SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy	

IN THE NORTH GAUTENG HIGH COURT,
PRETORIA (REPUBLIC OF SOUTH AFRICA)

APPEAL NO: A302/2018

REPORTABLE: NO
OF INTEREST TO OTHER JUDGES: NO
REVISED.
10 August 2018

In the appeal of:

DUBULA KOOS JIYANE	APPELLANT

and

THE STATE

JUDGMENT

VUMA, AJ

[1]	The appellant appeals in terms of section 65 of the Criminal Procedure Act 51 of 1977, hereinafter "the Act" against a decision of an application for bail served on 27 June 2017 served before the Learned Magistrate Mr N. V Mabunda of the Cullinan Magistrate's Court in terms of which he was refused admittance to bail.

[2]	He is charged with murder within the purview of Schedule 5 of the Act. Section 60(11)(b) of the Act which deals with bail matters falling within this ambit provides that 'Notwithstanding any provision of this Act, where the accused is charged with the offence referred to in schedule 5 but not schedule 6, the court shall order that the accused be kept in custody until he or she is dealt with in accordance with the law unless, he having been given a reasonable opportunity to do so, adduces evidence which satisfies the court that the interests of justice permit his or her release. '

[3]	In terms of section 60(10) of the Act a duty is imposed on a court hearing a bail application to weigh up personal circumstances of an accused against the interests of justice. The prejudice the accused will likely suffer has to be balanced by taking into account factors enumerated in section 60(9) of the Act.

[4]	The magistrate refused the bail application on the basis that:

1.	The appellant was a flight risk; and
2.	The state's case against the appellant was strong.

[5]	The appellant who was legally represented lodged a formal bail application during which his affidavit was tendered on his behalf in support of his application for bail. The state opposed the application and the investigating officer ("I.O") warrant officer Shaku testified on behalf of the state.

[6]	The facts giving rise to this appeal are as follows:

The offence in this matter was committed on 31 May 2017. The appellant was arrested on 1 June 2017 and charged with one count of murder read with the provisions of Section 51 of the Criminal Law Amendment Act 105 of 1997. The state alleges that on 31 May 2017 the appellant, who was in a love relationship with the deceased, shot and killed her and threw her body out of the Quantum taxi he was driving, thereby leaving her body lying on the ground. A witness came forward with the said information which led to the police paying the appellant a visit. Upon the appellant's quantum taxi being inspected by the police, a hole allegedly caused by a bullet was noticed on the windscreen and also blood was found inside the taxi. When asked how blood came to be in his taxi, the appellant stated that it was rabbit blood. Forensic tests were conducted which proved that the said blood was human's instead.

[7]	The appellant placed evidence before the court a quo by way of an affidavit, raising, inter alia, the following issues:

1.	abscondment;
2.	interference with state witnesses; and
3.	interference with police investigations
4.	the strength of the state's case against him.

[8]	Added to the above, the following circumstances of the appellant were placed before the court a quo:

1.	He is a South African citizen who at the time of the bail application was aged 41 years;
2.	He resides at number [....] P[....] Street, Elandpoort, Danville, 0001;
3.	He is a single man with 6 children aged 17; 11; 7; 6; 5 and 1 year old;
4.	He is employed as a taxi driver and earns a monthly income of R2 800-00;
5.	He has no previous convictions nor pending cases; and
6.	He is in a financial position to pay bail in the amount of R1 200-00.

SUBMISSIONS ON BEHALF OF THE APPELLANT

[9]	  It is submitted on the appellant's behalf that the court a quo's refusal and the continued detention of the appellant is not in the interests of justice. It is further submitted that the court a quo has misdirected itself in the following manner:

1.	It disregarded the favourable personal circumstances of the appellant;
2.	It took into account the I.O's evidence which is unreliable since it is largely circumstantial and is based on pure speculation;
3.	It did not consider the undisputed evidence that the appellant is not a flight risk nor a danger to the public, whether there is a likelihood that the appellant will interfere with state witnesses; nor whether the appellant will commit further crimes if released on bail; nor whether the appellant will endanger public order or safety.
4.	It did not consider the fact that appellant has a family to maintain or several financial responsibilities.
5.	It did not consider that the appellant has a verified fixed address.

[10]	It is further submitted that the court a quo had already presumed the appellant's guilt. On the whole the thrust of the appellant's argument is that the appellant's personal circumstances favours him to be granted bail.

