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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE LOCAL DIVISION, PORT ELIZABETH)

Case No.: CA&R03/2015

Date heard: 04 March 2015

Date available: 11 March 2015

In the matter between:

MCEBISI LUPUWANA...................................................................................................Appellant

and

THE STATE...................................................................................................................Respondent

BAIL APPEAL

REASONS FOR JUDGMENT

KAHLA, AJ:

[1] On 4 March 2015 I refused the appellant’s bail appeal against the decision of the magistrate and gave brief reasons. I promised that full reasons would be given later, these are those reasons.

[2] The appeal was brought in terms of section 65(1)(a) of the Criminal Procedure Act 51 of 1977 (“the Act”) against the refusal by the Additional Magistrate, Port Elizabeth Mr L. Alexander to grant bail to the appellant who is in custody on a charge of robbery and hijacking.

[3] On 30 October 2014 at about 20h00 the first complainant and his girlfriend the second complainant were robbed and hijacked at gunpoint outside the front gate of the first complainant’s residence.  When the first complainant alighted from his motor vehicle to open the gate he noticed three people running towards them with a firearm pointed in their direction.   The appellant and the two assailants got away with the first complainant’s motor vehicle and a cellphone and access card to courts belonging to the second complainant.

[4] It is common cause that the complainants were both police officers at the time of the incident.  Despite the fact that the incident happened at night, the first complainant was able to identify one of the three men who accosted them as Mcebisi (the appellant), who was a police official attached to the Dog Unit of the South African Police Services.

[5] Immediately after the incident the first complainant made a statement at Kwazakhele Police Station, that one of the robbers were known to him as Mcebisi, he apparently further stated that he knew his place of residence and that they grew up and played soccer together.

[6] The first complainant (“the deceased”) who identified the appellant in his statement, passed away on 21 December 2014.  He was shot and killed at a tavern in Port Elizabeth. 

[7] Because of the nature of the offences the appellant is facing, which are crimes listed in Schedule 6 of the Act. Any appellant who wants to be released on bail under these circumstances has to prove that exceptional circumstances exist in terms of section 60(11)(a) of the Act which in the interests of justice justify that he be released on bail.[1]

[8] The enquiry into his release therefore, is normally a two-fold enquiry, in that, one who applies for bail has to satisfy the court that exceptional circumstances as envisaged in section 60(11)(a) of the Act exist, and that secondly the circumstances justify that in the interest of justice bail be granted.[2]

[9] The first bail application was made on 25 November 2014. That application was refused by the magistrate mentioned above. The second application was brought on 22 January 2015 before the same magistrate, as envisaged in terms of section 65(2) of the Act. The second bail application was also denied. During the second bail application the appellant alleged that there were new facts which entitled him to be released on bail. These new facts being that the deceased, as the person who identified him in his statement had passed away on 21 December 2014.

[10] When the second application was brought the motor vehicle of the deceased had already been recovered on 5 December 2014.  The recovery of the motor vehicle followed a phone call that the deceased received from one Ntetho (a relative of the appellant).  He advised the deceased that the motor vehicle was at Westville.  The motor vehicle was subsequently found there with the keys in the ignition.  The deceased had made a second statement to the police concerning the recovery of the vehicle.

[11] As it has been mentioned previously in view of the fact that the appellant is charged with the robbery involving the use of a firearm as well as taking of a motor vehicle which are offences listed in Schedule 6 of the Act it means the provisions of section 60(11)(a) of the Act are applicable. Those provisions of section 60(11)(a) apply even in respect of the second bail application brought on new facts which subsequently arose after the initial bail application was denied. 

[12] The effect of that, is that over and above the considerations stated in section 60(4) to (9) of the Act, the appellant has to prove on a balance of probabilities that exceptional circumstances exist which justify his release on bail, and that in the interests of justice bail has to be granted to him. 

[13] The burden of persuading the court that he has to be released on bail is on the appellant. 

