South Africa: Eastern Cape High Court, Grahamstown

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[2014] ZAECGHC 41
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Lukwe and Another v S (CA&R64/2014) [2014] ZAECGHC 41 (5 June 2014)
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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE – GRAHAMSTOWN)
CASE NO.: CA&R 64/2014
In the matter between:
THANDILE LUKWE First Appellant
ANDILE LAWRENCE VANA Second Appellant
And
THE STATE Respondent
JUDGMENT
BESHE, J:
[1] This is an appeal against the refusal by East London Regional Magistrate to grant bail to the two appellants. The two appellants are two of six persons who are standing trial in the Regional Court, East London for the following crimes:
Count 1: Robbery with aggravating circumstances as intended in Section 1 of the Criminal Procedure Act, No 51 of 1977 and read with the provisions of sections 257 and 260 of Act 51 of 1977 and read further with the provisions of Section 51(2) of the Criminal Law Amendment Act 105 of 1977.
IN THAT upon or about 14 November 2011 and at or near the Old Transkei Road near Gonubie, in the Regional division of the Eastern Cape the accused did wrongfully and intentionally assault P. J. and/or M. M., and/or Z. G. by threatening him/them with [a] firearm[s] or [a] similar object[s] and with force take the following items from him/them, to wit an amount of approximately R4,8 million, the property or in the lawful possession of the said P. J.and/or M. M., and/or Z. G. and/or Fidelity Security Services.
Aggravating circumstances being present in that before, during or after the robbery [a] firearm[s] similar object[s] were used.
The State further alleges that the said crime was committed under circumstances as described in Part II of Schedule 2 of Act 105 of 1997 and that the sentences listed in Section 51 (2)(a) of Act 105 of 1997 are applicable.
Count 2: Attempted murder with the infliction of grievous bodily harm.
IN THAT upon or about 14 November 2011 and at or near the Old Transkei Road near Gonubie, in the Regional division of the Eastern Cape the accused did wrongfully and intentionally attempt to kill Z. G. a male person, by shooting him with a fire-arm and inflicting a bullet wound to his right shoulder.
Count 3: (Accused 2and 3) A contravention of Section 3 read with Sections 1, 103, 117, 120(1)(a), 121 read with Schedule 4 and Section 151 of the Firearms Control Act, 60 of 2000, and further read with Section 250 of the Criminal Procedure Act, 51 of 1977 – Possession of an unlicensed firearm.
IN THAT upon or about 14 November 2011 and at or near the Old Transkei Road near Gonubie, in the Regional division of the Eastern Cape, the accused was wrongfully in possession of a firearm, to wit a hand gun, which make and serial number are unknown to the state, without holding a licence, permit or authorisation issued in terms of the Act to possess that firearm.
Count 4: (Accused 2 and 3) Contravention of Section 90, read with Sections 1, 103, 117, 120(1) (a) and read with Schedule 4 and Section 151 of the Firearms Control Act, No 60 of 2000, and further read with Section 250 of the Criminal Procedure Act, Act 51 of 1977 – possession of ammunition without a licence or permit.
IN THAT upon or about 14 November 2011 and at or near the Old Transkei Road near Gonubie, in the Regional division of the Eastern Cape, the accused did wrongfully and unlawfully have in his possession an unknown quantity of rounds of ammunition, the calibre unknown to the state, without being the holder of
(a) a licence in respect of a firearm capable of discharging that ammunition;
(b) a permit to possess ammunition;
(c) a dealer’s licence manufacturer’s licence, gunsmith’s licence, import, export or in transit permit or transporter’s permit issued in terms of this Act;
(d) or is otherwise authorized to do so.
Count 5: Robbery with aggravating circumstances as intended in Section 1 of the Criminal Procedure Act, No 51 of 1977 and read with the provisions of sections 257 and 260 of Act 51 of 1977 and read further with the provisions of Section 51(2) of the Criminal Law Amendment Act 105 of 1977.
IN THAT upon or about 14 November 2011 and at or near the Old Transkei Road near Gonubie, in the Regional division of the Eastern Cape, the accused did wrongfully and intentionally assault Z. G. by threatening him with a fire-arm and with force take from him a 9 mm handgun, the property or in the lawful possession of the said Z. G. and/or and /or Fidelity Security Services.
