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Kambi v S (CA&R 329/2012) [2012] ZAECGHC 105 (28 December 2012)

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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION – GRAHAMSTOWN)



CASE NO: CA&R 329/2012


DATE HEARD: 27/12/2012


DATE DELIVERED: 28/12/2012


In the matter between



THEMBALETHU KAMBI ...........................................................................APPELLANT



and



THE STATE .............................................................................................RESPONDENT


________________________________________________________________



REASONS FOR JUDGMENT


________________________________________________________________

ROBERSON J:-


[1] On 28 December 2012 I dismissed the appellant’s appeal against the decision of the Magistrate, Fort Beaufort, dismissing the appellant’s application for bail. I indicated that my reasons would follow, which they now do.


[2] The appellant is one of fourteen accused persons awaiting trial on charges of robbery with aggravating circumstances, unlawful possession of firearms, unlawful possession of ammunition, and possession of stolen property.


[3] It appears not to be in dispute that on 13 August 2012 at about 10h45, two security officers, Gouws and Mbi, were robbed at gunpoint of cash in the sum of about R218 000.00, while they were in the process of delivering this cash to First National Bank, Fort Beaufort. The appellant and accused number 1 (Swelindawo) were arrested at about 11h20 the same day. The appellant was driving a maroon Audi (the Audi) with a GP number plate and Swelindawo was a passenger in the Audi.


[4] It was accepted that the robbery charge is a schedule 6 offence. In order to succeed in his application for bail, the appellant had to adduce evidence which satisfied the court that exceptional circumstances existed, which in the interests of justice permitted his release. (S 60 (11) (a) of the Criminal Procedure Act 51 of 1977 (the Act).)


[5] The bail application of the appellant was heard together with that of the other thirteen accused. The evidence adduced by the appellant was by way of an affidavit in which he stated as follows:


1. I am the abovementioned Applicant.

2. The facts deposed to in this affidavit are, unless otherwise stated or it appears otherwise from the context, within my personal knowledge and both true and correct.

3. I am 37 years of age.

4. I am a South African citizen.

5 I reside at 3756 Mkuli Street, Kwazakhele.

6. I own the house at the aforesaid address.

7. The value of the house at the said address is approximately R400000 – R500000. The house is unbonded.

8. I am unmarried.

9. I passed standard 10 at school.

10. I have no additional qualifications.

11. I have two minor children aged, respectively, 4 and 3 years.

12. I contribute toward the maintenance of the aforesaid children.

13. I am self-employed as a taxi owner and operator.

14. I earn approximately R4000 per week.

15. I do not hold a passport and have never travelled outside the borders of the Republic of South Africa.


16. I can afford to pay R2000 bail.

17. I have the following previous convictions:

17.1 Theft, fine imposed.

17.2 Driving under the influence of alcohol.

17.3 Reckless/negligent driving.

18. I have the following other cases pending against me:

18.1 Robbery, Port Elizabeth, on bail.

18.2 Driving under the influence of alcohol.

19. As far as I am aware, there are no warrants of arrest out for me.

20. I deny the allegations against me and intend pleading not guilty to the charge(s) against me.

21. I have been advised not to enter upon the merits of the case in this affidavit and will disclose my defence at the trial.


22. I will not endanger the safety of the public or any particular person, commit any offences, attempt to evade my trial or attempt to influence or intimidate witnesses or to conceal or destroy evidence if I am released on bail.


23. I have no relatives or friends outside the borders of Republic of South Africa. There is nowhere I could flee to even if I wanted to evade my trial. I do not have the financial means to sustain myself outside the borders of the Republic of South Africa.

24. I will stand trial if I am granted in bail.

25. I believe that I have a good defence to the charge(s) and do not fear being convicted.


26. I will not influence or intimidate the State witnesses if I am released on bail.


27. I will not conceal or destroy evidence if I am released on bail.

28. I will not undermine or jeopardise the objectives or the proper functioning of the criminal justice system if I am granted bail and respectfully submit that there is no likelihood that my release on bail will disturb the public order undermine the public peace or security.


29. I respectfully request the above Honourable Court to take the following additional factors into account in deciding whether or not to grant me bail:


29.1. The State has no evidence implicating me in the commission of the alleged offence(s).


29.2. I was not arrested at the scene of the crime.

29.3. Nothing incriminating was found in my possession or has been linked to me.


29.4. No identity parade has been held.

29.5. No eye or other witness has identified me as one of the perpetrators of the offence(s) in question.


30. I respectfully submit, in the circumstances , that it in the interests of justice for me to be granted bail and respectfully pray for bail to be fixed in an appropriate amount and on appropriate conditions.



[6] Detective Constable Thumile Kwenene testified on behalf of the state and was cross-examined by the various legal representatives. He began the investigation of the case, which was later transferred to the Organised Crime Unit in Port Elizabeth. He is assisting this unit with the investigation.


