S v Mququ

• Jurisdiction: South Africa
• Citation: 2019 (2) SACR 207 (ECG)

S v Mququ
2019 (2) SACR 207 (ECG)

2019 (2) SACR p207

Citation	2019 (2) SACR 207 (ECG)
Case No	CA&R 78/2019
Court	Eastern Cape Division, Grahamstown
Judge	Rugunanan AJ
Heard	May 9, 2019
Judgment	May 14, 2019
Counsel	P Daubermann for the appellant.; HM Ackermann for the state.

Flynote : Sleutelwoorde

Bail — Pending trial — When to be granted — New factors emerging after previous refusal of bail — Accused's trial delayed for lengthy period and state of health declining after contracting tuberculosis and developing diabetes — Accused also suffering financially — Magistrate failing to take all aspects of evidence into account — Bail granted on appeal — Criminal Procedure Act 51 of 1977, ss 60(4) and 60(11)(a) read with sch 6. C

Headnote : Kopnota

The appellant appealed against a decision of a magistrate who had refused his bail application, having been arrested on three counts of robbery with aggravating circumstances. The bail application was his second attempt at D getting bail, having previously unsuccessfully applied in November 2014. His appeal against that refusal was denied by the High Court.

By the time of the present application he had already been in custody awaiting trial for four and a half years. While in prison, he contracted tuberculosis and developed diabetes. He was married and had three minor children. At his previous application there were three other cases pending against him E for which warrants of arrest had supposedly been issued. These cases were subsequently withdrawn.

At the hearing of the second application, it was accepted that the case against the applicant was an offence included in sch 6 to the Criminal Procedure Act 51 of 1977 (the Act), and hence the provisions of s 60(11)(a) applied. The state adduced no evidence, and the appellant's evidence, that he would F stand trial if he were granted bail, was not disputed by the state in cross-examination.

Held, that, to the extent that no consideration had been given by the magistrate to the appellant's state of health; the period already spent in custody; and the financial loss suffered by the appellant as a result of his G detention, where they revealed that none of the likelihoods in s 60(4) of the Act were extant, he misdirected himself and arrived at the wrong conclusion. (See [16].)

Held, further, that, once the other cases were withdrawn against the appellant and none of the warrants executed, the cumulative impact of the new facts tipped the scales in his favour and rendered his circumstances exceptional, H to the extent that his release on bail had to be permitted in the interests of justice. (See [17].) The appeal was upheld.

Cases cited

President of the Republic of South Africa and Others v South African Rugby Football Union and Others I 2000 (1) SA 1 (CC) (1999 (10) BCLR 1059; [1999] ZACC 11): referred to

S v Ali 2011 (1) SACR 34 (ECP): dictum in para [14] applied

S v Barber 1979 (4) SA 218 (D): dictum at 220E – G applied

S v Boesak 2000 (1) SACR 633 (SCA) (2000 (3) SA 381; [2000] ZASCA 24): referred to J

2019 (2) SACR p208

S v Dlamini; A S v Dladla and Others; S v Joubert; S v Schietekat 1999 (2) SACR 51 (CC) (1999 (4) SA 623; 1999 (7) BCLR 771; [1999] ZACC 8): referred to

S v DV and Others 2012 (2) SACR 492 (GNP): dicta in paras [50] – [51] followed

S v Faye 2009 (2) SACR 210 (Tk): dictum at 212e – f applied

S v Mbalo and Another B ECD CA&R 31/2015: referred to

S v Mohammed 1999 (2) SACR 507 (C) ([1999] 4 All SA 533): dicta at 511c and 513f – 515f applied

S v Molefe and Others [2014] ZAFSHC 1: dictum in para [12] followed

S v Mooi [2012] ZASCA 79: applied

S v Mpulampula C 2007 (2) SACR 133 (E): referred to

S v Nkambule [2013] ZAGPJHC 112: dictum in para [19] applied

S v Petersen 2008 (2) SACR 355 (C): dictum in para [60] applied

S v Porthen and Others 2004 (2) SACR 242 (C): referred to

S v Rudolph 2010 (1) SACR 262 (SCA): referred to

S v Siwela 1999 (2) SACR 685 (W) ([2000] 1 All SA 389): referred to

S v Smith and Another D 1969 (4) SA 175 (N): dictum at 177E – F applied

S v Vermaas 1996 (1) SACR 528 (T): dictum at 531f applied.

Legislation cited

Statutes

The Criminal Procedure Act 51 of 1977, ss 60(4), 60(11)(a) and sch 6: see Juta's Statutes of South Africa 2017/18 vol 1 at 2-287 – 2-288 and 2-366 – 2-367. E

Case Information

P Daubermann for the appellant.

HM Ackermann for the state.

An F appeal from the refusal of bail in a magistrates' court.

Order

1.

The appeal succeeds and the magistrate's order refusing bail is set aside.

2.

Bail is granted to the appellant in the amount of R5000 on the G following conditions:

(i)

That he appear personally in the magistrates' court or regional magistrates' court in East London on such times, dates and places to which the criminal proceedings may from time to time be adjourned, until the conclusion of the said proceedings;

(ii)

H that he report in person to the officer in charge of the Community Service Centre (charge-office) at the Bityi Police Station thrice a week, every Monday, Thursday and Saturday, between the hours of 06h00 and 20h00;

(iii)

that he shall not directly or indirectly interfere with or contact I any of the state witnesses or any member of their families, either personally or via a third person;

(iv)

that in the event of him acquiring a cellphone he shall notify the investigating officer of its contact number, and volunteer such other details as its make, model, IMEI and sim-card numbers as J may be required by the investigating officer;

2019 (2) SACR p209

(v)

that he shall not leave or travel out of the province of the A Eastern Cape without the knowledge and permission of the investigating officer; and

(vi)

that he shall not apply for a passport or any travelling document while out on bail.

3.

In the event the appellant fails to adhere to any of the conditions B mentioned in this order, a warrant of arrest shall be authorised for immediate issue and execution, and will result in forfeiture of bail money.

Judgment

Rugunanan AJ: C

[1] On 24 November 2014 the appellant, who was charged with six other accused on three counts of robbery with aggravating circumstances, appeared in the magistrates' court in East London where he launched an application for his release on bail. In a judgment delivered on 8 December 2014 the learned presiding magistrate dismissed the application and D refused bail. Aggrieved by the refusal to admit him to bail the appellant approached this court on appeal. The matter served before Van Papendorp AJ who, persuaded by the strength of the case against the appellant, dismissed the appeal, having found that his personal circumstances did not manifest as exceptional circumstances that merited his release in the interests of justice. [1] E

[2] On 18 December 2018 the appellant again unsuccessfully approached the magistrates' court in East London for bail on new facts. In broad summary these facts are relevant to: the delay in finalising the prosecution against him; the effect of his continued detention on his F personal circumstances, including those of his family; that he has no other pending cases against him and no previous convictions. Unconvinced that the new facts enabled the appellant to discharge the requisite onus in s 60(11)(a) of the Criminal Procedure Act (the Act), [2] the learned magistrate dismissed the application.

[3] Aggrieved once again by the magistrate's latest decision the appellant G approaches this court on appeal against that decision. It is considered unnecessary to canvass each of the grounds of appeal. In general terms they are that the magistrate erred in several respects, namely in failing to find that none of the factors (or likelihoods) mentioned in s 60(4) of the Act are present; in failing to accord due weight to the evidence in support H of the application for bail, in particular that the appellant is in custody awaiting trial for more than four years; in attaching undue weight to the evidence adduced by the state in opposing the application for bail; and in not finding that the totality of the evidence...