The six are charged in connection with events that took place on the 11 November 2011 on the N2 near Gonubie, East London. During that incident, a group of robbers hijacked a vehicle belonging to Fidelity Security Services, robbed security guards who were transporting cash to Mthatha of a sum of R4 800.000.
[2] First appellant was arrested together with six other persons on the 15 November 2011. One of the six turned a state witness. He is yet to testify in that trial that is already underway in the East London Regional Court. The second appellant was only arrested on the 2 March 2012.
[3] Several attempts have been made by the accused in this matter to persuade courts to admit them to bail. The first such bid did not include the second appellant because he had not been arrested at that stage. It was heard in the district court. When that application did not succeed, there was an appeal against such refusal to this court. The appeal was heard by Notununu AJ who turned it down.
[4] There was once again an application before the Magistrate who heard the initial bail application, which was based on the emergence of new facts. At that stage second appellant had been arrested and he formed part of his co-accused persons who contended that new facts had arisen and he was applying for bail for the first time. The application for bail was dismissed in respect of all the applicants. (Second bail application)
[5] What has led to these present proceedings is the refusal by a Regional Court Magistrate before whom another application was made to grant the two appellants bail. Also on the basis that new facts had arisen. (Third bail application)
[6] During the second bail application, first appellant, as I understand his evidence, contended that the new facts were that as a result of his continued incarceration, his business is suffering more so lately that the person who was assisting his wife to run his business passed away. His wife also gave birth and stayed at home. This resulted in the business closing. As well as the fact that he was suffering from certain medical conditions and his health was deteriorating as a result of his incarceration. The issue of the strength of the case against him was once again canvassed as well as his defence. It was contended on his behalf that the state’s case was weak. Regarding second appellant, there was of course no question of new facts. He was applying for bail for the first time. In his case as well, the issue of his medical ailment was advanced as one of the circumstances that justify his admission to bail. The fact that he is diabetic and has lost a lot of weight following his incarceration. He testified that the state did not have a case against him as well as about his defence which is an alibi.
[7] In his judgment on the application, the learned Magistrate made a finding that there were in fact new facts that had emerged, but that they did not amount to exceptional circumstances.
[8] It is common cause that the trial began in the Regional Court, East London and a number of witnesses have testified. This prompted the launching of the bail application that is the subject matter of this appeal. In that application appellants contended that it was apparent now that a number of witnesses have testified during the trial, that the state has a weak case against them. Both appellants asserted that they will rely on alibis for their defence. Of the witnesses who have already testified none has implicated first appellant. Two testified to have seen a white Toyota van that was apparently involved in the robbery. He (first appellant) was not pointed out during an identification parade although he was in the line-up. One Xolisile Maweni against whom charges were withdrawn is still to testify. As indicated earlier he has turned a state witness. In his statement to the police he refers to the Toyota van and a person he refers to as Mobbs. First appellant alleges that it is not clear whether by Mobbs the witness is referring to him. Maweni’s statement as well as the reliability of his testimony (which is yet to be given) is assailed on the basis inter alia that he is an accomplice and a single witness in so far as the identity of the robbers is concerned. It appears to be common cause that first appellant owns a Toyota van with registration number Mobbs 2 which was confiscated by the police after the incident but has since been returned to him. As far as his alibi is concerned, he has produced a Doctor’s certificate which shows the he visited a doctor in Port Elizabeth on the day of the robbery.
[9] There are other witnesses apart from Maweni who are likely to testify during the trial. These witnesses include police officer who interviewed first appellant and about the recovery of a sum of money from first appellant (first appellant alleges the money does not form part of the spoils of the robbery) and the recovery of the Toyota van (Mobbs 2).
[10] As far as the second appellant is concerned, he too alleges that his businesses are suffering, they are no longer profitable due to the fact that he is not around to run them. He also highlighted his poor health. In his statement Maweni refers to one Bro Ace and a white Mercedes Benz. It was argued that there is no objective evidence to support Maweni’s evidence who is an accomplice and a single witness. It was argued on his behalf that if the said Maweni were to only indicate at time of his testimony in court that he was referring to the applicants when he referred to Mobbs and Bro Ace, that will amount to dock identification which carries very little weight, if any. Second appellant also relies on an alibi for his defence. He has annexed the extract from the Red Location Museum, Port Elizabeth, register of visitors where his name appears among the names of people who visited the museum on the day of the robbery which took place in East London.