SUBMISSIONS ON BEHALF OF THE STATE

[11]	The state argues that the offence herein involves femicide and the fact that the offence is a schedule 5 one makes it even more serious. Given the fact that the appellant submitted an affidavit, his version could not tested and thus weakens his case.

LEGAL PRINCIPLES

[12]	Section 65(4) of the CPA sets out the basis on which this court can interfere with the refusal of bail by the court a quo. The test is the following: was the magistrate wrong.

[13]	In the matter of S v Mpulampula 2007 (2) SACR 133 (E) it was held that where the court a quo misdirected itself materially on the facts or the legal principles the court of appeal may consider the issue of bail afresh. interference is also justified where the lower court overlooked some important aspects in coming to its decision to refuse bail.

[14]	The functions of the court hearing the appeal under section 65 are similar to those in an appeal against conviction and sentence. In S v Barber 1979 (4) SA 218 (D) at 220 E-H Heter J remarked as follows:

"It is well known that the powers of this court are largely limited where the matter comes before it on appeal…. 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 an unfair interference with the magistrate's exercise of discretion".

[15]	In the matter of S v C 1998 (2) SACR 721 (KPA) at 724 H-I (English translation from headnote) the court held the following:

"It could not have been the intention of the Legislature that an alleged offender must be detained when he has established conclusively that he will attend his trial, that he will not interfere with the administration of justice, and that he will commit no further wrongdoing (i.e., the usual circumstances that arise for consideration in a bail application). As soon as more is required of him, the procedure becomes punitive. That would be altogether objectionable. Therefore, all that the Legislature enacted, somewhat clumsily, is that a Court which is seized with a matter involving a Schedule 6 offence must exercise exceptional care when considering the usual circumstances. The Court must be able to hold with a greater degree of certainty that the detainee will do all that his bail conditions require of him. That is all."

[16]	In S v Dlamini; S v Dladla and others: S v Joubert; S v Schietekat 1999 (2) SACR 51 (CC) it was held that the focus was to protect the investigation and prosecution of the case against hindrance. It was held that it would simply mean a value judgment of what would be fair and just to all concerned. The Court further held that content of such value judgment would depend on the context and applied interpretationin each and every case. The Court further held that in applying the interests of justice criterion, both the trial-related and extraneous factors are to be taken into account. This criterion requires a weighing up of the accused's interests in liberty against those factors which suggest that bail be refused in the interests of the society.

ANALYSIS

[17]	It is common cause that the basis on which this court can interfere with the refusal of bail by the court a quo in a bail appeal is set out in terms of section 65(4) of the Act, namely: "was the magistrate wrong", coupled with the ratio as laid down in the matters of Dlamini, Dladla, Joubert and Schietekat above.

[18]	The question for determination by this court is whether, from the Record of the bail application in the court a quo, the appellant has succeeded to prove that it will be in the interests of justice that he be released on bail. In the event this court finds that the factors adduced by the appellant meet the above test, then this court must determine if the court a quo's decision to deny the appellant bail, under those circumstances, was wrong.

[19]	lt is common cause that the defence and the state's submissions are poles apart, with the former arguing that on the evidence adduced before the court a quo, the appellant succeeded to show that interests of justice permits his an admittance to bail. On the other hand, the state submits that there was no misdirection on the part of the court a quo and neither was its decision wrong

[20]	When considering the submission by the appellant that his personal circumstances are such that they entitle his admittance to bail, I am of the view that the determination of admittance to bail cannot be made by just considering one factor singularly: each and every circumstance has to be factored in cumulatively. Even after factoring in the appellant's personal circumstances, I find that there is nothing which in the interests of justice warrants his release on bail for reasons that will appear below-herein.

[21]	Regarding the question whether the state's case is strong or not, I am of the view that contrary to the defence's submissions, prima facie, the state has a strong case against the accused. It is common cause that in terms of the minimum sentence regime, the competent sentence, in the event the appellant is convicted, will be a lengthy custodial one. It is further common cause that on the balance of probabilities, the likelihood is that any person whom the criminal trial outcome odds are reasonably against him or her would not hesitate to evade justice by skipping bail, especially considering that the appellant's employment can be easily secured in the event he flees to another province or country, him being a taxi driver. His accommodation is neither one which can be described as a fixed address since he was renting at the time of his arrest.

