S v Nkonoane

• Jurisdiction: South Africa
• Judge: NN Bam J
• Judgment Date: 12 February 2020
• Docket Number: A211/2019
• Court: Gauteng Local Division, Johannesburg
• Hearing Date: 16 January 2020
• Citation: 2020 JDR 0286 (GJ)

N N Bam AJ:

1.

This is an appeal against the decision of the Magistrate's Court for the district of Ekurhuleni North, held at Tembisa.

2.

Broadly stated, appellants were charged with robbery with aggravating circumstances (in that a firearm had been used); possession of unlicensed firearms and live ammunition (live ammunition in the case of the first appellant); and possession of stolen property. It is common cause between the parties that the offences reside within schedule 6 of the Criminal Procedure Act, CPA [1] . Thus, the appellants both undertook the Herculean task of adducing evidence to satisfy the court that exceptional circumstances existed, which in the interests of justice permitted that they be admitted to bail. The two appellants had employed one counsel to represent them. The state on the other hand opposed bail. Neither party tendered viva voce evidence and so evidence before court was placed by way of affidavits. The court a quo was not satisfied that the appellants had discharged the onus and refused bail.

3.

Fresh bail proceedings were launched once again during September 2019 on the basis that new facts existed. The court once again dismissed the bail application not

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N N Bam AJ

without observing that there was, in fact, no new evidence other than an unsubstantiated allegation that the investigating officer was not opposing bail.

4.

The appeal in this court is founded on three points. They can be phrased as: the court a quo had not properly exercised its discretion; the state's case is weak, thus exceptional circumstances exist; and the investigating officer did not specifically opposed bail. On behalf of the state it was submitted that judicial discretion was properly exercised; the appellants had failed to discharge the onus placed on them by law, thus the bail appeal ought to be dismissed.

5.

It perhaps may assist to first sketch out the background to the charges: On 1 March 2019 at about 20h00 the complainant was robbed at a tuck shop in Ivory Park at gunpoint. On 29 May 2019 the investigating officer received information from an informer which led him to the home of the first appellant in Tembisa. A search of his home yielded the recovery of the key to the stolen motor vehicle, a Nissan SP 200, (Nissan) and two firearms, both of which were found under the appellant's bed where he was sleeping. One of the firearms was linked to a reported case of a robbery and stolen firearm under Rabie Ridge, case number 159/11/2018. Upon being interviewed, first appellant led the police to the home of the second appellant in Tembisa. A firearm with a filed off serial number was recovered under the pillow where second appellant was sleeping.

6.

Further enquiries with the two appellants led the police to a place known as 204 Makolong in Tembisa where the Nissan, was parked in the home of one Anelle Thasiyane

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N N Bam AJ

(Anelle). Anelle informed the police that he rents out parking to anyone at...