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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

CASE NO: A405/18

 

In the matter between:

 

PRINCELO SIZO KHANYILE                                                                              APPELLANT

 

And

 

THE STATE                                                                                                            RESPONDENT

JUDGMENT

MOSOPA AJ:

[1]        This is an appeal against refusal of bail by the Regional Magistrate Court, Benoni Mr Cox on the 12 April 2018 and bail on new facts on the 8 August 2018.

[2]        The appellant was initially charged with then. of a motor vehicle in the Palm Ridge Magistrates Court and was released on bail. The appellant was then arrested again for the theft of the same vehicle. from the police pound. on the Benoni case docket. The two counts had since been consolidated by the state and the appellant is currently starting trial in the Benoni Magistrate's Court on the two counts of theft.

[3]        The parties agreed that the offence that the appellant is facing resorts under Schedule 5 of the Criminal Procedure Act No 51 of 1977 (the “Act"). Section 60 (11)(b) or the Act provides as follows;

“60 (11) Notwithstanding any provision of this Act, where an accused is charged with an offence referred to:-

(b)       in Schedule 5, but not in schedule 6, the court shall order that the accused he detained in custody until he or she is dealt with in accordance with the law. unless the accused. having. having been given a reasonable opportunity to do so, adduces evidence which satisfies the court that the interest of justice permit his or her release".

 

[4]       Section 60(11) (b) basically places an onus on the appellant to prove that the interest of justice pe m1its his release on bail. In deciding what the interest of justice pertains it has been decided by our courts that the strength or weakness of the state's case plays a role. (S v Kock[1] S v Viljoen[2]; S v Botha en in ander[3].

[5]         For the appellant to be permitted to bail that the jurisdictional facts as laid down in sect ion 60 (4) (a)- (c) of the Act does not exists. As a consequences section 60(4) (a) - (e) deserves mention and provides as follows:

'"60(4) The interests of justice do not permit the release from detention of an accused where one or more of the following grounds arc established.

(a)          Where there is the Iikelihood that the accused, if he or she were released on bail, will endanger or the safety of the public or any particular person or will commit a schedule 1 offence, or

(b)          Where there is a likelihood that the accused if he or she were released on bail. will attempt to evade his or her trial. or

(c)          Where there is likelihood that the accused, if he or she were released on bail, will attempted to influence or intimidated witness or to conceal or destroy evidence:

(d)          Where there is a likelihood that the accused if he or she were released on hail will undermine or jeopardise the objectives or the proper functioning of the criminal justice system, including the bail system:

(e)          Where in exceptional circumstances there is the likelihood that the release or the accused will disturb the public order or undermine the public peace or security.

 

[6]        The appellant was arrested. for a theft or a motor vehicle which was allegedly robbed a firearm being used. to commit such an offence. When the vehicle was recovered by the police it was found in the appellants' yard. The appellant was then arraigned in the Palm Ridge Magistrates Court on a charge of a charge of a motor vehicle and subsequently released on bail. The motor vehicle was serviced by the police and stored at the police pound in Benoni. The appellant's used a falsified permit exit to go and collect the impounded vehicle at the police pound. Al the time of the arrest of the appellant he had brought a break- down for the purpose of carrying the vehicle as the vehicle did not at that stage had the keys. The appellant in his testimony alleged that he was phoned b) the ·”police” to come and collect his vehicle from the police pound.

[7]        The Magistrate when denying the appellant bail, noted the fact that the appellant has at the time of his two arrest gave the police officers two different addresses. the first address being in Eden Park and the next address in Thokoza. The Magistrate further and the next state’s case strong against the appellant as he was found in possession of the robbed vehicle. After the vehicle was impounded the appellant and his colleague went further to steal the vehicle from the police. Further finding that the investigating officer leading to the appellant applying for bail received telephone calls from unknown people pressurising him to release the appellant on bail and it appears that the appellant is well connected. Finally that the appellant failed to discharge the onus placed on him to be permitted to bail.

