Makhapela v S (Bail Appeal) (A142/2024) [2024] ZAGPPHC 1395 (28 June 2024)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2024 >> [2024] ZAGPPHC 1395 | Noteup | LawCite sino index ## Makhapela v S (Bail Appeal) (A142/2024) [2024] ZAGPPHC 1395 (28 June 2024) Makhapela v S (Bail Appeal) (A142/2024) [2024] ZAGPPHC 1395 (28 June 2024) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2024_1395.html sino date 28 June 2024 IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA CASE NO: A142/2024 DATE: 28-06-2024 (1) REPORTABLE: YES/ NO (2) OF INTEREST TO THE JUDGES: YES/ NO (3) REVISED. DATE: 28/6/2024 SIGNATURE: In the matter between BONGANE MAKHAPELA                                               Appellant and THE STATE                                                                      Respondent JUDGMENT BAIL APPEAL MATLAPENG, AJ: [1]        This is a bail appeal following a refusal by the Magistrate, sitting at Daveyton Court, to admit the appellant to bail. [2]        The appellant appeared charged with robbery with aggravating circumstances. The incident that gave rise to the charge, against the appellant, is briefly to the following effect. In the early hours of 17 December 2023, the complainant was in his motor vehicle, in the company of his girlfriend, at Daveyton. He was accosted by two men who were armed with knives. Both these men managed to get inside the car. Once they were inside, they pushed the complainant to the backseat. They drove away with the vehicle, leaving the complainant's girlfriend behind. About 50 metres from the place where they boarded the car, they stopped the vehicle. Another male person, armed with a panga, boarded the vehicle and the car again pulled off. Sometime thereafter the motor vehicle stopped. The appellant alighted and fled. The complainant gave chase and managed to apprehend him, with the help of a passer-by. The car in question collided with a tree. The driver passed away. [3]        The parties were in agreement that the charge with which the appellant is charged, fall under schedule 6 and that the provisions of section 60(11)(a) of the Criminal Procedure Act, 51 of 1977, (hereafter referred to as: "the Act") are applicable. [4]        The appellant submitted an affidavit in support of his bail application. The state, opposing the application, also submitted an affidavit, compiled by the investigating officer. [5]        The appellant states, in his affidavit, that he is a 36-year-old male, residing in the jurisdiction of the Court. That he is an electrician and that he has a 12-year-old child who is dependent on him for support because the mother of the child is unemployed. [6]        The investigating officer, in his affidavit, outlined how the offence was committed and how the appellant was apprehended. He opposes bail. [See paragraph supra .] [7]        The Court a quo refused to admit the appellant to bail. The Court found that the appellant has failed to discharge the onus that it was in the interest of justice that he should be admitted to bail. [8]        The appellant lodged the present appeal and assailed the refusal to grant him bail on various grounds. But principally that the Court a quo misdirected itself in finding that he had failed to prove that exceptional circumstances exist, which, in the interest of justice, permit his release. [9]        Section 65(1) of the Act provides that: "An accused, who considers himself aggrieved by the refusal of a lower Court to admit him to bail, or, by the imposition by such Court, of a condition of bail, including condition relating the amount of bail money and including an amendment, or, supplementation of a condition of bail, may appeal against such       condition to the Superior Court having jurisdiction; or, to any Judge of that court, if the Court is not then in sitting." [10]      Section 65(4) of the Act provides that: "The Court, or Judge, hearing the appeal shall not set aside the decision against which the appeal is brought; unless, such Court, or Judge, is satisfied that the decision was wrong, in which event the Court, or Judge, shall give the decision which in its, or his, opinion, the lower Court should have given." [11]      In the case of S v De Aubrey 1980(4)  SA 94 (W) at page 96 H to 97 A McEwan J, confirmed that: "In terms of section 65(4) of the Act supra interference can only take place if the Judge, or Court, is satisfied that the Magistrate was wrong." [12]      Section 65(4) of the Act stipulates in clear and unequivocal terms how the Appeal Court should deal with a bail appeal from the lower Courts. [13]      Section 11(a) of the Act provides that: "Where an accused is charged with an offence referred to in schedule 