S v Cenenda

• Jurisdiction: South Africa
• Judge: HF Brauckmann AJ
• Judgment Date: 26 June 2020
• Docket Number: C 03/17
• Hearing Date: 24 June 2020
• Citation: 2020 JDR 1429 (MN)

Brauckmann AJ:

[1]

This is an application by Mr MZUVUKILE WELLINGTON CENENDA ("Mr Cenenda") to be released on bail because, as stated in his affidavit, of his wife, Ntombi Anna Cenenda ("Ntombi") passed away on 06 June 2020. Her death left, according to Mr Cenenda, his two children without any primary caregiver.

[2]

Mr Cenenda deposed to an affidavit and a supplementary affidavit. The supplementary affidavit was in essence a replying affidavit traversing the facts deposed to by Paul Johannes Holtzhauzen ("Holtzhauzen") on 11 June 2020, on behalf of the State in opposition of the bail application.

[3]

Mr Cenenda and other accused were arrested in Kriel on 31 July 2016. A formal bail application was conducted in the Kriel Magistrate's Court during which the State opposed bail in respect of Mr Cenenda. On 16 September 2016 the Magistrate, Kriel, granted him bail on a number of conditions. This included that he deposit an amount of R8000-00 cash; that he attends court when

2020 JDR 1429 p3

Brauckmann AJ

required; that he reports at the Tembisa Police Station twice a week and that he will notify the investigating officer if he changes address.

[4]

On 3 April 2017, Mr Coert Jordaan, an attorney appearing on behalf of Mr Cenenda, handed a certificate to Court informing it that the applicant was ill and could not attend Court. A warrant of arrest was issued and held over. The applicant did not return to court, his bail was finally forfeited to the State on 7 June 2017, and a warrant was issued for his arrest. The original indictment pertaining to the incident at Kriel was served on the remaining accused. The applicant was included in the indictment as accused five.

[5]

Mr Cenenda was only rearrested in Bloemfontein on 26 July 2018. At the time he was living in Bloemfontein. When the he was rearrested, he was living with a new girlfriend by the name of Ms Lucia Modibedi who deposed to a statement on 30 July 2018 which is marked A134 (Kriel CAS 113/07/2016). It is significant that Mr Cenenda did not go by his name as appears in the records of Home Affairs, but she knew the applicant as Muzi Masilela. They lived in Acacia Place D102 in Bloemfontein. Ms Modibedi stated that Mr Cenenda only used cash and not bank cards.

2020 JDR 1429 p4

Brauckmann AJ

[6]

During the rearrests his residence In Bloemfontein was searched and numerous cell phones and sim cards, as well as a Blue Ford Focus ST motor vehicle that was reported to have been robbed under Edenpark CAS: 297/04/2016 were confiscated. An analysis of the cell phones also linked Mr Cenenda to crimes in respect of Park road CAS: 1114/10/2017 and Boithuso CAS: 42/07/2018. A witness in terms of section 204 of the Criminal Procedure Act [1] also linked Mr Cenenda to the commissioning of the crime in Park road CAS: 1114/10/207. Mr Cenenda was rearrested 23 days after the commissioning of the Boithuso case because of the information obtained from the section 204 witness.

[7]

Prior to Mr Ceneneda's initial arrest in Kriel on 31 July 2016, members of the South African Police Service ("SAPS") followed a vehicle tracking signal of a tracking unit in a BMW motor vehicle that was reported as hijacked (per Cleveland CAS 317/07/2016) from Johannesburg to Kriel. At approximately 13h15 the SAPS members entered into the premises at 9 Impala Street, Kriel, where the tracker signal indicated that the BMW vehicle was located. Upon entering the premises, the SAPS were met by a hail of automatic gunfire. The SAPS members were attacked with assault rifles and handguns. More than 263 spent cartridges were collected on the scene.

2020 JDR 1429 p5

Brauckmann AJ

[8]

The SAPS members returned fire and some of the suspects fled the original scene to surrounding premises. During the shootout Warrant Officer Botes was seriously wounded and admitted to hospital with a gunshot wound. The area was cordoned off and searched after which the suspects, including Mr Cenenda, were arrested within the boundaries of this scene of the shoot-out. The following were seized from the accused at the crime scene:

a.

Three robbed BMW motor vehicles to the value of R2 800000-00. This included the vehicle followed with the tracker referred to above, as well as the two other BMW's reported robbed under Cleveland CAS 41/06/2016 and Boschkop CAS 112/05/2016;

b.

3.77 Kg. Commercial Explosives with 8 electric detonators, 60 cm. detonating cord and 22 capped fuses;

c.

