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Reportable: Circulate to Judges: Circulate to Magistrates: Circulate to Regional Magistrates |
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Editorial note : Certain information has been redacted from this judgment in compliance with the law.
IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
CASE NUMBER: CAB13/2024
In the matter between:-
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WILLIAM APHANE |
Appellant 1 |
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DAVID MASHABELA |
Appellant 2 |
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THE STATE |
Respondent |
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This judgment is handed down electronically by e-mail to the parties’ legal representatives. The date that the judgment is handed down is 26 August 2024.
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JUDGMENT |
FMM REID J
Introduction
[1] This is an appeal against the decision of Magistrate Matshabe at the Tlhabane Magistrate Court taken on 24 May 2024 to deny the appellants bail for Schedule 6 offences in terms of section 65(4) of the Criminal Procedure Act 51 of 1977.
[2] The appellants face the following charges levelled against them:
2.1. Pointing of a firearm, an antique firearm or air gun;
2.2. Robbery with aggravating circumstances;
2.3. Kidnapping;
2.4. Gangsterism;
2.5. Extortion.
[3] The grounds of appeal are set out as follows in the Notice of Appeal:
“1. The Learned Magistrate with due respect, erred and misdirected himself both in law and merits when the Learned Magistrate made a decision that the appellants failed to show on balance of probabilities that the interest of justice do permit the appellants release on bail.
2. The Learned Magistrate with due respect erred in law that the appellants failed to show on balance of probabilities, that there are exceptional factors
which are in the interest of justice which permit the appellants release on bail, by refusing the appellants’ bail.”
[4] These charges are those referred to in Schedule 6 of the Criminal Procedure Act 51 pf 1977 and the appellants must prove on a balance of probabilities that it is in the interest of justice that they should be released on bail.
Factual background
[5] The magistrate recorded the factual background of the accused as follows:
“ Applicant 1, William Mooketsi Aphane is a 31 year old South African National. Applicant 2 is David Buwang Mashabela, a 40 year old male South African male person. Both applicants are facing four counts in these proceedings.
On the first count, they are charged with offence of pointing of a firearm, air gun, or air pistol. The State had alleged that they contravened the provisions of section 120 of Act 60 of the year 2000 in that on or about 8 April 2024 in Chaneng in the district of North West, the accused unlawfully pointed a firearm or airgun, whether it is loaded or capable of being loaded to one person, Gitumetse Constance Lekgane, without reasonable cause.
On count 2, the applicants are charged with the offence of robbery with aggravating circumstances. The State had alleged that on 8 April 2024 at Chaneng in the Regional division of North West, that the accused have unlawfully and intentionally with force, took from one Gitumetse Lekagane, an amount of R371,462.00 and that during the commission of this offence, a firearm was wielded.
In respect of this count, the State had further alleged that the accused person acted in furtherance of common purpose, and that the provisions of section 51(2) of Act 105 of the year 1997 are applicable, and minimum sentence is applicable.
In respect of count 3, the two applicants are facing a count of kidnapping. The state alleged that on 8 april 2024, at or near Chaneng in the Regional Division of North West, that they deprived one Gitumetse Lekagane, her movements by pointing her with a firearm, instructing her to get into the back of the motor vehicle and driving away with her.
In respect of count 4, the two applicants are facing a charge of gansterism. The State is alleging that they had contravened the provisions of Section 9 of Act 121 of the year 1998.
The State further alleged that upon or about 8 April 2024 at Chaneng in the Regional Division of North West, that they unlawfully and intentionally, being members of a gang, participated in criminal activities.
Both parties agree that this application falls within the ambits of Schedule 6 of the bail legislation. It is on the premise that the Court directed the application to so proceed, particularly persuaded by the nature of count 2.
The first applicant, Mr William Aphane, submitted an affidavit in support of his application, a summary which is as follows:
That he is a South African male person aged 31 years. That he is residing at house number […] V[…], Mpumalanga where he has been residing with his mother, siblings and children. That he has so been residing at this address for an undisclosed long period of time. Address of house […] V[…], Mpumalanga was also indicated as his address on the affidavit.
…
It was further indicated in his affidavit that he is self-employed as a tuck-shop owner, where he sells fruits, vegetables, and African burgers.
That he has employees who assist him with his business. Applicant also testified that he is a father to two minor children, aged two and eight years. His evidence was that he maintains who are working at his tuck-shops depend on his business. That if the Court denies him bail, his employees, as well as his children, will live in poverty.
