S v Dlangamandla

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: TV Ratshibvumo AJ
• Judgment Date: 06 April 2021
• Docket Number: A05 / 2020
• Hearing Date: 06 April 2021
• Citation: 2021 JDR 0587 (MN)

Ratshibvumo AJ:

[1]

Introduction:

This is an appeal against the refusal of bail by the magistrate. It came before me in terms of section 65 of Act 51 of 1977 (the Criminal Procedure Act). Upon perusal of the file, it contained notice of appeal and the record of proceedings of bail application on new facts. The application for bail on new facts was heard on 18 November and 29 December 2020 and the judgment refusing bail was handed down on 06 January 2021. The notice for appeal was filed with the Registrar of this court on Friday the 12th March 2021.

[2]

When this matter was allocated to me on 15 March 2021, it became apparent that the record of the first bail application upon which the new facts were necessitated was not filed with the appeal. The Registrar had to call on the appellant's legal representative to obtain and file them with his office. The legal representative obliged and filed some 362 pages of record of bail application that was initially heard in respect of the appellant and his two co-accused. Judgment in the initial bail application was handed down on 28 January 2020. When I realised that there were no

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heads of arguments filed for the appellant and the respondent, I again caused this to be requested by the Registrar. The Appellant and the Respondent respectively filed the heads of argument on 25 and 29 March 2021.

[3]

Bail as urgent application

Bail and bail appeals are by their very nature urgent. In S v Banger, [1] the Supreme Court of Appeal held,

"Bail appeals are inherently urgent in nature. An accused person should not be deprived of his or her constitutional rights to freedom and to freedom of movement for longer than is reasonably necessary. The majority of appeals, against the refusal of bail by the High Court as a court of first instance, will arise from a court that consists of a single judge and will not require the attention of this court. In these matters application for leave to appeal should generally be made immediately after the refusal of bail and, upon leave to appeal having been granted, a full court of that division of the High Court should generally dispose of these appeals more expeditiously and cost-effectively than was the position before the advent of the Superior Courts Act."

[4]

There is no doubt that with what I referred to above, this bail appeal was not handled with some sense of urgency. No matter how conscious the court can be of the urgency that goes with bail and bail appeals, unless the appellant prosecutes the appeal with a sense of urgency; there is very little that can be done to help him achieve this.

[5]

The application for bail

In the court below, it was common cause that the appellant was arrested on a Schedule 6 offence – murder. Bail application was therefore heard with the understanding that the onus was on the appellant to show that

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exceptional circumstances exist which in the interests of justice permit his release on bail. [2] In discharging this onus, the appellant presented an affidavit. The following is summary of facts contained in that affidavit

[6]

He was 39 years old, residing at an address in Springs, Gauteng Province, with his fiancé with whom they had a 4 year old child. He also listed the said address as his immovable property. His fiancé was expecting another child. He was unemployed, having lost his job in March 2019; but he occasionally did odd jobs in transportation business. He has a pending case of which he was released on bail. He owns a passport which he handed over to the police pending the investigations in the pending case. He was out on bail in a case that had been transferred to the High Court. He was released on R5000.00 bail in that matter. He further indicated that he did not know the identity of the State witnesses. He did not have previous convictions. He was arrested while reporting at a police station as part of his bail conditions in the pending case.

[7]

In an attempt to discharge exceptional circumstances, he indicated that there were no eye witnesses against him and that he was not found in possession of the murder weapon. He also indicated that he was linked by a confession and a pointing out that he made to the police. He however indicated that he intended to challenge the admissibility of that confession in a trial. There are two reasons advanced upon which he will challenge the admissibility of this confession. The first reason is that he was threatened by the same police officers who assaulted him in the pending case. Secondly, his legal representative was not present when this confession and a pointing out were made. Had he been given an

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opportunity, he indicated he would have opted to have his attorney present.

[8]

Case for the State

The Respondent led evidence by the Investigating Officer, Sgt Johannes Mahlangu who testified under oath. His evidence relevant to the appellant can be summarised as follows. The Appellant is implicated in a taxi violence murder following the death of a taxi owner in Middelburg who was shot dead on 20 September 2018. The assailant(s) fled the scene driving a gold Toyota Avanza. The Appellant owns a gold Toyota Avanza. A witness who is a brother to the appellant's co-accused (accused no. 3) gave a statement in which he implicated the appellant and accused no. 3 in the murder of the deceased. He was present when accused no. 3, who is also a taxi owner, paid money to the appellant so that he could eliminate the deceased.

[9]

Cell phone records place the appellant at the scene of crime. They also reflect that there was constant communication between the appellant and accused no. 3 even on the date of the murder. When the appellant was approached, he did not dispute the allegations against him. Instead, he cooperated and made a confession and a pointing out. According to that confession, the appellant was not the hitman. He had hired a hitman who pulled the trigger. Acting on this information, the police arrested the alleged hitman and added him as a co-accused (accused no. 2). Accused no. 2 confirmed all the allegations made by the appellant and he also made a confession of his own.

[10]

The Appellant was unemployed. He resided at the address he gave in his affidavit with his girlfriend. The property is registered in the names of the

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said girlfriend. The Appellant does not own any immovable property. The computer system reflects that the appellant owns a Toyota Avanza. The Appellant however did not give the police any information about this motor vehicle. When asked about it, he alleges that he gave it to someone so that he could continue paying its monthly instalments. The Appellant did not give names, contact details or any other information about this person. As a result, they could not locate this motor vehicle. At the time of his arrest, the appellant was out on bail in a case of murder of a taxi owner who was killed in the same manner as the current case. However, the said murder took place in...