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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: ASS0/17
(1) REPORTABLE: 'J:d/ NO (2) OF INTEREST TO OTHER JUDG (3) REVISED.
?.~t().?.!J.1.1. In the matter be1ween:-
ANDILE MANTVI Appellant
And
THE STATE Respondent
JUDGMENT
NKOSI AJ
INTRODUCTION
(l) The Appellant appeared in the Benoni Regional Court on the 12
September 2017 and applied to be released on bail. He is in custody
facing one count of attempted murder. His bail application was
refused by the court. He is now appealing against the court's decision
to refuse his release on· bail.
(2) The Appellant is a 39 years old male and self employed owner of three
taxis. He is married and has two minor children born of the marriage. His
wife is unemployed and he is the sole breadwinner. He is originally from
the Eastern Cape. He-relocated to Daveyton in Benoni, about 15 years
ago and is permanently resident in the Benoni District. He owns the
house he lives in which is valued at approximately R700 000, 00. He has
no previous convictions. However, there is a pending case of robbery
with aggravating circumstances against him. Is it alleged that a firearm
was used in that case. He was granted bail of R20 000, 00 which he
paid. The case dates as far back as the year 2014 and is due back in
this Division on the 29 January 2018 for trial.
(3) It is alleged by the state that the appellant shot at the complainant for
refusing to allow his taxi to load passengers. The alleged incident
happened at the taxi rank. Seven high calibre cartridges were
recovered at the scene. The incident took place at the taxi rank and
the lives of passengers in the vicinity were placed in danger. There was
no one injured including the complainant.
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(4) The state is opposing bail because the Appellant has a pending case
of Armed Robbery in the High Court and is facing a serious charge of
attempted murder having used a firearm to commit such offence. The
incident happened at a taxi rank and innocent people could have
been hurt.
(5) The complainant had prior to the hearing of the bail application
approached the Senior Public Prosecutor and informed him that he
intended to withdraw the charge because the accused never shot at
him. He was warned of the legal consequences of withdrawing the
charge. The complainant had already made a statement to the Police
alleging that the accused shot at him. The investigating officer warned
him that he would possibly be charged with perjury should he change
his statement. According to the investigating officer, there are two
witness statements which confirm the complainant's initial statement.
These witnesses confirm that the accused shot at the complainant. He
was asked by the investigating officer whether he had been
threatened or merely asked to withdraw his complaint, he did not give
an answer.
APPLICABLE SCHEDULE OF THE CRIMINAL PROCEDURE ACT 51 OF 1977
(6) The presiding Magistrate found that generally such an application for
bail would fall within the ambit of schedule 5 to the Criminal Procedure
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Act 51 of 1977. However due to the fact that the Appellant has a
pending case in the High Court, which falls within the ambit of
schedule 6 to the Criminal Procedure Act 51 of 1977, the Application
for bail would be considered under schedule 6.
(7) Section 60 (l l) (a) of the Acti provides :
"(7 7) 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 interest of justice
permit his or her release. "
If the Appellant's charge falls in the ambit of schedule 6, he bears the
onus of satisfying the court that there are exceptional circumstances
which in the interest of justice permit his release on bail. Section (60)
(11) (a) has raised the bar in so far as what an accused ought to
establish to satisfy the court compared to the requirement in Section
60( 11) (b).
1 Criminal Procedure Act 51of1977
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(8) Section 60 (11) (b) is applicable where an accused is charged with an
offence categorised as a schedule 5 offence. In that instance, an
accused is required to adduce evidence which satisfies the court that
the interest of justice permit his or her release.
(9) Attempted murder is classified under schedule 5 provided, it involves
infliction of grievous bodily harm. The complainant in this case did not
sustain any grievous bodily harm. In fact, it was submitted by counsel
for the state that the court erred in holding that the attempted murder
charge is a schedule 6 offence. It would have been a schedule 6
offence had the attempted murder resulted in the infliction of grievous
bodily harm to the complainant since the Appellant has a pending
case of Arm Robbery.
(10) Schedule 6 classifies an offence referred to in schedule 5 as a schedule
6 offence;
"Which was allegedly committed whilst he or she was released on
bail in respect of an offence referred to in schedule 5 or this
schedule"
(11) I respectfully disagree with the court's finding that the Appellant's
alleged offence falls within the ambit of schedule 6. The court ought to
have found that it falls within the ambit of schedule 5.
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(12) Schedule l provides inter alia that ;
"Any offence, except the offence of escaping from IO'wful custody
in circumstances other than the circumstances referred to
immediately hereunder, the punishment wherefor may be a
period of imprisonment exceeding six months without the option of
a fine ".