11 x Cellular telephones;

d.

7 x Bullet proof vests including SANDF vests;

e.

1 x AK 47 with magazine and ammunition;

f.

1 x R 5 with magazine and ammunition; three x R 4 with magazines and ammunition;

1 x 9 mm Pistol with magazine and rounds. 1xDashpot semi-automatic

2020 JDR 1429 p6

Brauckmann AJ

Rifle with magazine and ammunition. (Stolen during Cash in Transit heist where explosives were used to blow open the cash transporting vehicle. Laersdrift CAS 01/06/2015 has reference); 111 x life rounds in 8 loaded magazines and more than 263 spent cartridges; Several hand gloves and balaclavas were found on the crime scene.

[9]

Warrant Officer Botes was seriously wounded as well as (5) five of the suspects who were wounded during the shootout and all were admitted to Cosmos hospital in eMalahleni. After the attack on the SAPS members it was discovered that the attack as well as the accused fleeing to adjacent yards and various hiding places was captured on the CCTV cameras of a nearby house. This corroborates the versions of the police officers. Mr Cenenda was one of the individuals that was arrested on the scene. The clothing that Mr Cenenda wore during the attack matches the clothing visible in the video footage.

[10]

Mr Cenenda is currently arraigned on the following charges:

[10.1]

two counts of murder;

[10.2]

six counts of attempted murder;

2020 JDR 1429 p7

Brauckmann AJ

[10.3]

the unlawful possession of explosives in contravention of section 5 of the Explosives Act, No 26 of 1956;

[10.4]

the unlawful possession of firearms in contravention of section 3 of the Firearms Control Act, No 60 of 2000;

[10.5]

the unlawful possession of prohibited (fully automatic) firearms in contravention of section 4 of the Firearms Control Act, No 60 f 2000;

[10.6]

the unlawful possession of ammunition in contravention of section 90 of the Firearms Control Act, No 60 of 2000;

[10.7]

three counts of theft;

[10.8]

two counts pertaining to the unlawful possession of suspected stolen goods in contravention of section 36 of Act 62 of 1955.

[11]

According to Holtzhauzen, the ongoing investigation established a prima facie case that Mr Cenenda and his co-accused formed a criminal enterprise as envisaged in the Prevention of Organised Crime Act [2] . After the investigation was completed a new indictment was drafted. This new indictment was circulated to the legal representatives of the accused and the indictment will formally be served on the accused when they appear in court

2020 JDR 1429 p8

Brauckmann AJ

again. The new indictment cover twenty-two incidents during the period 2 March 2015 up to 25 October 2017. Four of the original accused do not form part of the organised crime prosecution and the matter against them will be separated when they appear in court again.

[12]

The application on behalf of Mr Cenenda is based on the following four grounds: (1) That the personal circumstances of the Applicant establish exceptional circumstances; (2) an explanation as to why he did not return to court when he was previously granted bail in this matter; (3) the strength of the State's case; and (4) that he will adhere to any bail conditions and will attend court as required.

[13]

Section 60 (11) (b) of the CPA stipulates:

"(11) Notwithstanding any provision of this Act, where an accused is charged with an offence referred to in Schedule 6, the court shall order that the accused be detained in custody until he or she is dealt with in accordance with 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.". [Own emphasis]

This is the relevant requirement that Mr Cenenda must comply with before the Court can consider his release on bail. Section 60(11) (a)

2020 JDR 1429 p9

Brauckmann AJ

and (b)) must be read with Schedules 6 and is indicative of the legislature's intensified battle against serious crimes. Applicants who are charged with offences mentioned in schedules 6 have an uphill battle to secure release on bail.

[14]

The court has to be convinced that (1) there are exceptional circumstances (2) which permit the release of the accused in the interests of justice. The exceptionality of the circumstances must be of such a nature that it persuade a court, on a balance of probabilities that it would be in the interests of justice to grant bail [3] .

[15]

The freedom of the accused demands that bail must only be refused where there is a real danger that justice will not be done, and a Court should always try to see whether suitable conditions will make bail possible, rather than refuse bail [4] .

[16]

The state opposes Mr Cenenda's application for release on bail on the grounds set out in Sections 60(4) (a), 60(4) (b) and 60(4) (d) of the CPA:

2020 JDR 1429 p10

Brauckmann AJ

60(4) (a) - "Where there is the likelihood that the accused, if he or she were released on bail, will endanger the safety of the public or any particular person or will commit a Schedule 1 offence; or"

60(4) (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"

60(4) (d) - "Where there is the likelihood that the accused, if he or she were released on bail, will undermine...