[11] A lot was made about the misinterpretation or misrepresentation of evidence wherein it was submitted that first appellant was identified during an identification parade, when in fact that was not accurate. It would seem however that the Regional Magistrate who dealt with the last bail application, whose decision is being appealed against, was mindful of this inaccuracy. (See page 2 lines 3-6 of the learned Regional Magistrate’s judgment) The Regional Magistrate found that the “new facts” were adequately dealt with by the magistrate in the previous bail application on new facts. Although he remarked that the new facts must be substantial, in dismissing the application he stated that the facts as alleged by the appellants to be new facts, do not amount to such (new facts). In so finding, it is argued, he erred.
[12] Section 65 (4) of the Criminal Procedure Act 51 of 1977 provides that:
“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.”
The bail application by the appellants in this matter should be dealt with in terms of section 60 (11) (a) in light of the fact that some of the offences they are charged with are referred to in Schedule 6. Section 60 (11) (a) provides that:
“(11) Notwithstanding any provision of this Act, where an accused is charged with an offence referred to-
(a) 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 interest of justice permit his or her release.”
The section places a formal onus on the applicant for bail in this instance to adduce evidence which satisfies the court that exceptional circumstances exist, which in the interest of justice permits his release.
[13] It is trite that the term exceptional circumstances is not defined, trite also is that, the fact that the state has a weak case against the accused can constitute an exceptional circumstance. It is also trite that even if I were to find that there are new facts, as appellants contend, such should be such that they amount to exceptional circumstances which justify the release of the appellants on bail. The new facts, if any, must be considered together with other factors. The Magistrate who turned down the first application that was made on the basis that new facts had emerged, is criticized for failing to differentiate second appellant’s case from the rest of the applicants that were before him, this because second appellant’s application was his first bail application. The Magistrate alluded to the fact that save for second appellant who was 6th applicant in the bail application, the others were applying for bail for the second time on the basis that there were new facts. (See page 267 of record – line 10-20) Reference is made throughout the Magistrate’s judgment of new facts and new application in respect of 6th applicant. During that application the issue regarding the strength or lack thereof of the case against the applicants was raised, so was the state of health of the applicants, so too was the issue regarding their businesses. Even at that stage the appellants indicated that they would rely on alibis. Even then it would seem first appellant had produced a medical certificate showing that he was seen by a doctor on the day of the robbery. In support of his bail application in the Regional Court, second appellant produced the extract of the visitor’s register of the Red Location Museum. But even at the stage of the second application in the district court, he had raised an alibi. I agree with the Regional Magistrate that the so-called new facts were raised and dealt with previously. What had significantly changed between the second and last bail applications, is that a number of witnesses have testified between the two applications. Be that as it may, the nature of their evidence has always been known to all concerned even before they testified. What appears to be the state’s key witness has however not testified. The criticism levelled at what his evidence will in all probability be, is still the same as it was from the beginning.
[14] In S v Van Wyk 2005 (1) SACR 41 it was held that the function of the court in a bail application is to prima facie determine the relative strength of the state’s case and not to make a provisional finding of guilt or innocence. In S v Botha en ń Ander 2002 (1) SACR 222 it was held that proof by the accused that he will in all probability be acquitted, can serve as “exceptional circumstances”. Have the appellants succeeded in showing that the state’s case against them is so weak that in all probability they will be acquitted? It is trite law that the evidence of an accomplice must be viewed with caution. I do not understand this to mean that an accomplice’s evidence is invariably unreliable and worthless. This in my view will depend on the facts of each case and other evidential material that is available. The same goes for the appellants’ alibis. They will not be viewed in isolation but in the light of all the evidence in its totality.
[15] I am not persuaded that the appellants have shown that in all probability they will be acquitted. I am unable to say that the facts alleged to be new, being the strength or lack thereof of the state’s case and the personal circumstances of the appellants, namely their state of health and the extent to which their businesses are suffering, amount to exceptional circumstances that justify their release on bail.
[16] I accordingly make the following order:
The appeal is dismissed.
_______________
N G BESHE
JUDGE OF THE HIGH COURT
APPEARANCES
For the Appellants : ADV: T N Price
For the Respondent : ADV: Kempff
Date Heard : 30 May 2014
Date Reserved : 30 May 2014
Date Delivered : 5 June 2014