[14] Section 60(11)(a) referred to above reads thus:

“(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 interests of justice permit his or her release;”

[15] At this point I will further refer to section 60(1)(a) of the Act.  This is also another important section of the Act insofar as bail is concerned.   Section 60(1)(a) provides:

“An accused who is in custody in respect of an offence shall, subject to the provisions of section 50 (6), be entitled to be released on bail at any stage preceding his or her conviction in respect of such offence, if the court is satisfied that the interests of justice so permit.”

[16] The relevant portion of section 50(6)(a) referred to above reads as follows:

“(6)(a) At his or her first appearance in court a person contemplated in subsection (1) (a) who-

(i) was arrested for allegedly committing an offence shall, subject to this subsection and section 60-

(aa) be informed by the court of the reason for his or her further detention; or

(bb)be charged and be entitled to apply to be released on bail,

and if the accused is not so charged or informed of the reason for his or her further detention, he or she shall be released; or

…

(c) The bail application of a person who is charged with an offence referred to in Schedule 6 must be considered by a magistrate's court: Provided that the Director of Public Prosecutions concerned, or a prosecutor authorised thereto in writing by him or her may, if he or she deems it expedient or necessary for the administration of justice in a particular case, direct in writing that the application must be considered by a regional court.”

[17] It was on the basis of the above provisions that the appellant brought the initial bail application before the Magistrate’s Court on 25 November 2014.  This application was refused.  After the death of the deceased another application was brought before the same magistrate on new facts that the deceased was the person who identified the appellant in the incident that occurred on 30 October 2014 and had died on 21 December 2014.  It was on the basis of this fact that the appellant brought an application for bail on new facts.  This application was also refused – (see section 65(2) of the Criminal Procedure Act 51 of 1977).

[18] It was on the strength of such refusal that the appellant appealed to this court against the decision of the magistrate.  This appeal was opposed by the State.   In this court the appellant was represented by his attorney Mr Daubermann and the State was represented by Mr Thysse.

[19] The grounds upon which the appellant relies on are set out in the Notice of Appeal as follows:

“1. The learned magistrate erred in failing to find that the State’s case against the Appellant is non-existent, alternatively, very tenuous.

2. The learned magistrate erred in failing to find that the Appellant will probably be acquitted at his trial.

3. The learned magistrate erred in failing to find that it is not in the interests of justice for the Appellant to be detained in custody pending the finalisation of the matter.

4. The learned magistrate erred in attaching weight and having regard to the fact that the Appellant was previously charged with robbery in another matter.

5. The learned magistrate erred in failing to find that exceptional circumstances exist that render it in the interests of justice for bail to be granted to the Appellant.”

[20] Despite the provisions of section 60(1)(a) of the Act as stated above, it is clear from the provisions of section 60(11)(a) places stringent conditions for a person charged with a Schedule 6 offence in that an accused person charged with a schedule 6 offence has to adduce evidence which satisfies the court that exceptional circumstances exist which in the interests of justice permits his release.   When one reads the provisions of section 60(11)(a) one gets the impression that for a person charged with schedule 6 offence the acceptable norm is that those persons should be kept in custody unless they comply with section 60(11)(a).

[21] The fact that the accused is the one who should satisfy the court that he is entitled to be released on bail, means that the section shifts the onus or rather the burden from the state to the accused to satisfy the court on a balance of probabilities that such exceptional circumstances exist and he also needs to prove that it would be in the interests of justice for him to be admitted to bail.

[22] It has been decided in numerous cases that such factors or circumstances need not be rare in the ordinary sense of the word, but should be exceptional in that they should be factors or circumstances which when cumulatively considered the court should be persuaded that it would be in the interests of justice to grant bail.