His evidence was that he has debts that he needs to settle on a monthly basis, and asked the Court to take the following as his exceptional circumstances.
Firstly, that he is a first offender with no previous convictions and no pending cases. Secondly that he does not have any passport, family or friends outside the Republic of South Africa. Thirdly, that he has no movable or immovable assets outside the Republic of South Africa. Fourthly, that the applicant has no prima facie case against him, that the State’s case is weak, and that he has a strong belief that he will be acquitted from the offences, and he intend to plead not guilty to all the charges.
The second applicant also submitted an affidavit. In summary, that he is a 40 year-old South African male person. That he is residing at house number […] in V[…], Mpumalanga with his wife and children, for a longer undisclosed period of time.
That he has the following pervious convictions: in 2008 he paid admission of guilt for an offence of assault. In 2017 he paid admission of guilt for an offence of theft. In 2018 he was convicted and sentenced to three years’ imprisonment, where he was released from custody the year 2020.
That he has no pending cases and no warrants of arrest, and is not on parole in any matter, and that he is a father to four minor children, aged 16 years, 14 years, 11 years and 7 years respectively.
That he is responsible for the maintenance of all these minor children. That if incarceration is continued, his children will suffer and that he has debts to pay. He requested the Court to consider the following as his exceptional circumstances:
… That he has no movable and immovable assets outside the Republic of south Africa. Fourthly, that the State’s case against him is non-existent and that he has a strong belief that he will be acquitted of the offences. Lastly that the State has no prima facie case against him.
Both applicants in their affidavit, which is EXHIBIT A in respect of the first applicant, EXHIBIT B in respect of the second applicant, undertook that should they be released out on bail, they will not commit further offences. They further indicated that they will not intimidate witnesses. Further that they will not destroy or conceal any evidence. That their release will not disturb public peace or undermine proper functioning of the criminal justice system. That they will not interfere with investigations.
That they will not intimidate, nor interfere with the state witnesses. That the witnesses are unknown to them. Both vowed to attend to the proceedings until brought to finality.
The testimony of both is that their release will not endanger the safety of any individual. That they will attend to the proceedings and do not harbour any resentment against any individual. Both indicated that they intend to plead not guilty to the offences. Both vowed that they did not provide any false information during this application. In essence, that is all the evidence by the applicants.”
[6] The State called Lieutenant Colonel Patrick Morongwa from the South African Police Service (SAPS) who has been the investigating officer in the matter and has been employed at the SAPS for 37 years. He testified that he attempted to verify the addresses provided to him. He established that the first applicant does not reside at the address provided, but that he resides somewhere around Soshanguve at an unknown address. He also established that the second applicant resides at the provided address only over weekends and during the week resides in Pretoria.
[7] The investigating officer testified about the information and evidence gathered in the charges against the applicants. In this regard he interviewed the complainant, who is the son of the victim. The complainant tracked the movement of the victim with a tracker. He used a vehicle to follow the movements of his mother after she telephonically requested her banking application details in the early hours of the morning, whilst moving in unfamiliar areas such as Majakeng. When he witnessed his mother’s car with unknown men at the steering wheel, he opened a criminal case of kidnapping at the SAPS Mooinooi. Later that day the victim was dropped off near Akasia SAPS Station, where she reported the matter.
[8] The SAPS officers from Mooinooi proceeded to SAPS Akasia. Whilst the mother and her son were present, the K9 (dog unit) officers entered the SAPS station with the two applicants and a transparent bag containing a number of cellular phones. The victim indicated to the police officers that the applicants are the people that robbed her, and she informed them that the applicants are in possession of her cellular phone. The victim proceeded to identify her cellular phone and entered the password and identifications to unlock the phone, details which only the owner would have knowledge of. She informed the SAPS officers that she was taken to the house of a woman at which house banking transactions were made from her phone with facial identification, whilst the applicants held her hostage and threatened her at gun-point.
[9] After the applicants were arrested, a voice note was retrieved on one of the applicants’ phones directing the applicant to the place where the victim’s vehicle was parked. The voice note also specified that the victim leaves work at 4am.
[10] The investigating officer confirmed that the following investigations have not been completed: the photo album, DNA results, investigations on the bank accounts as well as cell phone records. The tracing of where the money was transferred to and RICA information regarding the relevant cellular phones was also outstanding. During cross-examination it was put to the investigating officer that the victim was dropped off by a Polo vehicle, and that the applicants deny that they were apprehended at the time when the victim arrived at the SAPS station. The investigating officer denied same.
