IN THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)
CASE NO: A577/08
BELA BELA : pro 5677/08
DATE: 14/08/2008
UNREPORTABLE

In the matter between:-

NKOSANA     ZULU                                                	  	      APPELLANT 

And
 
THE STATE                           				  RESPONDENT

JUDGMENT

MAVUNDLA, J,

[1] 	This is an appeal against the judgment of the magistrate Ms Matlape on 17 March 2008 refusing to admit the appellant to bail. 

[2]	 The record presented before me only shows that the appellant together with various other accussed are facing  a charge of robbery with aggravating circumstances as intended in section 1(1) (b) of Act 51 of 1977, read with the provisions of section 51 of the General Criminal Law Amendment Act 105 of 1997 in that on 23 July 2003 at or near Pienaarsrivier they unlawfully assaulted Elias Joel Mathiba/ Coin with firearms and with force took from his lawful possession an amount of R760 000, 00. De Meillon who represented the respondent has submitted that the appellant is facing almost 44 counts, ranging inter alia from armed robbery with aggravating circumstances, possession of firearms, arson and motor vehicles theft. Although these charges are not reflected in the charge sheet I have referred to, I have no reason to doubt what has been conveyed to me. In any event the evidence of Inspector Lombard the investigating officer in this matter does confirm that there are various charges to be preferred against the appellant and his co-accused.

[3]	The Appellant was duly represented by Advocate  Mamba.  The Appellant did not testify.  An affidavit duly signed by him was submitted in court.  According to his affidavit the Appellant resides at Stand 7851 Serela Street at Thokoza which address has been confirmed.  He is divorced and has three children whom he is maintaining and they live with their mother.  He is self-employed as a Taxi businessman and his income is ±R4200.00 per month.  He says he is currently suffering financial setback due to his incarceration.  He has one previous conviction of receiving stolen property in 2004.  He does not have pending cases, nor does he have outstanding warrants.  He says he does not know the State witnesses and he will not evade trial and he will not interfere with witnesses.  He further  states that the  State’s case is weak since he was not found in possession of the money that has allegedly been robbed or any of the firearms and he has not yet been linked through DNA or fingerprints.  He further said that he has been advised that he was arrested about 8 km from the scene of the crime.

 [4]	Inspector Lombard testified on behalf of the state. I do not intend to chronicle his entire evidence, it suffices to refer to his evidence in the context where it refers to the appellant. Inspector Lombard  was asked to confirm the evidence he had given during the previous bail application in respect of the accused in this case,  including the appellant in casu.  He testified that the  Security BK of  Coin was collecting money at Carousel outside Pretoria. After finishing their pickups they were on their way to the N1 using the Maveni off-ramp. They were traveling along the Pienaarsrivier road. When they reached the turnoff they turned right. A white Camry drove past them and then turned around and approached them from front. This motor vehicle then collided into their motor vehicle from front thus bring the Coin security motor vehicle to a stand still. The front window was smashed and the security guards were told to get out of their motor vehicle. Their motor vehicle was then opened and money was taken from it, where after their motor vehicle was set alight. The suspects then speed away in other motor vehicles . The task force followed these getaway motor vehicles into CAROUSEL View informal settlement area. The suspects abandoned their vehicles and run into different directions into the informal settlement. The members of the task force and members of the community gave chase,  passed them and turned around to the appellant. 

[15] 	It brooks no argument that the appellant is facing serious charges which, inter alia,  fall under schedule 6 of the Criminal Procedure Act and as the result section 60(11) (a) of the Criminal Procedure Act, No 51 of 1977 applies in casu..  In the matter of Mabena and another [2007] 2 ALL SA 137 (SCA) at 139 Nugent  JA cited with approval the matter of S v Dlamini;  S v Dladla; S v Joubert, S v Schietekat at paragraph 12 where it was said:
	“[Section] 60 (11) (a) does more than restate the ordinary principles of bail. It states that where an accused is charged with a Schedule 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 sections 60(4)-(9)   (and required by section 35(1) (f)  [of the Constitution]) in which the interest of the accused in liberty are weighed against the factors that would suggest that bail be refused in the interest of society. Section 60 (11) (a) contemplates an exercise in which the balance between the liberty interests of the accused and the interest of society in denying the accuse 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 standards set by section 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”.

