S v Nhantumbo

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Ratshibvumo J
• Judgment Date: 10 May 2023
• Citation: 2023 JDR 1544 (MN)
• Hearing Date: 09 May 2023
• Docket Number: A21/2023
• Court: Mpumalanga Division (Main Seat)

Ratshibvumo J:

[1]

Introduction:

This is an appeal against the refusal of bail by Magistrate EPJ Hall sitting in the Nelspruit District Court (the court a quo). The Appellant, a 30 year-old Mozambican national, was arrested on 02 March 2023 along N4 Road while driving a Toyota Hilux valued at about R700 000.00 (the motor vehicle), that was reported stolen in Kempton Park on 01 March 2023. In light of the short period that lapsed from the time the motor vehicle was stolen, the State preferred a charge of theft against the Appellant, relying on the doctrine of recent possession. On 13 March 2023, the Appellant brought an application for bail. Bail was refused with the Learned Magistrate holding that it was not in the interests of justice for him to be so released.

[2]

The Appellant now appeals against the decision to refuse him bail arguing that the Learned Magistrate erred in weighing more on the strength of the State case than the interests of justice. In so doing, the Appellant argued, the court a quo convicted him of the crime he faced, at the bail hearing stage. He further submitted that the Learned Magistrate used the refusal of bail, as a form of punishment for the crime he allegedly committed. He also submitted that the Learned Magistrate erred in finding that it was not in the interests of justice for him to be released on bail. According to the Appellant, the evidence led proved that: -

a.

He will attend his trial until the matter is finalised.

b.

He has no family ties within the jurisdiction of South Africa (sic).

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Ratshibvumo J

c.

He will not evade the trial.

[3]

Evidence in the bail application.

Bail application took place at the backdrop of the provisions of section 60(11)(b) of the Criminal Procedure Act, no. 51 of 1977 (the Criminal Procedure Act), which provides, "[N]otwithstanding any provision of this Act, where an accused is charged with an offence referred to. . . 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." When he was afforded the opportunity, the Appellant adduced evidence by way of affidavit in an attempt to show that the interests of justice permit his release.

[4]

In essence, the Appellant averred that he was born in Manyisa in Mozambique. He is a holder of a Mozambican passport. He resides in Palm Ridge, Gauteng, at a given address, with his uncle (although this was read into the record as "the aunt" by his legal representative), his wife and his eight years' old child who is a scholar. He has been residing in the said address for the past seven years. He is self-employed as a barber making about R4000.00 per month. He is a father of two kids including the one who resides with him. He has no immovable property, but owns movables such as furniture to the value of R50 000.00. As for the merits of the case, he chose to remain silent save to say he denies the allegations levelled against him.

[5]

The State led evidence of the Investigating Officer, Sgt Johan Mkhatshwa. He is a member of the South African Police Services attached to the

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Ratshibvumo J

Vehicle Theft Unit. He has been with that unit for seven years. The Appellant was arrested by Tracker employees on 02 March 2023 while driving a motor vehicle that was reported stolen in Kempton Park a day before. The motor vehicle was being driven towards the direction of Mozambique.

[6]

Sgt Mkhatshwa got in touch with the Appellant after he was brought to the police station. He obtained a passport from the Appellant and managed to verify its validity with the Department of Home Affairs. He was also able to verify the Appellant's residential address. The residence belonged to the Appellant's aunt who was also in court's attendance. The Appellant erected a shack in the same yard where he conducts his business as a barber. The only property the Appellant owned, according to the Investing Officer, was his hair-cutting machine. The Appellant informed him that he was instructed over the phone by a certain "Thebu," to drive the motor vehicle to Malelane. No further details were given regarding where it was fetched from, the purpose for taking it there or any reward for doing so.

[7]

He testified further that he was not opposed to the release of the Appellant on bail. His main reason was that the Appellant was willing to point out "Thebu" to him. Understanding the difficulty, the Appellant would encounter as a foreigner, roaming across Gauteng without a passport, he requested the court not only to release him on bail, but to also allow him to...