[11] This is the evidence before the Magistrate when the order under appeal was given that bail is denied.
Legal Position
[12] Every person has the constitutional right to personal liberty. Section 35(1)(e) and (f) of the Constitution of the Republic of South Africa 108 of 1995 deals with the rights of persons who are arrested, detained and accused. Section 35(1)(e) and (f) reads as follows:
“Arrested, detained and accused persons
35. (1) Everyone who is arrested for allegedly committing an offence has the right –
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(e) at the first court appearance after being arrested, to be charged or to be informed of the reason for the detention to continue, or to be released; and
(f) to be released from detention if the interests of justice permit, subject to reasonable conditions.”
[13] The relevant provisions determining bail of the accused is set out in the Criminal Procedure Act 51 of 1977 (CPA) and read as follows:
“60 Bail application of accused in court
(4) The interests of justice do not permit the release from detention of an accused where one or more of the following grounds are established:
(a) Where there is the likelihood that the accused, if he or she were released on bail, will endanger the safety of the public, any person against whom the offence in question was allegedly committed, or any other particular person or will commit a Schedule 1 offence;
(b) where there is the likelihood that the accused, if he or she were released on bail, will attempt to evade his or her trial; or
(c) where there is the likelihood that the accused, if he or she were released on bail, will attempt to influence or intimidate witnesses or to conceal or destroy evidence; or
(d) where there is the likelihood that the accused, if he or she were released on bail, will undermine or jeopardise the objectives or the proper functioning of the criminal justice system, including the bail system; or
(e) where in exceptional circumstances there is the likelihood that the release of the accused will disturb the public order or undermine the public peace or security.
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(9) In considering the question in subsection (4) the court shall decide the matter by weighing the interests of justice against the right of the accused to his or her personal freedom and in particular the prejudice he or she is likely to suffer if he or she were to be detained in custody, taking into account, where applicable, the following factors, namely-
(a) the period for which the accused has already been in custody since his or her arrest;
(b) the probable period of detention until the disposal or conclusion of the trial if the accused is not released on bail;
(c) the reason for any delay in the disposal or conclusion of the trial and any fault on the part of the accused with regard to such delay;
(d) any financial loss which the accused may suffer owing to his or her detention;
(e) any impediment to the preparation of the accused's defence or any delay in obtaining legal representation which may be brought about by the detention of the accused;
(f) the state of health of the accused; or
(g) any other factor which in the opinion of the court should be taken into account.
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(11) Notwithstanding any provision of this Act, where an accused is charged with an offence-
(a) referred to 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…”
[14] Section 65(4) of the CPA reads as follows:
“65. (4) 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.”
[15] The general principles in relation to bail applications were set out in S v Smith and Another 1969(4) SA 175 at 177E-178A as follows:
“The general principles governing the grant of bail are that, in exercising the statutory decision conferred upon it, the Court must be governed by the foundational principles which is to uphold the interests of justice; the Court will always grant bail where possible, and will lean in favour of, and not against, the liberty of the subject, provided that it is clear that the interests of justice will not be prejudiced thereby (McCarthy v R., 1906 T 657 at p. 659; Hafferjee v R., 1932 NPD 518). …”
[16] The grounds that are to be considered by the court in a bail application, as regulated by the CPA, concerns the effect that granting of bail may have on the conduct of a particular case before court and concerns the impact that the granting of bail might have upon the administration of justice generally, as well as the impact on the safety of the public particularly. (See S v Mabena and Another 2007 (1) SACR 482 (SCA) para 4).
[17] The court a quo referred to the matter of Mafe v S (A49/22) [2022] ZAWCHC 108 (31 May 2022). In Mafe the following was said:
[52] The first appearance of an accused person, in our constitutional judicial system, is not a traditional gathering where the rituals of postponement and further detention are announced by magistrates. It is intended to examine the reasons for the detention and if needs be to place the further detention of an accused under judicial oversight [Mashilo v Prinsloo 2013(2) SACR 648 (SCA) at para 11]. The courtroom in the first appearance of an accused is the theatre where especially the charge and the detention of the accused undergo analytical, precise, dispassionate and excellent judicial operative procedure by the Specialist Constitutional Surgeon, the Magistrate.”
