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[2012] ZAECGHC 80
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Vena v S (2/2012) [2012] ZAECGHC 80 (27 August 2012)
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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE – GRAHAMSTOWN)
APPEAL NO: 2/2012
DATE HEARD: 24/8/12
DATE DELIVERED: 27/8/12
NOT REPORTABLE
In the matter between:
LUKHANYO VENA .....................................................................................APPELLANT
and
THE STATE ..............................................................................................RESPONDENT
Bail appeal – offence of robbery with aggravating circumstances – Schedule 6 of Criminal Procedure Act 51 of 1977 – whether exceptional circumstances present.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
PLASKET J
[1] The appellant was arrested, along with six co-accused, on charges of robbery with aggravating circumstances, theft and four counts of unlawfully possessing firearms. He, along with accused number 1, applied for bail in the Magistrate’s Court, Alexandria. Both applications were unsuccessful and the appellant now appeals against the dismissal of his bail application.
[2] Section 65(4) of the Criminal Procedure Act 51 of 1977 sets out the powers of this court on appeal. It 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.’
[3] At the commencement of the bail application, the prosecutor placed on record that it had been agreed between the parties that the matter concerned a Schedule 6 offence. This was confirmed by the appellant’s legal representative. Included in Schedule 6 is the offence of robbery in which a firearm was used by either ‘the accused or any co-perpetrators or participants’. In the affidavit of Sunet Bakkes, the investigating officer, opposing the granting of bail it is stated that a firearm was used during the robbery.
[4] In terms of s 60(11)(a) of the Act, where a person is charged with a Schedule 6 offence the court hearing his or her bail application ‘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 interest of justice permit his or her release’.
[5] Section 60(11)(a) therefore places an onus on an applicant for bail to adduce evidence that satisfies the court that exceptional circumstances are present which would permit his or her release in the interests of justice.1 In other words, the default position, when a Schedule 6 offence is involved is that an accused will remain in custody awaiting trial unless he or she can satisfy the court, on the basis of the presence of exceptional circumstances, that the interest of justice are in favour of release on bail.2
[6] In S v Jonas3 Horn AJ said the following of what is meant by the term ‘exceptional circumstances’ in s 60(11)(a):
‘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.’
[7] The personal circumstances of the appellant are not exceptional circumstances for purposes of s 60(11)(a). I would describe them, like Hancke AJA did in S v Scott-Crossley,4 as ‘commonplace and not out of the ordinary’. He is 22 years old, lives with his grandmother, aunt and two cousins in Paterson, is single but the father of two children who reside with their mothers, supports the children and is unemployed but runs a tavern. He had no other cases pending against him and a long time ago paid an admission of guilt fine for assault.
[8] It is argued however, that the exceptional circumstance lies in the fact that he is innocent of the offences of which he has been charged and that the State’s case against him is weak. His version is that a friend of his arrived out of the blue at his house accompanied by five other men whom he did not know. They wanted to stay with him for the weekend and, more immediately, wanted to have a braai. They needed meat and one of them said he had worked on a certain farm and he knew they could get meat there. All seven men set off for this farm in one car.
[9] On arrival at the farm four of the men entered the property. The appellant and two other men remained in the car. One of these was the man who had said that he had worked on that farm. After a while, the appellant went inside to look for the four men as they had been inside the premises for a long time. He discovered that they were robbing people. He was shocked but remained with them. When they left, he left with them and joined them in the car to make their getaway. He was arrested with them shortly afterwards after their car had run out of petrol. He claimed that he had no prior knowledge that a robbery was going to take place and never associated himself with the plan to rob. It was put to him, however, that a witness in the trial would say that when the complainant arrived while the robbery was in progress, the appellant had called out to alert the robbers of his arrival.
[10] According to the affidavit of the investigating officer, when the complainant entered his home, a firearm was put to his head, he was bound and made to lie on the floor along with his wife and his employees. The keys to his safe were taken from him and four firearms – three rifles and a pistol – were taken along with money, cell phones and a bakkie. This vehicle was found abandoned at the side of the road.
[11] What emerges from this evidence is that the appellant arrived at the scene of the robbery with the robbers, he entered the premises while the robbery was in progress and joined the robbers there, he left with the robbers, joined them in the car in which they had made their getaway and was still with them when they were all arrested, having hidden the firearms. He places himself on the scene of the crime and in the company of the robbers before, during and after the robbery. He was also pointed out in an identity parade. The only issue between the State and himself at the trial will be whether he took part in the robbery or associated himself with the robbers. That will turn on the evidence of the witness that was referred to by the prosecutor and the credibility of that witness and the appellant. To attempt in bail proceedings to determine who would be believed in the trial would be speculative in the extreme, and unnecessary.
[12] The appellant’s version may or may not be accepted in the trial but at this stage it is clear that the State has a strong prima facie case that he has to answer. This is not the ‘cast-iron alibi’ type of situation and, in my view, the appellant does not succeed in showing that the State’s case against him is so weak that he has established exceptional circumstances on this account. This is what the magistrate concluded in the bail application and I am of the view that he was correct in so concluding. I certainly am not able to say that I am satisfied that the decision was wrong, which is the test set out in s 65(4) of the Act. The appeal must therefore fail.
[13] The appeal is dismissed.
________________
C PLASKET
JUDGE OF THE HIGH COURT
APPEARANCES:
APPELLANT: Mr N Nogcantsi, Nogcantsi Attorneys, Port Elizabeth
RESPONDENT: Mr D Els, Director of Public Prosecutions, Grahamstown
1S v Rudolph 2012 (1) SA 262 (SCA) para 9.
2See S v Dlamini; S v Dladla & others; S v Joubert; S v Schietekat [1999] ZACC 8; 1999 (2) SACR 51 (CC) para 64.
3S v Jonas 1998 (2) SACR 677 (SE), 678e-g.
4S v Scott-Crossley 2007 (2) SACR 470 (SCA) para 12.