Ngwenya v S (A573/17) [2017] ZAGPPHC 898 (14 December 2017)

REPUBLIC

OF SOUTHAFRICA

THE

HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA)

CASE NO: A573/17

NOT

REPORTABLE

NOT

OF INTEREST TO OTHER JUDGES

REVISED.

14/12/2017

In the matter between:

DAVID

NGWENYA APPELLANT

And

THE

STATE RESPONDENT

JUDGMENT

SENYATSI AJ:

[1].This is an appeal against the decision of magistrate court of the District of Ekurhuleni, Springs, for refusing bail application on 29 June 2017.

[2]. The appellant was arrested for murder on 25 June 2017 and remains in custody since then.

[3]. After hearing the evidence by the investigating officer Lotz, who opposed bail application, the court a quo applied the provisions of section 60 (11) (a) of the Criminal Procedure Aci 51 of 1977 ("CPA") and refused bail.

[4]. The appellant had made submissions about the exceptional circumstances which justify his release on bail pending the trial.

[5].The court a quo found that although submissions made by the applicants were not challenged by both the State and Lotz, that the onus required to be discharged by the appellant in terms of section 60(11)(a) of the CPA had not been discharged by the appellant.

[6]. The issue for determination is whether the court a quo misdirected itself in rejecting the bail application by the appellant.

[7]. The charge the appellant is facing is dealt with under Section 60 of the CPA and is regulated by section 60(11)(a) of the same Act which provides as follows:

"(11) 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 in custody until he or she is dealt with in accordance with the law, unless the accused, having been given reasonable opportunity to do so, adduces evidence which satisfies court that exceptional circumstances exist which in the interest of justice permit his or her release".

[8]. The accused person in such event, needs only to adduce evidence which on balance of probabilities satisfies the court that exceptional circumstances existed which in the interest of justice permit his release on bail.

[9]. The approach to bail by the court must be considered with the elements of the Constitution of the Republic. Section 35(1)(b) of the Constitution provides for a judicial evaluation of different factors that make up the criteria of the interest of justice. It is without doubt, important for judicial officers considering bail applications to harmonise Section 60(11) of the CPA with constitutional norms and imperatives.

[10].As a consequence, the purpose of bail is to strike a balance between the interests of society and liberty of an accuse person. The basic objectives of bail, is to give effect to personal liberty in accordance with norm of the Bill of Rights enshrined in our Constitution.[1]

[11]. It is also trite in our law that evidence in bail application can be placed on record either by sworn affidavit or oral testimony.[2]

[12]. It is also settled n our law that a court of appeal has limited powers to interfere with the lower courts \discretion regarding the bail application refusal. The discretion of the court a quo car only be interfered with if the appeal court is satisfied that the court a quo was wrong[3]

[13]. I have considered the court record of the court a quo. I have also considered the reasons advanced by the presiding officer for the refusal of bail application of the appellant.

[14]. The presiding Magistrate overemphasised the interest of justice and completely overlooked the spirit of the presumption of the innocent enshrined in our Bill of Rights in rejecting the bail application by the appellant. The court a quo was incorrect to refuse that although personal circumstances of the appellant were not disputed and that the State offered to rebuttal thereof, to find that the sworn statement was not sufficient to discharge the onus of exceptional circumstances justifying the release of the appellant on bail.

[15]. What was not 1disputed was that the appellant had a fixed residential and employment address. He was working for Eskom as a technician and lived in Springs with his family in a house worthR1 500 000,00. He was not a flight risk.

[16]. I do not agree with the finding by the learned magistrate that the likelihood existed that the appellant would attempt to evade his trial. There was no evidence before the court a quo to reach that conclusion. In fact the evidence before court Lotz was that "Glo ek daarem nie hy sal hardloop nie.”[4]

[17]. Although the appellant had a valid passport, there was no evidence that he would leave the Republic upon being released on bail and avoid trial.

[18]. The learned magistrate was in my view, wrong to reject the bail application for the reasons given.

[19].As a consequence, the appeal for bail application should succeed.

[20]. The appellant must therefore be released on bail subject to the following conditions:-

[20.1]. Payment of R16 000,00 bail.

[20.2]. He must hand over of his passport to the investigating officer in the matter until the finalisation of the trial;

[20.3]. He must report twice a week to the local police station of the SAPS in Springs;

[20.4]. He must not interfere with the State witnesses;

[20.5]. A breach of any of the bail condition will entitle the State to apply for the withdrawal of his bail and to have him committed to prison pending the finalisation of the trial.

______

SENYATSI

AJ

ACTING

JUDGE OF THE HIGH COURT

[1] S v Schietekat 1999(7) BCLR 771 (CC)

[2] See S v Hartslief 2002(1) SACR (T) at 11D

[3] See S v De Abren 1980 (4) A 94(W); S v Baleka and Others 1986(1) SA 361(T) at 378A; S v Barber 1979(4) SA 218(D)

[3] See S v De Abren 1980 (4) A 94(W);

S v Baleka and Others 1986(1) SA 361(T) at 378A;

S v Barber 1979(4) SA 218(D)

[4] See page 77 line number 8 of the judgment