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HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

     

CASE NO:  A110/2020

8/6/2020

In the matter between:

 

J.L. MASEKO                                                                                                                  Appellant

and

THE STATE                                                                                                                    Respondent

 

JUDGMENT

 

1.                The appellant was arrested on 27 January 2020. He is charged together with three co-accused as accused 4 with three counts, namely:

1.1.          Incitement to commit a crime in contravention of the provisions of section 18(2)(b) of the Riotous Assemblies Act No 17 of 1956;

1.2.          Conspiracy to commit robbery with aggravating circumstances –Contravening section 18(2)(a) of the Riotous Assemblies Act No 17 of 1956; and

1.3.          Robbery with aggravating circumstances as intended in section 1 of the Criminal Procedure Act 51 of 1977(CPA), read with the provisions of section 51(2) of  the Criminal Law Amendment Act 105 of 1997.

2.               The charges against the appellant emanates from an incident of robbery of a SBV armoured cash in transit vehicle which took place on 7^th January 2020 on the N4 Freeway in Bronkhorstspruit where a cash amount of just over R25 500 000.00(Twenty five million five hundred thousand rand) was robbed.  AK47 automatic rifle(s) and explosives were used during the robbery.  The robbery was executed with precision by a number of robbers travelling in different vehicles. The armoured vehicle was bumped intentionally from behind which caused the driver to swerve off the road and end up in a ditch on the side of the freeway. Several armed persons wearing balaclavas exited from their vehicles. Shots were fired at the driver's side window of the armoured truck. Eventually the driver opened his door and he was forced out of the vehicle. The robbers threatened to blow open the side door of the armoured truck by using explosives. This caused the driver and the crew in the back of the truck to open the truck's side door. The crew were taken out of the truck and made to lie down on the ground. The robbers then used explosives to blow open the vault door of the vault inside the truck. Before the robbers left, they set alight the Mercedes-Benz vehicle in which some of them had arrived at the scene. This is common practice in such robberies and done in order to destroy any evidence that may remain behind in the vehicle. The robbers fled the scene in their other vehicles taking with them several cash bags and two 9 mm pistols belonging to SBV.

3.                The appellant brought an application to be released on bail in the Magistrates' Court for the district of Tshwane East, held at Bronkhorstspruit.

4.               The appellant, in support of his application for bail, deposed to an affidavit wherein he set out his personal circumstances and gave reasons why he should be released on bail. He also submitted a report compiled by a correctional services officer in terms of section 62(f) of the CPA. The respondent opposed appellant’s bail application by submitting an affidavit deposed to by an Officer standing in for the investigating officer in which he set out the case against appellant and reasons for opposing bail.   

5.               Appellant’s bail application was refused by the Magistrate after she was unable to find any exceptional circumstances justifying his release on bail. The appellant now approaches this Court on appeal against the Magistrate’s refusal to grant him bail.  

6.               It is common cause that the offences which the appellant is charged with, in particular, robbery with aggravating circumstances, fall within the confines of Schedule 6 of the CPA. Section 60(11)(a) of CPA stipulates, pertaining to Schedule 6 offences, that:

“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 exceptional circumstances exists which in the interest of justice permit his or her release” 

7.               The onus is thus on the appellant to prove exceptional circumstances in terms of section 60(11)(b) of the CPA, that justify his release on bail in the interest of justice.  The standard of proof is on a balance of probabilities. See: S v Dlamini; S v Dladla; S v Joubert; S v Schietekat [1999] ZACC 8; 1999 (2) SACR 51(CC) at [61], [78] and [79]. 

8.               The onus on the applicant for bail is therefore to adduce evidence that satisfies the court that exceptional circumstances are present which would permit his or her release in the interest of justice.  

9.               Exceptional circumstances as a concept have not been defined by our courts. In S v Petersen 2008 (2) SACR 355 ( C ) at [55] the full bench  concluded  as follows on the meaning and interpretation  of exceptional circumstances:

“…Generally speaking “exceptional” is indicative of something unusual, extraordinary, remarkable, peculiar or simply different … This may, of course, mean different things to different people so that allowance should be made for a certain measure of flexibility in the judicial approach to the question… In essence the court will be exercising a value judgement in accordance with all the relevant facts and circumstances, and with reference to all the applicable criteria. 

