IN THE HIGH COURT OF SOUTH AFRICA,
LIMPOPO DIVISION, POLOKWANE

CASE NO: BA18/2023
REPORTABLE: YES/NO
OF INTEREST TO OTHER JUDGES: YES/NO
REVISED:YES/NO
Date: 25 October 2023

In the matter between:

KEALEBOHA HAMESI	APPELLANT

and

THE STATE	RESPONDENT

Heard:	12 October 2023
Delivered:	25 October 2023 by circulation to the parties' legal representatives
Coram:	PILLAY AJ

JUDGMENT

PILLAY AJ
Introduction

[1]	This is an Appeal by the Appellant, who appears with a co-accused and cited as accused 1 in the court a quo, against the refusal of bail by the Praktiseer District Court Magistrate.

[2]	The Appellant, with his co-accused is charged with Kidnapping, Three Counts of Robbery with aggravated circumstances read with the provisions of section 51(2) of the Criminal Law Amendment Act, Possession of a firearm and Possession of Ammunition in contravention of the Firearms Control Act and Attempted Murder.

[3]	The grounds of Appeal are set out as follows in the Notice of Appeal as follows;

3.1	The learned Magistrate erred in finding that the Appellant's alibi is not an exceptional circumstance as contemplated in section 60(11)(a) of the Criminal Procedure Act;

3.2	The learned Magistrate erred refusing bail because there is a prima facia case for the Appellant to answer;

3.3	The learned Magistrate erred in finding that it is not an exceptional circumstance that the Appellant's business will suffer while he is incarcerated;

3.4	The learned Magistrate erred in finding that the Appellant's chronic health condition is not an exceptional circumstance;

3.5	The learned Magistrate erred in finding that there is a likelihood that the Appellant would attempt to evade his trial;

3.6	The learned Magistrate erred in finding that there is a likelihood that the Appellant would interfere with witnesses or evidence;

3.7	The learned Magistrate erred in finding that there is a likelihood that the Appellant would be a danger to the public or individual safety.

[4]	It is common cause that the bail application of the appellant resorted within the ambit of section 60(11)(a) of the Criminal Procedure Act which provides that:

"Notwithstanding any provision 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 a 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".

[5]	An Appeal against the refusal of bail is governed by section 65(4) of the Criminal Procedure Act, and provides as follows:

"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 opinion the lower court should have given.

[6]	In Chewe v The State, lshmail J stated the following with regard to the approach on Bail Appeals:

"This appeal is advanced against the refusal of bail by the court having heard the initial and subsequent application. The task of this court is merely to ascertain whether the court of first instance exercised its mind judicially and correctly. In this regard I am enjoined to follow the approach laid down by the court in S v Barber - " 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 the magistrate because that would be an unfair interference with the magistrate's exercise of his discretion. I think it should be stressed that no matter what the court's 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".

[7]	In light of the fact that the bail application fell within the ambit of Schedule 6 of the Criminal Procedure Act, the onus was on the appellant to adduce proof on a balance of probabilities, that exceptional circumstances existed, which in the interests of justice permitted his release on bail. In S v Rudolph, Snyders JA stated as follows in this regard:

"It contemplates an exercise in which the balance between the liberty interests of the accused and the interests of society in denying the accused bail, will be resolved in favour of the denial of bail, unless "exceptional circumstances" are shown by the accused to exist. Exceptional circumstances do not mean that 'they must be circumstances above and beyond, and generally different from those enumerated' in ss 60(4) to (9). In fact, ordinary circumstances present to an exceptional degree, may lead to a finding that release on bail is justified."

[8]	In the Court a quo, the Appellant in support of his application presented evidence in the form of an affidavit setting out his personal circumstances and why he would be a suitable candidate to be released on bail. The State in rebuttal led evidence of the Investigating Officer who testified under oath.

[9]	The allegations against the Appellant is that on the 2nd June 2023 he was involved with Accused no 2 in the kidnapping of the complainant Mohomed Naser Tayob. The other charges flow from this incident. Based on the evidence before the Court a quo the application by the Appellant was unsuccessful.

