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IN THE HIGH COURT OF SOUTH AFRICA

LIMPOPO LOCAL DIVISION, THOHOYANDOU

 

                                                        CASE NUMBER: A02/2022

             

JABU MASHIMBYE                                                                    FIRST APPELLANT

VUTISANI LUCKY NDUKWANE                                             SECOND APPELLANT

VUSI NGOBENI                                                                           THIRD APPELLANT

AND

THE STATE                                                                                   RESPONDENT

BAIL APPEAL JUDGEMENT

AML PHATUDI J

Introduction

[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 itself does limit the right. 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]   Jabu Mashimbye, lucky Ndukwane and Vusi Ngobeni, the appellants, seek to exercise   their right to be released from detention if the interest of justice permit. They approached the Magistrates’ Court, Giyani, Limpopo in their quest to seek an order for their liberation; a right entrenched in the Constitution. The Magistrate, P Rikhotso, dismissed their application. They now appeal the decisions not to be released on bail.

Facts

[3]   The appellants were arrested on 8 November 2021.  They are charged with one count of robbery with aggravating circumstances; one of possession of unlicensed firearm; one of ammunition and one of murder read with the provisions of s 51(1) of Criminal Law Amendment Act, Act 105 of 1997 (CLAA).

[4]   The charges against the appellants emanates from an incident of a robbery of Mopani Liquor Store situated at Giyani, Limpopo Province. It is alleged that they assaulted one Simanda Senjuwa Elangon and robbed him of R250 000.00 in cash on 9 November 2021. The usage of firearms during the commission of the offence aggravated the offence.

[5]   Five (5) assailants perpetrated the commission of the offence. The second appellant transported the other four to Mopani liquor store for the execution of the offence. The offence was not executed as they probably anticipated.

[6]   Members of the community pelted the first appellant and accused 4 with stones at the scene. Accused 4 produced a firearm and fired shots at the said members of the community. The police arrived. Accused 4 continued firing shots aiming at the police. They retaliated and shot accused 4 on his leg. The shot hit accused 4’s cell phone that was in his trouser pocket. Accused 4 was arrested with ease and firearm was recovered from him and placed in SAP13. The first appellant, who was running alongside accused 4 when pelted with stones, realised that “it was hot”. In fear for his life, he ran into the police van for protection.

[7]   The second appellant advised the third appellant to hand himself or herself in police custody after they have been “pointed out” as being the other members of a click to other assailants.

[8]   The evidence led by the state in strengthening its case, demonstrated, prima facie, that the first appellant is the mastermind; the second, the transporter and the third, as one of the main participants during the commission of the offence.

Bail Application

[9]   The appellants enjoyed legal representation of their own choice when bringing their bail applications. On 24 November 2021, the appellants brought their applications to be released on bail in the Magistrate Court for the district of Giyani, held at Giyani before Mr Rikhotso.

[10] The appellants handed in their evidence in a form of affidavits. They set out their personal circumstances and gave reasons why the court should release them on bail.

[11] Pikani Ian Mabasa, a sergeant in the employ of SAPS stationed at Giyani, lead evidence in rebuttal to the appellants’ application. He profiled each appellant.

[12] The Magistrate exercised his judicial discretion when dismissing their applications. He was unable to find any exceptional circumstances justifying their release on bail. He further found that it would not be in the interest of justice to release them on bail.

[13] The appellants persevered with their bail applications on new facts on 13 December 2021 but found no mother of success. They now approach this court on appeal against the Magistrate’s refusal to admit them on bail.

Law

[14] The offence preferred   against the appellants fall within schedule 6. Bail in respect of schedule 6 offences is governed in terms of section 60(11) of Criminal Procedure Act 51 of 1977. The starting point is, perhaps, to reiterate what the Constitution provides. Section 35(1) (f) governs the right of the arrested person. Section 60(11) (a) 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 exceptional circumstances exist which in the interest for justice permit his or her release”.

[15] The onus is on the appellants to prove on a balance of probabilities that exceptional circumstances do exists as envisaged in terms of section 60(ii) (b) of Criminal Procedure Act. [3] Put differently, the accused person bears the burden of satisfying the trial court as to the existence of exceptional circumstances of which the interest of justice permit his release.

[16] It must be borne in mind that the bail application are sui generis. The court hearing bail application, especially relating to schedule 5 and/or 6 offence, must conduct a careful judicial enquiry as to the existence of the exceptional circumstances.

[17] The Criminal Procedure Act does not define exceptional circumstances. There are decided cases[4] that defines exceptional circumstances. Often, a combination of personal circumstances with a “weak state’s case” find favour in existence of exceptional circumstances.[5]

[18] In S v H 1999 (1) SACR 72 (W), the court states that “exceptional circumstances must be circumstances which are not found in the ordinary bail application governed in terms of s 60(4) (a)-(e).

[19] The full bench in S v Petersen 2008 (2) SACR 355 (c) para [55] had this to say in defining what exceptional circumstances mean.

‘Generally speaking, “exceptional” is indicative of something unusual, extraordinary, remarkable, peculiar or simply different.”

[20] In Scott Crossley 2007 (2) SACR 471 SCA [12] the court found that “personal circumstances” which are really “common place” cannot constitute exceptional circumstances for purposes of section 60(11)(a). In S v DV 2012 (2) SACR 4492 (GDP) [8] Legodi J found that “cumulatively the fact that the State’s case was subject to some doubt, the low risk pertaining to flight, the absence of likelihood of interference with the state witness and the low risk of re-offending, constituted exceptional circumstances”.