10.            In S v Mohammed 1999 (2) SACR 507 ( C ) the court pointed out that:

“the true enquiry…is whether the proven circumstances are sufficiently unusual or different in any particular case as to warrant the applicant’s release…”.

11.            Personal circumstances which are really “commonplace” cannot constitute exceptional circumstances for purposes of section 60(11)(a). See: S v Scott-Crossley 2007 (2) SACR 470 (SCA) at [12].

12.            In S v H 1999 (1) SACR 72 (W) at 77E, the court stated that:

“The exceptional circumstances must be circumstances which are not found in the ordinary bail application but pertain peculiarly, if I may use that word, to an accused person’s specific application. What the court is called upon to do is to examine all the relevant considerations, not individually, but as a whole in deciding whether an accused person has established something out of the ordinary or unusual which entitles him to relieve under section 60(11)(a) of the Act”

13.            Regarding the manner to approach an appeal of this nature, Section 65(4) of CPA sets out the powers of courts hearing the appeal. It provides as follows:

“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 opinion, the lower court should have given”.

14.            In Chewe v The State (unreported case no: A702/2015 GDP-26/10/2015 [21] Ishmail J stated the following with regard to the approach on bail appeals:

“This appeal is advanced against the refusal of bail by the court having heard the initial and subsequent application. The task of this court is merely to ascertain whether the court of first instance exercised its mind judicially and correctly. In this regard  I am enjoined to follow the approach  laid down by the court in S v Barber 1979 (4) SA 218 (D) – “ It is well known that the powers of this court are largely limited where the matter comes before it on appeal and not as a substantive application for bail. 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 its own view for that of the magistrate because that would be an unfair interference with the magistrate’s exercise of his discretion. I think it should be stressed that no matter what the court’s views are, the real question is whether it can be said that the magistrate who had the discretion to grant bail exercised that discretion wrongly”.

15.            In S v Porthern and Others 2004 (2) SACR 242 (C), Binn-Ward AJ considered the above dictum in the Barber-case in the context of section 60(11) and concluded, with reference to S v Botha 2002 (1) SACR 222 (SCA), that the appeal court’s power to intervene in terms of section 65 (4) of the CPA is not strictly confined as suggested in Barber, above, and that the appeal court can undertake its own analysis of the evidence and come to its conclusion whether the appellant had discharged the onus in terms of s60(11).

16.            In order to interfere on appeal it is accordingly necessary to find that the Magistrate misdirected himself or herself in some material way in relation to either the facts or the law. In the absence of a finding that the Magistrate  misdirected him or herself, the appeal must fail.  See: Panayiotou v The State (unreported case no: CA&R 06/2015 [2015] ZAECG 73(28 July 2015) at [27]).

17.            The appellant’s statement contained, inter alia, the following averments which are contended to be of relevance in the discharge of the onus.

18.            He is 46 years of age, married with an 8 year old child from the marriage. He has four other children from previous relationships aged 22, 20, 18 and 9 years old. He resides with his family in a family home at No 253 Maseko stand 5, Morgan Dennilton, Limpopo Province. He is self employed and a sole director of Ngcanane  01 Business Enterprises Pty Ltd and generates an income of R15000.00 per month. His wife is unemployed and he is the breadwinner. Three of his children are in different tertiary institutions and he supports them financially.  

19.            He has movable and immovable property in the district of Dennilton to the value of R500 000.00.   

20.            With reference to section 60(4) (a) –(e) read with section 60(5), he submits that            he will not endanger the safety of any particular person or commit a schedule 1 offence if released on bail. He has seven previous convictions which is an indication that he is inclined to attend court and has no pending cases. He is not a flight risk. He will not influence, intimidate or interfere with state witnesses. He will not interfere with police investigations. He has no travelling documents.

21.            He intends pleading not guilty to the charges as he did not commit any of the offences he is charged with. The state's case against him is weak as it relies on section 204 witnesses whose credibility will be determined by the trial court and as such not much weight must be attached to their statements.

22.             He stands to lose his business as a result of continued incarceration and his family will suffer both financial and emotional prejudice.

23.            According to a report by a Correctional Officer, the appellant is a good candidate to be subjected to house arrest instead of being committed to prison.

