---

IN THE HIGH COURT OF SOUTH AFRICA

(NORTHERN CAPE DIVISION, KIMBERLEY)

 

CASE NO:       CA & R 10/23

COURT A QUO CASE NO: SR 30/21

Reportable: YES/NO

Circulate to Judges: YES/NO

Circulate to Magistrates: YES/NO

Circulate to Regional Magistrates: YES/NO

 

In the matter between:

 

ZWAKALA, ZUBANZI DESMOND                                                            Appellant

 

and

 

THE STATE                                                                                               Respondent

 

Coram: Nxumalo, J

 

JUDGMENT

 

 

NXUMALO, J

 

INTRODUCTION:

 

1.               This is an appeal to this Court against the refusal by the Kimberley District Magistrates’ Court, per Mr Williams, to grant bail to the appellant pending his trial for murder, read with the provisions of sections 51(1) of the CRIMINAL LAW AMENDMENT ACT 105 of 1997.[1]  The impugned refusal is predicated against a judgment handed down on 02 November 2022.[2]  The appellant was legally represented during the bail application and before this Court.  At the time this appeal was heard, the trial had been postponed for a week. 

 

2.               This appeal is lodged within the purview of Section 65(4) of the CRIMINAL PROCEDURE ACT,[3] which expressly regulates appeals to superior courts with regard to bail.  The said Section unambiguously precludes an Appeal Court from setting aside the decision against which the appeal is brought, unless such Court is satisfied that the decision was wrong, in which event the Court or Judge shall give the decision which it is of the opinion the lower Court should have given.  Before this Court for consideration is the full record pertaining to the application, practice notes; heads of argument and the oral arguments presented for both parties.

 

3.               It is so that an appeal against a lower Court’s order upon a bail application is an appeal against such a Court’s exercise of its discretion or its interpretation of a legal provision.  Whilst it has been well said in S v Barber 1979 (4) SA 218 (D) that:

 

“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 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 question is whether it can be said that the magistrate who had the discretion to grant bail exercised that discretion wrongly….”[4]

 

Of course, this outline of the powers of this Court does not for a moment create a limitation greater than the one which already exists, in any criminal appeal.[5]

 

BRIEF STATEMENT OF BACKGROUND FACTS:

 

4.               It is so that the bail application was considered by the Court a quo within the purview that the offence allegedly committed by the appellant is an offence within the contemplation of schedule 6 of the Criminal Procedure Act 51 of 1977.[6]  It is alleged that the appellant murdered one Amogelang Assegai, a 19 year old male person on 23 October 2022, by shooting him with a firearm.  This unfortunate incident allegedly took place near Impala street, in Kimberley.

 

5.               The salient allegations against which the said charge is predicated are briefly as follows.  That the deceased and some friends attended a party at the house of the deceased on one Friday 01 October 2022, uninvited.  A brawl between the former and the son of the appellant and others thereat ensued.  In the process, the appellant’s son apparently lost his cell phone.  The said phone was later found by a neighbour, who gave it to one of the invitees. 

 

6.               Thereafter, on Sunday 03 October 2022, at about 15h00, the appellant, his son and his son’s friend; and two other persons, drove to the deceased’s to fetch the said cell phone, to no avail.  The appellant, there and then appearing agitated, threatened that he is well known in Kimberley; that Kimberley is a small town.  That he will look for and find the people that assaulted his son.  He undertook to revert. 

 

7.               On his return around 20h00, he called the deceased on his cell beckoning him outside.  The latter came out to hand over the recovered cell phone.  Whilst the deceased did so, a gunshot went off - hitting the deceased on his shoulder, after which he fell to the ground.  The appellant and others immediately boarded the vehicle in which they came and sped-off, without attempting to assist the deceased or call for help.  The apparently deceased died on the scene.    

 

8.               In light of the foregoing, it follows that Section 60(11)(a) of the CPA is implicated, such that the onus remained on the appellant to adduce evidence which would have satisfied the Court a quo that exceptional circumstances exist, which in the interests of justice, permitted his release.[7] This he sought to do by filing an affidavit-Exhibit A.[8]

 

9.               The following can be surmised from the said affidavit.  The appellant is one Zubanzi Desmond Zwakala, a 48 year old male, currently residing in Katlehong, Kimberley, where he has been resident for the past 23 years.  He is a trained soldier, currently employed as a Warrant Officer by the South African National Defence Force, since 1997.  His highest level of education is grade eleven.  The appellant is married and has five children; to wit: 23,22,17,13 and 12 years; respectively.  Three of the said children were attending high school and the other one was studying elsewhere, at the time of the application.

 

10.            The appellant at all material times hereto earned R14 000.00, per month and had assets with a value of about R500 000.00, which includes a house, furniture and a private vehicle.  The house is valued at approximately R440 000; the furniture and motor vehicle at approximately R30 000 and R25 000; respectively. 

 

11.            He does not have a passport nor does he have any business or family anywhere abroad.  His health status is good.  He confirmed that his legal representative advised him that he enjoys privilege against self-incrimination and that any evidence that he may proffer may be used against him at the pending trial. 

 

12.            He was also advised by his legal representative that he had a duty to disclose to the Court all his previous convictions and/or pending cases.  Furthermore, he was informed that if he wilfully refused to furnish the Court with his previous conviction and/or pending cases or furnish it with false information regarding his previous convictions and/or pending cases, he shall be guilty of an offence and be liable on conviction to a fine or to imprisonment for a period not exceeding 2 years.

 

13.            Even though at paragraph 19 of his affidavit, the appellant averred that he had no previous convictions and also no interdicts issued against him or warrants issued for his arrest, it subsequently became apparent that he has a criminal record.  In 2013 he was convicted of assault and fined by a military Court at a military base in Lohatla.  This previous conviction is a decade old and is not one of the factors that was weighed against the appellant when being refused bail. 

