S v Ndou

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: TA Maumela J
• Judgment Date: 03 May 2022
• Docket Number: A 38/2020
• Hearing Date: 25 April 2022
• Court: North Gauteng High Court, Pretoria
• Citation: 2022 JDR 1306 (GP)

Maumela J:

1.

This is an appeal against the refusal of bail made by the Magistrate's Court for the Regional Division of Tshwane, the court a quo, held at Pretoria under case number 42/829/2013. The dismissal of the application for admittance to bail was on the 7th December 2021. The appeal is opposed by the State. Before the court a quo, the Appellant; Emmanuel Ndou, a male who was 35 years of age at the time he was arrested, applied to be admitted to bail. He was convicted of the following charges:

1.1

Count 1: Contravening Section 1, 103, 117, 120 (1) (a), and section 121, read with Schedule 4 of the Firearms Control Act 2000, (Act No 60 of 2000, and further read with 250 of the "Criminal Procedure Act" - CPA, and also read with section 51 (2) of the Criminal Law Amendment Act – CLAA;

1.2

Count 2; Contravening section 90, read with section 1, 103, 117, 120 (1) (a), and section 121, read with Schedule 4 of the Firearms Control Act 2000, (Act No 60 of 2000, and further read with 250 of the "CPA", and also read with section 51 (2) of the CLAA". Unlawful Possession of 8x 9mm parabellum calibre cartridges.

1.3

Count 3: Contravening Section 1, 103, 117, 120 (1) (a), and section 121, read with Schedule 4 of the Firearms Control Act 2000, (Act No 60 of 2000, and further read with 250 of the "CPA", and also read with section 51 (2) of the "CLAA". Unlawful Possession 1 x 357 magnum calibre Ruger Model security revolver.

1.4

Count 4; Contravening section 90, read with section 1, 103, 117, 120 (1) (a), and section 121, read with Schedule 4 of the Firearms Control Act 2000, (Act No 60 of 2000, and further read with 250 of the CPA, and also read with section 51 (2) of the CLAA. Unlawful Possession of 6x 38 special calibre cartridges.

1.5

Count 5; Contravening section 28 of Act No 26 of 1955: Possession of explosives.

1.6

Count 6; Contravening section 82 of Act No 29 of 1992: Possession of Car-Breaking or House-Breaking implements.

BACKGROUND.

2.

The Appellant was charged with the offences listed under paragraph 1.1 to 1.6 above. Before the court a quo, he successfully applied for admittance to bail pending trial. Bail was set at an amount of

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R5 000-00. Trial commenced on the 27th of July 2015. When the charges were put, he pleaded Not Guilty thus putting the state to the proof of the offences alleged.

3.

On the 7th of October 2019, Appellant was convicted of the offences listed above. On the same day, he was sentenced. He again successfully applied before the court a quo and his bail was extended pending sentence. On the 7th December 2021, the Appellant was sentenced as follows:

3.1

Count 1 and 2; Unlawful Possession of a Semi-Automatic Pistol and Unlawful Possession of ammunition; were taken as one for purposes of sentence. For the two offences, each of the accused was sentenced to undergo three (3) years imprisonment.

3.2

Count 3 and 4; Unlawful Possession of a Semi-Automatic Pistol and Unlawful Possession of ammunition; were taken as one for purposes of sentence. For them, each of the accused was sentenced to undergo three (3) years imprisonment.

3.3

Count 5, Possession of explosives, each of the accused was sentenced to undergo ten (10) years imprisonment.

3.4

Count 6, Possession of Car-Breaking or House-Breaking implements.

4.

The Appellant applied and was denied leave to appeal on the 25th of October 2021. Subsequent to petition, he was granted leave to appeal. He was sentenced on the the 7th December 2021. Upon being sentenced, he applied before the court a quo for bail pending appeal. His application for bail pending appeal was dismissed. On petition, he successfully applied to the Judge President of the Gauteng Division for leave to appeal against the conviction.

5.

He also applied for a further extension of his bail pending appeal. This application was dismissed by court a quo. It is against the refusal of his application for the extension of bail pending appeal that the Appellant brought this appeal. The charges of which the Appellant was charged fall under Schedule 5 of the Criminal Procedure Act 51 of 1977: ("Act 51 of 1977").

6.

Through Section 60 (11) (b) of the Criminal Procedure Act 1977: (Act No 51 of 1977) – CPA; our legislature determined the

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approach to a consideration of an application for bail as follows:

(11). Notwithstanding any provision of this Act, where an accused is charged with an offence referred to-

(b). in Schedule 5, but not in Schedule 6, the court shall order that the accused be detained in custody until he or she is dealt with in accordance with the law, unless the accused, having been given a reasonable opportunity to do so, adduces evidence which satisfies the court that the interests of justice permit his or her release.

7.

The determination under Schedule 5 of the CPA and through Section 60 (11) (b) of the CPA notwithstanding, the court a quo saw its way through towards admitting the Appellant to bail after he was convicted as indicated above.

8.

It is trite that the primary consideration in an application for bail pending appeal should be whether the Appellant will serve his sentence if released on bail if his appeal against sentence fails. It can only be logical that the court takes into account the increased chances of the Appellant absconding now that he stands convicted, much as he stands sentenced to a term of imprisonment as compared to the situation where he was merely awaiting the outcome of the trial or for sentence to be imposed.

9.

It is more than notable that at this stage, the accused, who is the Appellant in casu, stands no longer covered by the presumption of innocence as provided by the Constitution of this country. This is because he now stands convicted and sentenced. The Respondent submits that the severity of the sentence imposed should serve as a decisive factor in the court's exercise of its discretion whether or not to admit an accused to bail. It was submitted that...