Director of Public Prosecutions Mpumalanga v Segone (BA30/2020) [2021] ZAMPMHC 1 (18 January 2021)

IN THE HIGH COURT OF SOUTH AFRICA,

MPUMALANGA DIVISION, MIDDELBURG

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED: YES

18 January 2021

CASE NO: BA 30/2020

In the matter between:

THE DIRECTOR OF PUBLIC PROSECUTIONS

MPUMALANGA

APPELLANT

And

ROBERT KHYAYA SEGONE

RESPONDENT

JUDGMENT

BRAUCKMANN AJ

[1] This is an appeal by the Director of Public Prosecutions, Mpumalanga (“the DPP”) in terms of section 65A of the Criminal Procedure Act, 55 of 1977 (“the CPA”) against the ruling by the Court a quo granting of bail in the to the respondent (“Mr Segone”) held in the Magistrate’s Court the district of Victor Khanye at Delmas (“the Court a quo”)[1]. Mr Segone was arrested on 26 October 2020 and charged with a number of offences. More charges were added before the commencement of the bail application.

[2] Mr Segone’s bail application fell under the ambit of Schedule 6 where he had to adduce evidence which satisfies the court that exceptional circumstances exist which permits his release on bail

[3] The court a quo correctly held count 7 to be a charge of robbery with aggravating circumstances. It puts the charge under the ambit of schedule 6 of Act 51 of 1977, due to the infliction of grievous bodily harm to the victim and/or the threat of the infliction of grievous bodily harm. The court a quo correctly held that it was admitted that the appellant was present during the incident. The court also correctly held that it is not for the court hearing the bail application, to decide on the guilt of the applicant, but it is a determination for the trial court, after it heard the evidence. It is respectfully submitted that the incident, from the first assault, the taking of the fire-arm of the victim, the return of the fire-arm and the taking of the ammunition, was one continuous incident. Therefore, the original assault still forms part of the threat of grievous bodily harm to the victim, at the stage when the ammunition was taken, as the complainant was in a constant, uninterrupted subdued state[2].

[4] The mere threat of grievous bodily harm is sufficient to establish the existence of aggravating circumstances, and that conduct of the perpetrator is sufficient to establish such threat[3].

[5] In S v Hlongwane[4], the Court held that a person can commit an offence directly or vicariously through others and further that it is irrelevant what task each was assigned for its execution. Each participant in such an offence will be a co-perpetrator because of the agreement to commit the offence and intended either that force would be applied in order to rob or foresaw the possibility. The court further held that the agreement can be established through circumstantial evidence. The court also refers to an accomplice as ‘someone whose actions do not satisfy all the requirements for criminal liability in the definition of the offence, but who nonetheless

intentionally furthers the commission of a crime by someone else who does comply with all the requirements’[5].

[6] Mr Segone was present during the initial assault on the complainant, stayed at the scene, calling the other perpetrators back. It clearly indicated to the complainant was in control of the other perpetrators. In the presence of these other perpetrators, who assaulted the complainant. Mr Segone even removed some of the bullets from the fire-arm of the complainant, without his consent, under the clear threat of possible further assault, should the complainant resist.

[7] This Court is of the view that the Court a quo cannot be faulted in its conclusion that Count 7 of the charges against Mr Segone resorts under schedule 6 as stated earlier.

[8] A court of appeal has limited powers to intervene with the lower court’s discretion regarding the granting of bail. The interference with the discretion of the court a quo can only take place if the appeal Court is satisfied that the court a quo was wrong. Even should this Court have a different view, it should not substitute its own view for that of the court a quo because that would be an unfair interference with the court a quo’s exercise of its discretion[6].

[9] Section 60(11) of the Criminal Procedure Act reads as follows:

“Notwithstanding any provision of this Act, where an accused is charged with an offence referred to-

(a) in Schedule 6, the court shall order that the accused be detained 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 interests of justice permit his or her release;” [Own Emphasis]

[10] It was submitted by Advocate van der Merwe on behalf of the DPP that the respondent’s release may be denied if only one ground in terms of Section 60(4) of the Criminal Procedure Act is present which warrants the detention of the respondent in the interest of justice.