24.            In his affidavit the investigating officer, inter alia, stated that immediately after the robbery information was received from trustworthy confidential informants as to the identity of some of the robbers and the SBV employees which were also involved in the robbery. Information received was compared to information the police had in the respect of previous robberies and intended planned robberies. That exercise clearly implicated the accused before court.

25.            Furthermore, evidence, observations and interviews on the scene indicated that the crew in the truck possibly assisted with the robbery. Information was also later received that there were persons employed by SBV cash centre in Pretoria that further assisted the robbers to ensure a successful robbery. This information corroborated other information which had been gathered over an eight-month period.

26.            The investigating officers further described the suspicious driving schedule of the armoured truck which resulted in the collection of money different from how it was usually done in order to reduce the risk should there be a possible robbery.

27.            He further explained that four of the armoured truck's crew members were subjected to a polygraph examination and that three of the four indicated deception with regards to their involvement with the incident.  The investigating officer, inter alia, identified by name the persons identified by these crew members, as being involved in the robbery. Some of these persons were known to the police due to their previous investigations.  One of the persons so identified, was the appellant.  According to the investigating officer further investigations which were conducted corroborated the aforesaid allegations and additional evidence was gathered proving the involvement of the persons mentioned.

28.            Regarding the appellant, the investigating officer added that the appellant was related to accused 1 and that he had been part of the planning of the robbery as well as the robbery itself. This was confirmed by two section 204 witnesses. The police also have evidence that the appellant and others travelled in the vicinity of the crime scene on the day of the robbery in a gold Avanza motor vehicle, which is similar to the vehicle owned by the appellant.  The investigating officer stated that the State has a strong prima facie case against the appellant.

29.            It was further stated that the appellant was linked via evidence found in his possession on the date of his arrest through cell phone billing, that he had contact with his burner phone to the burner phone utilised by accused 1.  According to this and other evidence, the appellant was in the vicinity of the crime scene and had contact with one of the other accused.

30.            The investigating officer furthermore, inter alia, stated that there is a likelihood that the appellant, if he were to be released on bail, would endanger the safety of the public or any particular person or the public interest or will commit a Schedule 1 offence. Furthermore that there is a likelihood that he would attempt to evade his trial if released on bail. Furthermore, that several suspects have not been arrested and further evidence still has to be gathered. The investigating officer stated that the likelihood exists that the appellant would destroy or tamper with the evidence and similarly threaten, intimidate or even eliminate certain witnesses presently known to the police or one's which are not yet known.

31.             The investigating officer further stated that the money which had been taken during the robbery had not been recovered and should the appellant be released on bail, such money could be used to bribe and pay witnesses not to testify against him. Due to the enormity of the amount the appellant could easily flee the country and set up a new life anywhere else in order to avoid his trial.

32.            The investigating officer also referred to the use of extreme violence and threats of violence during the robbery and the total lack of regard to human life, not only of the crew of the armoured truck but also of passengers in passing vehicles on the highway. He added that it is common knowledge from experience that robbers committing these types of robberies, will use any means at their disposal to evade arrest and conviction and would not hesitate to kill anybody that stands in their way.

33.            In respect of the appellant the investigating officer referred to his criminal profile and the alias by which he is known. He added that he is not employed and has numerous addresses where he can reside.  He mentioned that the appellant has four home addresses. This, incidentally, was denied by the appellant.  The investigating officer consequently denied that the appellant has any emotional or family ties in respect of any residence where he had been in the past. The appellant has no immovable property registered in his name.

34.            The investigating officer also submitted that it is easy to cross the borders of the country, even with strict bail conditions, and that to have a person extradited is an extremely lengthy and difficult process. It would seem that if the whereabouts of a person is furthermore unknown in a foreign country, it becomes extremely difficult to again get hold of such a person.

35.            Regarding the appellant's previous convictions, mention was made of a conviction for assault with intent to cause grievous bodily harm as well as six other convictions for assault.  The accused is also currently out on bail in respect of a charge for the possession of counterfeit goods for the purpose of dealing in those goods.  This statement was denied by the appellant who said that he was not out on bail. The matter on which he had appeared, apparently does not have a date to which the matter was postponed.

