Nhlapo v S (A07/2023) [2023] ZAGPJHC 155 (17 February 2023)

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: South Gauteng High Court, Johannesburg South Africa: South Gauteng High Court, Johannesburg You are here: SAFLII >> Databases >> South Africa: South Gauteng High Court, Johannesburg >> 2023 >> [2023] ZAGPJHC 155 | Noteup | LawCite sino index ## Nhlapo v S (A07/2023) [2023] ZAGPJHC 155 (17 February 2023) Nhlapo v S (A07/2023) [2023] ZAGPJHC 155 (17 February 2023) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPJHC/Data/2023_155.html sino date 17 February 2023 IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, JOHANNESBURG CASE NO: A07/2023 (1) REPORTABLE: NO (2) OF INTEREST TO OTHER JUDGES: NO (3) REVISED: YES Date: 17 February 2023 In the matter between: NHLAPO: MDUDUZI                                               APPELLANT and THE STATE                                                              RESPONDENT APPEAL JUDGEMENT ALLY AJ [1]    This is an appeal for the Appellant to be released from bail in terms of Section 65 of the Criminal Procedure Act [1] , hereinafter referred to as ‘the Act’. [2]    The State was represented by Adv. VH Mongwane and the Appellant by Mr TL Mabilo. [3]    The Appellant had appeared before the Court a quo on a charge of kidnapping and robbery with aggravating circumstances which common to the State and the Accused was accepted [2] as a Schedule 6 offence. [4]    It is appropriate at this point to set out the statutory provisions governing the bail procedures in relation specifically to the Appellant. Section 60 (11) of ‘the Act’ provides 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 in 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;” [5]    Our Courts [3] have had occasion to deal with what is meant by ‘exceptional circumstances’. It is clear from the said cases and the cases quoted therein that ‘exceptional circumstances’ means more than what can be described as the run-of-the-mill bail applications. An Applicant for bail that faces a Schedule 6 charge is expected, in my view, to present more than that he or she will not interfere with witnesses or will stand trial. He or she must present cogent evidence that can stand up to scrutiny and convince a Court [4] on a preponderance of probabilities that he should be committed to bail. [6]    Heher JA in the Mathebula case states the following in relation to that case which circumstances come very close to the present: “ In the present instance the appellant’s tilt at the state case was blunted in several respects: first, he founded the attempt upon affidavit evidence not open to test by cross-examination and, therefore, less persuasive: cf S v Pienaar 1992 (1) SACR 178 (W) at 180h; second, both the denial of complicity and the alibi defence rested solely on his say-so with neither witnesses nor objective probabilities to strengthen them. The vulnerability of unsupported alibi defences is notorious, depending as it does, so much upon the court’s assessment of the truth of the accused’s testimony” [7]    I align myself with the views expressed above and in applying the reasoning to this particular case, I can see no reason to interfere with the decision of the Court a quo. The Appellant, through his Counsel, submitted that the cumulative effect of the weak state case and the personal circumstances of the Appellant, evidences exceptional circumstances and that the Court a quo misdirected itself in not finding that the above constituted ‘exceptional circumstances’. [8]    Now an Appeal Court such as the present is guided by, firstly, Section 65 (4) of ‘the Act’ and secondly, by certain principles that have been laid down by our Courts in applying the said section. Section 65 (4) of ‘the Act’ provides: “ (4) 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.” [9]    The following principle is trite as expounded in S v Barber [5] with which I align myself, wherein it is stated: “ It is well known that the powers of this Court are largely limited where the matter comes before it on appeal and not as a substantive application for bail. This Court has to be persuaded 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 unfair 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 exercised that discretion wrongly.” [10]  In applying the above quoted principles and statutory provision, this Court is unable to find that the Court a quo misdirected itself on the facts nor am I able to fault the reasoning of the Magistrate. [11]  Having found that this Court is unable to find fault with the reasoning of the Court a quo as well as that there was no misdirection on the facts, there is one issue that was raised by Mr Mabilo which relates to a point of law. [12]  As I understand the point of law raised by Mr Mabilo, the State did not produce a certificate from the Director of Public Prosecutions authorising the holding of bail proceedings in the Regional Court. In this regard, Section 50(6) (c) of ‘the Act’ needs quoting: “ The bail application of a person who is charged with an offence referred to in Schedule 6 must be considered by a magistrate's court: Provided that the Director of Public Prosecutions concerned, or a prosecutor authorised thereto in writing by him or her may, if he or she deems it expedient or necessary for the administration of justice in a particular case, direct in writing that the application must be considered by a regional court.” [13]  Relying on the case of S v Mabena [6] wherein the Court dealing with a review held that the bail proceedings were a nullity, Mr Mabilo submitted that the bail proceedings of the Appellant in this case must be declared to be a nullity: “ [8] In terms