S v Sibuyi

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Langa J
• Judgment Date: 07 November 2022
• Docket Number: 211/2022
• Citation: 2022 JDR 3360 (MN)

Langa J:

Introduction and background:

[1]

This is an appeal against the decision by Magistrate MJ Venter of Emalahleni Magistrates Court on 4 October 2022 dismissing the appellant's application to be released on bail pursuant a formal bail application wherein the evidence from both the appellant and the respondent was adduced way of affidavit.

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[2]

The appellant is charged with robbery with aggravating circumstances read with the provisions of section 51(2) of the Criminal Law Amendment Act 107 of 1997 (CLAA) as well as unlawful possession of a firearm in contravention of section 90 of the Firearms Control Act 60 of 2000.

[3]

When the matter was first placed before me the parties had not filed any written submissions even though they seem to agree to dispense with oral submissions. The only papers filed was the record of the proceedings, the Magistrate's reasons together with the notice of appeal. The Magistrate's reasons were made on 12 October 2022 based on the court stamp and the appeal was served on the Director of Prosecutions on 18 October 2022. After the court directive of 23 October 2022 the parties filed the heads of argument as directed by court. I now proceed to deal with the appeal on papers.

[4]

It is common cause that due to the nature of the charges, this bail application is justiciable under the purview of section 60(11) and Schedule 6 of the Criminal Procedure Act, Act 51 of 1977 as amended (the CPA). In terms of this legislative regime it is common cause that the appellant had to satisfy the court that exceptional circumstances exist to justify that he be released on bail.

Evidence:

[5]

It is common cause that on 23 October 2022 a shop was robbed at a place called Phola Park. The robbers made off in a Polo vehicle with no registration number plates which motor vehicle it is now common cause belongs to the appellant and was

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in fact driven by him. The vehicle was chased by the police who happened to be in the area on patrol at the time. The vehicle was chased and after a high speed chase and shoot out with the police, the vehicle eventually stopped after its tyres were shot at by the police. It is common cause also that the appellant was found behind the wheel of this vehicle and arrested. Although the appellant denies any knowledge thereof, a firearm was found inside the car under the driver's seat. When it was tested the vehicle turned out to belong to the appellant. The appellant was arrested and appeared before court for the first time on 26 September 2022. On 04 October his bail application was heard and bail refused. It is common cause that at the time of his arrest the appellant was on bail in respect of another matter of possession of suspected stolen property or theft.

[6]

In his affidavit the appellant's version is that he was at the shops where he had gone to buy alcohol when he was hijacked by two men who came running out of a shop forced him at gunpoint to drive away with them. He confirms that the police chased the vehicle and there was a shootout but he could not stop apparently as the robbers forced him to drive on. He stated that at some point the men alighted from the vehicle and ordered him to keep on driving and not look back. He confirms that further down the road the police stopped him and he was arrested. He stated that at the time of the arrest he told the police where the men went but they did not follow up on that.

[7]

In support of his bail application the appellant placed his personal circumstances on record. He stated amongst others that he is 41 years of age, married with 4 children and working for a mining company and earning about R24 000 per month. He stated further that he is the breadwinner in the family and that should he be kept in custody he will lose his job and his family will suffer hardships. He stated further

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that he has a fixed address and will not abscond if granted bail. He also stated that he is not a danger to the public and will not harm or threaten witnesses if released on bail. He stated further that he has no previous convictions but conceded that he was at the time on bail in respect of a pending theft case. Regarding the merits, he denied that he was involved in the robbery and contended that the state case against him is very weak.

[8]

The police version however, is that while on patrol in the area they became aware of a business robbery in progress and chased the vehicle allegedly involved in the robbery. They stated that it was a VW Polo with no registration number plate at the back and that as they chased the vehicle the occupants fired at them and there was shooting between the robbers and the police. Eventually the vehicle came to a stop after the tyres were shot at and blown up. In opposition to the...