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INTHE HIGH COURT OF SOUTH AFRICA

LIMPOPO LOCAL DIVISION, THOHOYANDOU

 

CASE NUMBER: A36/2022

 

REPORTABLE: NO

OF INTEREST TO OTHER JUDGES: NO

REVISED.

30/11/2022

 

MAANDA WALTER MBAMBALE                                                                    APPELLANT

 

AND

 

THE STATE                                                                                                   RESPONDENT

 

BAIL APPEAL JUDGEMENT

 

AML PHATUDI J

 

[1]        Everyone has the right to freedom of movement.[1] This right may be limited only in terms of law of general application[2]. The Constitution of the Republic of South Africa Act, Act 108 of 1996 (the Constitution), does limit the right to freedom of movement. Section 35(1) (f) provides that ‘everyone who is arrested for allegedly committing an offence has the right to be released from detention, if the interest of justice permit, subject to reasonable conditions.

[2]        Maanda Walter Mbambale, the appellant, seek to exercise his right to freedom of movement, if the interest of justice permit. He approached the Magistrates’ Court, Malamulele, Limpopo, in his quest to seek an order for his liberation; a right entrenched in the Constitution. The Magistrates’ Court (per Mr R. Voster), dismissed his application. Saddened by the refusal to admit him to bail, Prompted him to lodge this bail appeal.

[3]        The appellant enjoyed legal representation of his own choice when applying for bail at the trial court. It is common cause that the appellant faces charges that fall within the armpit of schedule 5 offences described in the Criminal Procedure Act, Act 51 of 1977 (the Act). He knew that he had to bring a formal bail application, where he is obligated to adduce evidence, which will satisfy the court, that the interests of justice permit his or her release. The appellant adduced his evidence by handing in an affidavit. He set his personal circumstances out, and, gave reasons why the court should release him on bail.

[4]        Richard Masangu is a warrant officer in the employ of SAPS, stationed at Malamulele, Limpopo. He led evidence, viva voce, in rebuttal to the appellant’s application.

[5]        The Magistrate exercised his judicial discretion when dismissing the application. He found that it would not be in the interest of justice to release the appellant on bail.

[6]        Bail in respect of schedule 5 offences is governed in terms of section 60(11) (a) (ii) of Criminal Procedure Act 51 of 1977. The starting point is, perhaps, to reiterate what the Constitution provides. Section 35(1) (f) stipulates, ‘[e]veryone who is arrested for allegedly committing an offence has the right to be released from detention if the interests of justice permit, subject to reasonable conditions. Equally, section 60(11) (a) (ii) of the Criminal Procedure Act 51 of 1977 stipulates:

“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 the interest for justice permit his or her release”.

[7]        The wording of section 60(11) (a) (ii) of the Act, places the onus on the appellant, to prove, on a balance of probabilities, that the interest of justice permit his release on bail.[3] Put differently, the accused person bears the burden, of satisfying the trial court, that, it is in the interest of justice, to permit his release on bail.

[8]        A court, hearing bail application, especially relating to schedule 5 and/or 6 offence, must conduct a careful judicial enquiry as to the existence any evidence that may permit, in the interest of justice, the release of the applicant on bail.

[9]        In determining the interest of justice, the trial court must take into cognisance, the guidelines stipulated in section 60(4) (a) to (e) of the Act. It is perhaps, an opportune time, to state that the section provides that ‘the interests of justice, do not permit the release from detention, of an accused where, one or more of the following grounds are established:[4]

(a) Where there is the likelihood that the accused, if he or she were released on bail, will endanger the safety of the public or any particular person or will commit a Schedule 1 offence;

(b) Where there is the likelihood that the accused, if he or she were released on bail, will attempt to evade his or her trial; or

(c) Where there is the likelihood that the accused, if he or she were released on bail, will attempt to influence or intimidate witnesses or to conceal or destroy evidence; or

(d) where there is the likelihood that the accused, if he or she were released on bail, will undermine or jeopardise the objectives or the proper functioning of the criminal justice system, including the bail system;

(e) Where in exceptional circumstances there is the likelihood that the release of the accused will disturb the public order or undermine the public peace or security’.

[10]      It is perhaps, an opportune time to mention that, s 65 of the Act[5], governs the bail appeal proceedings. s 65(4), for instance, provides: ‘a 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 or his opinion, the lower court should have given’[6].

[11]      The provisions of s 65(4) are in line with the principle set in R v Dhlumayo and Another 1948 (20 SA 677 (A) at 689-690z, where the court indicated that ‘where there has been no misdirection on fact by the trial court, the presumption is that his conclusion is correct.’