of section 50(6)(c) bail proceedings of an accused who is facing a Schedule 6 offence must be heard in a magistrate court. Bail proceedings for a Schedule 6 offence may only be heard in a regional court when the DPP or a prosecutor authorised for that purpose, directs in writing. The subsection uses the word “must”, which means that it is peremptory to obtain a written authority for bail application of a Schedule 6 offence to be heard in the regional court. [9] The accused bail application was held in a regional court. According to the memo of the Head of the District Court, on both hard copy of the record and mechanical proceedings, there is no mention that written authority was obtained from the DPP, chief prosecutor or senior prosecutor for the bail application to be heard in the regional court. The written authorisation must be handed to the presiding magistrate before the commencement of the bail application. That did not happen in the case at hand and it therefore amount to gross irregularity.” [14]  In terms of the doctrine of stare decisis , this Court is bound to follow the judgement of Mabena . However, the first issue that needs determination is whether, the Appellant is entitled to raise this issue for the first time in his Heads of Argument? Our Courts [7] have held that where a point law arises ex facie the record, then a Court of Appeal is entitled to deal with such point. [15]  The facts of this case are similar to Mabena in that the record of proceedings show no compliance with Section 50(6) (c) of ‘the Act’. Specifically, there is no record of the written authorisation by the Director of Public Prosecutions to hold the bail proceedings in the Regional Court. [16]  The complication of this case, however, is that there were two accused in the Court a quo and the question arises as to what happens in respect of the accused that was granted bail? [17]  It is appropriate to mention that the bail proceedings in the Court a quo concluded with judgement being handed down on 13 December 2022. Therefore, the accused that received bail has been out on bail since that date or shortly thereafter. [18]  The judgement of the Court a quo makes it clear that the State had conceded that accused number 1 in the Court a quo had met the standard required of him to prove the existence of ‘exceptional circumstances’ and thus warranted the committal of him to bail. [19]  The legal effect of a declaration of nullity of the bail proceedings in the Court a quo , strictly speaking, is that a bench warrant for accused number 1 would have to be issued and accused number 1 would have to once again apply for bail. Such a consequence, in my view, would be a conformance with the letter of the law rather than the interests of justice. [20]  Having regard to the peculiar facts of this case, can one state that the withdrawal of the bail in respect of accused number 1, who is not before this Appeal Court, is in the interests of justice? I submit not. It is clear from the record, as stated above, that the facts of the case in respect of accused number 1, support an order for committal to bail and that, in the interests of justice, such order should remain. [21]  I have conducted research on this point, of the effect of a declaration of nullity of bail proceedings in respect of an Appellant’s co-accused and have found no case in point. In the Mabena case, all the accused’s applications served before the Review Court. In my view, it cannot be in the interests of justice for this Court, sitting as a Court of Appeal to issue a bench warrant in respect of the Appellant’s co-accused and accordingly, this judgement relates specifically to the Appellant. [22]  Having held that this Court is bound by the Mabena case it is appropriate for this Court to declare the bail proceedings relating to the Appellant in the Court a quo to be a nullity. [23]  It should be noted that I requested Mr Mabilo and Adv. Mongwane to provide supplementary Heads of Argument dealing with the position of the Appellant’s co-accused. Both Mr Mabilo and Adv. Mongwane are in agreement that this Court’s declaration of nullity should not prejudice the Appellant’s co-accused. [24]  Accordingly the following Order shall issue: a)     The proceedings of the bail application in the Regional Court for the Appellant are hereby held to be a nullity and set aside. b)     The matter is remitted back to the magistrate court for a fresh bail application before another magistrate, and also for the prosecution to obtain the necessary written authority from the office of the DPP should the proceedings be held in the Regional Court. G ALLY ACTING JUDGE OF THE HIGH COURT GAUTENG DIVISION OF THE HIGH COURT, JOHANNESBURG Delivered: This judgement was prepared and authored by the Judge whose name is reflected and is handed down in Court and circulated electronically by uploading it to the electronic file of this matter on CaseLines. The date for hand-down is deemed to be 17 February 2023 . Date of hearing: 15 February 2023 Date of judgment: 17 February 2023 Appearances: Attorneys for the Appellant: MABILO TL INC ATTORNEYS Counsel for the Appellant: Mr. T.L. Mabilo Mabilo.legal@gmail.com Attorneys for the Respondent: OFFICE OF THE DIRECTOR OF PRIVATE PROSECUTIONS JOHANNESBURG Counsel for the Respondent: Adv. V.H. Mongwane vmongwane@npa.gov.za [1] 51 of 1977, as amended [2] Caselines: 003-12; Record: page 11 at para 18-22 [3] Fourie v S 2020 GPPHC at para 10-13; S v Mabena & Ano 2006 SCA at para 5-6 [4] Mathebula v S 2009 SCA at para 11 [5] 1979 (4) SA 218 (D) at 220 E-H [6] 2021 LMPPHC [7] Moroka v Premier of the Free State & Others 2022 SCA at para 8 sino noindex make_database footer start