Nkombisa and Others v S (CA&R04/2017) [2017] ZAECPEHC 20 (2 March 2017)

Nkombisa and Others v S (CA&R04/2017) [2017] ZAECPEHC 20 (2 March 2017)

The magistrate erred in treating certain counts as not falling under Schedule 1 and in applying the onus to the appellants without the State first establishing the necessary jurisdictional facts. The State failed to provide sufficient detail and evidence to establish a prima facie case against the appellants for any of the counts. The lack of completed charge sheet annexures and scanty affidavits from the investigating officer resulted in confusion and an absence of objective facts required for the application of section 60(11)(b). Detaining the appellants solely based on their propensity to commit Schedule 1 offences, without a prima facie case, would violate their constitutional rights...

Citation
[2017] ZAECPEHC 20
Parties
Appellant: Melumzi Christian Nkombisa; Appellant: Lawrence Mzwanele Ngese; Appellant: Anesipho Tyiki; Appellant: Mziyanda Feni; Respondent: The State
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
2 March 2017
Case Number
CA&R04/2017
Procedural Posture
Criminal Appeal / Appeal Against Refusal of Bail
Outcome
Appeal upheld; magistrate's order denying bail set aside; bail granted to each appellant.
Judges
T Malusi
Legal Topics
Bail Application, Onus of Proof, Prima Facie Case, Schedule 1 Offences, Schedule 5 Offences
Criminal Law Civil Procedure Bail Application Onus of Proof Prima Facie Case Schedule 1 Offences Schedule 5 Offences

Case Brief

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Parties

Melumzi Christian Nkombisa

Appellant

Lawrence Mzwanele Ngese

Appellant

Anesipho Tyiki

Appellant

Mziyanda Feni

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Refusal of Bail

Legal Issues

  1. 1 Whether the magistrate erred in refusing bail to the appellants.
  2. 2 Whether the offences charged fell under Schedule 1 or Schedule 5 of the Criminal Procedure Act.
  3. 3 Whether the State established a prima facie case against the appellants sufficient to justify detention.

Ratio Decidendi

The magistrate erred in treating certain counts as not falling under Schedule 1 and in applying the onus to the appellants without the State first establishing the necessary jurisdictional facts. The State failed to provide sufficient detail and evidence to establish a prima facie case against the appellants for any of the counts. The lack of completed charge sheet annexures and scanty affidavits from the investigating officer resulted in confusion and an absence of objective facts required for the application of section 60(11)(b). Detaining the appellants solely based on their propensity to commit Schedule 1 offences, without a prima facie case, would violate their constitutional rights...

Court Disposition

Appeal upheld; magistrate's order denying bail set aside; bail granted to each appellant.

Orders

  • The appeal is upheld.
  • The order by the magistrate denying bail to the appellants is set aside.