[11] In S v Mohammed [7] the following was pointed out:

“The phrase ‘exceptional circumstances’ does not stand alone: the Schedule 6 applicant has to adduce evidence which satisfies the court that such circumstances exist which in the interests of justice permit his or her release. The proven circumstances have to be weighed in the interests of justice. So the true enquiry, it seems to me, is whether the proven circumstances are sufficiently unusual or different in any particular case as to warrant the applicant’s release. And ‘sufficiently’ will vary from case to case.”

[12] It was submitted by Mr van der Merwe that section 60(11) (a) of the CPA is peremptory as it clearly and emphatically states that a court ‘shall’ order that an accused be detained in custody, when charged with an offense listed in schedule 6, unless the accused can prove the existence of exceptional circumstances. I pause to mention that I am in agreement with Mr van der Merwe on that aspect. The language of the section is clear and no interpretation leads to any other conclusion.

[13] Advocate AP Laka SC, on behalf of Mr Segone submitted that the Court a quo was wrong in finding that no exceptional circumstances were proven by Mr Segone, but that his granting of bail to Mr Segone was the correct conclusion though. Further that the DPP cannot allege that the State is suffering any prejudice as a result of the Respondent being on bail. This, so the argument by Mr Laka SC went, is a key requirement for the State to succeed in its appeal and because the State does not suffer any prejudice there is no legal basis for this appeal. That the Magistrate misdirected himself on one or other legal or factual issue does not warrant an appeal.

[14] I was referred to two reported judgments in an addition note drafted by Mr Laka SC in this regard[8]. Our Courts are not University Institutions which are involved in academic conceptualization having no material effect no speculative

hypothesis. He further states in the additional authority document that:

“5. The Respondent has been admitted to bail with conditions __ those conditions regulate his conduct. No speculative hypothesis __ No prophesy as to what is likely to happen. If he breaches any condition the Court may deal with that as it happens. No speculation.”

[15] Mr Laka SC’s main contention was that the Magistrate had a discretion that he could exercise to order the release on bail despite having found that no exceptional circumstances were proven or existed. I do not agree with the contention for the reasons provided herein.

[16] Having considered the totality of the evidence in the bail application, the Court a quo found the following:

1. That the respondent has a propensity to commit schedule 1 offences;

2. That the respondent is not a flight risk;

3. That there is a likelihood, given the uncontested evidence that there was some attempts to intimidate the complainant in count 7, that witnesses may be intimidated; (I pause to mention that these attempts were made by Mr Segone while the bail application was underway in the Court a quo.)

4. That, given the numerous attacks of members of the SAPS, there is a likelihood, that the respondent will undermine and jeopardize the proper administration of justice;

5. That, given the unchallenged evidence of the investigating officer, there is a likelihood that the public order will be disturbed or the public peace and security might be undermined, if the respondent was to be granted bail;

6. That the respondent did not show that the appellant has a weak case, but simply denies the allegations against him;

7. That the respondent failed to prove that he will suffer serious financial prejudice;

8. That the respondent failed to prove that any further detention would seriously prejudice his health;

9. The period the respondent has been, and is likely to be in detention, should bail be denied. The evidence by the Investigating Officer was that the investigation was completed and that the matter may be enrolled for trial.

[17] The appellant was present during the assault on the complainant in count 7, remained at the scene, calling the other perpetrators back, it indicated to the complainant that he is in control of the other perpetrators. In the presence of these other perpetrators, who assaulted the complainant. The appellant then proceeded to remove some of the bullets from the complainant’s fire-arm without his consent, under the clear threat of possible further assault, should the complainant resist. That was the evidence accepted by the court a quo, and I cannot fault the magistrate’s conclusion on the facts presented on reading the transcript.

[18] The defense argued during the bail hearing that the appellant did not have the intention to rob the complainant. The defense however indicated that the appellant returned the fire-arm to the complainant, after he removed the ammunition from the fire-arm.

[19] The removal of the ammunition from the fire-arm without the complainant’s consent, in the circumstances of this matter, is sufficient to establish the offence of robbery with aggravating circumstances.

[20] If an applicant in a bail application wishes to rely on the weakness of the state’s case, he needs to prove on a balance of probabilities that he will be acquitted. A mere averment that the state’s case is weak is not enough. Parroting the terms of section 60(4) does not establish any of those grounds [9]

[21] The court a quo then concluded and held that Mr Segone failed to prove the existence of exceptional circumstances and that he is not a suitable candidate to be released on bail, but despite the conclusion proceeded to grant bail to him.