 

14.            According to the appellant, immediately after the incident, he went to report himself at some local police station, but was “requested” to go home because the case was not registered at that stage.  It is not clear which police station the appellant went to.  Nor are the reasons for the said failure to register the case apparent from the record.  Be that as it may, the appellant was nevertheless arrested, the following day on 24 October 2022.  He remains in custody, pending the finalisation of his trial.

 

15.            The appellant intends to plead not guilty and denied that any of the factors contemplated in Section 60(4) of the CPA, is likely to occur if he is released on bail.  The said Section expressly stipulates as follows:

 

“The interests of justice do not permit the release from detention of an accused, where one or more of the following grounds are established:

a.    Where there is the likelihood that the accused, if he or she were released on bail, will endanger the safety of the public, any person against whom the offence in question was allegedly committed or any other particular person or will commit a Schedule 1 offence;

 

b.    where there is the likelihood that the accused, if he or she is released on bail, will attempt to evade his or her trial; or

 

c.    where there is the likelihood that the accused, if he or she is released on bail, will attempt to influence or intimidate witnesses or to conceal or destroy evidence; or

 

d.    where there is the likelihood that the accused, if he or she is released on bail, will undermine or jeopardise the objectives or the proper functioning of the criminal justice system, including the bail system; or

 

e.    where in exceptional circumstances there is the likelihood that the release of the accused will disturb the public order or undermine the public peace or security.” 

 

16.            Regarding his relationship with the complainant or the state witnesses, he initially denied having any relationship with any of them.  It however became apparent that two of the potential witnesses was his son with whom he resides and the other, a friend to his son, who stayed a few houses away from his residence. 

 

17.            He maintained that the State has a weak case against him despite having had enough time to investigate the matter.  He also contended that he could not interfere with investigation and undertook to comply with any bail condition and is prepared to report to the police station, if so ordered, to wit at paragraphs 26-28 of the said affidavit:  

 

“If I am granted bail I will be able to afford a sum of R2 000, I will be able to report to the Galeshewe Police Station on the days as indicated by the Court, if it were to attach such conditions to my bail.  Regarding the provisions of Section 60(4), I put on record it is my submission that I will not endanger the safety of the public or any particular person, including my own safety.  I also submit that I will not commit any offence while I am out on bail.  I humbly submit that I will not attempt to evade my trial and I will come to Court on the dates directed by the honourable Court until my case is finalised.  I submit further that I will not interfere with the state witnesses or attempt to conceal or destroy any evidence.  The Court may set very strict bail conditions on any form of communication between myself and the state witnesses, should I interfere with the investigation of the case.  I strongly submit that my release on bail will not jeopardise the objectives or the proper functioning of the criminal justice system, including the bail system.  I therefore submit that my release on bail will not disturb the public order or undermine the public peace.  Exceptional circumstances exist and further it would be in the interest of justice that I be released on bail.”[9]

 

THE PARTIES’ SUBMISSIONS, IN SUM:

 

The Appellant

 

18.            According to the appellant, the Court a quo erred in sum as follows: (a) not taking into account and/or underemphasising the factors set out in Section 60(4) of the CPA, by not taking into account that the evidence before it did not show that any of the factors indicated in Section 60(4) of the CPA, are likely to occur, if the appellant is released on bail; (b) not weighing up the interests of justice against the right of the appellant to his personal freedom and in particular the prejudice the appellant is likely to suffer, if he were to be detained in custody, as required by Section 60(9) of the CPA; (c) overemphasising the seriousness of the offence and moving from the wrong premises that the appellant indeed committed the alleged offence; (d) finding that the appellant did not succeed in proving that exceptional circumstances exist, which in the interests of justice, permits his release on bail; (e) not finding that the factors that were put before the Court a quo cumulatively, are exceptional which in the interests of justice permits his release on bail; and (f) not granting bail to the appellant, pending finalisation of his trial. 

 

19.            The following was submitted, in sum for the appellant.  That the Court a quo materially and variously misdirected itself, as a result of which it came to the wrong conclusion and ruling of refusing the appellant bail.  The Court a quo did not weigh the interest of justice against the right of the accused to personal freedom and in particular the prejudice he is likely to suffer if he is detained in custody as is required by Section 60(9) of the Act.  That the ruling of the Court a quo to refuse to grant bail to the appellant, pending his trial is clearly wrong because, on the facts before the Court, it was clearly shown that exceptional circumstances do exist such that bail must be granted in the interest of justice. 

 

20.            That the prejudice the appellant and his family are likely to suffer, if he is detained in custody far outweighs the interest of justice in the current circumstances.  That in the premise, this Court was obliged to set aside the impugned refusal to grant bail to the appellant in a reasonable amount and subject to suitable conditions, pending his trial.

 

The Respondent

 

21.            The respondent, for its own part, delineated the following as issues in dispute: (a) whether the Court a quo, misdirected itself by refusing bail; (b) whether the Court a quo exercised its discretion wrongly; and (c) whether the appellant was able to show exceptional circumstances, which in the interests of justice, permit his release on bail.            

 

22.            The following was then submitted in sum for the respondent.  That the appellant bore the onus to show exceptional circumstances permitting his release on bail.  That his personal circumstances are not exceptional in the context of Section 60(11)(a) of the CPA.  There is strong evidence linking the appellant to the commission of the offence.  In light of the totality of the relevant facts, it cannot be said that the Court a quo exercised its discretion wrongly.  After all, a Court hearing the appeal is required to approach the appeal on the basis of the assumption that the decision of the Court below was correct and not to interfere with the decision, unless satisfied that it was wrong-  see S v Mbele and Another 1996 (1) SACR 212 (W)[10].  That in the premise, the appeal falls to be dismissed. 

