IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG

CASE NO: CAB 12/2024
Reportable: YES/NO
Circulate to Judges: YES/NO
Circulate to Magistrates: YES/NO
Circulate to Regional Magistrates: YES/NO

In the matter between:

SAMBO THABANG							Appellant

And

THE STATE								Respondent

JUDGMENT

Makoti AJ

Introduction

[1]	This is a bail appeal against a decision of the Magistrates Court sitting in Tlhabane (the court a quo) in which the appellant’s application to be released on bail was refused. The appellant, Thabang Sambo, was arrested together with a co-accused, Mr Trevor Manyike (Manyike), on allegations that they have committed a number of serious crimes at a village near Rustenburg, Chaneng. 

[2]	They were both denied bail in the court a quo but only he is applying for bail. The dismissal of the bail application was taken on 24 May 2024. The appellant is aggrieved by the refusal for bail hence he lodged this appeal.

Grounds for appeal

[3]	Two grounds of appeal were raised by the appellant, that:

[3.1]	The Magistrate erred and misdirected himself in law and merits by holding that the applicants failed to show on a balance of probabilities that the interest of justice permits their release on bail; and

[3.2]	the Magistrate erred in law that the appellants failed to show on balance of probabilities, that exceptional circumstances existed which, in the interests of justice permits their release on bail.

[4]	He also contends that the Magistrate erred in finding that they were no exceptionals circumstances which permitted the Appellants to be released on bail.

The charges against the Applicant

[5]	The appellant and his co-accused face serious criminal charges ranging from house breaking with the intent to rob and robbery committed with aggravating circumstances and kidnapping. The aggravating circumstances were in respect of a charge of pointing of a fire-arm. 

[6]	Because of the gravity of the allegations, the minimum sentence legislation provisions of section 51(2) of the Criminal Law Amendment Act 105 of 1997. The allegations against the appellant and his co-accused are that on 14 April 2024 they entered a room of one Mr Esekiel Nelisi Kanyile (Khanyile) with the intend to rob him. They were not authorised to enter the room. 

[7]	Upon gaining entry into Khanyile’s room they (appellant and co-accused) robbed him of a motor vehicle, a Haval H6 Blue vehicle which has the value of R419,000.00. They used a firearm which they pointed at him to overpower him. The two also forcefully took more of Khanyile’s properties, namely:

[7.1]	Black sneakers valued at R250.00;

[7.2]	Samsung N5 phone valued at R3,800.00; and 

[7.3]	A brown wallet with different cards and a driver’s license.

[8]	Furthermore, it is alleged that the appellant and his co-accused then kidnapped Khanyile by forcefully, and at gun-point, removing him from his room and driving away with him in the Haval motor vehicle which I mentioned above. As a result, the appellant and his co-accused are facing serious criminal charges which fall into Schedule 6 of the Criminal Procedure Act (the CPA). 

Test for Schedule 6 bail 

[9]	An accused person who applies for bail in a case which involves criminal offences which are listed in Schedule 6 of the CPA must satisfy the requirements stipulated in section 60(11) of the same statute. The provisions read as follows:

“Not withstanding any other provision of this Act where the 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/she is dealt in accordance with the law, unless the accused having been given a reasonable opportunity, adduces evidence which satisfies the Court that exceptional circumstances exists which in the interest of justice permit his/her release.” (Emphasis added) 

[10]	The legislative provision makes it plain that in cases where schedule 6 of the CPA is involved, onus rests on an accused person to adduce evidence to the satisfaction of the court of the existence of exceptional circumstances that in the interest of justice permits his or her release on bail. This was confirmed by the court in S v Vanga where it was held amongst others as follows:

“The Applicant for bail is first enjoined to establish that the circumstances are exceptional as envisaged in section 60(11)(a). Secondly, is required that such circumstances justify, in the interest of justice that bail be granted. It is consequently a two-stage approach. It is consequently a two stage approach.” 

[11]	What constitutes exceptional circumstances warranting the release of an accused person on bail has been subject to a number of court decisions. In S v Peterson in which the court remarked inter alia that:

“Generally speaking, exceptional is indicative of something unusual, extra ordinary, remarkable, peculiar, or simply different.”