[23] In S v Dlamini;  S v Dladla & Others;  S v Joubert;  S v Schietekat [1999] ZACC 8; 1999 (2) SACR 51 (CC) at 84c-e, Kriegler J in dealing with section 60(11)(a) referred to above stated the following:

“[61] The subsection says that for those awaiting trial on the offences listed in Sch 6, the ordinary equitable test of the interests of justice determined according to the exemplary list of considerations set out in ss (4) to (9) has to be applied differently. Under ss (11)(a) the lawgiver makes it quite plain that a formal onus rests on a detainee to 'satisfy the court'. Furthermore, unlike other applicants for bail, such detainees cannot put relevant factors before the court informally, nor can they rely on information produced by the prosecution; they actually have to adduce evidence. In addition, the evaluation of such cases has the predetermined starting point that continued detention is the norm. Finally, and crucially, such applicants for bail have to satisfy the court that 'exceptional circumstances' exist.”

[24] At paragraph 64 he further stated that:

“[64] … However, s 60(11)(a) does more than restate the ordinary principles of bail. It states that where an accused is charged with a Sch 6 offence, the exercise to be undertaken by the judicial officer in determining whether bail should be granted is not the ordinary exercise established by ss 60(4)-(9) (and required by s 35(1)(f)) in which the interests of the accused in liberty are weighed against the factors that would suggest that bail be refused in the interests of society. Section 60(11)(a) contemplates an exercise in which the balance between the liberty interests of the accused and the interests of society in denying the accused bail, will be resolved in favour of the denial of bail, unless 'exceptional circumstances' are shown by the accused to exist. This exercise is one which departs from the constitutional standard set by s 35(1)(f). Its effect is to add weight to the scales against the liberty interest of the accused and to render bail more difficult to obtain than it would have been if the ordinary constitutional test of the 'interest of justice' were to be applied.”

[25] At page 78d-f Kriegler J stated further that:

“[49] … the manner in which a court enquiry into bail is to be conducted, remain substantially unaltered. It remains a unique interlocutory proceedings where the rules of formal proof can be relaxed and where the court is obliged to take the initiative if the parties are silent; and the court still has to be proactive in establishing the relevant factors. More pertinently, the basic  enquiry remains to ascertain where the interests of justice lie. In deciding whether the interests of justice permit the release on bail of an awaiting trial prisoner, the court is advised to look to the five broad considerations mentioned in paras (a) to (e) of ss (4), as detailed in the succeeding subsections. And it then has to do the final weighing up of factors for and against bail as required by ss (9) and (10).”

[26] In S v H 1999 (1) SACR 72 (W) at 77E Labe J stated that:

“The exceptional circumstances must be circumstances which are not found in the ordinary bail application but pertain peculiarly, if I may use that word, to an accused person's specific application. What a court is called upon to do is to examine  all the relevant considerations, not individually, but as a whole, in deciding whether an accused person has established something out of the ordinary or unusual which entitles him to relief under s 60(11)(a) of the Act.”

[27] In S v Schietekat 1998 (2) SACR 707 (C) at 713 Slomowitz AJ stated:

“Bail proceedings are sui generis. The application may be brought soon after arrest. At that stage all that may exist is a complaint which is still to be investigated. The State is thus not obliged in its turn to produce evidence in the true sense. It is not bound by the same formality. The court may take account of whatever information is placed before it in order to form what is essentially an opinion or value judgment of what an uncertain future holds. It must prognosticate. To do this it must necessarily have regard to whatever is put up by the State in order to decide whether the accused has discharged the onus of showing that 'exceptional circumstances exist which in the interests of justice permit his release’.”

[28] Mr Daubermann on behalf of the appellant strenuously contended that because the deceased who identified the appellant has since died, the State’s case is weak, the identification was contained in a statement taken from the deceased there was no identification parade and neither was the appellant taken to the victim so that he identifies him.  He further stated that such a statement may not be admitted in court. He further stated that the case against the appellant hinges on identification.  I am clearly not persuaded by this argument because the State may well apply for the statement to be admitted in terms of section 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988, and the chances of that statement being admitted will depend on the trial court.  The weight to be attached to that statement will also depend on the trial court.

[29] Mr Daubermann argued and submitted that the cellphone records do not prove identity.  He argued that the crucial issue in this matter is identity.  (That is true because the incident happened at night.)  One needs to be certain about whether the right person was identified.  He further argued and made a submission that the records will show that calls were made.  But the calls do not prove the content of the calls. The content of those calls is also hearsay.

