IN THE HIGH COURT OF SOUTH AFRICA EASTERN CAPE LOCAL DIVISION: MTHATHA CASE NO. CA& R 17/2019 In the matter between:

THANDISIZWE NTUMBUKANA APPELLANT

And

THE STATE RESPONDENT

JUDGEMENT

SOMACALA AJ

1. This is an appeal from the magistrate’s court, Tsolo, against the refusal, by the magistrate to admit the appellant on bail.

2. The appellant, together with 5 others, appeared before the magistrate’s court facing charges of murder, robbery with aggravating circumstances, attempted murder, unlawful possession of firearms and ammunition.

3. The incident is alleged to have occurred on the 04th November 2015, at or near Tsitsa Bridge, along N2 road, in the district of Tsolo.

4. The appellant was arrested in Cape Town, on the 13th November 2015, and he was caused to appear in court at Tsolo, on the 13th January 2016.

5. It is common cause that the appellant’s bail application falls under Schedule 6, of the Criminal Procedure Act 51 of 1977,(the Act), and that the provisions of Section 60(11)(a) of the said Act are applicable. 6. In satisfaction of the requirements as set out in section 60(11)(a) of the Act, the applicant gave oral evidence and testified that, he stays in Cape Town but his permanent home is at Ndibela village in Mthatha. He is 27 years old and is married with one child. In Cape Town he stays with his uncle together with his wife and child. Both his wife and child are dependent on him as the wife is unemployed, but schooling. He testified that he runs a taxi business which is registered under his wife’s name. According to the appellant the administration and operation of his taxi business is done by Jackson Matsotsi Mbusuku. However, the money from the business is not what it used to be. This has an adverse effect to the state of his generated finances before his incarceration. He stated that he has two pending cases, one in Cape Town, and the other in Ngqeleni. He stated that he will not contravene any of the conditions listed under the provisions of section 60(4) (a-e) of the Act.

7. He testified that during his arrest in Cape Town, he was shot in the leg by the police, and he was hospitalized at Tygerberg Hospital. The police took him out of the hospital prematurely. He further stated that, he has never been taken for medical attention after he left Cape Town.

8. In opposition to appellant’s bail application, the State called the investigating officer, who testified that the appellant resides in Khayelitsha in Cape Town and that his parent’s home is in Mthatha. The investigating officer further testified that the appellant has pending cases, which are fully detailed in his criminal profile. He listed the cases as appearing from the appellant’s criminal profile as follows; a) Gugulethu: CAS 556/05/2012- charge is unlawful possession of firearm and ammunition; b) Belhar: CAS 599/07/2012- charge is robbery; c) Madeira (Mthatha): CAS 91/08/2015- charge is unlawful possession of firearm and ammunition; d) Elsies River (Cape Town): CAS 252/11/2015- charge is Road Traffic Act, attempted murder and theft; e) Elliot: CAS 16/11/2015; f) Ngqeleni: CAS 12/11/2015- charge is attempted murder, malicious damage to property and robbery; g) Lusikisiki: CAS 104/08/2015- charge is robbery.

9. The investigating officer further testified that the firearms which were robbed at Lusikisiki and Tsolo were found in the possession of the appellant.

10. The investigating officer denied that he refused to take the appellant for medical attention, and stated that instead he offered to take the appellant to hospital as he could see that the appellant was limping, but the appellant did not accept the offer.

11. It was the investigating officer’s evidence that the appellant and his co-accused operate as a syndicate because they are always charged together for the same offences, as it is presently in this case. He testified that the appellant is a threat to society and his cases involve violence. Furthermore, the dockets and charge sheets where appellant is involved always disappear. Therefore, his release on bail will jeopardize the administration of justice and the legal system. He concluded by saying that the appellant will evade his trial because of the seriousness of the charges against the appellant.

12. In the grounds of appeal the appellant attacks the decision to refuse him bail in many fronts, amongst others, and in particular that; a) The magistrate misdirected himself by limiting exceptional circumstances only to personal circumstances; b) The magistrate misdirected himself by holding expressly or impliedly, that the appellant has a propensity of committing crimes or that he has a disposition to violence, notwithstanding that he has no previous convictions; c) The magistrate misdirected himself in finding that the appellant is a flight risk, and further that, there is likelihood that if granted bail, he will endanger society or commit a Schedule 1 offence.

13. Bail appeal is governed by Section 65 of the Criminal Procedure Act which provides that, “an accused who considers himself aggrieved by the refusal by a lower court to admit him to bail or by the imposition by such court of 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 imposition of such condition to the superior court having jurisdiction or to any judge of that court if the court is not then sitting.”1

14. In S v Ho2, it was held that, bail appeals are no different from ordinary appeals and that a court of appeal will make the decision that the lower court, in its opinion, ought to have made.

15. It being so, however, the powers of the appeal court are limited, and the court will not lightly overturn the decision of the lower court. Section 65(4) of the Act, provides that, “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 should have given.”

16. In S v Barber3, the Honourable, Hefer J, stated 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 a magistrate because that would be an unfair

1 Section 65(1)(a) of Act 51 of 1977 2 1979(3) SA 734 (W) 3 1979(4) SA 218 (D) 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.”