[21] It is perhaps an opportune time to mention that bail appeal is governed in terms of s 65 of CPA[6]. s 65(4), for instance, provides that ‘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’.

[22] The provisions of s 65(4) align 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.’

[23] In developing Dhlumayo principle further, 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 count 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 that “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”

[24] 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.

Misdirection on facts or the law.

[25] I perused Mr Rikhotso’s initial and subsequent astute judgements delivered on 30 November and 13 December 2021 respectively. Perhaps before I determine as to whether he misdirected himself on facts or the law, I find it prudent to analyse the evidence led at the bail hearings.

[26] The first appellant is cited as accused 1. He led his evidence by deposing to an affidavit. He, in essence, places his personal circumstance on record. He further placed on record-‘I am linked to this offence based on the fact that I was at some point prior to the commission of the offence, seen with the suspects who ran away after having committed the alleged offence’

[27] Second appellant, who is accused 2 as depicted on record, followed the same precedent. He says in his affidavit, ‘I am linked to this offence based on the fact that I was hired to transport the suspects…’

[28] The third appellant is accused 3. He, based on the legal advice led his evidence by way of an affidavit. He deposed to say ‘I am linked to this offence based on the fact that I was, at some point prior to the commission of the offence, seen with the suspects who ran away after having committed the alleged offence’.

[29] Before exercising his discretion in refusing bail, the Magistrate, applying the principles set out in a number of cases, followed among others, S v Malik 1999 (2) SACR 479 (w) and Dlamini[8]. He indicated that an accused would succeed in proving exceptional circumstances if he is able to show by adducing exceptional evidence, that the state’s case against him is non-existent or subject to serious doubt.

[30] Mr Rikhotso analysed with distinction on the first appellant’s affidavit alone. The appellant places himself in the company of assailants prior to the commission and after, when he ran alongside accused 4. Mabasa who testified that the members of the community pelted accused 4 and the appellant with stones at the scene corroborates the said evidence. At that moment, accused 4 of which the appellant was beside him, kept on firing shots at both the members of the community present and the police. The appellant ultimately ran into the police van for cover.

[31] He further inferred from the uncontested evidence that the appellant is the king pin and organiser. He, prior to the commission of offence, provided accommodative to the other assailants referred to on record as the “Zulus”. The members of the community killed one of the assailants at the scene. The body of the other assailant was found decomposed at Dzingidzingi with bullet wounds, one of which pieced though the head. He found the strength of the state’s case as stronger. I find no reason to fault Mr Rikhotso’s judicial discretion in this regard.

[32] Similar analysis applies in respect of the second appellant. The transporter. Emphasis is placed on Mabasa’s uncontended evidence that the appellant was with the assailants prior to the commission of the offence when “they were cleaning five firearms and Mr Rikhotso says: “that in itself, it is a clear indication that you knew and … you have equally participated in the commission of the offence…”

[33] The Magistrate found the state’s case to be stronger against the appellant and his personal circumstances as ordinary not to constitute exceptional circumstances to justify granting the appellant bail. I have no reason to disagree. In fact, I find no misdirection on fact.

[34] Similarity with the third appellant, Mr Rikhotso says, “it cannot be said that the state’s case against you is weak.” The magistrate found that there are witnesses who provided Mabasa with information that the appellant was with the assailant and he stood guard outside Mopani Liquor Store while others were inside. I, as well in respect of the third appellant, find no reason to fault the magistrate. I found no misdirection on facts.

The interest of Justice

[35] The words “…if the interest of justice permits…” are both used in the Constitution[9] and the CPA[10]. It is clear from the wording that sometimes the interest of justice does not permit the release of the arrested person(s) on bail[11].

[36] In determining whether the interest of justice favour the applicants’ release on bail or not, the court must take into cognisance the interest of justice (interest of the community) as against the rights of the accused. The Court must further evaluate if the accused is likely to suffer any prejudice if not released. There are factors a Court may consider prejudicial to the accused. For example:

(a)   The financial loss the accused may suffer because of her or his detention.

(b)   The prejudice a community may suffer in the absence of the accused professional services

(c)   The accused actual ill health.

(d)   The likelihood that the accused, if released, would endanger the safety of the public or the other way around (vice versa).

[37] The determination of public or individual safety is of paramount importance when considering the interest of justice. It is inevitable to (i) consider the degree of violence implicit in the charge or (ii) a threat of violence members of the community may have made or likely to make or imminent towards the accused and vice versa.

[38] The evidence led by Mabasa is clear in that members of the community pelted stones out of anger at the assailants. One killed at the scene. The first appellant got hurt. He ran into the police van for cover when it “was hot”. Had it not being the police, who knows it would have been an end to his life.

[39] Counsel for the state submits before this court that it is in the interest of justice to detain all appellants in custody until they are dealt with in accordance with the law. She opines that this court must consider the appellants’ safety as against the rights they may be having. I cannot agree more.

[40] In my final analysis, I am unable to find any misdirection’s on facts and the law. I have no reason to fault Mr Rikhotso’s judicial discretion when he denied admitting the appellants to bail.

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

Order

The First, second and Third Appellants’ bail appeal against Giyani Magistrate’s denial to admit the appellants to bail is dismissed.

AML PHATUDI

JUDGE OF THE HIGH COURT

 

APPEARANCES

 

FOR THE APPELLANTS             :        MR ZITHA

INSTRUCTED BY                         :        W Baloyi Attorneys

                                                                               Thohoyandou

 

FOR THE STATE                          :        RATSHIBVUMO M

INSTRUCTED BY                         :        DPP. Thohoyandou

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 13 April 2022.

 

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