S v Sikhakhane

• Jurisdiction: South Africa
• Judge: HF Brauckmann AJ
• Judgment Date: 31 August 2020
• Docket Number: BA 19/2020
• Citation: 2020 JDR 1833 (MN)

Brauckmann AJ:

INTRODUCTION:

[1]

The Appellant (Mr Sikhakhane) is accused number one in the court a quo and appeals against the refusal of bail in the Magistrates' Court of Amersfoort. The bail application was brought in terms of Sec 60 of the Criminal Procedure Act 51 of 1977 ("The CPA").

[2]

At the bail application the State advised the Court a quo that the Appellant faces a crime listed in Schedule 5 of the Criminal Procedure Act, 1977 (Act 51 of 1977) ("the CPA"). The State initially opposed the bail application through the oral evidence of the Investigating Officer ("the I/O"), Siphiwe Ben Ndlovu, and bail was refused by the Court a quo on 22 January 2020.

[3]

In terms of Appellant's notice of appeal dated 19 June 2020 ("The Notice") appeal is noted against the refusal of bail by "Learned Regional Court Magistrate Mr. P Haasbroek" on "4 December 2019" [1] . The notice

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Brauckmann AJ

is accompanied by a special power of attorney [2] authorising the attorney Luando Urell Vorster (an attorney) to note an appeal against "the initial refusal of my Application for Bail by the Honourable MR. P.B. HAASBROEK on the 4th of December 2019 at PIXLEY ISAKA SEME HELD IN AMERSFOORT, under CASE NUMBER 405/17 on charges of:

'ARMED ROBBERY WITH AGGRAVATED CIRCUMSTANCES & OTHERS (sic) CHARGES' "[Own emphasis]

[4]

An application was brought in the Court a quo in terms whereof the Appellant, duly represented, applied for bail on so-called "new facts". This Court previously removed the matter from the roll, as there was non-compliance with its directives, but more importantly because the transcript of the proceedings before the Court a quo on the 4th December 2019 was not available. Records have now been provided, but seems to be the incorrect record as it reflects the proceedings held on 22 January 2018 which is of no assistance to the Court. These records were filed with the registrar on 27 August 2020. I noted that the record contained a typed version [3] of the proceedings of 04 December 2019 and have decided to use those records. It is alarming that the attorneys for the appellant once again failed to file the relevant typed record of proceedings.

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Brauckmann AJ

[5]

It appears that on the relevant day Mr Phatudi appeared on behalf of the appellant and confirmed that the appellant's affidavit dated 20 November 2019 may be used by the Court a quo for considering the application. The State did not call the I/O to testify, but handed an affidavit by him up in court in opposition to the application. The Court could not find the affidavit as referred to in the record of proceedings filed before me. Although the typed record reflects that submissions were made by both State and Mr Phatudi on 4 December 2019, I cannot find the oral submissions in the record either.

[6]

The Court a quo delivered its ruling on the 4th of December 2019 [4] . The ruling is very short and dealt mainly with the "new facts" in dismissing the application.

[7]

Section 65 (4) of the Criminal Procedure Act 51 of 1977 ("the CPA") provides that a Court hearing an appeal against the refusal to release an applicant on bail will not set aside the decision of the magistrate unless such Court is satisfied that the decision was wrong. The proper approach to be followed is set out in S v Barber [5] :

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