17. The general principle regarding the granting of bail is that an accused person who is in custody is entitled to be released on bail if the interests of justice permit. Section 60(1)(a)4of the Act, provides that, “an accused who is in custody in respect of an offence shall, subject to the provisions of section 50 (6), be entitled to be released on bail at any stage preceding his or her conviction in respect of such offence, if the court is satisfied that the interests of justice so permit.”

18. There are five grounds, upon which, if established to exist, the interests of justice do not permit the released of an accused on bail. Such grounds are set out in section 60(4) of the Act, and are listed as these; a) “Where there is the likelihood that the accused, if he or she were to be released on bail, will endanger the safety of the public or any particular person or will commit a Schedule 1 offence; or b) Where there is the 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 the likelihood that the accused, if he or she were 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 were released on bail, will undermine or jeopardize the objective or the proper functioning of the criminal justice system, including the bail system; or e) Where in exceptional circumstances there is likelihood that the release of the accused will disturb the public order or undermine the public peace or security.”

4 Act 51 of 1977 19. The general rule that the court is entitled to release an accused person on bail, if the interests of justice permit, is reversed by section 60 (11) which provides that, “Notwithstanding any provisions of this Act, where 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 reasonable opportunity to do so, adduces evidence which satisfies the court that exceptional circumstances exist which in the interests of justice permit his or her release.”

20. In S v Mabena & Another5, it was held that, “the legislative scheme for the grant of bail, whether generally or in relation to Schedule 6 offences, necessarily requires a court to determine what the circumstances are in the particular case and then to evaluate them against the standard provided for in the Act. The form that such enquiry and evaluation should take is not prescribed by the Act but a court ought not to require instruction on the form of a judicially conducted enquiry.”6

21. The concept around “exceptional circumstances” as required by the Act should not be determined in isolation of the other given facts and the particular circumstances of a case. It is settled legal principle that each case should be treated on its own merits. It is therefore necessary that, in bail applications where the accused bears the onus to prove existence of exceptional circumstances which in the interests of justice permits the release on bail, the court should take into consideration all the relevant facts which are before it. In S v Bruintjies7, it was held that, “what is exceptional cannot be defined in isolation from relevant facts, save to say that the Legislature clearly had in mind circumstances which remove the applicant from the ordinary run and which serve at least to mitigate

5 (2007) ALL SA 178 (SCA) 6 Ibid paragraph 7 7 2003(2) SACR 575 (SCA) the serious limitation of freedom which the Legislature has attached to the commission of a Schedule 6 offence.”8

22. In this matter, the magistrate gave consideration to the past conduct of the appellant wherein he is said to have been in conflict with the law. In so doing the magistrate considered the charges which the appellant had faced in the past including the present, and

23. It was argued, by appellant’s counsel, that the magistrate was wrong to find that the appellant has a disposition to commit crimes, as the appellant has never been convicted of any offence. I do not agree with that submission. In my view, the fact that appellant has multiple pending cases, which are said to involve violence, is indicative to a disposition to crimes of a violent nature, and the finding of the magistrate is not wrong in this regard.

24. In this matter, it is the State’s contention that in the year 2015, the appellant was alleged to have been involved in five cases of a violent nature.

25. It has been contended by the appellant that, the magistrate misdirected himself by limiting the term “exceptional circumstances” to be in relation to personal circumstances. I do not agree with the appellant’s contention, in my view, the magistrate evaluated all the facts of the case as were presented before him. The standard of test that is required for the court to be satisfied that exceptional circumstances exists which in the interests of justice permit the release on bail is objective. The decision whether to grant or refuse bail is vested with the court, after it has exercised its discretion judiciously.

26. In my view, I am not convinced that the decision by the magistrate is wrong in finding that the appellant failed to discharge on a balance of probabilities, that exceptional circumstances exists which in the interests of justice permit his

8 Ibid page 577 release on bail. The courts have dealt extensively with the term “exceptional circumstances”, as contained in section 60(11) (a) of the Criminal Procedure Act. There is uncontroverted evidence that the appellant whilst out on bail in at least two other matters, both of which involve violence, he has been charged as an accused in the present case. Furthermore, according to the appellant, there is a person who is involved in the running of his taxi business, and the same business is registered in the name of his wife. It has not been shown by the appellant why the taxi business cannot be run and managed by his wife.

27. In my view, having regard to the totality of the evidence presented before court, the decision by the magistrate in refusing to admit appellant to bail was not wrong.

28. In the circumstances, I make the following order; a) The appeal by the appellant is hereby dismissed. b) The order of the magistrate refusing to admit appellant to bail is confirmed.

BI SOMACALA ACTING JUDGE OF THE HIGH COURT

Appearances: For the appellants: Mr Mqokozo Instructed by B Qakumbana Inc 28 Sprigg Street Dr Mbambisa’s Medical Centre, MTHATHA 5099 For the respondent: Adv Triesch Instructed by: The National Director of Public Prosecutution 94 Sissons Street Fortgale MTHATHA

Date heard: 28 August 2020 Date delivered: 10 September 2020