Yanta and Another v S (A71/21, A43/21) [2021] ZAWCHC 96 (14 May 2021) (2024)

Inthe High Court of South Africa

(WesternCape Division, Cape Town)

HighCourt Ref No: A71/21 and A43/21

MagistrateSerial Number: 16/500/2020

Inthe matter between:

SITHEMBELEYANTAFirst Appellant

LUDWEMGWELANASecond Appellant

And

THESTATERespondent

JUDGMENT ON BAILAPPEAL

LEKHULENIAJ

INTRODUCTION

[1]This is an appeal against the refusal of bail against the twoappellants. On11 December 2020 the two appellants brought a formal application forbail in the Cape Town magistrate’s court and the saidcourtrefused them. They now appeal against that decision in terms of s65(1)(a) of the Criminal Procedure Act 51 of 1977(“theCPA”).Both appellants, in the magistrate’s court, were legallyrepresented. The first appellant was legal represented by AdvocateNgoza and the second appellant was represented by Mr Dunga anadmitted attorney. In this court, Mr Mafereka appeared forthefirst appellant and Mr Njeza appeared for the second appellant whilethe respondent was represented by Mr Gertse. The firstappellantlodged his appeal first and the second appellant followed sometimethereafter. As a consequence thereof, the partiesagreed toconsolidate the two appeals as they arise from the same facts.

[2]During the bail proceedings, the appellants did not testify. Instead,both appellantsfiled affidavits in support of their applications.In their affidavits the appellants categorically denied theirinvolvementin the crimes that they were charged with. Therespondent opposed the bail application.

[3]In its further opposition of the bail appeal, Mr Gertse submitted onbehalf of theRespondent that the court a quo was correct whenit refused to grant the appellants bail as both appellants facedserious charges; there is overwhelming evidencelinking theappellants to the offences committed and that they failed to showexceptional circ*mstances for their release on bail,while Mr Njezaand Mr Mafereka held a contrary view. The respondenthighlighted the following that; both appellants arefacing two countsof robbery with aggravating circ*mstances; one count of murder readwith the provisions of section 51(1)(a) of the Criminal Law AmendmentAct 105 of 1997; one count of possession of an unlicensed firearm andone count of possession of ammunition. It is therefore common causethatthe charges that the appellants face are referred to in Schedule6 of the CPA. It then follows that the bar for granting bail inthecrimes listed thereat is lifted a bit higher by the legislature.

[4]Detective Sergeant Luvuyo Maki (“Detective Sergeant Maki”),the investigating officer in this matter also filed a comprehensiveaffidavit on behalf of the respondent opposing the grantingof bail.In his affidavit, he detailed the extent of both appellants’alleged involvement in these crimes. Thefacts will then besummarised below.

BACKGROUNDFACTS

[5]Detective Sergeant Maki’s affidavit demonstrated that he basedhis evidenceon, inter alia, the contents of the statements heobtained from some of the witnesses. He briefly stated that on22 February 2020, eightAfrican men entered the premises of ORMS ProShop in Roeland Street, Cape Town driving two vehicles namely, aWhite Polo and aSilver Grey Toyota Quest. According to an employeeof ORMS, while he was busy assisting clients, he noticed two Africanmales enteringthe store. One of them took out a firearm co*cked itand pointed it towards him and instructed him to lie down. Thesuspect thenstarted to remove cameras from the store. While the twosuspects were still in the store the employees in the shop heardgunshotsfrom outside. After the suspects collected the loot from theshop, they left the store. After the shooting, the suspects left thescene. A video footage from outside the ORMS shop shows the robbersarriving in two vehicles and the first appellant as the driverof thesilver Toyota and he remained in the vehicle.