[6]	In  a bail application, the  onus rest on an accused person to prove the existence of such  “exceptional circumstances”. Such onus has to be proven on a balance of probabilities. This must be so because the relevant section mentioned herein above  is an inroad to the rights of the appellants to liberty as entrenched in sections 12(1)(a), 35 (1)(f) of the Constitution of the Republic of South Africa, Act 108 of 1996.  An onerous burden than the one mentioned herein above would have been against the grain and the spirit of  the right to a fair trial as enshrined in the Bill of Rights in the Constitution.

[7]	 In the  matter of S v Botha and (supra) the Supreme  Court of Appeal said that:
  “[20}  In terms of both s 60 (11) (a) and (b) there is a formal onus on the accused who brings bail application , to adduce evidence that convince the court’. The difference in the two sub-paragraphs lies in the requirements that a Schedule 6 accused must adduce evidence which convinces the court that “exceptional circumstances “ exists which permit his or her release, while a schedule 5 accused must only adduce evidence which convince the court that the interest of justice permits his or her release.  Section 60 (11) (a) contains two separate requirements of which the accused must convince the court on a balance of preponderance of probability, that there exists  exceptional circumstances which permit his or her release, and secondly, that such exceptional circumstances the release in the interest of justice permit.. . such requirements need not be considered in a particular order.”
 
[8]	Where bail has been refused by a lower court, the High Court on appeal will not lightly interfere with the decision of the lower court refusing bail, unless the appeal court thinks that the magistrate has misused his discretion; vide S v Baker 

[9]	The phrase “Exceptional circumstances” is the cousin of “substantial and compelling circumstances” referred to in section 51(3)(a) of the Criminal Amendment Act 105 of 1977, which both  phrases are not defined, thus making them a complex and difficult species.  In S v  Jonas the court said:
    “The term “exceptional circumstances” is not defined. There can be as many circumstances which are exceptional as the term in essence implies.” 

[10]	In the matter of S v Bruintjies the honourable Shongwe AJA, as he then was, said:
            	“What is exceptional cannot be defined in isolation from the relevant 	facts, save to say that the Legislature clearly had in mind circumstances which remove the applicant from the ordinary run and which serve at least to mitigate the serious limitation of freedom which the Legislature has attached to the commission of a Schedule 6 offence.”

[11]	In refusing the appellant bail, the Magistrate considered that it is alleged that the appellant has three addresses.  She further stated that however these addresses have been confirmed.  She further stated that in her opinion one’s address is where he and his family resides in that at the end of the day one’s address is where one says “I’m going home” and he goes to that address.  “The other one may refer to such addresses as ‘my parents’ address or my brother’s address. The fact that one changes his addresses frequently is also indicative of the fact that one is also a flight risk that one does not have emotional ties to where he lives. The magistrate further proceeded to state that reminded itself that it has a duty to weigh the interest of justice against the right of the accused, his personal freedom.”  The Magistrate further stated that “the court has a duty to weigh the interest of justice against the right of the accused to his personal freedom by considering the following factors, the length of incarceration since his arrest and the financial loss resultant by the incarceration. The magistrate further also considered the health of the appellant. The magistrate weighed the individual factors of the appellant, the duty resting upon him to adduce evidence of exceptional circumstances and weighed all these against the interest of justice. The magistrate concluded by holding that the state’s case is strong against the appellant and that the appellant has not discharged the onus placed on him of leading evidence of exceptional circumstances. 

