S v Tshofoti

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: TA Maumela J
• Judgment Date: 04 February 2022
• Docket Number: A 281/2021
• Hearing Date: 04 February 2022
• Court: North Gauteng High Court, Pretoria
• Citation: 2022 JDR 0423 (GP)

Maumela J:

1.

This is a bail appeal which is opposed by the state. The Appellant is Xolile Tshofoti, a male who was 34 years of age at the time he was arrested. His residential address is indicated to be No F 96 Masechaba View, Section, Extension 3 Duduza. Before the Regional Court for the District of Gauteng sitting at Nigel, the accused was charged with the offence of contravening the provisions of section 5(1), read with Section 1, 56(1), 57, 58, 59, 60 and 61 of the Sexual Offences Act 32/2007 and read with the provisions of Section 51 and Scheduled 2 of the Criminal Law

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Maumela J

Amendment Act 1997LAct No 105 of 1997).

ALLEGATIONS:

2.

The allegations against the accused are that upon or about the 19th of June 2021, at or near Duduza in the District of Ekurhuleni East/Regional Division of Gauteng, the accused did unlawfully and intentionally sexually violate the complainant to wit, NM, the complainant; by having sexual intercourse with her without her consent. It is alleged that the complainant was 15 years of age at the time the offence was committed.

3.

Subsequent to his arrest, before the Regional Court, held at Nigel, the Appellant unsuccessfully applied for bail on the 7th of September 2021. The Appellant granted Legal Aid South Africa the necessary Special Power of Attorney to prosecute the appeal on his behalf. On the 9th of September 2021, Appellant filed a Notice of Appeal in terms of s65 of the Criminal Procedure Act 1977: (Act number 51 of 1977) - CPA. The State did not oppose Appellant's application to be released on bail pending the outcome of the trial.

THE APPELLANT'S CASE:

4.

In substantiation of his application to be admitted to bail, the Appellant stated before the court a quo that:

4.1

He was born on 5 May 1987, and is 34 years of age;

4.2

He has been residing at F96 Masechaba Extension 3 in Duduzane over the past 20 years together with his wife,

4.3

He resides there with his wife and 6 children;

4.4

He is married with 6 dependants;

4.5

1626 Kubeka Street in Tsakane is his confirmed alternative address,

4.6

He is a sole breadwinner. To support his wife and children, he does odd jobs as a taxi driver and he earns R500 per week,

4.7

He has neither previous convictions nor pending cases,

4.8

He applied for a permanent employment at Supreme and has been informed of success,

4.9

He commits never to evade his trial, intimidate any of the witnesses or to commit any schedule 1 offence;

4.10

He contends that his release will not undermine the proper functioning of the Justice System or undermine the public peace and security.

THE STATE'S CASE:

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Maumela J

5.

The State did not oppose the application brought by the Appellant to be released on bail pending the finalisation of his trial. It however placed the affidavit of the Investigating Officer; (I/O), before the Court. In it, the following was stated:

5.1

Outcomes of the DNA investigations are still outstanding and it would take a long time to obtain the requisite report,

5.2

The Appellant's address was verified,

5.3

There is no likelihood that the appellant if released on bail will endanger the safety of the public and that the Appellant does not have any previous convictions,

5.4

There is no likelihood that the Appellant will attempt to evade his trial,

5.5

The appellant was cooperative and did not provide the I/O with false information.

5.6

There is no likelihood that the Appellant will influence or intimidate witnesses if he is released on bail,

5.7

That the witnesses have already made statements and

5.8

That there is no likelihood that the released of the Appellant will undermine the proper functioning of the Criminal Justice System, including the bail system.

6.

The I/O raised one issue on the basis of which he would be opposing bail and in that regard, he stated as follows: "I am opposed to the release of bail on the applicant due to the victim's age and the fact that the victim and the accused are neighbours." The I/O, however, indicated that he would not oppose bail if the applicant moves away from the address where he is currently residing.

7.

In dismissing the applicant by the appellant to be released on bail, the Regional Magistrate held as follows: "I am of the view that all the factors are not put before this Court in order for the Court to weigh effectively to grant the accused bail. For that reason the Court is….."

8.

The Appellant pointed out that in dismissing the application for bail, the court a quo based its decision on the fact that there are certain factors that were not put before court. The Appellant pointed out that in doing so, the court a quo disregarded the peremptory provisions of Section 60(3) of the CPA which provides the following:

(3)

"If the court is of the opinion that it does not have reliable or sufficient information or evidence at its disposal or that it lacks

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Maumela J

certain important information to reach a decision on the bail application, the Presiding Officer shall order that such information or evidence be placed before the court."

9.

It was submitted on behalf of the Appellant that the disregard of the peremptory provisions of Section 60(3) of the CPA, resulted in the Court a quo making an adverse finding with regard to the Applicant's release on bail. The court a quo noted that the Appellant got word through his wife that he must go for a job interview; yet it held that there is no proof of that.

10.

The Appellant raised the point that the court a quo noted that it was alleged that the Appellant is a main breadwinner. It however speculated that the children received grants and that the mother and the children will be able to survive on the grants. No evidence was tendered to prove that. The State did not challenge the evidence put on record by the Appellant and did not provide any evidence...