[30] But it may be so but the appellant will have to explain during trial why he specifically called the deceased. The deceased who identified him as one of the robbers.

[31] Mr Daubermann further submitted that these calls relate to the persuasion which was allegedly sought to bring the deceased to withdraw the charge or to say that he mistakenly identified the appellant. He maintained that even if that is established it will not prove the identity of the robber. All that it will show if accepted, is that the appellant attempted to persuade the complainant to withdraw the charge or to say that he had mistakenly identified him.   He further submitted that there was no admission by the appellant in any of those conversations that he was one of the robbers. He argued that there has to be corroboration on the issue of identification and that the calls cannot constitute corroboration of identification. He argued further that the finding of the court does not constitute an objective fact confirming the identification of the appellant in the statement of the complainant.

[32] Mr Daubermann also argued that the magistrate lost sight of the fact that the appellant will be acquitted at the trial.

[33] As to whether there is a possibility that the appellant may be acquitted cannot be denied but the probabilities of a person being acquitted on trial will depend on the evidence to be adduced at the trial.  This Court is not concerned with proving the guilt or innocence of the appellant, it only looks at pointers in the direction to arrive at a decision as to whether it can be said that the State’s case is so weak or the State has failed to submit a prima facie case against the accused.

[34] In S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat [1999] ZACC 8; 1999 (2) SACR 51 (CC) at 63G-64B, Kriegler J said:

“In a bail application the enquiry is not really concerned with the question of guilt. That is the task of the trial court. The court hearing the bail application is concerned with the question of possible guilt only to the extent that it may bear on where the interests of justice lie in regard to bail. The focus at the bail stage is to decide whether the interests of justice permit the release of the accused pending trial; and that entails, in the main, protecting the investigation and prosecution of the case against hindrance.”

[35] He further argued that the fact that the deceased knew the complainant as a member of the South African Police Service attached to the Dog Unit does not strengthen the State’s case.

[36] He again argued that the fact that there may be fingerprints identified at a later stage does not assist the State. The State had three months between the second bail application and the arrest of the accused to get its house in order. But he had lost sight of the fact that these fingerprints could prove to be positive in which case the court in releasing the appellant at this stage will hinder the investigation of the case.

[37] He submitted that the magistrate was supposed to decide the application on the basis of facts available to him.

[38] It is not disputed that the appellant was someone known to the deceased.  They worked together, he was identified by name in the statement of the deceased.   They even played soccer together and they grew up together.

[39] Mr Thysse on behalf of the State argued that over and above the statement that was made by the deceased, the State is in possession of cellphone records of calls made from the phone of the appellant to the deceased.  The State made a section 205 application to obtain these cellphone records.  One Ntetho who is known to the appellant even called the deceased and persuaded him to drop the charges saying that he should go to the police station and say that he has made a wrong identification.  There is even a call that was made from a cellphone of the cleaner working in court when the appellant first appeared before court.  Warrant Officer Laurens testified during the bail hearing that there are cellphone records of the deceased and Ntetho setting up a meeting between them.  There are further calls where Ntetho persuaded the deceased to go and drop the charges. Further, the deceased in one of the calls was advised by Ntetho as to where the motor vehicle could be found and indeed the motor vehicle was found in the place mentioned during that telephone conversation with the keys in the ignition. The deceased again made a statement relating to the recovery of the vehicle.  Mr Thysse further stated that fingerprints were lifted from that vehicle but the results have not yet been obtained and that the investigation is incomplete and statements are outstanding from the arresting officer and other persons.

[40] According to Mr Thysse the State, therefore, does not rely solely on the statement that was made by the deceased in identifying the appellant. It was further submitted that a second statement was made by the deceased regarding the recovery of the motor vehicle and the telephone calls mentioned previously.  He stated further that the Warrant Officer Lourens testified at the bail application that the deceased was threatened telephonically that he would be killed if he does not inform the police that he made a wrong identification and that the deceased was in fact killed on 21 December 2014.  He, however, mentioned in his argument that there is a separate investigation concerning that case regarding the murder.