[7] His evidence regarding the alleged offences and further events was as follows: Gouws and Mbi arrived at the bank and alighted from their vehicle. Mbi, who was armed with a rifle, stood guard while Gouws collected the bags of money. Gouws noticed that a gun was pointed at Mbi, and then a rifle was pointed at him and he was told to lie down. His 9mm pistol, containing 9 rounds, was taken from him, as well as the money. Mbi’s rifle was also taken. Gouws was told not to look and heard footsteps and cars moving. He looked up and saw a Datsun bakkie without a canopy. There were a couple of men in the back. He also saw a silver Polo vehicle driving behind the Datsun. He then contacted his radio control and the police were called. He was not sure how many men were involved in the robbery but he saw that they were armed. Gouws and Mbi were unable to identify any of the robbers.


[8] Kwenene went to the scene with two colleagues. Persons at the scene told them that the robbers had left in a white Datsun and a silver Polo, and in which direction they had driven. He interviewed a person at the scene who told him he heard people screaming and saw people running towards the Polo and saw people getting into the Datsun bakkie. He took the registration number of the Polo.


[9] Kwenene and his colleagues drove around but did not see the vehicles. They were then informed by Captain Quba that they should look out for an Audi with a GP registration number, which was involved in the robbery. At the time of testifying, Kwenene did not have a statement to the effect that the Audi was involved in the robbery. At 11h20, they spotted the Audi, which was coming towards them, followed by a police van. The appellant stopped the Audi and Kwenene informed him and Swelindawo that he was arresting them on a charge of robbery, and explained their rights to them. Swelindawo informed Kwenene that he had a Quantum taxi which was being washed at the taxi rank, but was unable to answer when he was asked what he was doing in the Audi.


[10] Kwenene and his colleagues left the scene and travelled in the direction from which the Audi had come. They noticed an abandoned Datsun, with the ignition still on, and they asked police officials to guard it. The Datsun had been reported stolen and had false number plates. They were told at some stage that persons in the Datsun had been picked up by a Quantum vehicle. They were given the registration number of the Polo and saw police officials next to the Polo, at the car wash. Constable Mange was there with accused number 3 (Nonkala), and introduced Nonkala to them as the driver of the Polo. Mange heard Nonkala saying to a young man that he must say that he was the driver of the Polo. Mange also told them that he found number plates in a bag carried by Nonkala. Nonkala told Kwenene that the key of the Polo was with Swelindawo. They went to Fort Beaufort police station where Swelindawo was, but he told them he knew nothing about the key and did not know Nonkala. They went back to the car wash and the key to the Polo was found in the possession of Nonkala. They learned later that the Polo had been hijacked in KwaZakhele and the number plate on it was false.


[11] There was also a Quantum vehicle at the car wash next to the Polo. Kwenene said this was the Quantum which belonged to Swelindawo. They were told that this was the Quantum in which the persons who committed the robbery were picked up, and that the driver of the Quantum had got into a maroon Audi. They were also told that the Quantum was not known in the area and had not been at the car wash for long before they arrived. They found ten jackets and a false number plate in the Quantum.


[12] Nonkala informed them that he would tell them where to find the other accused. He also mentioned that he had received a telephone call from the appellant. Later that day he led them to a house in Fort Beaufort. The police surrounded the house and ordered the occupants to come out. They did not do so and the police broke open the back door. The remaining eleven accused were taken out of the house. Eight firearms, including two police service firearms and the firearm taken from Gouws, were found in the house. The firearms were loaded with ammunition and some had the serial numbers filed off. Money was in various rooms in the house, as well as in the clothing of some of the accused. The search of the house was temporarily halted that evening and the house was placed under guard.


[13] The next day they returned to the house and found jackets in the main bedroom. In one of the jackets they found a key holder or tag containing the details of the Audi, namely the colour, model and registration number. They discovered that the Audi had been hired from Avis, by a person from Port Elizabeth, and not the appellant.


[14] The money found in the house was counted and amounted to R165 191.72. The remaining money has not been recovered, nor has the rifle taken from Mbi, which contains sixty rounds.


[15] Kwenene gave details of previous convictions and outstanding cases of some of the accused. The appellant had an outstanding case of robbery and kidnapping for which he was due to appear in court that day. His previous convictions included using a motor vehicle without the owner’s consent (1993), reckless or negligent driving (1997), driving a motor vehicle while the concentration of alcohol in his blood exceeded the legal limit (1998), and theft (2010), for which latter offence he received a three year suspended sentence.


[16] The magistrate was of the view that there was a prima facie case against all the accused, based on circumstantial evidence. Even though the appellant and Swelindawo had not been found at the house, Kwenene had explained how they were linked. He stated that those accused who had pending cases had not adhered to an instruction not to be involved in further cases, and that the community needed to be protected from persons who commit offences while out on bail. He also had regard to the fact that all the accused had testified by way of affidavit and were not subjected to cross-examination. He ultimately found that none of the accused had discharged the onus of proving that exceptional circumstances existed, which in the interests of justice permitted their release.


[17] S 65 (4) of the Act provides:


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.”


