S v Ngqeleni

• Jurisdiction: South Africa
• Judge: Hole AJ
• Judgment Date: 06 October 2005
• Docket Number: A127/2004
• Hearing Date: 06 October 2005
• Counsel: M Tshiki (attorney) for the appellant. Lepheana for the State.
• Court: Transkei High Court

Hole AJ:

[1] This is a bail appeal heard before a single Judge in terms of s 65(1)(b) of the Criminal Procedure Act 51 of 1977. The appellant together with five others appeared in the regional court, Butterworth, on charges of robbery, possession of firearms and G possession of ammunition in contravention of the Arms and Ammunition Act. The five others were acquitted whilst the appellant was convicted.

[2] In convicting the appellant the regional magistrate reasoned:

'I am satisfied that the State has proved its case beyond a reasonable doubt. I reject the version of the accused person as not H being reasonable probably (sic) true. The accused is found guilty of robbery with aggravating circumstances. Aggravating factors being that a firearm was wielded.'

[3] It does not appear that the learned regional magistrate dealt with the balance of the charge, namely the possession of a firearm and ammunition charges in his judgment. He, however, referred I to a firearm that was used in the commission of the offence as an aggravating factor.

[4] The appellant having been sentenced, he noted an appeal and through his attorney a bail application was made on his behalf in the following terms: J

Hole AJ

'. . . (W)ith due respect to the question of bail your honour. Your honour is aware that this person was arrested in 1997, he was A released on bail, and there has been no complaint that he ever failed to attend court. He has been coming to court in a situation where the case itself was inordinately prolonged before it was finally determined. But there has been no complaint that he failed to attend court. I submit your honour those are considerations that your honour has to make in addition to the question of the prospects of success. I accordingly apply for bail your honour. He was released on bail of B R8 000. Your honour without usurping the powers of the court with regard to the amount of bail, in view of the fact that he is now convicted, I would suggest bail in the region of R10 000. Those are my submissions your honour.'

[5] This excerpt was preceded by some 13 pages of argument on the merits of the case and what the appellant's attorney argued were C the prospects of success of the intended appeal. No evidence was placed before the regional magistrate in support of the bail application.

[6] The offence of robbery in respect of which the appellant was convicted was an offence as contemplated in...