IN THE HIGH COURT OF SOUTH AFRICA
(BOPHUTHATSWANA PROVINCIAL DIVISION)

                                                                      CASE NO:  CA 140/05

KETLARENG TINGWE                                                     Appellant

and

THE STATE                                                                   Respondent

BAIL APPEAL

DATE OF HEARING	:	21 DECEMBER 2005
DATE OF JUDGMENT	:	27 DECEMBER 2005

COUNSEL FOR THE APPELLANT: ADV J ENGELBRECHT SC
COUNSEL FOR THE RESPONDENT:  ADV MTENGWANE

JUDGMENT

HENDRICKS J:

[1]	This is an appeal against the refusal of bail.  The Appellant, Ketlareng Tingwe, is charged with the offence of rape of a girl under the age of sixteen (16) years.

[2]	He applied to be released on bail pending the finalization of his trial.  This application was opposed by the State and the Magistrate refused to admit the Appellant to bail.  Hence, this appeal.

[3]	During his testimony, the following personal circumstances were placed before the court a quo by the Appellant:

	he is forty two (42) years of age;

	he is qualified as a teacher;

	he is married but in the process of getting divorced;

	he is staying with another woman for the past five (5) years whom he intends to marry as soon as his divorce is finalized;

	he has a minor child with the woman he is presently staying with and she is expecting their second child;

	he has a fixed address where he stays with this woman;

	he operates a taxi business on a full time basis since his dismissal as a teacher;

	he was informed that he will be reinstated as a teacher in the near future.

[4]	It is common cause that the Appellant is charged with a Schedule 6 offence, in that the complainant is a girl under the age of sixteen (16) years, to wit fourteen (14) years.

[5]	The provisions of Section 60(11)(a) of the Criminal Procedure Act, Act 51 of 1977 is therefore applicable, which provides as follows:-

“Notwithstanding any provision of this Act, when an accused is charged with an offence referred to:-

(a)	in Schedule 6, the court shall order that the accused be detained in custody until he or she is dealt with in accordance with the law, unless the accused having been given an opportunity to do so, adduces evidence which satisfies the court that exceptional circumstances exists, which in the interest of justice permits his or her release.”

[5]	In S v Vanqa 2000(2) SACR 371 (TK) at 376 h-j Jafta J (as he then was) when considering the provisions of section 60(11)(a) states:-

“It seems to me that the above approach involves a two-fold enquiry.  The applicant for bail is first enjoined to establish that his/her circumstances are exceptional in the sense envisaged in ss(11)(a).  Secondly, he/she is required to prove that such circumstances justify, in the interest of justice, that bail be granted.  It is the first leg of the enquire that distinguishes the onus born by the applicants in Schedule 6 cases from the proof required in Schedule 5 matters.  It also appears to me that the enquiry relating to the second leg cannot even begin unless the first leg has yielded positive results.  Otherwise there would be no distinction on the issue of onus required in both ss (11)(a) and (b).  Subsection 11(b) merely requires that the applicant prove that the interests of justice permit his release on bail”

[6]	I have carefully perused the record and I am unable to find that exceptional circumstances exists, which warrants the release of the Appellant on bail.  I am also unconvinced that the release of the Appellant on bail will be in the interest of justice.  Not even Appellants’ business venture is in my view an exceptional circumstance.  One of the two taxis he owns is driven by somebody in his employ.  Nothing prevent the employment of a second taxi driver to drive the other taxi.  His girlfriend, Moitlobo, used to manage the taxi business before and there is nothing preventing her from continuing to do so, during the absence of the Appellant.

[7]	The Appellant has a relevant, recent previous conviction of indecent assault which he admitted.  He was convicted as recently as 19 November 2003.  This offence was also perpetrated on a girl under the age of sixteen (16) years, to wit fourteen (14) years.  He was sentenced to a fine of R5 000-00 or twenty months imprisonment, of which R3 000-00 or twelve months was conditionally suspended for a period of five (5) years.

[8]	It is clear that the offence the Appellant is charged with, was committed during the five (5) year period of suspension.  

[9]	It is also evident that in both instances, the complainants were fourteen (14) years of age, which clearly indicates that not only does the Appellant have a propensity to commit these kind of offences but he chooses to do so with young girls.

[10]	It is also common cause that the Appellant, as a taxi driver, used to transport the complainant.  The learned Magistrate, quite correctly in my view, found that a reasonable possibility exist that the Appellant will have contact with the complainant.

[11]	I am unpersuaded by the argument that the learned Magistrate exercised his discretion wrongly in refusing to admit the Appellant to bail.  

[12]	I am also not convinced that the interest of justice demands that the Appellant be admitted to bail.  I am of the view that the Magistrate was indeed correct in his finding.

[13]	Consequently, I make the following order:-

The appeal against the refusal of bail is dismissed.

R D  HENDRICKS 
JUDGE OF THE HIGH COURT

ATTORNEYS FOR THE APPELLANT	:  D I  MATLAPENG ATTORNEYS;  C/O A C LEE ATTORNEYS