REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number : A256/2023
(1) REPORTABLE : ~ / NO
(2) OF INTEREST TO OTHER JUDGES : ~/NO
(3) REVISED: YES/NO
'4 I 101-ZO'l-S
DATE SIGNATURE
In the matter between:
MUSAWENKOSIDLADLA App licant
vs
THE STATE Respondent
JUDGMENT
MATLAPENG , AJ
Introduction
[1] The applicant in this matter is making an application that he be admitted to bail
pending his appeal to the Supreme Court of Appeal.
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[2] According to section 60 (11)(a) of the Criminal Procedure Act 51 of 1977. The
court shall order an accused charged with a schedule 6 offence to be detained
in custody until he is dealt with in accordance with the law unless such an
accused person after having been given an opportunity to do so adduces
evidence which satisfies the court that exceptional circumstances exist which in
the interest of justice permit his or her release.
(3) In this matter the applicant was convicted by the Regional Court sitting in Springs
of assault with intent to do grievous bodily harm and rape in contravention of the
provisions of section 3 of the Sexual Offences Act 32 of 2007 read with provisions
of section 51 (1) of the colloquially named Minimum Sentences Act 105 of 1977,
the rape count attracted the imposition of life imprisonment sentence, as the
complaint was raped more than once.
[4] The applicant was sentenced to three years imprisonment on the assault charge
and to life imprisonment on the rape count, his appeal to this count on both the
conviction and sentence failed, he then lodged a petition to the Supreme Court
of Appeal, the latter Court granted leave to appeal only against sentence, the
applicant now applies for bail pending his appeal to the Supreme Court of Appeal.
[5] The onus rest on the applicant to show on a balance of probabilities that
exceptional circumstances exist which in the interest of justice permit his release
on bail.
[6] Section 60 (4)(a) to (e) of the Criminal Procedure Act 51 of 1977 herein the Act
lists grounds to be taken into account whether the interest of justice permit the
release of the applicant on bail. Section 60 (5) to (9) of the Act lists grounds that
the court can take into consideration to determine if the factors mentioned in
section 60 (4) (a) to (e) of the Act are presented.
[7] In considering whether to grant or refuse bail the court should not speculate it
must be satisfied that there is a probability of one or more of the factors
must be satisfied that there is a probability of one or more of the factors
mentioned in section 60 (4) of the Act happening. This point was emphasised in
the case of S v Diale 2013 (2) SACR 85 (GNP) at para 14 where it was stated
that:
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"a court cannot find that refusal of bail is in the interest of justice merely
because there is a risk of possibility that one or more of the consequences
mentioned in section 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 accused should be released"
[8] It is essential to briefly set out the circumstance that led to the conviction and
sentence of the applicant. He went to his place of abode with the complainant
and another man in the latter's car, the complainant and the appellant entered
the house, the owner of the car realised that he had parked his car far from the
house, he went to his car with a view to bringing it closer to the house, the
applicant assaulted the complainant and raped her twice. Thereafter he locked
her inside the house and left. The complainant sustained injuries on her right jaw
and an abrasion on the Labia Minora, it is against this background that this
application should be considered.
[9] In the case of S v Vermaas 1996 (1) SACR 528 (T) Van Dijkhorst held that the
prime consideration is whether an accused will stand trial.
[1 O] The primary consideration in an application such as the present is whether the
applicant will serve his sentence if released on bail pending his appeal to the
Supreme Court of Appeal should his appeal fail.
[11] It is not irrelevant to take into consideration the increased risk of the applicant
escaping and evading to serve his sentence, it is also not irrelevant to bear in
mind that the facts of this case attracts a lengthy term of imprisonment.
[12] The applicant states that he is not a flight risk, that he is a primary care giver of
his children and principally that he should be admitted to bail because there are
reasonable prospects that the Supreme Court of Appeal will set aside the
reasonable prospects that the Supreme Court of Appeal will set aside the
conviction, he is missing a point because the conviction is confirmed the appeal
is only granted against the life term of imprisonment that was imposed.
[13] The stark reality is that the circumstances under which the offence took place led
the trial court to impose the prescribed sentence of life imprisonment, although
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the Supreme Court of Appeal deemed it proper to interfere with the sentence
imposed, the fact remains that the applicant is convicted of a very serious offence
that warrants a lengthy term of imprisonment.
[14] I am of the view that in the circumstances the applicant has not discharged the
onus of showing that it is in the interest of justice that he be released on bail.
[15] In the results the following order is made
1. The application for bail is dismissed.
S MATLAPENG
ACTING JUDGE OF THE HIGH COURT
PRETORIA
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