and further that:
“[67] The elected representatives of the people of South Africa, in the Legislature, have entrusted courts with the responsibility to evaluate the facts and ensure that persons accused of serious crimes, who raise triable issues, are not unduly held in prison. In my view, section 60(11) of the CPA is a process to ensure that there is sufficient disclosure of the nature and grounds of an accused defence and the facts upon which the defence is founded, if he elects to advance chances of his liberty. There must be a discernable defence which is sustainable in the sense that it is one that is good in law. The object of the procedure is to ensure that if an accused really has no defence against a clear and serious offence, he should remain in custody. It is an extraordinary procedure. Courts do not require the precision of a genuine plea during the bail proceedings, but material sufficient to satisfy the threshold that what is advanced is not a sham defence. This unique procedure need not turn courts into a programme for fictional cartoon characters. The respect, protection and promotion of accused’s Constitutional rights must be a genuine “Mandela bridge of hope” for our communities sick and tired of serious crimes, and not turn this time in our country into the equivalence of the Biblical wilderness between Egypt and Canaan.”
[18] In Solomons v S 2019 (2) All SA 833 (WCC) at para 15 the approach to a bail application brought in terms of Schedule 6 of the CPA is set out as follows at para 15 and 16:
“[15] … However, before a Court may grant bail to a person charged with a schedule 6 offence it must be satisfied upon an evaluation of all the facts that are ordinarily relevant to the grant or refusal of bail, that circumstances exist that warrant an exception being made to the general rule that the accused must remain in custody. Differently put, exceptional circumstances do not mean that they must be circumstances above and beyond, and generally different from those enumerated in ss 60(4) –(9): ‘ordinary circumstances present to an exceptional degree may lead to a finding that release on bail is justified.’
[19] In Du Toit: Commentary on the Criminal Procedure Act Jutastat e-publications, CD Rom & Intranet: ISSN 1819-7655; Internet: ISSN 1819-8775 the following is said at RS 72, 2024 ch9-p17 paragraph (p):
“The hearing of a bail application must be kept within reasonable limits, subject to legislative provisions and the rights of the accused (S v Viljoen 2002 (2) SACR 550 SCA at [25]). See also S v Van Wyk (supra) at [5] and [6] and S v Scott-Crossley 2007 (2) SACR 470 (SCA) at [7]. In S v Malumo & 111 others (2) 2012 (1) NR 244 (HC) Hoff J also noted that although the guilt of a bail applicant 'may be relevant in a bail application, evidence thereon should be confined to the central issue, namely, whether it would be in the public interest or the administration of justice to release the accused person on bail’ (at [30]). Reasonable limits must also be set in respect of a court’s enquiry whether an accused’s failure to appear in court after having been released on bail, was perhaps due to fault on his part as contemplated in s 67(2)(a). See the approach adopted by Spilg J in S v Porritt & another (unreported, GJ case no SS 40/2006, 21 July 2017) at [189] and [191]–[192].
[20] The court a quo considered the personal circumstances of the appellants in determination of the bail application. The magistrate further proceeded to deal with the seriousness of the offences and the fact that the appellants provided false addresses to the investigating officer. The court a quo dealt with the criticism that the appellants levelled against the State’s case. After a thorough analysis of all the aforementioned factors, the magistrate found that:
“Now when I weigh all these aspects, which are the rights of freedom of the applicant versus the interest of justice, I find that the scale tips on the side of the interest of justice. In the circumstances, the applicant has failed to discharge the onus upon them. That is applicant 1 and 2, to prove on the balance of probabilities that there exist exceptional circumstances individually or cumulatively. There are no exceptional circumstances.”
[21] The court a quo proceeded to find that the interest of justice does not permit the release of the appellants on bail.
[22] I am in agreement with the findings of the magistrate a quo on each and every factor that was considered by the court a quo. The appellants failed to establish that the decision of the magistrate was wrong.
[23] As a result, the appeal is to be dismissed.
Order
The following order is hereby made:
i) The appeal against the decision of Magistrate Matshabe on 24 May 2024 at the Thlabane Magistrate Court to refuse bail to the appellants, is dismissed.
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FMM REID
JUDGE OF THE HIGH COURT
NORTH WEST DIVISION MAHIKENG
DATE OF HEARING: 2 AUGUST 2024
DATE OF JUDGMENT: 26 AUGUST 2024