 

THE GROUNDS OF APPEAL:

 

23.            The impugned judgment resides at pages 58-76 of the record, the facts against which the Court a quo predicated its refusal of bail can be gleaned therefrom. 

 

This Court turns to consider some of the appellant’s grounds of appeal through the prism of the Bill of Rights, as enjoined by the Constitution, albeit out of turn.  This Court does so fully alive to the fact that the Constitution is the supreme law of the Republic and that law or conduct inconsistent with it is invalid and the obligations imposed by it must be fulfilled.[11] 

 

Whether the Court a quo’s starting point was that the appellant committed the offence

 

24.            The impugned finding of the Court a quo is as follows:[12]

 

“Now the evidence is that the deceased was shot once in the left shoulder.  Now for the deceased to have been shot in the shoulder, all the parties were standing there, which means the applicant had to raise the firearm in order to discharge and shoot the deceased in the shoulder….[13]

 

Now it is quite clear it is a very serious offence that the applicant is facing.  The Court has to determine whether it was premeditated or planned.  Now the attorney referred earlier to a Latin term (sic) res ipsa liquitur, which means the facts speaks (sic) for themselves.  Now the facts of this case are that the applicant went to the house of the deceased with his firearm.  There is no evidence that there was any attack on the applicant, there is no evidence that there was any argument.  So the only inference that the Court can draw is that once the cell phone was handed over that the applicant deliberately shot the deceased.“ [14]

 

25.            It is so that in a bail application the inquiry is not really concerned with the question of guilt which is only relevant to the extent to which it may bear on where the interests of justice lie in regard to bail.[15] It is also so that every accused person has a fundamental right to fair trial, which includes the right to, inter alia, be presumed innocent; to adduce evidence and challenge evidence.  These rights are also entrenched in Section 35(3)(h) and (i) of the Constitution.  A presumption of innocence in our law has always operated in favour of the appellant, even where it is said that there is a “strong prima facie case” against him - in favorem vitae libertatis et innocentiae omnia praesumuntur.[16]

 

26.            The foregoing notwithstanding, it can be deduced from the foregoing excerpt that the Court a quo, without the appellant having previously been proved guilty according to law, a judicial decision concerning him already reflects an opinion that he is guilty.  It has been well said that the presumption of innocence will be violated if, without the accused having previously been proved guilty according to the law, a judicial decision concerning him reflects an opinion that he is guilty.[17] 

 

27.            This foregoing pronouncement is not only partial and favourable to the State but jarringly prejudicial to the fundamental right of the appellant to be presumed innocent, entrenched in Section 35(3)(h) of the Constitution.  It is therefore inconsistent with Section 165(2) of the Constitution, which expressly enjoins our courts to be independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice. 

 

28.            It is indeed not only trial courts that are under a statutory and constitutional duty to ensure that fairness prevails in judicial proceedings.  The injunction that the presiding judicial officer should ensure that justice is done applies with equal force to bail hearings.[18] The Court a quo clearly flouted this injunction.  This was wrong.  In the premise, this Court finds that indeed the Court a quo manifestly started from the premise that the appellant committed the offence. 

 

Whether the Court a quo did not take into account and/or underemphasised the factors set out in Section 60(4)(a)-(e) of the Act

 

29.            Section 60(4)(a) of the Act expressly stipulates that, the interests of justice do not permit the release from detention of an accused, where there is the likelihood that the accused, if he or she were released on bail, will endanger the safety of the public, any person against whom the offence in question was allegedly committed, or any particular person or will commit a Schedule 1 offence. 

 

30.            Section 60(5), for its own part expressly stipulates that in considering whether the grounds in subsection (4)(a), have been established, the Court may, where applicable, take into account inter alia the following factors: the degree of violence towards others implicit in the charge against the accused; any threat of violence which the accused may have made to a person against whom the offence in question was allegedly committed or any other person; any resentment the accused is alleged to harbour against a person against whom the offence in question was allegedly committed or any other person; any disposition to violence on the part of the accused, as is evident from his or her past conduct; any disposition of the accused to commit offences referred to in schedule 1, an offence against any person in a domestic relationship, as defined in Section 1 of the DOMESTIC VIOLENCE ACT, 1998; or an offence referred to in Section 17 (1) (a) of the DOMESTIC VIOLENCE ACT, 1998; Section 18 (1) (a) of the PROTECTION FROM HARASSMENT ACT, 2011; or any law that criminalises a contravention of any prohibition, condition, obligation or order, which was issued by a Court to protect the person against whom the offence in question was allegedly committed, from the accused, as is evident from his past conduct; the prevalence of a particular type of offence; any evidence that the accused previously committed an offence referred to in schedule 1; against any person in a domestic relationship, as defined in Section 1 of the DOMESTIC VIOLENCE ACT, 1998; or referred to in Section 17 (1) (a) of the DOMESTIC VIOLENCE ACT, 1998; Section 18 (1) (a) of the PROTECTION FROM HARASSMENT ACT, 2011; or any law that criminalises a contravention of any prohibition, condition, obligation or order, which was issued by a Court to protect the person against whom the offence in question was allegedly committed, from the accused, while released on bail or placed under correctional supervision, day parole, parole or medical parole as contemplated in Section 73 of the CORRECTIONAL SERVICES ACT, 1998; or any other factor which in the opinion of the Court should be taken into account.   