[41] I may mention further that bail proceedings are sui generis, the rules are more relaxed than in a trial. Hearsay evidence is admissible in bail proceedings and it may be admitted depending on its reliability from the phone calls made to the deceased and Ntetho they reveal that there is a strong connection between Ntetho and the appellant more so insofar as the events that prevail in this case.  The police should be given time to investigate that connection.

[42] In his submission, Mr Thysse mentioned that the phone calls by themselves show clearly that the appellant has not stuck to his undertaking that he will not interfere with the course of the case. He has clearly demonstrated that he is a person who can interfere with witnesses and the further investigation.

[43] I may digress and state that despite that the evidence that is contained in the statement will be regarded as hearsay but for the provisions of section 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988 could be admitted during trial. The conduct of the appellant is that of a person who may interfere with the investigation, and that suffices for bail proceedings. The threat of killing a person is a serious allegation and the deceased met his demise on 21 December 2014. Whether there is a link or not, is not a matter this court should at this stage, concern itself with.

[44] In his submission counsel for the State mentioned that the weapons that were used in the robbery have not been recovered.  The access card to the court and the cellphone of the second complainant have not been recovered, and that is a factor that has to be considered by this court in refusing bail.  These factors point more towards interference with the course of the investigation.

[45] In S v Tshabalala 1998 (2) SACR 259 (C) at 269d it was stated that the court must assess the appellant’s future conduct in the light of existing or historical facts and circumstances.

[46] His past conduct clearly indicates that it would not be in the interests of justice to admit him the bail and further he has not shown exceptional circumstances justifying that he be released on bail.   The magistrate correctly refused to grant him bail.

[47] The appellant mentioned during bail proceedings that he has children and during his incarceration he has not provided any support for them. The fact that he was responsible for maintaining his children cannot be taken as an exceptional circumstance justifying him to be released on bail.

[48] The submission made by Mr Daubermann in his argument that the statement made by the deceased may not be admitted during trial. Its admission would depend on the submission as well as evidence led before the trial court in persuading it to admit it in terms of section 3(1)(c).  It is trite law that hearsay evidence not affirmed under oath may be admissible provided the interests of justice require that such evidence be admitted.

[49] In amplification of what I have mentioned above regarding the admission of statement in terms of section 3(1)(c), I think that it would be proper at this stage to refer to the whole section. Section 3 of Act 45 of 1988 provides:

“(1) Subject to the provisions of any other law, hearsay evidence shall not be admitted as evidence at criminal or civil proceedings, unless-

(a)each party against whom the evidence is to be adduced agrees to the admission thereof as evidence at such proceedings;

(b) the person upon whose credibility the probative value of such evidence depends, himself testifies at such proceedings; or

(c) the court, having regard to-

(i) the nature of the proceedings;

(ii) the nature of the evidence;

(iii) the purpose for which the evidence is tendered;

(iv) the probative value of the evidence;

(v) the reason why the evidence is not given by the person upon whose credibility the probative value of such evidence depends;

(vi) any prejudice to a party which the admission of such evidence might entail; and

(vii) any other factor which should in the opinion of the court be taken into account,is of the opinion that such evidence should be admitted in the interests of justice.

(2) The provisions of subsection (1) shall not render admissible any evidence which is inadmissible on any ground other than that such evidence is hearsay evidence.

(3) Hearsay evidence may be provisionally admitted in terms of subsection (1) (b) if the court is informed that the person upon whose credibility the probative value of such evidence depends, will himself testify in such proceedings: Provided that if such person does not later testify in such proceedings, the hearsay evidence shall be left out of account unless the hearsay evidence is admitted in terms of paragraph (a) of subsection (1) or is admitted by the court in terms of paragraph (c) of that subsection.

(4) For the purposes of this section-

'hearsay evidence' means evidence, whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence;

'party' means the accused or party against whom hearsay evidence is to be adduced, including the prosecution.”