36.            The investigating officer also referred to the strength of the case against the appellant which would serve as an incentive to attempt to evade his trial. The long terms of imprisonment which the appellant would face in the event of conviction, also creates a high risk of flight by the appellant.

37.            On behalf of the appellant reference was made in argument before the court a quo to the contents of each of sections 60 (4) (a) to (e) of the CPA and with reference to the facts before the court it was argued that the facts favour the appellant and also, that it favoured the appellant to such a degree that exceptional circumstances had been shown to exist for granting bail to the appellant.  In a comprehensive Notice of Appeal the appellant referred to the factors upon which the appeal is based.

38.            It is not necessary to refer thereto in all its detail. In particular it was emphasised that the Magistrate overemphasised the seriousness of the offence and the long term of imprisonment in the event of conviction.  Furthermore that the court a quo erred in finding that the State has a strong prima facie case against the appellant and also erred in viewing the appellant to have been woefully untruthful regarding his previous convictions.

39.             It was submitted on behalf of the appellant that this court is entitled to interfere with the decision of the Magistrate for, inter alia, the following reasons.  That the appellant had proven exceptional circumstances in that he has a fixed address to which she is financially and emotionally tied; that he has movable and immovable assets to the value of R 500,000, 00;  that the affidavit from the Department of Correctional Services confirms his residential address and that he is a suitable candidate to be placed under house arrest; and that the State has not shown that the appellant would flee and not stand his trial.

40.            In regard to the aforesaid factors in the appellant referred to the matter of S v DV 2012 (2) SACR 492 (GNP) and the matters of S v Thornhill (2) 1998 (1) SACR 177 (C) and S v Porthen & Others 2004 (2) SACR 242 (C) where the court relied mainly on the personal circumstances of the appellants.

41.            It was further submitted that in his affidavit the appellant indicated that he would not interfere with or intimidate the state witnesses.  Reference was also made to the matter of Molefe and two Others v S (A269/2013) 2014 ZAFSHC 1 (19 January 2014) where the appellants were granted bail despite the state relying on section 204 witnesses and the court indicating that such evidence should be approached with caution.  The court considered the State case and the personal circumstances of the appellant in conjunction.

42.            On behalf of the State it was submitted that the appellant's personal circumstances are really "commonplace" and as such cannot constitute exceptional circumstances. Further that financial loss is an inevitable consequence of the incarceration of an employed or business person. It was submitted that in the present case the evidence did not go so far as to prove that, strained as the circumstances might be, the appellant's dependants will starve if he is not released on bail to fend for them.  There was no proof that the appellant's business would collapse if bail should be refused.

43.            It was further submitted that it was insufficient for the appellant, who wishes to rely on the weakness of the State case, to simply say that the State case is weak. The appellant should have gone further to show that the State case is exceptionally weak and this must be done by showing on a balance of probabilities that he would be acquitted.   See: S v Mazibiko 2010 (1) SACR 433 KZP at [23]; S v Mathebula [12]; S v Viljoen 2002 (2) SACR 550 (SCA) at 556c.  The appellant simply failed to do so.

44.             According to the evidence of the investigating officer the appellant is known to accused No 1 and he is linked to the planning as well as the robbery itself by two section 204 witnesses who are employees of SBV and were part of the crew of the SBV cash in transit vehicle on the day of the robbery. He is said to have travelled to the vicinity of the crime scene in a gold Avanza vehicle. Appellant owns a gold Avanza vehicle. He is also linked through cell phone billing which indicate him having been in contact with his burner phone to the burner phone of accused 1 and which also places him at the vicinity of the crime scene and having had telephonic contact with accused 1 on the day of the incident. 

45.            Thus, so it was submitted, the State has a strong prima facie case against appellant and some of the charge(s), in particular the robbery with aggravating circumstances, carries a minimum sentence of 15 years imprisonment.  A very important factor, in my view, is the fact that the appellant merely denied his guilt and did not even attempt to give the reasons for or the basis of his defence. He was identified by witnesses on the scene of the crime in a vehicle similar to the one owned by him and according to the investigating officer his phone records placed him near the scene of the crime on the day of the robbery. The appellant did not even attempt to rebut these statements or to show that he has some sort of a defence to the charges against him, apart from his bald denial.