[10]	On Appeal, Council for the Appellant argued that the Respondent's case against the Appellant was based on his finger print being lifted from a motor vehicle which was alleged to have been involved in the commission of the offence. The Appellant raised the defence of alibi of his presence in Pretoria at the time the offence was alleged to have been committed. He provided the Court with affidavits from 2 witnesses supporting this contention which according to the Appellant was not challenged or rebutted and for this reason should have been considered as exculpatory evidence in support of the Appellant's case. He was able to provide an explanation for his fingerprint as he meets his co-workers in various motor vehicles which could explain the presence of his fingerprint in the alleged vehicle.

[11]	It was argued that the State failed to present any evidence at the bail application concerning the appellant's involvement in the other seven charges. It was argued that the Appellant was not arrested with his Co-Accused, nor did the charge sheet reflects the allegation that the Appellant was acting in furtherance of a common purpose with his Co-Accused in the commission of these charges.

[12]	Cumulatively, his personal circumstances, his medical condition, his financial obligation to his family and responsibility for his employees suffice to establish exceptional circumstances to warrant his release from custody and the Presiding Magistrate erred in not granting the Appellant bail. The Appellant does not know the witnesses involved in the case. He is not a flight risk. He is a man of straw and if the Appeal Court found that the refusal of bail was wrong and not in the interest of justice that he be further detained he was capable of raising an amount of R10 000,00 which could be used for the purposes of bail including further conditions like reporting and surrendering of his passport to the Investigating Officer.

[13]	The Respondent indicated that due to the Appellant launching his application by way of an affidavit he was unable to provide further details concerning relevant aspects pertaining to his personal circumstances and highlighted the following;

13.1	In his affidavit he mentioned his wife and child were solely dependent on him financially and he was the sole breadwinner. He failed to disclose that his wife is employed at Rage Retailing store. He failed to disclose the amount she was earning and on what these funds are spent. These allegations were misleading as he is not the sole provider for his family.

13.2	In his affidavit he mentioned he was self-employed in the transport business yet failed to go further to explain what exactly that entailed. It was only when the Investigating Officer testified that it became clear that he is operating a taxi business.

13.3	He indicated that he had six employees and their families to maintain without explaining how much each employee earned and what exactly their employment status was that their support and wellbeing was solely dependent on him.

13.4	He failed to indicate what exactly his income was to result in him earning R8000,00 per month.

13.5	He indicated he suffered from High Blood Pressure and Sugar Diabetes and did not have his medication resulting in his deteriorating health. Further that he ate a special diet for his health benefit and that he would not have access to same whilst in detention. In response the Investigating Officer was not informed of his medical condition or his special diet so that assistance could be provided the Appellant to get the relevant medical treatment.

13.6	He highlighted his fear that the "Hawks" who took his fingerprints twice could plant evidence indicating him in the commission of the offence. Under cross examination it was put to the investigating officer that it was
possible that the appellant's fingerprints were located in the motor vehicle because he attended meetings in motor vehicles from time to time. This was a material conflict which needed a response.

[14]	The Appellant's alibi defence according to the Respondent, was not subjected to cross-examination and was only raised as a defence at the time of the bail application. Due to the above mentioned conflict concerning his fingerprints the State's case remains strong against him.

[15]	The Respondent indicated that the Investigating Officer testified that he was opposed to the release of the Appellant on bail due to the Appellant being connected to the offence by fingerprints, not being aware of any medical condition suffered by the Appellant and being unable to verify the business interest held by the Appellant. Further, that increased security had to be arranged for the Appellant when transporting the Appellant to and from Court as a result of information obtained, that the Appellant was planning to escape from custody.

[16]	It was argued by the Respondent that the offences for which the Appellant is being charged is prevalent within the Court's jurisdiction, violence was involved in the commission of the offence and the family of the victim is being subjected to continuous threats from the kidnappers.

