S v Motloung
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | HF Brauckmann AJ |
| Judgment Date | 03 March 2021 |
| Hearing Date | 03 March 2021 |
| Docket Number | BA 05/2021 |
Brauckmann AJ:
INTRODUCTION:
This is an appeal against the refusal of bail in the application for bail by the appellant held in the Magistrate's Court the district of Siyabushwa. The appellant was arrested on 15 May 2020 and charged with two counts of rape. The bail application fell under the ambit of Schedule 6 of the Criminal Procedure Act, Act 51 of 1977 ("the CPA"). The appellant had to adduce evidence which satisfies the court that exceptional circumstances exist which permits his release on bail, in the interest of justice.
The appellant lodged a formal bail application during which he testified under oath. The respondent opposed the application, and the evidence of the investigating officer ("the IO") was tendered to the court. The court also called a witness to testify.
2021 JDR 0500 p3
Brauckmann AJ
The function and power of the Court hearing a bail appeal is similar to an appeal court hearing an appeal against conviction and sentence [1] . In terms of Section 65(4) of the CPA the court hearing the appeal:
"shall not set aside the decision against which the appeal is brought, unless such court … is satisfied that the decision was wrong, in which event the court shall give the decision which in its … opinion the lower court should have given."
A court of Appeal has limited powers to intervene with the lower court's discretion regarding the granting of bail. The interference with the application of discretion of the court a quo can only take place if the appellate court is satisfied that the court a quo was wrong. Even if the appellate Court have a different view, it should not substitute its own view for that of the court a quo because that would be an unfair interference with the court a quo's exercise of his discretion [2] .
2021 JDR 0500 p4
Brauckmann AJ
The question to consider is therefore whether the court a quo misdirected itself materially on the facts or legal principles of a matter. If the appellate court finds accordingly, the court of appeal will consider the issue of bail afresh [3] .
The appellant's grounds of appeal is summarised in his heads of argument to wit:
1. The court a quo erred in his conclusion that there were no exceptional circumstances which in the interest of justice permit the appellant to be released on bail, by disregarding the fact that the appellant takes care of his grandmother by taking her to clinic to collect blood pressure rnedication.
2. By disregarding the fact that the appellant have a hearse which he rents out and drive, earning R4000, 00 per month, and that he suffers from asthma and uses an asthma pump.
3. That he maintains his children.
4. That he does not know the complainants in both rape cases and intends to plead not guilty to both counts.
2021 JDR 0500 p5
Brauckmann AJ
5. That he was arrested in the rape cases while attending court in Vaalbank.
6. That he was informed of the rape charges by police official a week before his arrest and proceeded to the police and he was arrested. To the contrary, he stated that he surrendered himself, but upon being questioned by the court a quo, admitted that he did not do so.
7. The court a quo erred in emphasizing that there is a prima facie case of rape against the accused on both counts based on DNA evidence.
8. The court erred and proceeded from a wrong premise, which caused it to concentrate only on the seriousness of the offence without considering whether, if released on bail, the appellant would interfere or intimidate witnesses, or whether the personal circumstances were such that he would not stand trial. The court a quo accordingly, so the argument goes, misdirected itself by refusing the appellant bail after confirming that there was no direct evidence that the appellant will interfere with the state witness if released on bail.
9. The court a quo erred in refusing the appellant bail regardless of the fact that the Investigation officer confirmed that the appellant had complied with bail conditions in another case where he is charged with robbery with aggravating circumstances.
2021 JDR 0500 p6
Brauckmann AJ
In S v Schietekat [4] the court held as follows:
"[In bail applications] The court may take into account whatever information is placed before it in order to form what is essentially an opinion or value judgment of what an uncertain future holds. It must prognosticate. To do this it must necessarily have regards to whatever is put up by the State in order to decide whether the accused has discharged the onus of showing that 'exceptional circumstances exist which in the interests of justice permit his release".
The appellant testified that He is 42 years old and resides at his parental home, where he looks after his grandmother, and takes her to the clinic for her medication; That he is self-employed, leasing his one motor vehicle to mortuaries as a hearse with which he earns approximately R 4 000. 00 per week; He has four children, one of which, stays with him; He stated that he is suffering from asthma; The appellant has a pending case at Vaalbank for robbery with aggravating circumstances; He testified that he has three previous convictions, two for possession of cannabis and one for driving without a valid driver's license; The appellant denies any knowledge about the incidents that he is
2021 JDR 0500 p7
Brauckmann AJ
arraigned for; He stated that he was aware that he was being sought for the rape cases as he was informed by an investigating officer that they were looking for him; The appellant stated that he will not be a threat to the community; He stated that he will not interfere with the investigations; He further indicated that he will not look for the complainants; He...
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