[22] This, the DPP argues constitutes a gross irregularity. Mr Laka SC argued that the DPP cannot allege that the State is suffering any prejudice as a result of the Respondent being on bail, and that it is a key requirement for the State to succeed in its application As the State does not suffer any prejudice there is no legal basis for this appeal, so the argument went. It was conceded that the Magistrate misdirected himself on one or other legal or factual issue, but that does not warrant an appeal.

[23] This Court sit on appeal of the bail ruling made by the Court a quo, and cannot take into account any of the facts that transpired after the ruling was made. Only in the event that I find that the court a quo was wrong, may I interfere with the ruling. I am of the view that the Court a quo made all the correct findings with respect to the evidence and facts presented to him at the hearing, but misdirected himself by being influenced by extraneous factors, that were placed recorded by the magistrate. He recorded that he was threatened in order to produce a favourable outcome for Mr Segone. He also recorded that he was followed home and referred to a magistrate in Bronkhorstspruit that was shot dead in his driveway. Judicial officers must decide matters without fear, favour or prejudice. It is clear to me that the magistrate’s error was spurred by fear for his life. Having come to the conclusion that he failed to find any exceptional circumstances, he should have refused bail. More so where it was not disputed that Mr Segone interfered with a witness even during the bail application proceedings. It seems to the Court as if

Mr Segone is a law unto himself, and the community has had enough of his unruly conduct. So much was also found by the Court a quo. Also that there is a likelihood that Mr Segone will interfere with the witnesses.

[24] The DPP aptly referred me to S v Masoanganye and another[10] where the court stated:

“But there is a limit to what this court can do. It has to defer to the trial court’s decision, unless that court failed to bring an unbiased judgment to bear on the issue, did not act for substantial reasons, or, exercised its discretion capriciously or upon a wrong principle.”

[25] Having reached the conclusion that no exceptional circumstances were proved by Mr Segone, and more specifically that the averments of interference with state witnesses were not disputed, the Court a quo had no discretion to order his release on bail. No matter what the amount of bail or conditions were, the prerequisites, and jurisdictional requirements that would enable the magistrate to exercise his discretion in favour of Mr Segone lacked, and therefore Mr Sgone’s application should have been dismissed.

[26] The DPP noted this appeal as soon as possible after the ruling by the Court a quo. The matter was postponed during December at the instance of Mr Segone’s counsel as they were only placed in funds late, and Mr Laka was at a place where he did not have access to the internet as this appeal was heard virtually. The matter is not purely academic and is of real importance to the justice system. I am not aware of when the case against Mr Segone will be heard.

[27] I consequently make the following order:

1. The appeal against the release of Mr Segone (the respondent) on bail is hereby upheld;

2. His release on bail is hereby set aside and substituted as follows:

3. “The application by the accused, Mr ROBERT KHYAYA SEGONE, for release on bail is dismissed”

4. A warrant for Mr ROBERT KHYAYA SEGONE’s arrest is issued in terms of section 65A (3) of the Criminal Procedure Act, Act 55 of 1977.

HF BRAUCKMANN

ACTING JUDGE OF THE HIGH COURT

18 JANUARY 2020

REPRESENTATIVE FOR THE APPELLANT: Adv FW van der Merwe

INSTRUCTED BY: Director of Public Prosecutions (Mpumalanga)