[17]	The Respondent submitted that if the Appellant were to be convicted, he would be facing a lengthy term of imprisonment. The possible severe sentence outcome formed a likelihood that if released the appellant may attempt to evade trial or undermine or jeopardize the objectives of the proper functioning of the Criminal Justice system, including the bail system.

[18]	The Respondents submitted that there was no evidence in the Appellant's case assessed totally in the interest of justice would tantamount to exceptional circumstances. The learned Magistrate followed the right procedure and was transparent on the application and there was no misdirection in refusing bail.

[19]	Having regard for the arguments raised by the Appellant and Respondent and considering the Application in totality including the record of the Court a quo the following is noted;

19.1	The Presiding Magistrate considered the provisions of Section 60 of Act 51 of 1977 with specific reference to all the requirements needed to be satisfied for the Appellant to be considered as a candidate suitable to be released on bail. It was argued that his personal circumstances were of such a nature that it warranted exceptional circumstances to justify his release and these aspects were also considered by the Presiding Magistrate.

19.2	The grounds for appeal is premised on the Appellant's medical condition which was alleged had not been considered by the Presiding Magistrate. I have to disagree and align myself with the contents of the record and arguments raised by the Respondent. For one's medical condition to be appreciated it would require complete disclosure of information which is unique to oneself. This disclosure was not forthcoming from the Appellant. Currently, it is still unknown what medication the Appellant requires to take on a chronic basis for his Diabetes or his Pressure, if it is a chronic ailment and if he is on medication. There was no information forthcoming concerning what diet he is following with regards to his health, which is an aspect peculiar to the Appellant and even at this stage in the proceedings, is still unknown to the Court.

19.3	The same is noted concerning his financial affairs. He failed to take the Court a quo into his confidence concerning his and his wife's income and expenditure to the extent that same was unknown and could not be relied upon when determining the impact of his detention on his wife and family.

19.3	The Respondent correctly noted that being in the transport business did not explain what work the Appellant was doing, nor does the Appellant explain the nature of his business, the services he renders, the staff compliment and earnings and most importantly where this business is located, its assets and the income generated by this business. To merely allege that his staff and family would suffer by his incarnation without explaining anything pertaining to this business unfortunately is of little assistance to the Court.

19.4	The issue pertaining to the direct evidence concerning the Appellant's fingerprint and his alibi defence is aspects relevant to the bail proceedings, but on their own does not substitute for the scant information provided by the Appellant motivating why his circumstances are exceptional to warrant his release on bail.

[20]	In Mathebula the SCA noted the following concerning the strength or weakness of the State's case.

[13] As will be apparent from the paucity of facts in support of his case, the appellant fell substantially short of the target. Despite the weak riposte of the state, the magistrate was left, after hearing both sides, no wiser as to the strength or weakness of the state case than he had been when the application commenced. It follows that the case for the appellant on this aspect did not contribute anything to establishing the existence of exceptional circumstances.

[15] The remainder of the personal factors urged on us, are neither unusual or such as singly or together warrant release of the appellant in the interest of justice. Parroting the terms of subsec (4) of s 60, as he did, does not establish any of those grounds, without the addition of facts that add weight to his ipse dixit.

[21]	I am of the view that the Appellant failed to take the Court of First instance nor the Appeal Court into his confidence concerning the various aspects raised above and amidst the alleged weak State's case failed to place exceptional circumstances before the Court to warrant his release with specific reference to his affidavit in support of his release on bail.

[22]	In the final analysis the order of the Magistrate refusing the admission of the Appellant to bail cannot be said to have been wrong.

[23]	In the result the following order is made:

23.1. The Appeal against the refusal of bail is dismissed.

PILLAY AJ
ACTING JUDGE OF THE HIGH COURT
OF SOUTH AFRICA LIMPOPO
DIVISION POLOKWANE

APPEARANCES:

Counsel for the Appellant:	Adv M J Kleyn
Instructed by:	Kirpal Attorneys

Counsel for the Respondent:	Adv ESJ Mufamadi
Instructed by:	DPP Polokwane

Date heard:	12 October 2023

Electronically circulated on:	25 October 2023