[8]        Section 65 (1) (a) and (4) of the Act grants the person aggrieved by the decision of the lower count to deny him/ her hail reprieve and appeal such refusal of bail to the High Court with the necessary jurisdiction. Section 65 (1) (a) and (4) of the Act deserves mention and provides as follows:

“65 (1) (a) - An accused who considers himself aggrieved by the refusal by a lower court to admit him to bail or b) the imposition by such court or a condition of bail. including a condition relating to the amount of bail money and including an amendment or supplementation of a condition of bail, may appeal against such refusal or the imposition of such condition to the superior court having jurisdiction or to any of that court if the court is not then sitting.

(4) The cou1t judge hearing the appeal shall not set aside the decision against which the appeal is brought. unless such judge is satisfied that the decision was wrong. In which event the court or judge shall give the decision which in its or his opinio n the lower court should have given··.

 

[9]        The approach on appeal in terms of section 65 (4) of the Act was summarised as follows by the court in S v Barber where Heher J[4] remarked as follows: ·· It is well known that the powers of this court arc largely limited where the matter comes before it on appeal and not as a substantive application. The court has to be persuaded that the Magistrate exercised the discretion which he has wrongly. According, although this court may have a different view. it should not substitute its on view for that of the Magistrate because that would be on unfair interference with the Magistrate exercise of his discretion.

(See also S v Green and Another[5])

[10]     The appellant is staying at two different address and it is not clear on record whether the two address have been confirmed by the Investigating Officers as correct. What concern most is that the space between the two arrest is not a major one, and one is left with unanswered questions as to how the appellant manage to change the address within such a short space of Lime. It also appears from the record that the appellant is not the owner or the two properties. Serious risk exists that if the appellant is released on bail and default on his bail conditions the police will have a great deal of difficult} in tracing him. There is further element that can be inferred that the appellant failed to inform the investigating officer in the first vehicle theft case when he changed his residential address. The magistrate was right when he remarked that he is ··confused·· as to where the appellant is staying. In my opinion it will be travesty of justice if the appellant can be admitted to bail when there is controversy surrounding his place of residence.

[11]     The appellant was arrested for the theft of the same motor vehicle on two separate occasions. On the second arrest the appellant was out on bail. In committing the second offence the appellant. in my considered view. undermined the proper administration criminal justice system, and more in particulars bail system. The appellant was well aware that the vehicle he was found in possession of was a robbed vehicle which was a subject of a criminal investigation. The appellant knew it any well that when the vehicle was stored at the pol ice pound it was going to be used as an exhibit and criminal trial the appellant was standing. By committing the second theft. the appellant was attempting to destroy evidence as he was successful in obtaining a fraudulent exit permit. The appellant was very aware that the motor vehicle does not belong to him, but has its rightful owner. as such the contention by the appellant that he was phoned by the “police” to come and fetch his motor vehicle from the police pound is with no merit. The question which begs answers which unfortunately was not dealt with adequately at the bail hearing is where did he obtained this falsified exit permit.

[12]     The States· case against the appellant is strong. The appellant testified in support of his bail application and submitted an affidavit in his application for bail on new facts. The new fact relied by the appellant that the police investigating are finalised and that he cannot tamper with such investigating are completed does not take the matter any further. The appellant failed to discharge the onus placed on him to prove that jurisdiction facts provided in section 60 (4) (a) - € of the Act does not exist. It is however not going to be in the interest of justice lo admit the appellant lo bail.

 

ORDER

[13]     I therefore make the following order

(1)      The appeal against the refusal of bail of appellant is dismissed.

 

 

M J MOSOPA

ACTING JUDGE OF THE HIGH COURT, PRETORIA

 

 

 

Appearances

For the Appellant                 : Adv A. Khoza

Instructed by                       : Mathevula Inc.

For Respondent                   : Adv Wilsenach

Instructed by                       : Director or Public Prosecutions

Dale of hearing:                  30 November 2018

Date of Judgment                : 14 December 2018

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