Nkambule v S (A134/2013) [2013] ZAGPJHC 112 (2 May 2013)

REPUBLIC OF

SOUTH AFRICA

IN THE SOUTH GAUTENG

HIGH COURT

(JOHANNESBURG)

CASE NO: A134/2013

DPP REF NO: JAP 2013/129

In the matter between

NKAMBULE,

WHITEY MSONGELA Appellant and

THE

STATE Respondent

JUDGMENT

MUDAU, AJ:

[1] The appellant who stands charged with robbery with aggravating circumstances as well as kidnapping was denied bail by the regional magistrate’s court, Tembisa. Appellant was denied bail after a substantive application and again on new facts. He appeals this decision by virtue of the provisos of section 65 of the Criminal Procedure Act 51 of 1977 (the CPA).

[2] The offence of robbery with aggravating circumstances falls under a category of offences referred to in Schedule 6 of the Criminal Procedure Act as amended. Section 60(11) of the said Act 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 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. . . .”

[3] Section 60 (11) (a) of the Criminal Procedure Act has been subjected to judicial scrutiny in numerous cases. In S v Dlamini; S v Dladla; S v Joubert; S v Schietekat1, section 60 (11) (a) was held to be constitutional, and thus survived a declaration of invalidity “because the limitation was held to be reasonable and justifiable in terms of section 36 of the Constitution”2. It is accordingly, trite law that a court will be entitled to refuse bail unless the accused establishes that there are exceptional

circumstances in his particular case which, in the interests of justice permit his or her release on bail pending trial.

[4] For purposes of this exercise, the provisos that are relevant are those of section 65(4) of the Criminal Procedure Act, which 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 or his opinion the lower Court should have given.“

[5] The grounds of appeal in this matter as extracted from the papers are essentially as follows:

1. “The court below in the initial bail application of 6 February 2013 relied on mere allegations against the Appellant and although it considered the issue of identification it did not consider it relevant for the determination of the question of bail.” …

2. In the bail application on new facts on 25 March 2013 the state conceded that although it was argued that there would be other witnesses

identifying the appellant in an identity parade line up (sic), the matter was trial ready and was so postponed for trial without the said identification parade being held, thus leaving the state’s case subject to serious doubt…

The court below misguided itself in the interpretation of the issues in a bail on new facts and did not go as far as considering the evidence in toto and the changed circumstances…”

[6] In S v Barber3 Hefer J, as he then was, remarked as follows:

“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 this Court’s own 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. Without saying that the magistrate’s view was actually the correct one, I have not been persuaded that it is the wrong one.”

[7] This appeal therefore turns on whether the learned Magistrate excised his discretion judiciously in the light of the applicable law and the facts that were before him.

[8] The allegations which are common cause are that the complainant, his wife and minor child were accosted by two armed men in their yard. The robbers ordered them into a motor vehicle that was in their possession. The vehicle was driven away. Along the way, the family was ordered out of the vehicle. The complainant was robbed of a vehicle and other valuables. Some four days later, the complainant saw a person (the appellant in this case), whom he identified as one of the two robbers. He thereafter, took the police to where appellant resides.

[9] In the initial bail application appellant denied in an affidavit handed in to support his bail bid that he was one of the two alleged robbers. This was supported by an affidavit from his landlord to the effect that the appellant was at the relevant time and on the date in question at home, and never left home until the next day.

[10] In opposing bail, the state presented a sworn statement by the arresting officer detailing the circumstances under which the

appellant was arrested as I summarised above. In addition, the state handed in a statement from the investigating officer which suggests that the complainants feared for their lives. From the arresting officer’s statement it is clear that the appellant’s

premises were searched but nothing connecting him to the crimes in issue was found. The state had argued, in closing argument, that an identity parade involving the other victims was still outstanding.

[11] The magistrate’s judgment in refusing bail is a few lines long. It reads as follows:

“The allegations against the accused is a serious one, now even though the issue of identification has been raised by the defence this court is not charged with consideration of such since it has to decide this obligation on the balance of probabilities not beyond any reasonable doubt, and the finding of the court is that no exceptional circumstances exits (sic) that warrant that the accused that the accused be released on bail because of the likelihood that the accused if he were to be released on bail will endanger the safety of the complainant or other state witnesses .Bail is therefore REFUSED.” (The underlining is mine).