 

31.            The appellant in essence submitted that whilst in its judgment, the Court a quo made perfunctory reference to the provisions of Section 60(4)(a) of the CPA, it however did not make any cogent finding regarding whether, if released on bail, there is a likelihood that the appellant will endanger the safety of the public or any particular person, or will commit another schedule 1 offence.  That this is notwithstanding the fact that in his affidavit, the appellant gave an undertaking that he will not act in a way that any of these factors will occur.  And that the Court a quo ignored these undertakings.[19]

 

32.            That even though the investigating officer, Mr Webb, testified that the witnesses are open to intimidation, he conceded that there was no evidence that the appellant at all material times hereto ever sought to interfere with the ongoing investigation or to influence any of the potential witnesses.  That the said Investigating Officer testified that the said witnesses all cooperated and have already given statements and that he had no reason to believe that they would change their version. 

 

33.            Whilst he testified that the appellant might evade his trial, he conceded that the only basis of his opinion was the seriousness of the offence and the possible sentence the appellant faced.  That Mr Webb’s concerns, that the appellant might interfere with witnesses or evade his trial was nothing more than a possibility and a probability.  To the contrary, the evidence of the appellant was that he has a stable job as a soldier in the national defence force of the Republic and all his family members and assets are within jurisdiction. 

 

34.            The respondent for its own part conceded, correctly so this Court thinks, that the Court a quo did not explicitly consider whether any of the factors indicated in Section 60(4) of the CPA, is likely to occur, if bail is granted to the appellant.  This notwithstanding, the respondent submitted that the phrase “one or more of the following grounds” did not place a duty on the Court a quo to consider all the factors under the said Section.  That it is so simply because the said Section merely requires that one or more of the grounds be established to determine whether the interest of justice would not permit the release from detention of the appellant. 

 

35.            That to the extent that the appellant used a firearm during the commission of the offence, which in itself is extremely violent and the offence of murder being very prevalent in the jurisdiction of the Court a quo.  And that to the extent that it is clear when the appellant first went to the deceased’s residence he said he was well known in Kimberley and that he will make Kimberley small for the persons who assaulted his son, that this must be seen as a threat of violence. 

 

36.            Ms Weyers-Gericke, for the respondent then referred this Court to S v Francis 1991 (1) SACR 198 (A), in support of the contention that the fact that some factors have not been mentioned does not mean that they were not considered.  That as it has frequently been said, no judgment can be all-embracing.  This contention misconstrues the ratio in the said case.  The gravamen of the appellant’s complaint is the fact that “the trial Court did not make any finding” pertaining to these factors as opposed to “not mentioning some of them” as contemplated in Francis (supra). 

 

37.            It is so since in S v Diale and Another 2013 (2) SACR 85(GNP) at paragraph 14, it was held as follows that:

 

“A Court cannot find that the refusal of bail is in the interest of justice merely because there is a risk or possibility that one or more of the consequences mentioned in Section 60(4) will result.  The Court must not grope in the dark and speculate; a finding on the probabilities must be made.  Unless it can be found that one or more of the consequences will probably occur, detention of the accused is not in the interest of justice, and the accused should be released.” [20]

 

Whether no finding was made by the Court a quo with regard to the exceptional circumstances which supposedly triggered the provisions of Section 60(4)(e) of the Act

 

38.            It is so that Section 60(4)(e) of the Act, expressly stipulates that the interests of justice do not permit the release from detention of an accused, where, “in exceptional circumstances”, there is a likelihood that the release of the accused will disturb public order or undermine public peace or security. 

 

39.            It is also so that, our courts are enjoined, in considering whether a ground in subsection (4)(e) of the Act, has been established, to take into account the following factors:whether the nature of the offence or the circumstances under which the offence was committed, is likely to induce a sense of shock or outrage in the community where the offence was committed;  whether the shock or outrage of community might lead to public disorder if the accused is released; whether the safety of the accused might be jeopardised by his or her release; whether the sense of peace and security among members of the public will be undermined or jeopardized by the release of the accused; whether the release of the accused will undermine or jeopardise the public confidence in the criminal justice system; or any other factor which in the opinion of the Court should be taken into account.[21] 

 

40.            The appellant submitted vide Mr Nel, that no finding was made by the Court a quo with regard to the exceptional circumstances which triggered the provisions of Section 60(4)(e) of the Act.  It was submitted that such a finding ought to have been made as a pre-requisite for the invocation of the said Section and that mere petitions are not good enough. 

 

41.            The respondent, in turn only submitted as such in this regard.  It is clear from the evidence adduced on behalf of the respondent and exhibits B and C that there was a great public interest in this matter and that the community is shocked and outraged by the commission of the offence. 

 

42.            Regard being had to the foregoing; this Court has to determine whether the Court a quo indeed took any of the abovementioned factors into consideration or whether the ground in subsection (4)(e) of the Act has been established.  The evidence the Court a quo took into consideration in this regard, may be surmised from pages 71-76, and need not be reproduced herein, to avoid prolixity.   

 

Whether the nature of the offence or the circumstances under which the offence was committed, is likely to induce a sense of shock or outrage in the community, where the offence was committed

 

43.            The Court a quo correctly found that it is quite clear that what the appellant is facing is a serious offence.  It was however wrong for it to seek to determine, at a bail application stage, whether the said offence was premeditated or planned and to pronounce as a matter of fact that:

 

 “The inference that the Court could draw is that the applicant deliberately shot the deceased.”

 

This is so simply because there is no evidence yet that there was any attack on the appellant or any argument preceding the incident.[22]

 

44.            It must be so especially regard being had to what the investigator conceded under cross-examination, which was not gainsaid; that he could not exclude the possibility that the said shot went off by accident; or that it was a warning shot; or in self-defence since he had no available evidence to the contrary.  He also confirmed that he does not know where the media initially got the information about “a drive-by shooting” from.[23]  

 

45.            It is so that immediately following some media report that the circumstances under which the offence was committed was an alleged “drive-by shooting” without more, the community was justifiably shocked and outraged.  It is under the said misapprehension of the nature and circumstances under which the offence was allegedly committed that the community produced the said petition (Exhibit B) to specifically oppose the appellant’s bail.  They were justifiably worried in the circumstances, that if the culprit(s) were released on bail, the victim’s family will “...  live in fear that …the accused may return and finish off what he had allegedly started.” Significantly, and to the credit of the community, the said petition only called on the community to attend the bail hearing and stand in solidarity with the Assegai family in fighting for justice for Amogelang.  Nothing sinister was foreshadowed. 