The alleged attempted murder falls within this category and therefore
under schedule 1 . However schedule 5 elevates this schedule l
offence to a schedule 5 offence by providing that;
"An offence referred to in schedule 7-
a)
b) Which was allegedly committed whilst he or she was released
on bail in respect of an offence referred to in schedule 7. "
(13) In light of the court's misdirection, the Appellant was unduly subjected
to a higher degree of proof required by Section 60 (11) (a). I have no
doubt that the Presiding Magistrate's findings were influenced by the
mistaken belief that the Appellant was facing a schedule 6 charge.
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(14) Having said that, this court will interfere with the decision of the court
aquo to refuse bail !f ~uch decision was wrong2 .In S v Baber 3Hefer J as
he then was , 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 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. Without saying that the Magistrate 's view
was actually the correct one, i have not been persuaded that it is
the wrong one."
WHETHER THE INTEREST OF JUSTICE PERMIT HIS RELEASE
(15) The material question to be determined is whether the Magistrate
exercised his discretion judiciously in light of the applicable law and
the facts that were before him4. In so far as the question of law is
2 FT Sewela v The State (731/10)[2010) ZASCA 159 (1 december2010) at para 12. See also Section 65)4) of the
CPA 3 S v Baber 1979 (4) SA 2018 (D) at 220 E-H .also see S v Faye 2009(2) SACR 210 (TK),Nkambule v S (A134/2013)
[2013)ZAGPJHC 112 (2 May 2013) at para 6 4
Nkambule v S (supra) at para 7
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concerned, my view is that the Magistrate's finding was wrong. He
ought to have found that schedule 5 was applicable and not schedule
6.
(16) I have already mentioned the facts of the case, the personal
circumstances of the Appellant, the allegations against him and the
basis for opposing the bail application. I shall therefore not repeat what
is already stated under the heading "Introduction", supra.
(17) It is contended by the Appellant that the state's case is weak simply
because the complainant told the Senior Prosecutor that he intended
to withdraw the case. I respectfully agree with the Magistrate that the
state's case is not depended on the statement of the complainant
alone, but also on those made by two other witnesses confirming that
the Appellant shot at the complainant.
(18) The weakness I find in the state's case is the fact that, the shooting
incident took place around 5am in August. It is alleged that the
Appellant after confronting the complainant left and went to his car,
shortly thereafter the shooting ensued. There is no evidence about the
distance and visibility. These factors will be relevant during trial to prove
the state 's case beyond a reasonable doubt. The Appellant's version is
that he denies the allegations against him.
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(19) The Appellant is out on bail in the Armed Robbery case which is due for
trial in January 2018. There is no indication on record that since 2014
when the case started, the Appellant failed to attend court or
committed any offence. This fact was not dealt with during the bail
application. It was not argued that the Appellant would not stand trial if
released on bail. To the contrary, the personal circumstances of
Appellant suggest that he will stand trial if released on bail.
(20) There is no evidence placed before court to suggest that there were
members of the public at 5am at the said taxi rank and that therefore
their lives were endangered by the firing of shots. There is also no
evidence that a rifle was used. No one saw the firearm and it was not
recovered. The conclusion that it was a rifle is an inference based on
the calibre recovered . Such inference would be justified if the ballistic
results were available.
(21) It was argued by the State that the Appellant has an affinity to use
firearm. The state has failed to establish facts leading to such
conclusion. The investigating officer was unable to shed light about the
circumstances surrounding the charge of Armed Robbery. The docket
and the investigating officer in that case were not available to assist
the investigating officer in this case at hand.
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(22) Section 60 (4) (a) to (e) of the CPA lists the circumstances under which
the interest of justice do not permit the release of an accused from
detention. In my view these circumstances do not exist in this particular
case. The circumstances of the Appellant which were not disputed,
the misdirection by the court and the fact that the state has not
proven otherwise that any of the factors indicated in section 60(4) of
CPA do exist, persuade me to conclude that the interest of justice
permit the release of the Appellant on bail.
ORDER
(23) I therefore make the following order
1 . The order of the court aquo refusing bail is set aside and replaced with
the following order
1.1 Bail in the amount of Rl 0 000 is fixed in favour of the appellant
subject to the following conditions
a) the appellant is ordered to attend his trial on each court date
and not later than 9am and remain in attendance until excused
by court ; and ·
b) he shall not have any direct or indirect contact with the
complainant and known state witnesses.
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APPEARANCE
For the Appellant
Instructed by
For the Respondent
Instructed by
Date of Hearing
Date of Judgment
: Mr Mampa
: Mampa Attorneys
Johannesburg
: Advocate J Rossouw
: State Attorney
Pretoria
: 28 November 2017
: 30 November 2017
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