of the magistrate because
that would be an unlawful interference with the exercise of
magistrate’s discretion” .
[12] In the matter of S v Mpulampula5 it was held that where the court a quo
misdirected itself materially on the facts or legal principles, the court of appeal
may consider the issue of bail afresh. Interference is therefore justified where
the lower court overlooked some important aspects in coming to it’s decision
to refuse bail.
THE FACTS OF THIS CASE
[13] This bail appeal is premised on several grounds advanced by Appellants,
which may be summari sed as follows :
[a] The magistrate erred in finding that the interests of justice do not permit
their release on bail, on this they raised several factors as reflecting on the
record bundle.
[b] The magistrate erred in failing to attach any or sufficient weight to the
Appellants uncontested personal circumstances.
4 1979 (4) SA 218 (D) at E-H
5 2007 (2) SACR 133(E )
[ c] The Magistrate misdirected herself in failing to consider granting bail
coupled with appropriate conditions which could have addressed any
possible concern or fear.
[d] The magistrate erred in holding that the State’s case against the
appellants is strong and for that reason they may evade trail.
[e] The magistrate ignored the constitutional right of the Appellants
particularly the right to be pre sumed innocent until proven guilty, that
constitutes misdirection.
[f] The magistrate misdirected herself as to the facts and the law on bail.
[g] The magistrate application of justice principles is bad in law.
[h] The magistrate erred in not considering the principles laid down in S
v Acheson6.
THE MAGISTRATE’S DECISION
[14] It appears ex facie the record that the magistrate recorded the concession by
the appellants’ legal representative and the Prosecutor that the offence of
which the Appellants’ are charged fall under schedule 6, and that the bail
Applicants to prove the existence of exceptional circumstances that permit
their release out on bail, and that the interests of just ice permit their release
on bail.
[15] The magistrate summarized the exceptional circumstances by the 1st
appellant as follows:
a) He has a taxi bu siness, owning six taxes and two motor vehicles
registered in Cape Town at Kordet. He testified that he has an address
6 1991 (2) SA 805 (NM)
in Cape Town and Willowvale, he still pays for his two cars and that his
girlfrie nd was four months pregnant . He was recorded not to have
previous convictions and pending cases.
[16] 2nd Appellant, exceptional circumstances were :
a) He does not have previous convictions nor pending cases. He was
once charged with murder, attempted murder, possession of fire -arms
and ammunitions bu t charges were later withdrawn. He has a fixed
address in Cape Town and that he is married staying with his wife
and children. He has a taxi business and his taxis are paid up.
[17] 3rd Appellant’s exceptional circumstances were recorded as follows:
a) He does not have previous convictions but has a pending case
where he is out on bail. He has a taxi business; he is married
with two chi ldren. He has a fixed address at Cape Town and
Willowvale, he pays about R4000 .00 a month towards maintenance of
his children.
THE STATE CASE AS PER THE RECORD
[18] The State opposed bail , in her decision not to grant Appellant’s bail, the
Magistrate considered the State evidence as adduced by the officer.
[19] The State testified that the appellants do not have fixed addresses in Cape
Town, the addresses they claim to be their fixed addresses was verified b y the
investigating officer, and was found not to be their places of residence. As of
the 1st appellant, the addresses he supplied is not where he resides, there was
no confirmation that they live or sleep in the respective addresses. That
happened to be the ca se in respect of all the appellants. It was noted that the
Appellants’ have no immovable assets in Cape Town, or in the Eastern Cape,
in the result the magistrate concluded that they stand not to suffer any financial
loss should they evade trail.
[20] It was the State evidence that it was even difficult to arrest the Appellants’,
they were apprehended through cell phone communication, the magistrate
relied on cell pho ne communication retrieved from 1st Appellant cell phone
where he said :
“we have already left for Cape Town. Police will never get us ”, the magistrate
understood that to mean the appellants are a flight risk.
[21] The Magistrate noted the State evidence that the Appellants were arrested
driving the VW Polo, which upon investigation, it was found to belong to the
Department of Health, Mitchells Plain, it is alleged to have been hijacked and
the case of car hijacking was opened at Lingalethu Police station under CAS
no : 35/2/2024.
[22] It was an irrebuttable evidence that, the appellants soon after the commission
of the offence were shot at, that resulted to 1st Appellant being injured, they
were all travelling in the same vehicle, they never reported the shooting
incident, they were shot at Willo wvale but they the injured Appellant did not go
to the nearest hospital but rather visited Frere hospital, East London. The
magistrate reasoned that the Appellants’ failure to visit the nearest hospital
subsequent to being shot, or and the failure to repor t their shooting as an
attempt to avoid being traced or identified.
[23] The magistrate further noted that out of the two taxi associations in conflict,
the appellants are members of one of them, the magistrate was impressed
that if the appellants are rel eased they will attack the rival group and revenge
themselves.
[24] In the result, the magistrate found nothing exceptional in the personal
circumstances adduced by the Appellants. She relied on Supreme Court of
appeal decision in S v Scott Crossley7, where the court said :
7 2007 SACR page 471 (SCA)
“ Personal circumstances which are merely common place cannot constitute
exceptional circumstances for th e purposes of section 60 (11) (A) of the
Criminal Procedure Act 51 of 1977”.
EVALUATION
[25] The authorities are clear to say that it is incumbent upon the accused charged
with schedule 6 offence, to first discharge the onus to convince the court that
the necessary exceptional circumstances exist that would warrant his or
her release on bail, befo re the State attracts any sort of onus to show cause
as to why bail should not be granted .
[26] The court in Mthombeni v S8 , Olivier AJ held that :
“what is expected from an accused in showing that exceptional
circumstances do exist that would warr ant his or her release on bail, is
something more than a simple regurgitation of the accused personal
circumstances and a simple statement that the accused will not act in a
manner as described by section 60 (4) (a) to ( e ) of the CPA.”
[27] The court in S v DV9, described what exceptionality is, as follows:
“In the context of section 60 (11) (a), the exceptionality of the circumstances
must be such as to persuade a court that it would be in the interests of justice
to order the r elease of the accused” .
[28] Regard had to be to the above analysis, it may be deduced that the accused
charged with schedule 6 offence has his or her right to liberty restricted until it is
shown that the interests of justice permit his release on bail, the onus is on
such accused to show the court the existence not only of personal
circumstances bu t of exceptional circumstances that permit his release on bail.
8 ZANCHC 2023, at para 38
9 2012 (2) SACR 492 at paragraph 7
[29] Consequently, having carefully examined the record of proceedings in the court
a quo, there is nothing to suggest that the magistrate misdirected herself in her
findings both in law and facts, there is nothing that convinces me to differ with
the eventual finding by the magistrate.
ORDER:
[30] In view of all the above, the following order was issue d:
1. The appeal is dismissed.
________________________
M. MHAMBI
ACTING JUDGE OF THE HIGH COURT
APPEARENCES:
M. Komsana : counsel for the appellants
Instructed by : Ngxekana Attorneys
Mthatha
J. Gwe : counsel for the respondent
: NDPP
Mthatha
Date of hearing : 15 November 2024
Date of delivery : 28 January 2025