 

46.            Also labouring under the same apprehension of the nature and circumstances under which the offence was allegedly committed, the victim’s former school penned a letter (Exhibit C) for the attention of the Court a quo on 02 November 2022, inter alia to wit: (a) the KHS Community is deeply affected by the passing of Amogelang; (b) the senseless manner his life was taken troubles them; (c) we humbly submit that the Court consider not to release the accused on bail, especially before Amogelang’s funeral which is on 05 November 2022 and the grade 12 learners finish writing their final NSC examinations.  We fear that the accused’s release on bail may trigger them in different ways, which may affect their examinations.  Needless to state, both events alluded to have come to pass.  Also to its credit, nothing sinister was foreshadowed in the said letter by the school. 

 

47.            At page 63 of the Record the Court a quo observed; to wit:

 

“On questions (sic) by the prosecutor he was also asked whether the public peace or order will be disturbed if the applicant is released on bail, he [the Investigating Officer] testified that there were 2964 signatures that were obtained (sic) the community members opposing the bail of the applicant.  There was also a letter from Kimberley Boys High School by the Principal as well as SUV chairperson requesting that the applicant be denied bail.”[24] 

 

48.            The Court a quo then perfunctorily remarked at page 76 of the Record that it is quite clear from the said signatures appended to the community petition that they are very upset about the incident and that the interest of the community is one of the factors that it has to take into account, in addition to any other factor before it.  This without specifically considering the veracity of what the community and the school were labouring under vis-à-vis the evidence adduced before him by the Investigating Officer. 

 

49.            It can be deduced from the foregoing that having regard to the abovementioned jurisdictional prerequisites that the field of application for Sections 60(4)(e) and (8A), are extremely circumscribed.  It has thus been well said that judicial officers should rely on this ground with great circumspection in the knowledge that the Constitution protects the liberty interest of all.[25]      

 

50.            Our courts are expressly constrained, in considering whether a ground in Section 60(4)(e) has been established, to where applicable, take the factors identified in Section (8A) into consideration.  The Apex Court in this regard has held that the important proviso throughout is that there has to be a likelihood i.e.  a probability that such a risk will materialise.  That a possibility or suspicion is not sufficient.  That at the same time, a finding that there is indeed such a likelihood, is no more than a factor, to be weighed with all others, in deciding what the interests of justice are.[26]   

 

51.            Whilst a finding may have been made by the Court a quo, with regard to the likely occurrence of this factor, it is evident that same has been made without due regard to the above-mentioned misapprehension, content and context of the said petitions.  Nor does it seem that the Court a quo weighed the said factor against any other, in deciding what the interests of justice are in this case.  It is wrong. 

 

Whether the shock or outrage of the community might lead to public disorder, if the accused is released or the sense of peace and security among members of the public will be undermined or jeopardised by the release of the accused 

 

52.            It is significant to point out that refusal of bail in order to protect society is only justifiable in extreme circumstances.[27] It is so in our law that in considering the question in Section 60(4) of the Act, our courts are obliged to decide matters by weighing the interests of justice against the right of the accused to his personal freedom and in particular, the prejudice he is likely to suffer if he were to be detained in custody, taking into account, where applicable, the factors catalogued in the said Section.[28] This is simply because under our constitutional democracy, everyone who is arrested for allegedly committing an offence inter alia has the fundamental right to be released from detention, if the interests of justice permit, subject to reasonable conditions.  This right is entrenched in Section 35(1)(f) of the Constitution. 

 

53.            It can also be deduced from a close reading of the impugned judgment as a whole that, whether the shock or outrage of the community might lead to public disorder, if the accused is released was not established on a preponderance of probabilities or weighed against the considerations contemplated in Section 60(9) of the Act before the Court a quo refused the appellant bail.  It behoves repetition that a mere possibility or suspicion in this regard is not sufficient.  That at the same time, a finding that there is indeed such a likelihood, is no more than a factor, to be weighed with all others, in deciding what the interests of justice are.[29] In the premise, the Court a quo could not be said to have exercised its discretion correctly in this regard.    

 

Whether the safety of the accused might be jeopardised by his release

 

54.            This factor is coterminous to the preceding factor.  It must be borne in mind that an appeal by an aggrieved accused to a superior Court against a decision of a magistrate Court in respect of his application to be released on bail remains an appeal simpliciter, that is, it is a complete rehearing and re-adjudication by the superior Court of the merits of the application, with or without additional information in which it can, in exercise of its discretion, make such an order as it deems meet.[30] Provided of course it first finds, not lightly, that the magistrate who had the discretion to grant bail, exercised that discretion wrongly. 

 

55.            As alluded above, the community petition only called upon it to attend the bail hearing and stand in solidarity with the Assegai family in fighting for justice for Amogelang.  The letter by the school, for its own part, only requested   that the accused should not be released on bail before Amogelang’s funeral, which was on 05 November 2022 and also before the grade 12 learners finish writing their final NSC examinations.  The school then, not now, legitimately feared that the accused’s release might trigger the learners in different ways, which might have affected their examinations.  The deceased’s funeral and the said examinations have since come to pass. 