[12]      In further developing Dhlumayo principle, Ismail J penned in Chewe v S (not reported, not even in SAFLII) A702/2015 GDP (26 October 2015) at para [21], “this appeal is advanced against the refusal of bail by the court having heard the initial and subsequent [bail on new facts] application. The task of this court is merely to ascertain whether the court of first instance exercised its mind judicially and correctly”. Ismail J enjoined to follow the application of Dhlumayo set out differently in S v Barbes 1979(4) SA 218 (D), where the court stated: “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”

[13]      The court in Panayiotou v S[7] indicates that for a court of bail appeal to interfere on appeal, it is necessary to find that the Magistrate misdirected himself or herself in some material respect in relation to either the facts or the law. The court further stated that, in the absence of a finding that the Magistrate misdirected himself or herself, the appeal must fail.

[14]      I perused Mr Voster’s judgement delivered on 21 September 2022. It is perhaps prudent, before I determine as to whether Mr Voster misdirected himself on facts or the law, to first analyse the evidence led at the bail hearing.

[15]      The appellant led his evidence by deposing to an affidavit. He, in essence, places his personal circumstance on record. He further placed on record-‘I do have previous convictions of assault and failure to attend court…', and, “I am not sure which witnesses the State would rely on in their attempt to prove its case against me …’

[16]      Rebutting the appellant’s evidence, Elias Zeera Mbambale (Elias) testified. He placed on record that he is the father to the appellant. He is the complainant. The evidence show that the appellant is bully and persecute the complainant. He said the appellant assaulted him in full view of other witnesses. He placed on record further that the appellant uttered the following words: “After he has assaulted me while he was still there, he told me that he will come back and kill me”.

[17]      The Magistrate correctly found that the people “who witnessed this offence are known to the applicant”. During the hearing of this appeal, I enquired from the appellant’s counsel, who represented the appellant at the Magistrates’ Court, what the appellant meant when he said- “the appellant is not sure who the witnesses are”. He concedes that the offence the appellant faces, have an element of contact between the complainant and the appellant. He further concede, that the statement or evidence of the appellant indicating that he is not sure who the witnesses are, is misleading. In other words, Counsel concedes that the Magistrate is correct to find that the appellant knows, or, reasonably expected to know who the witnesses are, and, that the appellant’s evidence is false and misleading.

[18]      The provisions of sections 60(4) to 60(9) of the Act, prescribes what the trial court must consider in determining the ‘interest of justice’. In this case, section 60(4) (c) and (d) read with s 60(7) and (8) respectively, deals with grounds to consider in determining the interest of justice.

[19]      Section 60(7) stipulates:

‘In considering whether the ground in subsection (4) (c) has been established, the court may, where applicable, take into account the following factors, namely-

(a) The fact that the accused is familiar with the identity of witnesses and with the evidence, which they may bring against him or her;

(b) Whether the witnesses have already made statements and agreed to testify;

(c) Whether the investigation against the accused has already been completed;

(d) The relationship of the accused with the various witnesses and the extent to which they could be influenced or intimidated

(e) How effective and enforceable bail conditions prohibiting communication between the accused and witnesses are likely to be;

(f) Whether the accused has access to evidentiary material, which is to be presented at his or her trial;

(g) The ease with which evidentiary material could be concealed or destroyed; or

(h) Any other factor which in the opinion of the court should be taken into account’.

[20]      From the evidence tendered at the bail hearing, evaluation by the Magistrate and the application of the law, I find no reason to fault the magistrate for finding that it will be in the interest of justice, not to release the appellant on bail.

[21]      The evidence led is clear on record. The appellant knows the complainant very well. They are closely related. The appellant bullies and persecutes the complainant. I find, based on the evidence and the Magistrate’s findings, that, the appellant is likely, if released on bail, to undermine or jeopardise the objectives or the proper functioning of the Criminal Justice System.

[22]      Ms Nekhavhambe, Counsel for the State, submits, with distinction, that, it is in the interest of justice to detain the appellant in custody until he is dealt with, in accordance with the law. She opines that this court must consider a fact that the complainant is related, closely too, to the appellant. He, the appellant, can access the complainant’s premises, home and work, at any given time, day or night. I cannot agree more.

[23]      In my final analysis, I am unable to find any misdirection, either, on facts, or, the law. I thus, have no reason to fault Mr Voster’s judicial discretion, when he denied admitting the appellant to bail.

[41]      I, in the result, make the following order

Order

The Appellant’s bail appeal against Malamulele Magistrates’ Court’s denial to admit the appellant to bail on 21 September 2022 is dismissed.

 

 

AML PHATUDI

JUDGE OF THE HIGH COURT

 

 

 

 

 

APPEARANCES

 

FOR THE APPELLANT      :           MR T MAKUYA

INSTRUCTED BY               :           Tshilidzi Makuya Attorneys

Thohoyandou

Email                                    :           ettmkr@gmail.com

 

FOR THE STATE                 :           MS N.W. NEKHAVHAMBE

INSTRUCTED BY                :           DPP. Thohoyandou

 

HEARD                                 :           24 November 2022

JUDGMENT                          :           30 November 2022

 

JUDGEMENT          DATE   : Judgment handed down electronically by circulation to the parties’ legal representatives by email and publication through SAFLII. The date deemed handed down is 30 November 2022.

 

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