[22]	Furthermore, the fact that the deceased's sisters are afraid of the appellant and are possible state witnesses who are also known to the appellant, including their residential address, that militates against the interests of justice in the event the appellant was to be released on bail. I am of the view that the circumstances herein are such that it would be injudicious of any court to grant bail under these circumstances. In casu, my considered view is that not even bail conditions as suggested by the appellant's counsel can erode the sisters' concern.

[23]	Regarding the question of the appellant's fixed address as referred to above, I am of the view that since no evidence was adduced regarding the duration for which the appellant had been renting at the address in question, that that on its own justifies the view by the court a quo of the appellant being a flight risk. Over and above this finding, given that the address at which the appellant was staying at the time of the bail application is not his own, my view is that it would be easy for the appellant to vacate same at a whim.

[24]	Regarding the defence's contention that the state's case is both weak and circumstantial, I am of the view that what is alleged by the state witness being, for instance, the reason proffered by the appellant for the hole on the windscreen does not accord with the one he allegedly gave to the investigating officer. Furthermore, for the reasons outlined below­ herein, I find as untenable the argument by the appellant's counsel that there are many quantum taxis in Pretoria which are similar to the one driven by the appellant and that it could therefore have been any of them and not the appellant's:

1.	The deceased succumbed to gun-shot wounds;
2.	The appellant's quantum windscreen has a hole in it alleged to have been caused by a bullet;
3.	The deceased was in a love relationship with the appellant;
4.	A Quantum taxi allegedly seen dumping a body which would turn out to be the deceased's is that of the appellant;
5.	Human blood is found in the appellant's Quantum.

[25]	I am of the view that when one considers the provisions of section 60(9) read with section 60(4)(d) of the Act, the appellant's right of personal freedom is being limited or denied in the interests of justice. I find this limitation justifiable considering the strength of the state's case against the appellant. It is common cause that the appellant has advanced no credible version or explanation to gainsay the strength of the state's case. The response to the state's version by the appellant is, in my view, a bare denial that does the appellant no favour at the wealth of the overwhelming case the state has against him. It must be remembered that the appellant bears the duty to convince the court of his entitlement to release on bail.

126]	The argument by the appellant's counsel that the state's evidence against her client is mere speculation and circumstantial is not sustainable. I am of the view that for purposes of bail application, the fact that the deceased died of gun-shot wounds and the fact that blood was found inside the taxi driven by the appellant who happened to have been in a love relationship with the deceased suffices for bail purposes. I am of the view, therefore, that that on its own, in the absence of any reasonable explanation being advanced by the appellant, is a ground enough for the appellant to be denied bail.

CONCLUSION

[27]	From the totality of the evidence adduced by warrant officer Shaku, there exists prima facie indications that the proper administration of justice and safe-guarding thereof will be defeated or frustrated if the appellant is admitted to bail. It is for this reason that I am of the view that this court would be justified to dismiss this appeal. As provided for in section 60(9) of the Act, I am satisfied that interests of justice justifies the dismissal of this appeal and that looking into the provisions of section 60(4) of the At, the state has succeeded in establishing that grounds exists which do not permit the release of the appellant on bail.

[28]	  In the premise I am satisfied that the court a quo did not misdirect itself in finding that exceptional circumstances do not exist upon weighing the appellant's personal circumstances against the interests of justice.

[29]	I am satisfied that the appellant failed to discharge the onus, on a balance of probabilities, that the administration of justice will not be jeopardised, defeated or frustrated if he is admitted to bail on the strength of the evidence placed before the court a quo.

[30]	As provided for in terms of section 65(4) of the Act, I am not persuaded that the decision of the Magistrate in refusing to admit the appellant to bail was wrong and that decision is accordingly confirmed.

[31]	In the result I make the following order:

ORDER

1.	The court a quo's decision is confirmed.
2.	The appeal is dismissed.

LIVHUWANI VUMA
Acting Judge of the High Court 
Gauteng Division, Pretoria

Heard on:  27 July 2018
Judgment delivered:  10 August 2018

Appearances:
For the appellant: Adv. M H Nkoana 
Instructed by: Malatji Attorneys

For the respondent: Adv. K. Pruis 
Instructed by: Office of the DPP, Pretoria