 

56.            The upshot of the foregoing is that none of the two petitions or stakeholders, on objective facts, evinces the likelihood that the safety of the accused might have been jeopardised by his release on bail.  In any event, it has been well said, that even where one of the factors mentioned in Section 60(8A) has been proved, it does not follow that the likelihood required by Section 60(4)(e), has been established.[31]

 

57.            Bail conditions have always served to ensure that whatever fears the State might have in the release of an accused, is taken care of.  It is therefore imperative, as envisaged in Section 60(6), that in considering whether the ground in Section 60(4)(b) has been established, for the Court, where applicable, to take into account the binding effect and enforceability of bail conditions which may be imposed and the ease with which such conditions could be breached. 

 

58.            Our courts are therefore obliged, when seized with the problem of whether or not to release a detainee on bail to approach the matter from the perspective that freedom is a precious right entrenched in the Bill of Rights vide Section 35(1)(f) of the Constitution.  This right should only be lawfully derogated, if and if, the interests of justice deems meet.  Our courts should thus always consider suitable conditions as alternative to the denial of bail. 

 

59.            During the hearing of this appeal, counsel for the appellant intimated that the appellant is willing to relocate to the Army Support Base in Diskobolos, Kimberley under the auspices of his supervisor who is a colonel in SANDF.  That the said supervisor is prepared to take him in from the date of his bail until the matter is finalised.  That the appellant will work in the accounting department and will not be issued a firearm.  Counsel intimated that the appellant only had one firearm that has been impounded for ballistic tests.  That the appellant will not leave the said base, without the prior written permission of the Investigating Officer. 

 

60.            This Court is of the opinion that, regard being had to the foregoing and suggested stringent conditions of bail, the sense of peace and security among members of the public will not be undermined or jeopardised by the release of the appellant on bail.  Nor would the community reasonably be outraged as same is militated by the stringent conditions suggested. 

 

Whether the release of the accused will undermine or jeopardise the public confidence in the criminal justice system

 

61.            There indeed remains a widespread misunderstanding regarding the jurisprudential basis of bail.  Indeed, much must still be done to instil in the community a proper understanding of the presumption of innocence and the qualified right to freedom, under Section 35(1)(f) of the Constitution, pending trial.  Continued imprisonment following from a refusal of bail does not imply a penalty of sentence.[32]

 

62.            Ours fortunately is a Republic founded inter alia the value of supremacy of the Constitution and the rule of law; regard being had to Section 1(c) of the Constitution.  Judicial authority of the Republic is vested in the Courts which are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.  Implicit from the foregoing is that no person or group of persons or an organ of state may interfere with the functioning of the courts.  It is the duty of courts to ensure the rule of law, order and justice.  It is also the duty of our courts to prevent that greatest of all evils, a criminal justice system so weak and vacillating that people feel the need to avoid the courts and take the law into their own hands.  Courts have a greater obligation to society at large.  They must jealously guard the rule of law.[33]  

 

63.            Section 36(1) of the Constitution, expressly and unambiguously stipulates that the rights in the Bill of Rights may be limited only in terms of law of general application, to the extent that the limitations are reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all the relevant factors, including those expressly stated in the said Section. 

 

64.            Section 39, for its own part firstly enjoins our courts, tribunals or fora; when interpreting the Bill of Rights to promote the values that underlie an open and democratic society based on human dignity, equality and freedom.[34]  Secondly, the said Section contemporaneously enjoins all courts, tribunals or fora, when interpreting any legislation and when developing the common law or customary law to promote the spirit, purport and objects of the Bill of Rights.

 

65.            In the S v Letoana 1997 (11) BCLR 1581 (W) at 1591E, it was seminally pointed out that in any further development of the principles of bail, every Judge is obliged to take full account of the Constitution in the light of the requirements of Section 39(2) of the Constitution.  It should be so because the fundamental premise is that Section 12(1) of the Constitution, confers everyone the right to freedom which includes the right not to be detained without trial, subject to constitutionally permissible limitations in terms of Section 36 of the Constitution.[35]

 

First, it behoves emphasis that in our law, a Court cannot find that the refusal of bail is in the interest of justice merely because there is a risk or possibility that one or more of the consequences mentioned in Section 60(4) will result.  It may only do so, if and only if, it can be found that one or more of the consequences will probably occur.  Otherwise, detention of the accused is not in the interest of justice, and the accused should be released.[36]

 

66.            Second, Section 60(4)(e) of the Act, expressly postulates that it is to come into play only “in exceptional circumstances.” This is a clear pointer that this unusual category of factors is to be taken into account only in those rare cases where it is really justified.  Third, the said Section expressly and unambiguously stipulates that a finding of such circumstances has to be established on a preponderance of probabilities i.e. likelihood not suspicion or possibility. 

 

67.            There are unfortunately no objective facts on record evincing that the Court a quo indeed properly considered the likelihood and not the possibility of the eventualities envisaged in Section 60(8A) of the Act.  In the premise, this Court concludes that the Court a quo relied on this factor without circumspection, as enjoined by the Apex Court in S v Dlamini et al, supra. 

 

Whether the Court a quo has adequately weighed Section 60(4)(e) against the considerations enumerated in Section 60(9) of the Act, before a decision to refuse bail was taken

 

68.            It is so that in considering the question in Section 60(4), our courts are obliged to decide matters by weighing the interests of justice against the right of the accused to his personal freedom and in particular the prejudice he is likely to suffer if he were to be detained in custody, taking into account, where applicable, the factors catalogued in the said Section. 

 

69.             Once the existence of such circumstances has been established, Section 60(4)(e), still has to be weighed against the considerations enumerated in Section 60(9), before a decision to refuse bail can be taken.  Section 60(9), expressly enjoins a Court, in considering the question in Section 60(4) of the Act, to weigh the interests of justice against the right of the accused to his personal freedom and in particular the prejudice he is likely to suffer, if he were detained in custody.