The fact that the statement may not be admitted as well cannot be taken as an exceptional circumstance in the circumstances prevailing in this case.

[50] The lower court exercises discretionary power in determining whether or not the accused in that court has discharged the onus/burden placed upon him by section 60(11)(a).  Therefore the appeal court does not have a free hand or reign to do whatever it wishes to do and this court will not easily interfere with the discretion of the court of first instance unless this court is clearly convinced that the lower court was wrong in the exercise of its discretion. I may digress and state that the powers of this court are similar to those of an appeal court when dealing with the exercise of discretion by a lower court. (S v Porthem & Others 2004 (2) SACR 242 (C).)  In fact in addition to what I have stated above the legislature saw it fit to expressly mention that fact in enacting section 65(4) which reads:

“(4) 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.”

[51] Section 65(4) clearly states or provides that the court of appeal may not set aside the decision of the lower court unless it is satisfied that it was wrong.  This is so because courts of appeal are endowed with a duty to see to it that miscarriages of justice, if any, which occurred in the lower courts are set right.  If there is no misdirection in the lower court the court of appeal does not interfere with the exercise of discretion in the lower court. This is normally the case even if the court has doubt it would not interfere.

R v Dlumayo 1948 (2) SA 677 (A)

R v Barber 1979 (4) SA 218 (D)

S v De Abreu 1980 (4) SA 94 (W)

[52] To this I may add, would remain the position even if the court of appeal differs from the trial court on the prospect of success.

S v De Villiers en ‘n Ander 1999 (1) SACR 297 (O)

S v Ndlovu & Another 1999 (2) SACR 645 (W)

[53] Mr Thysse argued that the powers of the court hearing the appeal in terms of section 65 are similar to those of the appeal court in matters involving conviction and sentence.  This point was well conceded by Mr Daubermann when he first addressed court.  He, Mr Thysse, referred to the case of S v Barber 1979 (4) SA 218 D at 220E-F, where Hefer J remarked as follows:

“It is well known that the powers of this Court are largely limited where the matter comes before it on appeal and not as a substantive application for bail. This Court has to be persuaded that the magistrate exercised the discretion which he has wrongly. Accordingly, although this Court may have a different view, it should not substitute its own view for that of the magistrate because that would be an unfair interference with the magistrate's exercise of his discretion. I think it should be stressed that, no matter what this Court's own views are, the real question is whether it can be said that the magistrate who had the discretion to grant bail exercised that discretion wrongly.”

[54] It is common cause that the complainant, now deceased, made two statements on 30 October 2014 and on 10 November 2014. The appellant was arrested on 2 November 2014.  According to Detective Warrant Officer Lourens the second statement deals with the recovery of the vehicle and telephone calls from 1 November 2014 that were received.  The telephone calls deal with who called who, and the location of the person who called him. The first call was from Ntetho who stated that his cousin, the appellant, wanted to rectify the situation as he is not the one that hijacked him.  Another call from Ntetho received on 5 November 2014 stated that the motor vehicle was standing at Westville and that is where the vehicle was recovered.  The motor vehicle was indeed recovered on 5 November 2014 and fingerprints were lifted from the motor vehicle.  Detective Warrant Officer Lourens testified during bail proceedings in the lower court that they were still awaiting the results of the fingerprints uplifted from the motor vehicle and the delay was due to the backlog in the section dealing with identification of fingerprints.

[55] It is trite law that although hearsay evidence is prejudicial, its probative value must be weighed against the reliability of such evidence.  Its probative value will be weighed against the prejudicial nature, if the interests of justice require its admission.  When one considers the statements of the deceased together with independent factors which the police have in their possession i.e. cellphone records and the recovery of the motor vehicle – it is very likely that the deceased’s statement could be admitted in evidence because the independent factors mentioned point to the truthfulness of the statements in that they provide independent corroborative evidence which proves the truthfulness of the statements made by the deceased during his lifetime.

