S v Madoda and Another

• Jurisdiction: South Africa
• Judge: TA Maumela J
• Judgment Date: 03 February 2022
• Docket Number: A 282/2021
• Hearing Date: 03 February 2022
• Court: North Gauteng High Court, Pretoria
• Citation: 2022 JDR 0749 (GP)

Maumela J:

1.

This is a bail appeal which is opposed by the state. Before the Regional Court for the District of Gauteng sitting at Nigel, the

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court a quo; two accused persons appeared. They are Simphiwe Garrie Madoda and Banele Gift Mtsweni who was a co-accused to the Appellant. They shall henceforth be referred to as the 1st and the 2nd Appellant respectively. They are both male and were both 30 years of age at the time they were arrested.

2.

The residential addresses of the Appellants are indicated to be No: 6263, Mdluli Street, Extension 08 Langaville, Tsakane and No: 6260 Mnisi Street, Langaville, Tsakane respectively. Before the Regional Court, the two were charged with 2 (two) counts as follows:

2.1

Count 1, where the offence is Robbery with Aggravating Circumstances, as defined in Section 1 of the Criminal Procedure Act 1977: (Act No 51 of 1977) – CPA, read with section 155 of the CPA, and section 51(2) of the Criminal Law Amendment Act 1997: (Act No 105 of 1997) - CLAA, as amended by Act No 38 of 2007 and

2.2

Count 2, where the offence is Attempted Murder, (read with the provisions of Section 51 of the CLAA as amended by Act No 38 of 2007).

ALLEGATIONS.

3.

The allegations against the accused are as follows:

3.1

In Count 1;

The allegations are that upon or about the 04th of July 2021, at or near Duduza in the District of Ekurhuleni East/Regional Division of Gauteng, the accused did unlawfully and intentionally assault Bongani Maise, and with force or violence, did take the following items to wit: a Toyota Conquest, (7 TZ 499 GP), the value of which is R 22 000- 00, (twenty two thousand rand), his property or property in his lawful possession and therefore robbed him of same. It is alleged that aggravating circumstances were present in that before, whilst or after committing the crimes, the accused caused grievous bodily harm to the complainant and that the accused used a firearm with which the complainant was shot.

3.2

In Count 2:

The allegations are that upon or about the 04th of July 2021, at or near Duduza in the District of Ekurhuleni East/Regional Division of Gauteng, the accused did unlawfully and intentionally attempt to kill Bongani Maise, a male person by

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shooting at him with a firearm.

4.

The Appellant was arrested on the 25th of July 2021. On the 7th of September 2021, before the Regional Court, held at Nigel Court C; he unsuccessfully applied for bail. He subsequently filed a Notice to Appeal in terms of section 65 of the CPA on the 9th of September 2021. He was and still is represented by an attorney at the expense of Legal Aid South Africa. The application was opposed by the State, much as the Appeal also is.

SUMMARY OF FACTS.

5.

The Appellant furnished the court with two sworn statements. One of the affidavits was made by the Appellant wherein he denied involvement in the robbery. The second was made by his co-accused in the matter, who confirmed the Appellant's version to the effect that he was an innocent passenger in the vehicle which turned out to be the one initially robbed from the complainant.

6.

The Appellant sought to prove before the court a quo that substantial and compelling circumstances are attendant to his person which justify that he be released on bail. To that end, the Appellant placed the following before the court:

6.1

That he is a South African Citizen;

6.2

He is 29 years old.

6.3

He has a permanent address where he lives with his twin brother since their birth.

6.4

His brother is disabled to such an extent that he cannot properly look after himself and there is no one else to look after him.

6.5

He is not in permanent employment, but does piece-jobs to earn an income.

6.6

He has a 7-year-old child for whom he is financially responsible;

6.7

He intends to plead Not-Guilty at the trial.

6.8

He indicated that if released on bail, he will not:

6.8.1

Commit another offence or

6.8.2

Interfere with the investigation, or witnesses in this case;

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6.9.

He will be in attendance at all times when the trial will run before court.

7

It was also contended on behalf of the Appellant that the case the State is bringing against him is weak.

THE STATE'S CASE.

8.

The State called the Investigating Officer, I/O, in the person of Bobi Boas Nene who gave a brief outline of the incident. It is undisputed that the Appellant was in the motor vehicle which was involved in an accident within 24 hours after the complainant was robbed of the same, (motor vehicle), at gunpoint. The Investigating Officer surmised that the Appellant was involved in the initial robbery because he was found in it after such a short period of time pursuant to the robbery. The fact that the Appellant left the scene of the accident, and remained untraced until his co-accused led the police to him also formed a basis on which to suspected that he is complicit in the commission of the crime.

9.

The State concedes that its case against the Appellant is grounded on circumstantial evidence. On the main, the court a quo took into consideration the seriousness of the charges he is facing. The onus was on the Appellant to demonstrate before the court a quo that exceptional circumstances are attendant to his person, which if taken into regard should have swayed the court a quo to conclude that the interests of justice permit his release on bail. While he admitted knowledge about the offences charged; Accused number 2 provided no details whatsoever about what actually happened.

CONSIDERATIONS OF THE INTEREST OF JUSTICE.

10.

The legislature has promulgated provisions concerning the approach to be adopted in considering applications for bail, in particular where it has to be considered whether the interests of justice permit the release of the accused on bail or not. In that regard section 60(4)(a)-(e) of the CPA provides as follows:

"(4)

The interests of justice do not permit the release from detention of an accused where one or more of the following grounds are established:

(a).

Where there is the likelihood that the accused, if he or she were released on bail, will endanger the safety of

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the public or any particular person,...