46.            It may be so, as conceded by the Magistrate, that the appellant have not evaded his trials in the past but I agree that this time the appellant faces something quite different. He faces severe sentences if convicted. The invitation to evade his trial is much different in the present matter. Furthermore, through his past conduct the appellant has shown that he has little or no respect for the law. His long list of previous convictions is testimony to that. The property where the appellant resides is not registered in his name and he has put forward very little, if anything, to convince me that he would stand his trial.  The appellant is also clearly in a financial position to evade his trial.

47.            The appellant has a long list of previous convictions which all, except for one, show that he has a propensity to commit crimes of violence. It is of importance to note that the appellant was not honest to the court in this regard. I regard the appellant's failure to be honest with the court regarding his previous convictions as an important factor.  Furthermore, he did not introduce any evidence to show that he is not likely to act in terms of his propensity to violence.  I also agree with the submission on behalf of the State that having regard to the appellant's personal circumstances, the strength of the State's case and all the circumstances of the case, no exceptional circumstances have been proven by the appellant as to why he should be granted bail.

48.            In a comprehensive judgement the Magistrate denied the application for bail. The Magistrate referred to the relevant provisions of the CPA and the principles involved as developed in a number of court decisions. It is not necessary to refer thereto save to say that in my view the Magistrate was alive to all the applicable principles. The Magistrate also referred in detail to practically all the evidence before her, and also to evidence which the appellant had not been placed before the court, and from which absence conclusions could be drawn.   The Magistrate considered same in the light of the applicable principles.  I cannot fault the approach of the Magistrate nor her conclusions.

49.            After the appellant filed a Notice of Appeal, the Magistrate filed additional reasons for her previous judgement. From these additional reasons it is again clear that the Magistrate was alive to the evidence as well as the relevant statutory provisions and the principles that have to be applied. Furthermore, the Magistrate considered the different issues not in isolation, but in conjunction with one another. In my view the Magistrate did not overemphasise or under emphasise any fact or issue.

50.            In fact, the extent to which the Magistrate was alive to the applicable principles is evident in the manner in which she took into account the appellant’s personal circumstances as well as the factors mentioned in section 60(4)(a)-(e) taken together with the relevant factors mentioned in the subsequent subsections.   The Magistrate was objective in her consideration of all these factors and in some instances found in favour of the appellant. Thus the Magistrate’s finding that she was unable to find any exceptional circumstances justifying appellant’s release on bail cannot be faulted.

51.             Lastly I should mention the appellant's reference in his heads of argument to the matter of S v Molefe.  In that case the court of appeal found that the Magistrate approached the bail applications on the basis that the issue before her only concerned the question whether or not the State's case against each appellant was non-existent or weak without reference to their respective personal circumstances relevant to section 60(4) of the CPA.  Furthermore, the court did not place much value in the fact that the State would rely on a section 204 witness.  Firstly, in the present matter the Magistrate's approach was quite different and all relevant circumstances were considered in conjunction. Furthermore, in the present case there is independent evidence corroborating the section 204 witnesses with regard to them implicating the appellant.

52.             Furthermore, the fact that an applicant for bail will challenge aspects such as the credibility of section 204 witnesses during the actual trial cannot be considered to be an exceptional circumstance on its own.  Bail proceedings are not to be viewed as a full dress rehearsal for a criminal trial. During a bail application the duty of the court is merely to assess the relative strength of the State's case against the appellant as opposed to making a provisional finding on the guilt or otherwise of the accused. The making of credibility findings on the merits of the case is left to the trial court which will be better placed to assess the evidence in totality. See: S v Van Wyk 2005 (1) SACR 41(SCA) at [6]. To attempt in bail proceedings to determine who would be believed in the trial would be speculative in the extreme and unnecessary. See: Vena v The State (supra) at [11].

53.            In summary, I find that the court a quo cannot be said to have exercised its discretion wrongly or committed any material misdirection on the facts or legal principles. There are therefore no grounds justifying this court to interfere with the Magistrate’s decision. 

54.            In the result, the following order is made:

1.         The appeal is dismissed.

 

C.P.  RABIE

JUDGE OF THE HIGH COURT

8 June 2020

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