6, the Court shall order that the accused be retained in custody until he/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 interest of justice permit his/her release." [14]      In the case of Bruintjies 2003(2) SACR 575 (SCA) at 577 D to I, Shongwe, AJA, observed as follows: "The mere fact that the Trial Court considers that the appellant has reasonable prospects of succeeding on appeal does not of itself amount to exceptional circumstances. What is required is that the Court considers all relevant factors and determine whether individually, or, cumulatively, they warrant a finding that circumstances of an exceptional nature exist, which justify his/her release." [15]      In the case of S v H 1999 (1) SACR 72 (W) at page 77 E to F, Lubbe, J, concluded that: "Exceptional circumstances must be circumstances which are not found in the ordinary bail application, but pertains to peculiarity to an accused person's specific application. What a Court is called upon to do, is to examine all the relevant considerations as a whole in deciding whether an accused person established something out of the ordinary, or unusual, which entitles him to relief under section 60(11 )(a)." [16]      In the case of S v Wilkinson 20706/14 (2014) ZASCA192 [Judgment delivered on 27 November 2014]. The appellant was a practising attorney, married with a three-year-old child. He was also maintaining two children from his previous marriag aged seven and nine years respectively in the amount of R7 000 per month; as well as paying their school fees. He was also paying the monthly instalment of a mortgage bond of the property where his former wife and children resided. In addition the appellant's parent's-in-law lived with him and were financially dependant on him. He had a number of properties registered in his own name. He also owns a farm at Thabazimbi in the Limpopo Province. The Appeal Court granted bail in the Wilkinson matter, I mentioned supra . [17]      In the case of S v Ho 1979(3) SA 734 (W) at page 737 H, it was held that: "Functions and powers of the Court, or Judge, hearing the appeal under section 65 are similar to those in an appeal against conviction and sentence." [18]      In the past finding and seminal judgment of S v Barber 1979(4) SA 218 D at 220 E to F, Hefer J, remarked as follows: "It is well-known that our laws are largely limited where the matter comes before it on appeal and not as a substantive application. This Court has to be pursuaded that the Magistrate exercised the discretion which he has wrongly. Accordingly, although this Court may have a different view, it should not substitute its own view for that of the Magistrate because that would be an interference with the Magistrate's exercise of his discretion. I think it should be stressed that no matter what this Court's own views are, the real question is whether it can be said that the Magistrate who had the discretion to grant bail, but exercised that discretion wrongly, without saying that the Magistrate's view was actually the correct one, have not been pursuaded to decide that it is th wrong one." [19]      In the case of S v Wilkinson , supra , at paragraph 10, the Court concluded that: "What is required is weighing up of the interest of justice against the appellant's personal  circumstances;  in  particular  the prejudice the the appellant may suffer if he is refused bail." [20]      It was further said, in the case of S v Wilkinson , supra , that: "An accused must establish something out of the ordinary, or, unusual, which will entitle him to the relief under section60(11 )(a) of the Act." It is again this background that this appeal should be considered. [21]      In the present matter, it is worthy to note the following: (a)       That the charge against the appellant is indubitably serious. Robbery of a motor vehicle. (b)       The appellant was caught in the act. (c)        The appellant does not deny the allegations against him. [22]      I am not convinced that the appellant managed to advance reasons that are not found In any ordinary bail application; or, an unusual, like those in the case of S v Wilkinson , supra . [23]      I find that in the circumstances, after having considered a panopoly of factors, it cannot be said that the appellant managed to establish something out of the ordinary, which will entitle him to the relief sought. [24]      After careful  consideration, I am not persuaded that the relevant Magistrate exercised his discretion wronly. The appeal must therefore fail. [25]      In the result, I issue the following order: 1.         The appeal is dismissed. MATLAPENG,AJ ACTING JUDGE OF THE HIGH COURT DATE: 28/06/2024 sino noindex make_database footer start