[56] Those statements have a high degree of probative value and it would be in the interests of justice to admit them because the fact that there were cellphone calls made were mentioned in the statements and on further enquiry the police having embarked on an investigation after having made a section 205 application established that indeed the cellphone calls were made and further there is a possibility that the vehicle could not have been recovered but as a result of the telephone conversation mentioned in the statement it was recovered and prints were lifted.   The question that remains to be established pertains to the prints that were uplifted from the vehicle whether there is any connection between the appellant or his alleged cronies, namely Ntetho or any other person.

[57] Not to admit such statement would be to defy common sense which ought to prevail when the court exercises its discretion whether to admit hearsay evidence or not despite its prejudicial value.  I see no reason why such a statement cannot be admitted to prove the matters asserted in it.  But as I have already alluded to earlier on this court is not concerned about establishing the guilt or not of the appellant. Nor at this stage should it concern itself, with the admission of the statement in terms of section 3(1)(c), but there is a strong likelihood that such statement will be admitted. However, that will be the duty of the trial court to weigh the evidence tendered before it. 

[58] What this court is concerned about is whether the discretion that the lower court is endowed with in cases of this nature was properly exercised, and will interfere only if it is convinced that the lower court has materially misdirected itself in weighing the evidence and is satisfied that in reaching its decision that court was clearly wrong, which is apparently not the position from reading the record. 

[59] Although Mr Daubermann has argued that the case against the appellant hinges against identification and that the alleged robbery happened during the night.  The circumstances of this case are different in that the appellant was a person well known to the deceased, and was positively identified by him and mentioned in his statement by his name.  These facts coupled with the cellphone records and the recovery of the motor vehicle and other evidence the State might have in its possession it cannot be argued that the State’s case is so weak so as to demand that the appellant be released on bail.

[60] It is further still early stages for Mr Daubermann to argue that the fingerprint results could have been obtained by now.  The delay has been explained by Detective Warrant Officer Lourens as mentioned earlier in these reasons.

[61] Even if the identification of the appellant can be criticised as Mr Daubermann submitted, the other factors mentioned by Mr Thysse weigh heavily against the granting of bail.  The circumstantial evidence that is in possession of the police weigh heavily against the granting of bail.  There is a strong connection between the cellphone records and the incidents that followed thereafter that one cannot simply ignore same.

[62] Although Mr Daubermann has argued that the cellphone records mean nothing, which I doubt very much.  The connection between the robbery, the cellphone records, the recovery of the vehicle, the threats and the subsequent murder of the deceased (though it had not been proved that it is linked to the appellant) are so intertwined that it leaves no room but to conclude that it would not be in the interests of justice to admit the appellant to bail.

[63] Best, on Evidence 10^th Edition at page 261 made the following observations:

“A number of circumstances, each individually very slight, may so tally with and confirm each other as to leave no room for doubt of the fact which they tend to establish … Not to speak of greater numbers, even two articles of circumstantial evidence, though each taken by itself weigh but as a feather, join them together you will find them pressing on a delinquent with the weight of a mill-stone…”

[64] The circumstantial evidence alone is so strong that it cannot be said that the State’s evidence against the appellant is of such a poor quality that it can be said that the accused has discharged the burden placed upon him of proving exceptional circumstances.   The death of a victim in the circumstances prevailing in this case does not in any way constitute a new fact which could have persuaded the lower court in granting the application for bail.

[65] In Mcdonald's Corporation v Joburgers Drive-Inn Restaurant (Pty) Ltd And Another; Mcdonald's Corporation v Dax Prop CC and Another;
Mcdonald's Corporation v Joburgers Drive-Inn Restaurant (Pty) Ltd and Dax Prop CC 1997 (1) SA 1 (A) where Grosskopf JA sitting with Corbett CJ, Nestadt JA, Schutz JA, Plewman AJA concurred – stated at page 27:

“… a decision on the admissibility of evidence is, in general, one of law not discretion, …”

The judge went on to say that:

“There is nothing in section 3 of the Act which changes this situation.”