EMAIL ADDRESS: fwvandermerwe@npa.gov.za

REPRESENTATIVE FOR THE RESPONDENT: Adv PA LAKA SC

INSTRUCTED BY: Peter Romano Attorneys

EMAIL ADDRESS: secretary.pramanoatt@gmail.com

DATE OF HEARING: 06 January 2021

DATE OF JUDGMENT: 18 January 2021

[1] “65A (1) (a) The attorney-general may appeal to the superior court having jurisdiction, against the decision of a lower court to release an accused on bail or against the imposition of a condition of bail as contemplated in section 65 (1) (a). (b) The provisions of section 310A in respect of an application or appeal referred to in that section by an attorney-general, and the provisions of section 65 (1) (b) and (c) and (2), (3) and (4) in respect of an appeal referred to in that section by an accused, shall apply mutatis mutandis with reference to a case in which the attorney-general appeals in terms of paragraph (a) of this subsection. (2) (a) The attorney-general may appeal to the Appellate Division against a decision of a superior court to release an accused on bail. (b) The provisions of section 316 in respect of an application or appeal referred to in that section by an accused, shall apply mutatis mutandis with reference to a case in which the attorney-general appeals in terms of paragraph (a) of this subsection. (c) Upon an appeal in terms of paragraph (a) or an application referred to in paragraph (b) brought by an attorney-general, the court may order that the State pay the accused concerned the whole or any part of the costs to which the accused may have been put in opposing the appeal or application, taxed according to the scale in civil cases of that court. (3) If the appeal of the attorney-general in terms of subsection (1) (a) or (2) (a) is successful, the court hearing the appeal shall issue a warrant for the arrest of the accused.”

[1] “65A (1) (a) The attorney-general may appeal to the superior court having jurisdiction, against the decision of a lower court to release an accused on bail or against the imposition of a condition of bail as contemplated in section 65 (1) (a).

(b) The provisions of section 310A in respect of an application or appeal referred to in that section by an attorney-general, and the provisions of section 65 (1) (b) and (c) and (2), (3) and (4) in respect of an appeal referred to in that section by an accused, shall apply mutatis mutandis with reference to a case in which the attorney-general appeals in terms of paragraph (a) of this subsection.

(2) (a) The attorney-general may appeal to the Appellate Division against a decision of a superior court to release an accused on bail.

(b) The provisions of section 316 in respect of an application or appeal referred to in that section by an accused, shall apply mutatis mutandis with reference to a case in which the attorney-general appeals in terms of paragraph (a) of this subsection.

(c) Upon an appeal in terms of paragraph (a) or an application referred to in paragraph (b) brought by an attorney-general, the court may order that the State pay the accused concerned the whole or any part of the costs to which the accused may have been put in opposing the appeal or application, taxed according to the scale in civil cases of that court.

(3) If the appeal of the attorney-general in terms of subsection (1) (a) or (2) (a) is successful, the court hearing the appeal shall issue a warrant for the arrest of the accused.”

[2] Transcript Pages 89 & 90.

[3] See : R v Zonele and Others 1959 (3) SA 319 (A) referred to with approval in S v Hlongwane 2014 (1) SACR 397 (GP), still as the binding precedent on the meaning of ‘threat to inflict’ grievous bodily harm, within the context of ‘aggravating circumstances’ in robbery cases (p. 406). Section 1 (b) of the Criminal Procedure Act 51 of 1977 defines aggravating circumstances as follows: “ (1) In this Act, unless the context otherwise indicates – ‘aggravating circumstances’ in relation to (b) robbery, or attempted robbery, means - (i) the wielding of a fire-arm or any other dangerous weapon; (ii) the infliction of grievous bodily harm; or (iii) the threat to inflict grievous bodily harm, by the offender or an accomplice on the occasion when the offence was committed, whether before or during or after the commission of the offence;”

[3] See : R v Zonele and Others 1959 (3) SA 319 (A) referred to with approval in S v Hlongwane 2014 (1) SACR 397 (GP), still as the binding precedent on the meaning of ‘threat to inflict’ grievous bodily harm, within the context of ‘aggravating circumstances’ in robbery cases (p. 406).

Section 1 (b) of the Criminal Procedure Act 51 of 1977 defines aggravating circumstances as follows:

“ (1) In this Act, unless the context otherwise indicates –

‘aggravating circumstances’ in relation to

(b) robbery, or attempted robbery, means -

(i) the wielding of a fire-arm or any other dangerous weapon;

(ii) the infliction of grievous bodily harm; or

(iii) the threat to inflict grievous bodily harm,

by the offender or an accomplice on the occasion when the offence

was committed, whether before or during or after the commission

of the offence;”

[4] 2014 (1) SACR 397 (GP) on page 407.

[5] Hlongwane, supra, at p 407.

[6] S v Barber 1979 (4) SA 218 (D) & S v Porthen and Others 2004 (2) SACR 242 (C),

[7] 1999(2) SACR 515 (C), page 515 C to D.

[8] Public Protect v SARB 2019 (9) BCLR 1113 (CC); also: S v Malaga 2001 (2) SA 1222 (SCA and R v Dhhumayo (Not Hlatswayo) 1948 (2) SA 677 (A).

[9] S v Mathebula 2010 (1) SACR 55 (SCA).

[10] 2012 (1) SACR 292 (SCA) at [15].