[6]In his affidavit, Sergeant Maki indicated that he dealt with thefirst appellant ina previous matter and he knows him very well. Hereceived a video footage from ORMS and he identified the firstappellant. He hadknowledge of the first appellant ‘s cellphone number and according to the first appellant’s cell phonedata, the firstappellant was at Roeland Street at the address ofORMS (the crime scene) on the day and at the time the incidenthappened. He alsostated that the second appellant was positivelyidentified by an employee of ORMS shop in a photo identity parade asbeing in thestore when the incident occurred. According to him, thewitness (an employee) identified the second appellant as the one whopulledout the firearm and co*cked it and said that everyone must liedown. The second appellant’s finger prints were also found inthe vehicle that was used in the commission of the offence.

GROUNDSFOR THE BAIL APPEAL

[7]The grounds of appeal as contained in the notice of appeal for bothappellants dated18 February 2020 and 16 March 2020 respectively areessentially that the magistrate failed to attach any weight orsufficient weightto the appellant’s application in that:

7.1The appellants were not flight risk;

7.2There were no facts placed before court that the appellants would notstand trial if theywere released on bail or that if released on bailthey would commit a schedule 1 offence;

7.3That the magistrate erred in failing to find that the tenuous natureof the state case wassuch that it provided no incentive for theappellants to avoid trial;

7.4There were no facts placed before court suggesting that the releaseof the appellants onbail might endanger the safety of the public;

7.5The appellants aver that the magistrate erred in denying them baildespite the existenceof exceptional circ*mstances in that theappellants do not have passports; they have minor dependants; andthey have fixed addresseswith which strict bail conditions couldhave been imposed;

7.6That the magistrates failed to hold that the aforementionedcirc*mstances cumulatively amountedto exceptional circ*mstances.

THEISSUES

[8]The issues to be determined are whether the appellants havedischarged the burdenplaced on them bysection60(11)(a)ofthe CPA to be admitted to bail and whether the magistrate has indeederred by refusing to grant the appellants bail.

PRINCIPALARGUMENT BY THE PARTIES

[9]At the hearing of this appeal, Mr Mafereka argued on behalf of thefirst appellantthat the State’s case against the secondappellant is very weak. According to counsel, there is no witnesswhich connectsthe second appellant to the scene save for thestatement of the investigating officer and the cell phone records ofthe secondappellant. Mr Mafereka implored the court to consider thedegree of participation of the parties during the alleged commissionof the offence. According to him, there is no act of violence thatcan be attributed to the second appellant during the allegedcommission of the offence. It was also argued on behalf of the firstappellant that the court a quo erred in attaching much weightto thestatement of a defence witness, Mr Pama, a traditional healer whodenied that he knows the first appellant, nor he everconsulted withhim and handed him a medical certificate at the time of the allegedcommission of the offence.

[10]Meanwhile, Mr Njeza argued on behalf of the second appellant that themagistrate erred in rejectingthe second appellants’application to be released on bail in that the State’s caseagainst the second appellant wasnot so strong as to incentivise thesecond appellant to evade trial. Counsel contended that therespondent relied on a finger printthat was on a vehicle, a movingobject and it was not clear when that vehicle was bought and when thefingerprints of the appellantcould have been placed there. It wascontended on behalf of the second appellant that the identificationof the appellant in thephotograph identification parade was ficklehaving regard to the fact that there is no indication of the relativelength of theperiod of observation and the fact that the appellantwas unknown to the witnesses. Mr Njeza contended that there are nofactorsprovided by the evidence of the State to confirm a reliableidentification. He asserted that the court a quo erred in sofar as it found that the appellant’ release would undermine orjeopardise the proper functioning of the criminaljustice system,including the bail system.

[11]Mr Gertse argued on behalf of the respondent that the argument raisedby the two counsels onbehalf of the two appellants relates to thehearing of the matter on the merits which must be left for the trialcourt. He contendedthat there was nothing advanced by the twoappellants that justified the interference with the findings of thecourt a quo. Counsel for the respondent contended that thefirst appellant has two pending cases of robbery with aggravatingcirc*mstancesand possession of unlicensed firearm and ammunition.The first appellant also has two previous convictions ofhousebreaking withintent to steal and theft. He stated that thesecond appellant has two previous convictions and has a pendingmatter of robberywith aggravating circ*mstances against him. Heimplored the court to dismiss the appeal for both appellants.