[66] There is nothing wrong with the court in bail proceedings in taking into account the cumulative effect of all the facts which point to the guilt of the accused in arriving at a decision that the State has made a prima facie case against the appellant and that the State case was not so weak so as to entitle the accused to claim that there are exceptional circumstances which justify him to be admitted to bail.  Because the case of the State, as Mr Thysse has argued is not only based on the statement of the deceased in identifying the appellant but all the cumulative facts as they unfolded after the identification by the deceased of the appellant as one of his assailants that led one to the recovery of the motor vehicle and the cellphone records pertaining to cellphone calls made between the appellant and Ntetho his agent and the cleaner from the court and the upliftment of fingerprints that were found in the recovered motor vehicle though the results thereof have not been positively identified as belonging to any of the assailants who could have committed the robbery. The police were able to link the cellphone records from the appellant’s cellphone to that of the deceased after the alleged robbery. 

[67] As I have already stated the question of the admissibility of the statement and the valuation of the evidence is a matter that will be assessed by the trial court.

[68] At this point the phone calls point to the fact that the appellant has not been true to his undertaking that he will not interfere with State witnesses or with the course of the case.  It also appears on the record that Ntetho said that he must go and say that he made a wrong identification. 

[69] In that case of McDonald’s Corp supra the court dealt with the effect to be given to circumstantial evidence. In criticising the court a quo in its approach of evidence was that its approach was wrong in that it was not supposed to analyse each item of evidence and show that, by itself, it has little or no probative value. (See page 27F). The court went out to refer to the well-known case of R v De Villiers 1944 AD 493 where Davis AJA, in dealing with a similar argument in a criminal case stated the following (508e-g):

“The court must not take each circumstance separately and give the accused the benefit any reasonable doubt as to the inference to be drawn from each one so taken.  It must carefully weigh the cumulative effect of all of them together, and it is only after it has done so that the accused is entitled to the benefit of any reasonable doubt which it may have as to whether the inference of guilt is the only inference which can reasonably be drawn.  To put the matter in another way the crown must satisfy the court, not that each separate fact is inconsistent with the innocence of the accused, but that the evidence as a whole is beyond reasonable doubt inconsistent with such innocence.”

[70] From the reading of the record and his judgment it would appear that the magistrate did consider all the above, because it constitutes what was placed before it by the State and by the accused and arrived at the decision in which he did.

[71] In determining what constitutes exceptional circumstances in any given case the court has to consider all the relevant factors and determine whether taken individually or cumulatively they warrant that the circumstances advanced by the accused are exceptional in nature to justify his release.  One must bear in mind that what is “exceptional” cannot be defined in isolation from the relevant facts, and those circumstances must be weighed against the backdrop, that the legislature intended to put stringent conditions for an accused person who is charged with a schedule 6 offence to be released on bail.

[72] Once exceptional circumstances as envisage in section 60(11)(a) have been established the burden then shifts to the second leg of the enquiry, namely that the appellant is to prove whether it would be in the interest of justice, as set out in sections 60(4) to 60(8A) of the Act on the one hand, and the appellant’s interests to his freedom as set out in sub-section 60(9) of the Act that has to be considered.  (See Vanqa 2000 (2) SACR 371 (Tk) at 377j.)

[73] It is fruitless or pointless to proceed to the second leg of the enquiry unless the first leg has yielded positive results – see Vanqa supra page 5 paragraph 14.

[74] In this matter having read the record and listened to argument the appellant has failed to prove that there are exceptional circumstances as envisaged in section 60(11)(a) that he be released on bail.  Besides having failed dismally during that first leg of the enquiry to satisfy the court that he has exceptional circumstances, he has failed in respect of the second leg of the enquiry to satisfy the court a quo that it would be in the interests of justice to admit him to bail.

[75] It is for the reasons set out above that I concluded that the magistrate was not wrong in denying bail and I therefore refused the bail appeal.

_________________________

M. KAHLA

JUDGE OF THE HIGH COURT (ACTING)

Appearances

For appellant: Mr P Daubermann

For respondent: Mr J Thysse

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