[12]	The two authorities mentioned above are amongst those that the Magistrate relied upon when considering whether the interest of justice favored the release of the accused of the Applicant and his co-accused on bail. From a factual matrix, the Magistrate found that the evidence adduced by the Applicant and his co-accused did not constitute exceptional circumstances which warranted the released of the accused on bail, in the interest of justice. 

[13]	As a result, the court rejected the application and the bail application was dismissed. The Magistrate stated amongst others the following: 

“The Second Applicant’s further allegation of back pain and waist pain, if this is argued to as exceptional, can likewise not stand, as this was only brought to the attention of his cell maids and not the police.”

[14]	The test is trite and it is not necessary to belabour what the authorities say. After listening to evidence and the submissions of the parties the court held that:

“From the evidence, I cannot find that the Applicants are not receiving adequate medical attention. In respect of the personal circumstances and the care of the family of the respective Applicants, I am of the view, given the facts of this case, that this likewise is not evident of exceptional circumstances.” 

[15]	It is appropriate to briefly consider the evidence that was adduced at the court a quo. 

Whether exceptional circumstances exist

[16]	The appellant is 31 years old. He testified that he has a four-year old daughter. He contributes maintenance of R3,500-00 for his minor child out of funds which he earns from doing odd jobs. The child stays with her grandmother hence the appellant contributes maintenance for her.

[17]	For the sake of convenience, I consider it beneficial that I enlist what the appellant submitted to the court a quo as the grounds showing the existence of exceptional circumstances which, according to him, warranted that he be released on bail. They are:

[17.1]	Financial losses or prejudice that he will suffer while in detention. Not only him, but that his dependents will also suffer prejudice as a result of his detention;

[17.2]	That he will not evade trial and will attend trial until the case is finalized. In addition, that he will not interfere with the witnesses for the state;

[17.3]	That he is innocent;

[17.4]	 He has been in detention since his arrest for the crimes; and

[17.5]	Due to the health conditions.

[18]	Additionally, the appellant testified that he had a brain injury and takes tablets for it. Amongst the personal circumstances, it was alleged that the accused persons were suffering from medical issues which included pain and suffering that they were enduring whilst in police detention. The Magistrate rejected the evidence as constituting exceptional circumstances. In reaching this conclusion he relied on the dictum in S v Petersen, supra. I cannot fault the court a quo on its finding. 

[19]	I am comforted in this regard by the decision in S v Mokgoje in which it was held that everyday occurrences do not constitute exceptional circumstances. The court should simply find the existence of exceptional circumstances on the mere ipse dixit of an accused person.

[20]	When considering bail where schedule 6 is involved the court is enjoined to consider the provisions of section 60(4) of the CPA which stipulates that the court on appeal ought not to alter or interfere with the ruling of the court a quo unless where it has ascertained that the decision rendered by the lower court was erroneous. In this case I have already indicated that I am not so convinced. 

[21]	Where the accused person has failed to satisfy the court as to the existence of exceptional circumstances permitting his release on bail, in the interest of justice, the application must fail. That is the result that this appeal on bail is destined for.

[22]	It is so that the appellant’s bail application was opposed by the state which led the evidence of the investigating officer for the purpose. The investigating officer testified, amongst others that the appellant was arrested in the present case while on bail for similar criminal offences. He also testified that the state had a very strong case against the appellant. 

[23]	Taking all the evidence into consideration, I am not satisfied that the court misdirected itself in refusing to release the appellant on bail. The appellant simply failed to discharge the onus which rested on him to prove the existence of exceptional circumstances to warrant his release on bail. 

Order

[24]	In the circumstances I make the following order:

[a]	The appeal is dismissed.

_______________________
M. Z. MAKOTI
ACTING JUDGE OF THE HIGH COURT
NORTH WEST DIVISION

REPRESENTATIVES:

APPEARANCES

DATE OF HEARING:		02 AUGUST 2024

DATE OF JUDGMENT:		29 AUGUST 2024

FOR THE APPELLANT: 		ADV KGOMO
					TA MOLOISANE ATTORNEYS
C/O MOSHIDI MOKALE ATTORNEYS 
					MOLEBATSI STREET
MMABATHO 
EMAIL:				moshidiattorneys@telkomsa.net

RESPONDENT: 			ADV A MZAMO 
DIRECTOR OF PUBLIC PROSECUTIONS
					EAST GALLERY 
MEGA CITY COMPLEX
					MMABATHO
EMAIL:				amzamo@npa.gov.za