 

70.            Section 60(9), for its own part, expressly lists the factors to be taken into account by a Court, in considering the question in Section 60(4) i.e. whether the interests of justice do not permit the release from detention of an accused?  This begs the question whether the Court a quo has adequately weighed the import of Section 60(4)(e), against the considerations enumerated in Section 60(9), before a decision to refuse bail was taken.  This Court turns to consider this issue hereunder. 

 

71.            It is also so that in determining the particular prejudice an accused may suffer, regard must be had, where applicable to; inter alia: (a) the period the accused has already been in custody, since his arrest; (b) the probable period of detention until the disposal or conclusion of  the trial if the accused is not released on bail; (c) the reason for any delay in the disposal or conclusion and any fault on the part of the accused with regard to such delay; (d) any financial loss which the accused may suffer owing to his detention; (e) any impediment to the preparation of the accused defence or any delay in obtaining legal representation, which may be brought about by the detention of the accused; (f) the state of the health of the accused; or (g) any other factor which in the opinion of the Court should be taken into account. 

 

72.            Section 60(11)(a) of the Act, expressly and unambiguously stipulates as follows; that:

 

“Notwithstanding any provision of this Act, where an accused is charged with an offence referred to 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, adduce evidence which satisfies the Court that exceptional circumstances exist which in the interest of justice permit his or her release.”   

 

73.            It is further so that an accused has a fundamental constitutional right to have his trial begin and conclude without unreasonable delay; regard being had to Section 35(3)(d) of the Constitution.  Thus where unfortunate and inevitable systemic delays threaten this right, a Court should – as a possible creative strategy-consider granting bail on strict and relevant conditions.[37] Our courts however remain obliged to follow all the applicable prescribed bail procedures and to take into account all the rules, principles and guidelines which must inform the decision to grant or refuse bail.  There are no shortcuts.  That much was said by our Penultimate Court.[38] 

 

74.            It is therefore imperative to consider some of the above-mentioned factors which this Court deem relevant, regard being had to the facts and circumstances of this matter. 

 

75.            For consideration here is the period the accused has already been in custody, since his arrest and the probable period of his detention until the disposal or conclusion of the trial if he is not released on bail.  Also for consideration is the reason for any delay in the disposal or conclusion and any fault on the part of the accused with regard to such delay.  The following can be surmised from the record. 

 

76.            The accused is in good health.  It is common cause that the appellant was arrested on 24 October 2022, whereafter he applied and was refused bail on 02 November 2022, less than a month of being in incarceration.  It follows from the foregoing that at the time this appeal was argued before this Court on 03 April 2023, he had been in incarceration for approximately five months. 

 

77.            It is also evident from the record that at the time the Court a quo refused bail, there were outstanding investigations the police still needed to conduct.  For instance, they still had to trace the remaining two persons that allegedly were in the vehicle with the applicant at the time of the incident.  Collation of certain forensic reports, a photo album and a chain of evidence were also still outstanding.  The appellant’s trial was postponed to next week.  This Court therefore, assumes that all bases would be covered by the time this matter goes to trial. 

 

78.            As regards any financial loss which the appellant is suffering, owing to his continuous detention.  The following can be gathered from the record.  The appellant stated that he is married and has five children.  The appellant has also stated that he is currently employed as a warrant officer with the South African Defence Force since 1997 and earns a salary of approximately R14 000.00, per month.  That he is desirous of keeping his employment secured.  It can be deduced from the foregoing that the financial loss which he might suffer owing to his continued detention is the said monthly salary, should his employment be terminated for desertion. 

 

79.            Having considered the foregoing, within the context of whether or not same constitutes exceptional circumstances as contemplated 60(11)(a) of the Act, the Court a quo concluded that same does not amount to exceptional circumstances because, if it were so, it would mean every person that is arrested that is employed or who has a family, the Court should just release him because he is employed.  Therefore the application for bail was denied.[39] This approach was incorrect, for the following reasons. 

 

80.            Those factors set out for consideration under Section 60(4) of the Act, cannot be ignored or disregarded under Section 60(11)(a) in determining the existence or otherwise of exceptional circumstances.  In determining whether or not the bail applicant has established the existence of extraordinary circumstances within the meaning of Section 60(11)(a), the Court has to decide on the facts within the context of a particular case.  It is indeed so that facts which might be sufficient in one case might not be enough to warrant the granting of bail application given the context of another matter and vice-versa.[40]

 

81.            Whilst the nature and gravity of the punishment which is likely to be imposed should he be convicted, regard being had to the charge on which he is to be tried; the strength of the case against him and the incentive that he may, in consequence, have to attempt to evade his trial cannot be undermined.  What can also not be undermined for the purposes of bail are his emotional, family, community and occupational ties and the assets held by him in Kimberley.  The fact that the appellant does not have any travel documents or any family ties abroad and the extent to which he could afford to forfeit any set amount of bail has been ignored ought also to be fully minded.     

 

82.            It has been judicially cautioned that to ignore personal factors of an applicant under the latter Section, in this Court’s view, had the effect of denying the appellant a reasonable opportunity to adduce evidence to satisfy the Court of the existence of exceptional circumstances.  But most significantly, it would be difficult, if not impossible, to establish exceptional circumstances – see S v DV and Others 2012 (2) SACR 492 (GNP). 

 

83.            In Dlamini (supra), it was made perfectly clear that such factors are relevant in determining the existence of exceptional circumstances; thus:  

 

“An appellant is given broad scope to establish the requisite circumstances.  Whether they relate to the nature of the crime, the personal circumstances of the appellant or anything else that is particularly cogent.”

 

84.            It should be borne in mind that the appellant still has a fundamental right to be presumed innocent until the contrary is proved, even where the evidence appears to be strong, the Court a quo should still have been mindful of the fact that it did not have to deal with the appellant’s bail application as if guilt has already been proven.  It did that, when it said thus, unsupported by any evidence, at pages 71 and 74 of the record:[41]

 

“Now the evidence of the two juvenile witnesses on the scene is such that the Court is under the impression that they were not really honest with regards to everything that they saw what happened on the day in question, because some of them must have seen a firearm being produced and a shot being fired.”[42]

 

…. 