[12] The identity parade alluded to by the state in the initial bail application was never held. I enquired why this was not done when the merits of the appeal were argued before me. The court was told this was due to the fact that the complainant’s wife would not be able to identify the appellant. It is common cause that appellant had approached the same magistrate to reconsider his view on bail in light of this aspect. The magistrate’s whole judgment in this matter reads as follows:

“RULING”

“It would appear that the application for bail on new facts is based on the strength of the case against the accused, and this court does not concern itself with whether the case is strong or not at this stage. It has to decide the application of the accused on a balance of probabilities, it is only the trial court that has got to prove the case against the accused beyond any reasonable doubt. The ruling of the court in the initial bail application was that there were no exceptional circumstances that were proven to exist to warrant that the accused be released out on bail, and that is still the position of the court right now.so the bail on new facts is not granted still, bail is DENIED.” (The underlining is mine.)

[13] In terms of section 65 (3) of the CPA, the learned magistrate furnished reasons for his decision in denying appellant bail. In his reasons, and in apparent reference to the state’s failure to hold an identity parade before the matter was set down for trial, the magistrate writes that:

“the delay in investigations cannot be considered as a new fact - S v Mokgoje 1999 (1) SACR 233 (NC) and the facts adduced by the appellant were not accepted as new facts…

The court was not convinced that the State’s case is weak, especially considering that there may be more evidence that the state may adduce in the subsequent trial.”

[14] As I indicated above at para [7], this aspect was canvassed with counsel for the state. At the risk of repetition, the reason the identity parade was never conducted, and will not be conducted, is that the complainant’s wife is not in a position to identify the appellant. This, the state believes, will render the excise futile as the other victim is a child. Since the matter has already been set down for trial, this must be an aspect that the state was aware of at the time the appellant approached the court below, on new facts. This, to my mind, was a very important development in this case and worthy of being considered by the magistrate in the bail application on new facts.

[15] The facts in the case of S v Mkgoje4 referred to by learned magistrate as authority for his refusal of bail are clearly distinguishable from the instant matter. In Mkgoje5 the question, besides the aspect of delay in the further investigation of the matter (amongst others), was whether section 60(11)(a) finds application in a case where there was no evidence that the appellant himself had used a firearm or that he had known that any of his associates would use a firearm during the robbery. The court (per Steenkamp J), answered this in the affirmative, in that “the Legislature had intended to cast the net as wide as possible”. The question in this case is whether on the facts before the court, appellant has discharged his onus as required in terms of section 60 (11) (a).

[16] In S v Mathebula6 it was stated that:

“but a state case supposed in advance to be frail may nevertheless sustain proof beyond a reasonable doubt when put to the test. In order successfully to challenge the merits of such a case in bail proceedings an applicant needs to go further: he must prove on a balance of probability that he will be acquitted of the charge” S v Botha 2002 (1) SACR 222 (SCA) at 230h, 232c; S v Viljoen 2002 (2) SACR 550 (SCA) at 556c”.

[17] It is so that the appellant’s case is founded on upon affidavit evidence not open to test by cross-examination and, therefore, less persuasive (see, S v Pienaar7).

[18] In this case the approach by the learned magistrate with regard the question of bail was, with respect, erroneous. And so was his comment with regard to who bears the onus of proof in a criminal trial8. In this case, the appellant‘s alibi is supported in an affidavit by his landlord which fact distinguishes this matter from

the Mathebula judgment (above). Each case has to be dealt with on its own merit. The term “exceptional circumstances” has not been defined in the CPA. Where an accused is able to adduce acceptable evidence that the State‘s case is non-existent or subject to serious doubt, it was held to constitute “exceptional circumstances” in State v Jonas9. On the state’s own version, it will solely rely on the complainant regarding the appellant’s identity. This ultimately will be the word of the complainant against the appellant and his alibi defence witness.