[18] The term “exceptional circumstances” has been considered in a number of authorities. In S v Jonas 1998 (2) SACR 677 (SE) Horn AJ (as he then was) said the following at 678 e-g:


The term “exceptional circumstances” is not defined. There can be as many circumstances which are exceptional as the term in essence implies. An urgent serious medical operation necessitating the accused’s absence is one that springs to mind. A terminal illness may be another. It would be futile to attempt to provide a list of possibilities which will constitute such exceptional circumstances. To my mind, to incarcerate an innocent person for an offence which he did not commit could also be viewed as an exceptional circumstance. Where a man is charged with a commission of a Schedule 6 offence when everything points to the fact that he could not have committed the offence because, eg he has a cast iron alibi, this would likewise constitute an exceptional circumstance.”


[19] In my view the personal circumstances of the appellant are not exceptional as contemplated by s 60 (11) (a), and may be described as “commonplace and not out of the ordinary”. (Per Hancke AJA in S v Scott-Crossley 2007 (2) SACR 470 (SCA) para [12].) I did not understand Mr. Daubermann, who appeared for the appellant, to submit otherwise.


[20] The basis of the appeal is that there is no prima facie case against the appellant, and that this factor constitutes exceptional circumstances.


[21] In S v Mathebula 2010 (1) SACR 55 (SCA), Heher JA said the following at paragraph [12]:


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) 230h, 232c; S v Viljoen 2002 (2) SACR 550 (SCA) at 556c. That is no mean task, the more especially as an innocent person cannot be expected to have insight into matters in which he was involved only on the periphery or perhaps not at all. But the state is not obliged to show its hand in advance, at least not before the time when the contents of the docket must be made available to the defence; as to which see Shabalala and Others v Attorney-General of Transvaal and Another [1995] ZACC 12; 1996 (1) SA 725 (CC). Nor is an attack on the prosecution case at all necessary to discharge the onus; the applicant who chooses to follow that route must make his own way and not expect to have it cleared before him. Thus it has been held that until an applicant has set up a prima facie case of the prosecution failing there is no call on the state to rebut his evidence to that effect: S v Viljoen at 561f-g.”

[22] The appellant’s attack on the state case in his affidavit was effectively a bald statement that the state had no evidence implicating him. He chose not to disclose a defence (unlike in Mathebula where an alibi defence was raised in the affidavit, although somewhat baldly). There was no explanation of why he was in Fort Beaufort, why he was driving the Audi which had been hired by someone else, what his association was with Swelindawo and why he was a passenger in the Audi, and how the key tag for the Audi was found in a house where the money and firearms were found, significantly including a firearm which had been taken from Gouws. In addition, his evidence was presented by way of affidavit and he was not subjected to cross-examination. His evidence was therefore, as was said in Mathebula at paragraph [11] “less persuasive”.


[23] In Mathebula the evidence adduced on behalf of the State was described as a “weak riposte”. It was affidavit evidence and the only evidence referred to which implicated the appellant was that he harboured resentment towards a taxi association of which the deceased in the case was a member. In contrast, in the present matter, there was viva voce evidence, tested in cross-examination, incriminating the appellant, and which in my view amounts to a prima facie case. He was arrested just over half an hour after the robbery, driving a vehicle whose key tag was in the house where firearms, including Gouws’ firearm, and money were found. When arrested, he was in the company of Swelindawo, who told the police that his Quantum was at the car wash. The stolen silver Polo was at the car wash together with the Quantum, which had not been there for long. A silver Polo was one of the getaway cars. The police were given information that persons who had left the robbery scene had got out of the Datsun and got into a Quantum, and that the driver of the Quantum had got into a maroon Audi. A Datsun was also one of the getaway cars. Further, Nokala, who had the key of the stolen Polo, told the police that he had received a telephone call from the appellant. In my view this is evidence which calls for an answer.


[24] Additional factors which should be taken into account when considering whether the appellant has adduced evidence showing that his release would be in the interests of justice, are his previous conviction for theft and the other pending robbery case. S 60 (4) (a) of the Act provides that the interests of justice do not permit the release from detention of an accused:


Where there is the likelihood that the accused, if he or she were released on bail, will endanger the safety of the public or any particular person or will commit a Schedule 1 offence.”

Among the factors listed in S 60 (5) of the Act which a court can take into account in considering whether this ground has been established, are any disposition of the accused to commit offences referred to in Schedule l, as is evident from his or her past conduct, and the prevalence of the offence. Robbery in general is prevalent, as is robbery committed by armed gangs, which by its nature is planned in advance.


In my view these factors weaken the appellant’s evidence, which is already “not persuasive”.


[25] In my view therefore the evidence of the appellant fell short of what was required in order to prove on a balance of probability that he would be acquitted. The magistrate was therefore correct in deciding that the appellant had not discharged the onus which he bore. The appeal was accordingly dismissed.






______________

J.M. ROBERSON

JUDGE OF THE HIGH COURT