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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