---

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

 

CASE NUMBER: A32/2023

DATE OF HEARING: 21/04/2023

DATE DELIVERED: 28/04/2023

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED

 

In the matter between:

 

ZULU, MANQOBA	1ST APPELLANT
HLATSWAYO, SIPHESIHLE	2ND APPELLANT
and
THE STATE	RESPONDENT

 

Neutral Citation: Zulu, Manqoba and Another v the State (Case No: A32/2023) [2023] ZAGPJHC 447 (28 April 2023)

 

    JUDGMENT

 

KARAM AJ:

 

The appeal in this matter was argued on 21 April 2023. Mr Schorn appeared for the appellants and Ms Morule represented the State.

The appellants, accused 2 and 3 in the charge sheet, applied for bail which was opposed by the State and refused on 9 November 2022. This is an appeal against such refusal of bail.

An appeal against the refusal of bail is governed by section 65(4) of the Criminal Procedure Act 51 of 1977, which provides and I quote:

"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 shall have given.”

 

The wording of Section 65(4) is couched in peremptory terms and the intention of the Legislature expressed in such section is clear. See also in this regard what is expressed in S v Barber 1979 (4) SA 218 (D) at page 220 E - H where it was stated and I quote:

 

"It is well known that the powers of this Court are widely 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 it 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…”

 

In State vs Porthen and Others 2004(2) SACR 242(C), in regard to the appeal Court’s right to interfere with the discretion of the Court a quo in refusing bail, it was stated and I quote:

"When a discretion... is exercised by the Court a quo, an appellate Court will give due deference and appropriate weight to the fact that the court or tribunal of first instance is vested with a discretion and will eschew any inclination to substitute its own decision, unless it is persuaded that the determination of the court or tribunal of first instance was wrong”.

 

No oral evidence was led in the application and the evidence was presented by means of affidavit.

The notice of appeal and heads of argument outline the submissions of the appellants and the Court is not going to unduly burden this judgment by reiterating same.

The appellants are charged with robbery with aggravating circumstances.

It is clear that the bail proceeding in the Court a quo proceeded on the basis that this was a Schedule 6 offence and that, accordingly, and in terms of Section 60(11) (a), the appellants were required to adduce evidence which satisfied the Court that exceptional circumstances exist which, in the interests of justice, permit their release.

This Court has perused the subsequent reasons of the Magistrate in refusing bail and specifically his reasons for determining same in terms of Section 60(11) (a).

This Court is not in agreement with such reasoning, for the following reasons:

- At the very outset of the bail proceedings and as a direct result of the learned Magistrate’s questioning, the Court a quo was made aware that the firearm used in the commission of this offence was a toy gun.

See page 7 of the paginated bundle lines 10- 16.

- It was confirmed in the evidence by the investigating officer that the firearm and magazine found in the possession of the first appellant, was a toy gun. The second appellant was found in possession of a butcher knife. No other firearm was found in possession of any of the suspects or in the motor vehicle in which they were travelling.

See page 16 line 3 – page 17 line 2.

Accordingly, it was abundantly clear that the only firearm found was the toy gun and the fact that the suspects were arrested shortly after having committed the offence, leads to the irresistible conclusion that this was the instrument or weapon used to commit the offence.

Having been made aware of same and notwithstanding what the appellants had been charged with by the State, the Court a quo ought not to have proceeded with the application in terms of Section 60(11) (a) as a Schedule 6 matter. 

The latter action contemplates robbery involving the use of a firearm.

The Firearms Control Act 60 of 2000 defines a firearm and a toy gun does not meet the definitional requirements thereof.

Accordingly, the matter ought to have proceeded as a Schedule 1 matter and in terms of Section 60(1)(a) wherein the appellants are entitled to be released on bail if the Court is satisfied that the interests of justice so permit.

However, and notwithstanding this Court’s finding of the incorrect schedule having been applied in the bail hearing, this Court is of the view that the ultimate finding of the learned Magistrate to refuse bail is correct.

This Court is aware that there is no onus on a bail applicant to disclose his defence or to prove his innocence. Further, that the Court hearing the application or this Court of appeal is not required to determine in such application or appeal, the guilt or innocence of the applicant- that is the task of the trial Court.

However, one of the factors to be considered is the strength of the State’s case.

It is apparent to this Court that the State, indeed has a strong if not overwhelming case against the appellants.

Within a very short period subsequent to the robbery, the appellants were apprehended and the complainant’s belongings were found in the motor vehicle in which she had seen them enter and speed off in, immediately after having committed the offence.

Furthermore, and significantly, subsequent to the determination of the bail hearing, the second appellant addressed the learned Magistrate stating and I quote from line 24 on page 22 of the paginated bundle to line 1 on page 23:

‘’So it comes with difficulty right now whereby we’re hoping if we get a second chance to correct our mistakes, because it’s the first time committing crime and we’ve learnt from our mistakes so far since we’ve been inside the prison...’’

In this Court’s view, this amounts to an unequivocal admission that the appellants in fact committed the offence. When this Court invited Counsel for the appellants to address the Court on same, his submission was that this relates to the dissatisfaction with their legal representative. This is without substance as what is stated is clear and no reference whatsoever is made relating to their legal representative.

The second appellant’s further reference in addressing the learned Magistrate, to the hardships encountered in custody, is also an indication that he may not stand his trial.

The appellants are facing a minimum sentence of 15 years imprisonment, should they be convicted.

The fact that the investigating officer did not appear to oppose bail is not a material factor as he is just that, the investigating officer and not the prosecutor, who indeed opposed the granting of bail.

Further, there is no merit in the submission that the minor children of the appellants will be prejudiced, regard being had to the fact that they are both unemployed.

Given their unemployment and the fact that there is no evidence as to any prospective employment should they be released on bail, the distinct possibility arises that they may revert to crime in order to sustain themselves and their families.  

In light of all of the aforegoing, the fact that the prevalence of such offences have become an epidemic in our society; the fact that the appellants acted in a group; and that the crime is one of brazen gender based violence committed in daylight upon a defenceless woman, this Court is of the view that the interests of justice do not permit the release of the appellants on bail and that the Court a quo was justified and correct in refusing same.

In this result, the following order is made:

The appeal against the refusal of bail in respect of both appellants, is dismissed.

KARAM AJ

ACTING JUDGE OF THE HIGH COURT

 

DATE OF HEARING:  21 ARIL2023

DATE OF JUDGMENT: 28 APRIL 2023

COUNSEL FOR APPELLANT:	ADVOCATE SCHORN
INSTRUCTED BY	BR ZULU ATTORNEYS INC
COUNSEL FOR THE RESPONDENT:	ADVOCATE MORULE
INSTRUCTED BY	DPP GAUTENG LOCAL DIVISION

---