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Tyala v S (1/2014) [2014] ZAECGHC 35 (23 May 2014)

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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION – GRAHAMSTOWN)

APPEAL NO: 1/2014

DATE HEARD: 23/5/14

DATE DELIVERED: 23/5/14

NOT REPORTABLE

In the matter between:


MVUSELELO TYALA ….............................................................................................APPELLANT


and


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


Bail appeal – offences of robbery with aggravating circumstances, attempted murder and unlawful possession of firearms – Schedule 6 of Criminal Procedure Act 51 of 1977 – whether exceptional circumstances present.


JUDGMENT

PLASKET J

[1] The appellant was arrested, along with three others, on charges of robbery with aggravating circumstances, attempted murder and the unlawful possession of firearms. He applied for bail in the Magistrate’s Court, Alexandria. His application was dismissed and he now appeals against that decision.

[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] It was common cause between the parties that the matter concerned a Schedule 6 offence. The offence of robbery in which a firearm was used by either ‘the accused or any co-perpetrators or participants’ is included in Schedule 6. In the affidavit of a detective by the name of De Klerk it is stated that two firearms were used during the robbery of a car in Pateron, this being the robbery charge against the appellant.

[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 Jonas[3] 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 appellant is 30 years old, lives alternatively with his mother and his girlfriend, who stay close to each other in Motherwell, Port Elizabeth. He is single but he is involved in a relationship and is the father of two children who reside with their mother, his girlfriend. He supports his girlfriend and his children. He owns a car and earns a living as a taxi driver. He had no other cases pending against him and has no previous convictions. The appellant’s personal circumstances are not exceptional circumstances for purposes of s 60(11)(a). Indeed, I would describe them, like Hancke AJA did in S v Scott-Crossley,[4] as ‘commonplace and not out of the ordinary’. The magistrate cannot therefore be faulted for his finding to the same effect.

[8] It was argued further that exceptional circumstances lie in the fact that the appellants is innocent of the offences of which he has been charged and that the State’s case against him is weak. In order to assess this it is necessary to outline the State’s case and the appellant’s version.

[9] De Klerk’s affidavit states that five men, two of whom were armed with firearms, robbed a person of his car in Paterson at about 23h30 on 18 January 2014. At about 01h30 on 19 January 2014 the stolen car was involved in a collision in Alexandria when it was being chased by the police. Five men got out of the car and shots were fired at the police, who returned fire. One of the men was wounded and was arrested, while the other four fled. Three of them, including the appellant, were arrested about 10 kilometres from Alexandria at about 06h00 on 19 January 2014.

[10] The version put up by the appellant is that he was hitch-hiking from Paterson to Port Elizabeth when he was given a lift. Instead of proceeding to Port Elizabeth, however, the car was driven in the direction of Alexandria. When the appellant queried this, he was told to be quiet and to keep his head down. In Alexandria, the car was chased by the police, shots were exchanged between the occupants of the car and the police and he ran away because he was scared.

[11] If what is known of the State’s case and the appellant’s explanation are analysed, the following picture emerges. First, five men took part in the robbery of the car in Paterson. Secondly, two hours later, five men got out of the stolen vehicle when the shoot-out occurred with the police in Alexandria. Thirdly, the appellant fled the scene with, it would appear, at least some of the robbers. Fourthly, he was arrested with two of the robbers a few hours later. For the appellant’s version to be true, it must mean that the robbers must have left one of their number in or near the scene of the robbery in Paterson and then decided to give a stranger a lift while making their escape. Why on earth, one is compelled to ask, would a group of robbers, intent on escaping from the scene of their crime in the vehicle they have just stolen, stop to give a stranger a lift when they were not even going to his destination, or at least, not by the most direct route? In my view, in the light of the facts contained in De Klerk’s affidavit, this version strikes me as being improbable.

[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 referred to by Horn J and 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. That being so, the appeal must fail.

[13] The appeal is dismissed.


________________

C PLASKET

JUDGE OF THE HIGH COURT


APPEARANCES:


Appellant: Mr Mqeke of Mqeke Attorneys, Grahamstown


Respondent: Ms Hendricks, Director of Public Prosecutions, Grahamstown


[1] S v Rudolph 2012 (1) SA 262 (SCA) para 9.

[2] See S v Dlamini; S v Dladla & others; S v Joubert; S v Schietekat [1999] ZACC 8; 1999 (2) SACR 51 (CC) para 64. 

[3] S v Jonas 1998 (2) SACR 677 (SE), 678e-g.

[4] S v Scott-Crossley 2007 (2) SACR 470 (SCA) para 12.