APPLICABLELEGAL PRINCIPLES AND ANALYSIS

[12]It is trite that a court or a judge hearing an appeal in terms ofsection 65(4) of the CPA shall not set aside the decision againstwhich the appeal is brought, unless such court or judge is satisfiedthat thedecision was wrong, in which event the court shall give thedecision which in its opinion the lower court should have given.KrieglerJ, as he then was, made the following remarks inSv Dlamini: Sv Dladla and Others; S v Joubert: S v Schietekat:[1]

“Whatis of importance is that the grant or refusal of bail is underjudicial control, and judicial officers have the ultimate decisionasto whether or not, in the circ*mstances of a particular case, bailshould be granted”.

[13]Against this backdrop, I turn to consider the question whether thelower court erred in refusingto admit the two appellants to bail. Inmy view, the starting point in addressing the issues before thiscourt should be the Constitution.Section 35(1)(f) of the Bill ofRights provides that everyone who is arrested for allegedlycommitting an offence has the rightto be released from detention ifthe interest of justice permit, subject to reasonable conditions.From the reading of this section,it is abundantly clear that it isnot absolute but its ambit is circ*mscribed by the interest ofjustice. The court must be satisfiedthat the interest of justicewarrants the release of the accused from detention. In S v Dlamini(supra), the Constitutional court observed that if factsindispensable for establishing that the interests of justice permitthe arrestee’srelease are not established, the arrestee is notentitled to the remedy under the subsection.

[14]Bail applications of accused persons in court are regulatedbysection60ofthe CPA.Section60(1)(a)ofthe CPA provides that ‘Anaccused who is in custody in respect of an offence shall, subject tothe provisions ofsection50(6), be entitled to bereleasedon bail at any stagepreceding his or her conviction in respect ofsuch offence, ifthe court is satisfied thatthe interests of justice so permit’.Section 60(4)provides that theinterests of justice do not permit the release from detention of anaccused where one or more of the following grounds are established:

“(a)Where there is thelikelihood that the accused, if he or she were released on bail, willendanger the safety of the public or anyparticular person or willcommit a schedule 1 offence; or

(b)Where there is thelikelihood that the accused, if he or she were released on bail, willattempt to evade his or her trial; or

(c)Where there is thelikelihood that the accused, if he or she were released on bail willattempt to influence or intimidate witnessesor to conceal or destroyevidence; or

(d)Where there is thelikelihood that the accused, if he or she were released on bail, willundermine or jeopardise the objectivesor the proper functioning ofthe criminal justice system, including the bail system;

(e)Where in exceptionalcirc*mstance there is the likelihood that the release of the accusedwill disturb the public order or underminethe public peace orsecurity”.

[15]In Sv Bennet,[2]this court stated that the court hearing the bail application mustexpress a balanced value judgment taking into account the factorsmentioned in section 60(4). The essence therefore of the principlesand considerations underlying bail is that no one should remainlocked up without good reason.

[16]In this case, the charges levelled against the appellants involvedoffences listed in Schedule6 of the CPA and their application in thecourt a quo had to be determined in terms of section 60(11)(a) of the CPA, which provides as follows:

“Notwithstandingany provision of this Act, where an accused is charged with anoffence referred to in Schedule 6, the court shallorder that theaccused be detained in custody until he or she is dealt with inaccordance with the law, unless the accused, havingbeen given areasonable opportunity to do so, adduces evidence which satisfies thecourt that exceptional circ*mstances exist whichin the interests ofjustice permit his or her release”

