CA 137/2003
IN THE HIGH COURT OF SOUTH AFRICA (BOPHUTHATSWANA PROVINCIAL DIVISION)
In the matter between:
MAHLANGU MAFIKA : Applicant and
THE STATE : Respondent
APPLICATION
MAFIKENG
HENDRICKS AJ
DATE OF HEARING :22 September 2003 DATE OF JUDGMENT :25 September 2003
COUNSEL FOR APPLICANT :Adv. E.M. Mmolawa COUNSEL FOR RESPONDENT :Adv. M.M. Sono
HENDRICKS AJ:
This is an appeal against the refusal of bail by the Magistrate in the Regional Court, Mmabatho. The Appellant, who was accused no. 7 in the court a quo , applied unsuccessfully to be released on bail pending
his trial. The initial bail application was heard on the 05th March 2003
and new evidence was led on 10th April 2003, but it was only on the 12th September 2003 (5 months later) that this appeal appeared for the first time before this court. It is indeed regrettable that such a long delay occurred in this matter seeing that bail appeals are urgent and it should be attended to as soon as it is practically possible to do so.
The appellant was together with his coaccused arrested at a farm near Ramatlabama, near the border with neighbouring Botswana. It appears from the uncontested evidence that the Appellant happened to be in a Nissan Bakkie together with one of his coaccused, accused no. 4, in the court a quo . Apparently Accused No. 4 was asked by the Appellant to bring building materials from Pretoria to Itsoseng where the Appellant was attending to a building project at the Itsoseng Magistrate Court. According to the Appellant, Accused No. 4 then asked him to accompany him to the place where he is supposed to deliver this Nissan Bakkie. They ended at an unknown place, where they were arrested, together with the other coaccused.
Some semiautomatic firearms and ammunition were found in one of the motor vehicles to wit a BMW at the scene. It appears from the record that some of the charges that Appellant is facing is possession of fire arms and ammunition and conspiracy to commit armed robbery. The Magistrate in his “Reasons for Judgment” filed in this court on 16th September 2003, states that the Appellant and his coaccused are charged with an offence listed in Schedule 6 of the Act. This is incorrect. It is abundantly clear from the evidence on record that the Appellant and his coaccused are facing charges listed in Schedule 5 and not Schedule 6 of the Act. Miss Sono, who appeared on behalf of the State, also conceded that the Magistrate misdirected himself in stating that the Appellant is charged with offences listed on Schedule 6, whereas he is charged with offences listed in Schedule 5 of the Act. A certificate from the office of the Director of Public Prosecutions serves as proof of this fact.
This definitely has a bearing on the standard of the onus of proof. See in this regard State v Botha 2002 (1) SACR 222 HHA on page 230 (d) (f) where the following is stated:
“Ingevolge beide art 60 (11) (a) en (b) is daar _ formele bewyslas op _ beskuldigde wat om borgtog aansoek doen ‘om getuienis aan te bied wat die hof oortuig’. Die verskil in die twee subartikels lê in die vereiste dat _ Bylae 6 beskuldigde getuienis moet aanbied wat die hof oortuig dat ‘buitengewone omstandighede’ bestaan wat sy of haar vrylating veroorloof, terwyl _ Bylae 5 beskuldigde slegs getuienis hoef aan te bied wat die hof oortuig dat die belang van geregtigheid sy of haar vrylating veroorloof. Artikel 60 (11) (a) bevat twee afsonderlike vereistes waarvan die beskuldigde die hof op _ balans van waarskynlikhede moet oortuig: eerstens dat daar buitengewone omstandighede bestaan wat sy of haar vrylating toelaat en, tweedens, dat sodanige buitengewone omstandighede die vrylating in die belang van geregtigheid verloorloof. Ek stem met die Hof a quo saam dat die vereistes nie in _ bepaalde volgorde oorweeg hoef te word nie”.
In terms of a Schedule 5 offence, the Appellant must proof on a balance of probabilities that “it is in the interest of justice” for him/her to be admitted to bail. In terms of an offence listed in Schedule 6 the Appellant must proof on a balance of probabilities that “exceptional circumstances” exist which warrants his/her release on bail. The Magistrate clearly misdirected himself in finding that:
“The Appellant has a case to face and has not established any exceptional circumstances”.
It is clear that the Magistrate applied the wrong test and placed a higher standard of onus on the Appellant than is required by the Act.
To add to the confusion, the Magistrate seems to place an additional onus on the Appellant by stating in the sentence immediately following upon the one quoted above, the following:
“It was and still is not in the interest of justice to grant bail of Appellant”.
It appears to me that either the Magistrate was confused about the test to be appllied or he thought that both the tests should be applied to the facts of this case. Be that as it may, it is clear that the Magistrate misdirected himself in applying the wrong test or in applying both tests and it warrants an interference by this court.
Furthermore, in his “Reasons for Judgment” the Magistrate states that:
“It was evident that Appellant was involved in the process of commission of the offence that resulted in his arrest on the day in question. Appellant was arrested with all other applicants and he knew all about the presence of machine guns on stolen vehicles. There is evidence by Mr Botha that release of Appellant would hamper investigations. Investigations include identification parade. Release of the Appellant would afford him opportunity to expose himself to witnesses or complainants and this would jeorpadise subsequent identification parade”
It is clear that the Magistrate misquoted and misinterpreted the evidence which was led by the State and he misdirected himself with regard to the facts presented.
There is no evidence that suggests that the Appellant “knew about the presence of machine guns on stolen vehicles”, or that he knew that the motor vehicle in which he travelled, driven by his coaccused, Accused No. 4, is indeed stolen.
There is also no evidence on record that proofs that there is a likelihood that Appellant, if he is released on bail, will endanger the public safety or the safety of a particular person and/or that he will influence or intimidate witnesses or conceal or destroy evidence and/or evade his trail and/or hamper the proper administration of justice. Therefore, none of the grounds enlisted in Section 60(4) of the Act, are present in this case.
Having regard to all the facts of this matter, I am satisfied that it is in the interest of justice that the Appellant be admitted to bail, and that Appellant successfully discharged the onus placed on him.
In the circumstance, I make the following order:
1.The appeal by the Appellant against the refusal of bail is upheld 2.Bail is fixed in the amount of R15 000.00 cash on condition that if the Appellant pays the amount of bail:
(a) he must report twice daily (Mondays to Fridays) at Itsoseng Police Station between 06h00 and 08h00 in the mornings and 16h00 and 18h00 in the afternoons; and
(b) he must report twice daily over weekends (Saturdays and Sundays) at Rosslyn Police Station in Pretoria between 06h00 and 08h00 in the mornings and 16h00 and 18h00 in the afternoons.
R.D HENDRICKS ACTING JUDGE OF THE HIGH COURT
DATED: 25 SEPTEMBER 2003
Attorneys for the Appellant: Isang Nakale Incorporated Suite 0113B, West Gallery Megacity Shopping Centre MMABATHO