 

Now it is quite clear it is a very serious offence that the applicant is facing.  The Court has to determine whether it was premeditated or planned…So the only inference the Court can draw is that once the cell phone was handed over that the applicant deliberately shot the deceased” [43]    

 

85.            Needless to state, to the extent that prima facie evidence is subject to being tested during trial, it follows that the impact of prima facie evidence, in a bail application should be seen to be minimised by lack of evidence of the likelihood that, if released on bail, the appellant will attempt to influence or intimidate witnesses or attempt to destroy evidence.  This concern can be militated with appropriate conditions e.g. for the duration of the trial, that the appellant may not contact, communicate and/or interfere with and/or intimidate any of the state witnesses, including his son, directly or indirectly by means of any communication through his friends, relatives or agents, employees or proxies.

 

86.            In S v Peterson and Another 1992 (2) SACR 52 (C), it was correctly pointed out that the purpose of bail is to minimise interference in the lawful activities of an accused.  The Apex Court also said that the basic objective traditionally ascribed to the institution of bail is to maximise personal liberty- see S v Dlamini et al (supra). 

 

87.            It must be borne in mind that the jurisprudential basis of Section 60(11) (a) of the Act, was never to legitimise the random incarceration of persons suspected of having committed schedule 6 offences.  After all, such persons have to be regarded as innocent until proven guilty in a Court of law; regard being had to Section 12(1)(a) and (b) of the Constitution.[44] The said Section expressly grants everyone the right to freedom and security of the person, which expressly includes the right not to be deprived of freedom arbitrarily without just cause as well as not to be detained without trial.   

 

88.            Our courts are therefore bound to defend and uphold the Constitution and the rights entrenched in it.  One of the most important rights, from a historical perspective, is unquestionably the right against-deprivation of an individual’s liberty.  Individual freedom is a core right in the panoply of human rights.  We are therefore constrained to jealously guard the liberty of a person under our Constitution, particularly in terms of Section 12 of the Bill of Rights.  [45]

 

89.            It can be surmised from the record that the opposition to bail by the State before the Court a quo was in the main predicated against two themes; to wit: (a) that the appellant is accused of a serious crime falling within the purview of Schedule 6 of the CPA; and (b) that it has a strong prima facie case against him, in that regard.  It can also be surmised from the record that the Court a quo moved from the premise not only that the accused is accused of serious offence - but that he has indeed committed the said offence.  The latter is not only wrong, but also seems to be the pivot to accentuate the seriousness of the crime and the concomitant sentence if convicted, without judiciously determining whether, indeed exceptional circumstances existed, which in the interest of justice, permitted the appellant’s release. 

 

CONCLUSION:

 

90.            In sum, regard being had to the facts and circumstances of the case, this Court is of the opinion that the Court a quo erred as follows.  In overemphasising the seriousness of the offence and moving from the wrong premises that the appellant indeed committed the alleged offence.  In not taking into account that the respondent showed that any of the factors indicated in Section 60(4)(a)-(e) of the CPA, are not likely to occur if the appellant is released on bail.  In not weighing up the interests of justice against the right of the appellant to his personal freedom and in particular the prejudice the appellant is likely to suffer, if he were to be detained in custody, as required by Section 60(9) of the CPA.  In finding that the appellant did not succeed in proving that exceptional circumstances exist, which in the interests of justice permits his release on bail.  In not finding that the factors that were put before the Court a quo cumulatively, are exceptional which in the interests of justice permits his release on bail; and not granting bail to the appellant, pending finalisation of his trial. 

 

ORDER:      

 

91.            In the premise, the following order is made:

 

(a)            The appeal is upheld;

 

(b)            The Court a quo’s order refusing the appellant bail is hereby set aside;

 

(c)             The appellant is hereby granted bail in the amount of R10 000.00; on the following conditions:

 

                                       i.                      The appellant shall attend Court at all times, up until the finalisation of the trial;

 

                                     ii.                      The appellant shall not approach, contact, communicate, intimidate and/or interfere directly or indirectly by any means with any persons appearing on the witness list that the Investigating Officer, JRW Webb shall serve on him, from time to time;

 

                                    iii.                      The appellant shall not interfere directly and/or indirectly with any evidence relevant to the matter, until same is finalised;

 

                                    iv.                      The appellant is hereby prohibited from entering or remaining on his current residence or any other residence where the abovementioned persons/witnesses reside until the matter is finalised;

 

                                     v.                       The appellant shall stay at the residence of his Supervisor, Colonel VC Mtshakaza, at the Army Support Base in Diskobolos, Kimberley from the date of his bail being posted, till the matter is finalised;

 

                                    vi.                      The appellant shall not leave the above mentioned Base or the jurisdiction of the Magistrates’ Court of the District of Kimberley, without written permission of the abovementioned Investigating Officer;

 

                                   vii.                      The appellant shall surrender all firearms, ammunition, passports and/or any travel document in his possession to the said Investigation Officer, for the duration of the trial; and

 

                                           viii.             The appellant shall not be issued or allowed access to any firearm or ammunition until the finalisation of the trial. 

 

APS NXUMALO

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

NORTHERN CAPE DIVISION

KIMBERLEY

 

 

APPEARANCE

On behalf of the Appellant:	Mr IJ Nel, instructed by Mathewson and Mathewson Inc, Kimberley
On behalf of the Respondent:	Ms S Weyers-Gericke: Director of Public Prosecutions, Kimberley
Heard:	03 April 2023
Delivered:	14 April 2023

---

---