[17]Section 60(11)(a) places a burden or an onus on an accused to satisfythe court by way of evidencethat exceptional circ*mstances existswhich, in the interests of justice, permit his release. In otherwords, the appellants hadto prove on a balance of probabilities inthe court a quo that they had to be released on bail. InSv Bruintjies,[3]theSupreme Court of Appeal, per Shongwe AJA, as he then was, gavethe following exposition on what is meant by exceptionalcirc*mstances:

"…Whatis required is that the court consider all relevant factors anddetermine whether individually or cumulativelythey warrant a findingthat circ*mstances of an exceptional nature exist which justify hisor her release. What is exceptionalcannot be defined in isolationfrom the relevant facts, save to say that the legislature clearly hadin mind circ*mstances whichremove the applicant from the ordinaryrun and which serve at least to mitigate the serious limitation offreedom which the legislaturehas attached to the commission of aschedule 6 offence. …If,upon an overall assessment, the court is satisfied that circ*mstancessufficiently out of the ordinary to be deemed exceptionalhave beenestablished by the appellant and which, consistent with the interestsof justice, warrant his release, the appellantmust be granted bail”.

[18]In this matter, the personal circ*mstances of the appellants wereplaced on record and were consideredby the magistrate. The firstappellant is 27 years old. At the date of his arrest, he wasresiding at 2 Hlungulu Street,Joe Slovo in Milnerton. The firstappellant stated in his affidavit that he has three children aged 4,6 months and 5 months old.All these children are dependent on him astheir mothers are unemployed. He averred that he has other dependantswho depend onhim too. He stated that he is involved in the taxitransporting industry and her mother is currently struggling to runthis businesson his behalf. He confirmed that he has a pending caseagainst him.

[19]The second appellant also filed his affidavit in support of his bailapplication in the courta quo. In his affidavit, the secondappellant avers that he is 26 years old and resides at No: 9 NduliCrescent Illitha Park Khayelitsha.He is unmarried and has twins aged2 years old. The children reside with their mother in Khayelitsha. Heworks as a DJ and he chargedhis clients R700 per hour. His income isdependent on how often he gets booked in a particular month. He doesnot know the complainantor witnesses in this matter. He has anotherpending matter of possession of firearm at the regional court inWynberg. He was willingto pay the bail amount of R2000.

[20]As stated above, both appellant denied any involvement in the allegedcommission of the offence.In my view, the innocence or the guilty ofthe accused is an issue which should be left to the trial court forconsideration. Whatthis court has to consider is whether the court aquo erred in dismissing their application to be released on bail.The record reveals that the magistrate in the court below consideredthe real evidence in the form of photographs, cell phone locationbased evidence, corroborating evidence in photograph identificationparade which identified both appellants as the alleged perpetratorsof the crime. The magistrate also considered the fact thatthe secondappellant was identified by the fingerprints that were lifted in thevehicle that was used in the commission of theoffence. Themagistrate also considered the photograph identification parade whichconnected the appellants to the charges levelledagainst them andcame to the conclusion that the State has a strong prima faciecase against both appellants. In my view, the finding of the court aquo in this regard is spot on and cannot be faulted. I agreewith theview expressed by the court below that atleast primafacie,the State case against both appellants is considerably strong.

[21]The court below also observed that the first appellant raised analibi defence in his affidavit and obtained a medicalcertificate from a traditional healer one Mr Pama indicating that thefirst appellantwas receiving treatment from him at the time when theoffence was committed. This medical certificate was also used by thefirstappellant at the Bellville regional court to show that thefirst appellant was not wilfully absent from the court proceedings on24 January 2020 but that he was busy receiving medical treatment fromMr Pama a traditional healer. According to this medical certificate,he consulted Mr Pama from 22 January 2020 to 25 February 2020 hencehe could not appear in court on 24 January 2020.

[22]The investigating officer followed up on this alibi andobtained an affidavit from Mr Pama who deposed to an affidavit to theeffect that he does not even know the first appellant.According toMr Pama, the first appellant’s mother attended to his officesand requested the relevant medical certificateindicating that thefirst appellant (her son) was in troubled of not attending court. Hethen issued the said medical certificateon her request.