[12]	In the matter of S v Kock 2003 (2) SACR 5 (SCA) at 11 Heher JA said that:
        	 “[15] In the context of s 60(11) (a) of the Act the strength of the State case has been held to be relevant to the existence   of ‘exceptional circumstances’: S v Botha en Ander 2002 (1) SACR 222 (SCA) at para [21], S v Viljoen 2002 (2) SACR 550 (SCA)  at para [11]. There is no doubt that the strength (or weakness) must be given similar consideration in determining where the interest of justice lie for the purpose of s 60 (11) (b). When the State has either failed to make a case or has relied on one which is so lacking in detail or persuasion that a court hearing a bail application cannot express even a prima facie view as to its strength or weakness the accused must receive the benefit of doubt.”

[13] 	The fact that the appellant was arrested, not at the scene of the crime but about 8 km, in the absence of any other evidence linking the appellant to the scene of the crime, is in it’s a factor that undermines the strength of the state’s case. This factor cannot be considered in isolation. The fact that the state has not as at the time of this bail application produced any finger print of the accused lifted from the motor vehicles that are alleged to have been the getaway motor vehicles.  The state has not produced any evidence showing that the appellant was one of the people who was running from the police. The submission by Mr. Meillon that the appellant at the time of his arrest  tried to get into a house however the owner thereof chased the appellant bout of the house because the appellant was a stranger to him, is not persuasive because there was no such evidence placed before the magistrate who considered the bail application. I must therefore ignore this submission.

[14]	The evidence of the appellant that he is not linked to the alleged offence by either finger prints or a DNA has not been refuted. The absence of such evidence tends to hit against the strength of the state’s case in this regard. The cumulative effect thereof is in my view a exceptional circumstance. It must be appreciated that there is no particular definition of what are exceptional circumstances. Every case must be adjudged on the basis of its peculiar circumstances to determine the existence of such exceptional circumstances. In my view,  the magistrate has misdirected himself in finding that there are no exceptional circumstances and failing to accept the above facts as I have already indicated as such exceptional circumstances.

[15]	Having regard to the evidence of the appellant that his girl friend does not have a driver’s license and that as the result he is suffering financially, this is a factor that weighs in favour of the appellant in deciding whether it is in the interest of justice that the appellant be released on bail. This is one of the factors that ought to have been placed in the balancing scale, together with the other factors such as the existence of exceptional circumstances to decide whether the interest of justice permits that the appellant be released on bail. The magistrate in the exercise of his discretion has, in my view,  misdirect in this regard. 

[16]	I am of the view that in the light of what I have stated herein above, I must in the exercise of my discretion interfere with the decision of the magistrate and set aside his decision refusing to admit the appellant to bail. Having regard to the gravity of the offence, a high amount of bail in the case of the appellant should be fixed. I am of the view that an amount of R15, 000, 00 coupled with conditions of reporting to the police would be appropriate. 

[17] In the premises I make the following order:
	(1)    That the decision of the magistrate of 17 March 2008 	refusing to grant  the appellant bail is set aside and 	substituted with the  following order:
“(i)   That bail in respect of MANDLA ZULU is fixed in the 	            amount of R15, 000, 00 subject to the following conditions: 

(ii)	That he must report to the nearest police 
station at Thokoza in Katlehong every Friday    between 06h00 and 18h00. 

(iii)	That he must inform the investigating officer     in the event he is to move out of the Province of Gauteng.

(iv)	That he must attend the hearing of this case at court at all times until the finalization of the case.

(v)	That he must not apply for a traveling document or a passport without informing the investigating officer.”

        MAVUNDLA J.,

      JUDGE OF THE HIGH COURT 

HEARD ON THE          :    11 / 08/2008
DATE OF JUDGMENT :   14 /08/ 2008 
APPICANTS’ ATT        :   DU TOIT ATTORNEYS
APPLICANT`S ADV     :    MR. BOUWER 
RESPONDENT’S ATT :   OFFICE OF DPP  
RESPONDENT’S  ADV:   MR. DE MEILLON