The Director of Public Prosecutions Mpumalanga v Segone

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: HF Brauckmann AJ
• Judgment Date: 18 January 2021
• Docket Number: BA 30/2020
• Hearing Date: 06 January 2021
• Citation: 2021 JDR 0065 (MM)

Brauckmann AJ:

[1]

This is an appeal by the Director of Public Prosecutions, Mpumalanga ("the DPP") in terms of section 65A of the Criminal Procedure Act, 55 of 1977 ("the CPA") against the ruling by the Court a quo granting of bail in the to the respondent ("Mr Segone") held in the Magistrate's Court the district of Victor Khanye at Delmas ("the Court a quo") [1] . Mr Segone was arrested on 26 October 2020 and charged with a number of offences. More charges were added before the commencement of the bail application.

2020 JDR 0065 p3

Brauckmann AJ

[2]

Mr Segone's bail application fell under the ambit of Schedule 6 where he had to adduce evidence which satisfies the court that exceptional circumstances exist which permits his release on bail

[3]

The court a quo correctly held count 7 to be a charge of robbery with aggravating circumstances. It puts the charge under the ambit of schedule 6 of Act 51 of 1977, due to the infliction of grievous bodily harm to the victim and/or the threat of the infliction of grievous bodily harm. The court a quo correctly held that it was admitted that the appellant was present during the incident. The court also correctly held that it is not for the court hearing the bail application, to decide on the guilt of the applicant, but it is a determination for the trial court, after it heard the evidence. It is respectfully submitted that the incident, from the first assault, the taking of the fire-arm of the victim, the return of the fire-arm and the taking of the ammunition, was one continuous incident. Therefore, the original assault still forms part of the threat of grievous bodily harm to the victim, at the stage when the ammunition was taken, as the complainant was in a constant, uninterrupted subdued state [2] .

2020 JDR 0065 p4

Brauckmann AJ

[4]

The mere threat of grievous bodily harm is sufficient to establish the existence of aggravating circumstances, and that conduct of the perpetrator is sufficient to establish such threat [3] .

[5]

In S v Hlongwane [4] , the Court held that a person can commit an offence directly or vicariously through others and further that it is irrelevant what task each was assigned for its execution. Each participant in such an offence will be a co-perpetrator because of the agreement to commit the offence and intended either that force would be applied in order to rob or foresaw the possibility. The court further held that the agreement can be established through circumstantial evidence. The court also refers to an accomplice as 'someone whose actions do not satisfy all the requirements for criminal liability in the definition of the offence, but who nonetheless intentionally furthers the commission of a crime by someone else who does comply with all the requirements' [5] .

2020 JDR 0065 p5

Brauckmann AJ

[6]

Mr Segone was present during the initial assault on the complainant, stayed at the scene, calling the other perpetrators back. It clearly indicated to the complainant was in control of the other perpetrators. In the presence of these other perpetrators, who assaulted the complainant. Mr Segone even removed some of the bullets from the fire-arm of the complainant, without his consent, under the clear threat of possible further assault, should the complainant resist.

[7]

This Court is of the view that the Court a quo cannot be faulted in its conclusion that Count 7 of the charges against Mr Segone resorts under schedule 6 as stated earlier.

[8]

A court of appeal has limited powers to intervene with the lower court's discretion regarding the granting of bail. The interference with the discretion of the court a quo can only take place if the appeal Court is satisfied that the court a quo was wrong. Even should this Court have a different view, it should not substitute its own view for that of the court a quo because that would be an unfair interference with the court a quo's exercise of its discretion [6] .

2020 JDR 0065 p6

Brauckmann AJ

[9]

Section 60(11) of the Criminal Procedure Act reads as follows:

"Notwithstanding any provision of this Act, where an accused is charged with an offence referred to-

(a) in Schedule 6, the court shall order that the accused be detained 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 exceptional circumstances exist which in the interests of justice permit his or her release;" [Own Emphasis]

[10]

It was submitted by Advocate van der Merwe on behalf of the DPP that the respondent's release may be denied if only one ground in terms of Section 60(4) of the Criminal Procedure Act is present which warrants the detention of the respondent in the interest of justice.

[11]

In S v Mohammed [7] the following was pointed out:

2020 JDR 0065 p7

Brauckmann AJ

"The phrase 'exceptional circumstances' does not stand alone: the Schedule 6 applicant has to adduce evidence which satisfies the court that such circumstances exist which in the interests of justice permit his or her release. The proven circumstances have to be weighed in the interests of justice. So the true enquiry, it seems to me, is whether the proven circumstances are sufficiently unusual or different in any particular case as to warrant the applicant's release. And 'sufficiently' will vary from case to case."

[12]

It was submitted by Mr van der Merwe that section 60(11) (a) of the CPA is peremptory as it clearly and emphatically states that a court 'shall' order that an accused be detained in custody, when charged with an offense listed in schedule 6, unless the accused can prove the existence of exceptional circumstances. I pause to mention that I am in agreement...