S v Mabogole

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Mamosebo J
• Judgment Date: 13 January 2023
• Citation: 2023 JDR 2628 (NCK)
• Docket Number: CA & R 37/2022

Mamosebo J:

2023 JDR 2628 p2

Mamosebo J

[1]

On 06 September 2022 I granted Mr Simon Kenneth Mabogole, the appellant in CAFÉ & R 37/2022 the following order and reserved my reasons:

1.

The bail appeal is upheld.

2.

The order of 07 September 2021 by the Regional Court Magistrate in Mothibistad, Case Number RC22/2018, dismissing the appellant’s bail application pending the outcome of his appeal against conviction and sentence, is hereby set aside and substituted with the following order:

Bail is granted to the appellant in the amount of R2000.00 (Two Thousand Rand), on the following conditions:

(a)

That the appellant shall not, directly or indirectly, make contact with the witnesses who testified during his trial;

(b)

That the appellant shall not leave the district of ZF Mgcawu without informing the investigating officer thereof;

(c)

That the appellant, if his appeal against conviction and sentence is dismissed, shall report within 72 (seventy-two) hours after judgment has been handed down to the nearest Correctional Services Centre to start serving his sentence.

[2]

On 28 November 2022, Ms Lesedi Virginia Motshwarakgole and Ms Boitshepo Motshwarakgole, the appellants in case numbers CA&R 43/2022 and CA&R 44/2022 brought applications for bail pending an appeal hearing against their convictions and sentences.

[3]

The three appellants appeared before the Regional Court Magistrate, N Mbalo, under case number Mothibistad RC 22/2022 on seven counts: (i) kidnapping (ii) kidnapping; (iii) kidnapping, (iv) murder r/w the provisions of s51(1) of Act

2023 JDR 2628 p3

Mamosebo J

105 of 1997, (v) attempted murder, (vi) attempted murder and (vii) c/s 120(1)(3)(b) of Act 60 of 2000. They were convicted on all counts and sentenced on 06 July 2020 as follows: (i) 6 years imprisonment; (ii) 6 years imprisonment; (iii) 6 years imprisonment; (iv) life imprisonment; (v) 10 years imprisonment; (vi) 10 years imprisonment and (vii) 5 years imprisonment. The sentences in counts (i), (ii), (iii), (v), (vi) and (vii) were ordered to run concurrently with count (iv) of murder.

[4]

Mr Mabogole filed a notice to appeal his convictions and sentences on 01 February 2021 and simultaneously sought condonation for the late filing of his notice to appeal against his conviction and sentence. He also filed a notice of application for bail pending appeal on the same day, 01 February 2021. He was partially successful in that the Regional Magistrate only granted him leave to appeal his sentence in count 4 but dismissed his application for bail pending appeal. He filed a notice to appeal the decision on 22 September 2021.

[5]

The Motshwarakgoles filed a notice of application for bail pending appeal on 23 September 2022. Counsel for the State, in the Motshwarakgole application, Adv J Rosenberg, filed his heads of argument one day out of time. There was no opposition by the appellants’ counsel, Adv S Letsie. I accepted the explanation for the delay and granted condonation.

[6]

The two issues for determination are whether the Regional Magistrate erred:

6.1

In finding that there are no reasonable prospects of success on appeal regarding the convictions; and

6.2

In not finding that there are exceptional circumstances warranting the release of the appellants on bail pending the...