[19] In S v Vermaas10 the court (per Van Dijkhorst J) held (in dismissing an application for the accused’s release on bail), that in a bail application

brought on the basis of the alleged existence of new facts, the court entertaining that application “should consider all facts before it, new and old and on the totality come to a conclusion” . The same approach was adopted by Comrie J, in S v Mohamed11. These cases were cited with approval by the courts in the case of S v Petersen12 and in S v Memeza and Others13.

[20] It is clear from the magistrate’s judgment that he paid very scant regard to the totality of the facts before him. In the second bail application on new facts he held that it was of little concern to him whether the state’s case was strong or not. In this regard he obviously erred. The strength or otherwise of the state’s case is of relevance; if it were not, a person accused of a schedule 5 or 6 offence, would very seldom be able to discharge the onus that he or she has, of proving that the interests of justice required his or her release on bail. As it was stated in S v Yonas14, “mere accusations are not enough”. Whilst the accused was detained on the basis of a prima facie case, section 60(11)(a) “does not contain an outright ban on bail in relation to certain offences” (S v Dlamini ;S v Siwela),15 an approach that the magistrate seems to have adopted. The fact that an accused is facing a schedule 6 offence does not, on its own, preclude the granting of bail in appropriate circumstances. See S v Mohammed16.

[21] Under the circumstances, this court is therefore entitled to revisit the question of bail. According to the papers, the identity of the perpetrator(s) is seriously disputed. The appellant was not identified in a manner that is above reproach, as no identity parade was held. His evidence as to identification will be dock identification. He is a South African citizen with no interest beyond the borders of the Republic. Appellant has no previous convictions or pending cases. He is the father of two children. The fact that he has been a tenant in the same place for at least five years establishes a degree of permanency regarding his place of abode.

[22] In my view, the risk of interference with state witnesses can be countenanced by appropriate bail conditions.

[23] For the foregoing considerations, I am satisfied that appellant has established the presence of exceptional circumstances that, in the interest of justice, permit his release on bail pending trial. The order of the court below is set aside and replaced with the following order:

Bail in the amount of R5000-00 is fixed in favour of the appellant subject to the following conditions:

1 He reports once to the person in charge of the Community Service Centre (charge office at the Ivory Park Police station) every Monday, Wednesday and Friday any time between 5am and 8pm.

2 Should he change his current address, he must inform the investigating officer of such changes before relocation.

3 He is forbidden to make any direct or indirect contact with the complainants.

4 Appellant is ordered to attend his trial on the given date and on subsequent days not later than 9am and to remain in attendance until this matter is finalised or he is excused by court.

T P MUDAU

ACTING JUDGE OF THE

SOUTH GAUTENG

HIGH COURT,

JOHANNESBURG

DATE OF HEARING: 30 APRIL 2013

DATE OF JUDGMENT: 2 MAY 2013

COUNSEL FOR THE APPELLANT: ADV APHANE MM

COUNSEL FOR THE RESPONDENT: ADV A SURENDRA

____________

1[1999] ZACC 8; 1999 (2) SACR 51 (CC).

2S v Mabena and another 2007 (1) SACR 482 (SCA).

3 1979 (4) SA 218 at 220E-H.

4S v Mokgoje 1999 (1) SACR 233 (NC).

5Above.

6S v Mathebula 2010 (1) SACR 55 (SCA) at para [12].

7 1992 (1) SACR 178 (W) at 180h.

8S v Teixeira 1980 (3) SA 755 A at 763 g-h; S v Zuma and others [1995] ZACC 1; 1995 (4) BCLR 401 (cc) at p 416 par 25; S v Nkwanyana and others [1990] ZASCA 95; 1990 (4) SA 735 (A) at p744 para a.

9 1998 (2) SACR 673 (SEC) at 678e-i.

10 1996 (1) SACR 528 (T) at 531f.

11 1999 (2) SACR 507 (C) at 511C.

12 2008 (2) SACR 355 (C).

13(A310/2012) [2013] ZAFSHC 27 (14 March 2013).

14Above.

15S v Dlamini 1999 2 SACR 51 CC par 74 H; S v Siwela 1999 (2) SACR 685 (W) pg 704 para B;.

16Supra at 522b.