[23]At the hearing of this appeal, the first appellant’s legalrepresentative deprecated theconduct of the investigating officerwho followed up on the alibi of the first appellant. He alsoargued that the magistrate erred in attaching weight to it. In myview, this express disapprovalof the investigation by the firstappellant’s legal representative was ill conceived and not wellthought out. It is worthnoting that during the bail proceedings atthe magistrate’s court, the first appellant requested the bailproceedings tobe postponed as the first appellant indicated that hehad an alibi defence and that he was going to submit anaffidavit in support of his defence. The prosecutor requested thefirst appellant tofavour the State with this affidavit as soon as itwas available so that the State could follow up on the alibidefence of the first appellant before the hearing of the bailapplication. The first appellant’s legal representative agreedto the State’s request and even stated that he would honour therequest of his colleague (the prosecutor) as the latter alsohonouredhis request for allowing him to view the video footage relating tothe commission of the offence. In other words, thefirst appellant’slegal representative consented to the state following up on the firstappellant’s alibi. The suggestion that the investigatingofficer acted off-kilter in obtaining the affidavit from Mr Pama iswith respect baselessand unfounded. In my view, the court a quo wascorrect in considering and attaching weight to the affidavit of MrPama.

[24]It has also been argued that this court should not attach much weightto this statement as thecredibility of Mr Pama is questionable andthat the circ*mstances under which the statement was obtained are notknown. In my view,this document forms part of first appellant’sdefence. It was filed as an annexure to the first appellant’saffidavitand it forms part of this record. This affidavit wasintended to be used by the first appellant in support of his alibidefence which in turn supported his averment that the State‘scase against him is weak. If the first appellant intends tochallengethe circ*mstances under which this statement was obtained, the firstappellant is at liberty to do so during trial. Inmy considered view,and ex facie the document, I am in agreement with the findingsby the court a quo that the medical certificate was obtainedby fraudulent means in a quest to mislead the court. I also agreewith the views expressedby the magistrate that the first appellantmisled the Bellville regional court by submitting a medicalcertificate that he wassick when in fact he was not. This isindicative of the fact that if he is released on bail he is likely toevaded justice.

[25]On a conspectus of all the evidence placed before court, I am of theview that the court a quowas correct in its finding that the twoappellants have failed to show any exceptional circ*mstances which,in the interests ofjustice, would have permitted their release onbail. In addition, I am satisfied that the learned magistratecorrectly appliedthe provisions of s 60(4), 60(5) and 60(9) of theCPA. Section 60(4) of the CPA clearly provides that the interests ofjusticedo not permit the release from detention of an accused whereone or more of the grounds referred to in the subsections of section60(4) are established.

[26]What I also find extremely disturbing and inexplicable is that theappellants are applying tobe released on bail despite the fact thatthey were previously granted the same indulgence but messed it up.The appellants expectto be afforded yet another opportunity to beout on bail when they were released on bail in other matters. Thecurrent offencesthat the appellants are facing were allegedlycommitted while they were on bail. In my view, the finding by thecourt a quo thatthere is a likelihood that the released of theappellants on bail would disturb public order or undermine the publicpeace or securityis beyond reproach. From the evidence placed beforethis court it cannot be disputed that the appellants have thepropensity ofcommitting serious offences. They are all facingserious charges some of which were committed whilst they were onbail. If theyare released on bail they are likely to commit schedule1 offences. In my view, it cannot be said that the magistrate waswrongin refusing to admit them to bail. There is no basis in law forthis court to interfere with the discretion exercised by themagistrate.In my view, the appeal must therefore fail.

ORDER

[27]In the result, the following order is made:

27.1The appeal is dismissed.

LEKHULENIAJ

ACTINGJUDGE OF THE HIGH COURT

WESTERNCAPE HIGH COURT

[2]1976 (3) SA 652 (C).