Bail application

Case RC228/17 State v Mphaphathi Phumudzo Michel

The application is hear by Miss Hussain F.

Public prosecutor is Miss Nakulla M.A.

Court interpreter is Miss Mashaba R.

The applicant is being represented by Mr Ramaano R.A of Ramaano Attorneys.

The matter has been postponed numerous time due to reasons which the court
considered acceptable and justifies the reasons for the postponement. It was first hard
on the 14th of March 2017 but finalised on the 10 of May.

Introduction

The accused is charged with a schedule 5 offence. He is facing three charges

preferred against him by the state. These include kidnapping and attempted rape, and
two counts of theft. The applicant pled not guilty for to all charges and request to be
set out on bail.

The applicant’s case.

The applicant decided to take to the witness stand to give evidence as to why he
should be grand bail. The applicant is a self-employed person who drives a cab. He
resides at Manini with his mother, his two children and his mentally challenged brother.
He does not own any travel documents and does not have relative outside of South
Africa. He doesn’t have any pending case against him. The applicant has three
previous convictions. He was first conviction was first convicted for shoplifting to which
he testified to have forgotten the year of conviction and was subsequently paid a fine.
The second conviction was in 2003 for housebreaking, sentenced to three years
imprisonment. And the third charge was for possession of stolen property.

Reasons for his application

The applicant’s plea for bail is on the basis that he has two children, one is three years
old and the other one is ten. His mother is not staying full time with the children but
stay elsewhere, where it enables her to go to work fast. His brother is mentally
challenged and not able to help the children. Although the children are spending time

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with their nanny, the nanny was now talking about leaving them since she is getting
half of her usual salary. The nanny visited the applicant and in his holding cell in
Matheche to inform him that the children are suffering and he is not able to anything
since is behind bars. He plagued to comply with bail condition if bail is granted. To
supplement his reasons, the applicant also emphasised on the fact that he was never
arrested but handed himself over to the police when he had that they came looking for
him.

Cross examination

At cross-examination it was established that he was not the sole provider for the
children. The mother of the children also contributed to the maintenance. His mother
also contribute. The state also established that the applicant only contribute R1000.00
for buying grocery and other essentials. Its also established that the children the
applicant mention to be grossly affect by his inability to provide for them. Was not truly
correct since the mothers of each is doing their bit and the mother of the applicant is
also helping a great deal.

States case

The brought only one witness, Sargent Makhabo Tshimandzo. The sargent also
opposes bail on the bases that the applicant has a elusive character, meaning that the
is a high possibility that he will not attend court and running to another place. She also
added that should the applicant be released on bail, the safety of the witnesses might
be in danger. The bases of this contention is in that the applicant has been previously
convicted on charge of similar facts and that his targets are women despite countless
campaigns against woman abuse. To add to her contention the she alluded to the fact
that the applicant is a person who can drive and has a car at his dipossal anytime he
wanted to use it, though he did not stay in the same village with the complaints he can
easily get to where they and and they use the same town (central business district).

These were strong objected by the applicants defence upon cross examination.

Address

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The applicants legal representative when addressing the court, argued that the
applicant is a person who can be trusted since the police never chased after him but
he handed himself over upon becoming that the police were looking for him. He also
argued that the police official is an individual who seems to dislike the applicant and
doesn’t want to give him the benefit of a doubt that he might be actually innocent. The
official argued that the applicant had an elusive character but she could not show the
numbers of instance where the applicant ran away at their sight.

The state on the on hand argued that the accused is not a trust worthy person. The
state also argued that the applicant showed no sign of be rehabilitated since he was
in court for charge of similar facts. The state further argued the reason of the applicant
that he should be granted bail so that he can continue to provide for his child is not
sufficient. The state argued that since the accuse is facing a schedule 5 offence thus
having a duty to discharge exceptional circumstances which necessitate his realise
on bail in terms of section 60(11)(a) of the Criminal Procedure Act1 and had failed to
do so. The state further contested bail on the account the applicant did the interest of
justice persmit for him to be realised and section 60(11) would justify the limitation of
his right to freedom of movement, as section 36 of the Constitution2 also permits.

Judgement

Upon handling down the decision the court made reference to the arguments made
by both the parties. The court particularly that the applicant had previous convictions
of similar fact and that he failed to discharge exceptional circumstances in respect of
the charges he is facing. The court outlined that the accused did not portray himself
as a person who could be tasted and was likely to evade trail. The court noted that the
applicant’s main bases for bail was based on the ground that he wanted to provide for
his children, which it held that his reasoning lacked in material terms.

In light of the police officers contention, the court note that although she did not have
on record the instances where the applicant had ran away from them, it could be
possible that he did not want to be arrested since it took him days to surrender himself.

1
51 of 1977 as Amended.
2
The Constitution of the Republic of South Africa, Act 108 of 1996.

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The court held that dispite the long period to which he was kept in custody, he failed
to establish circumstances which necessitates his release in the of section 60(11)(a)

Bail was denied.

Commentary

Based on our observation of the proceedings, we are of opinion that the court’s
decision to deny bail was correct. This conclusion is mostly based on the manner in
which the applicant conducted himself. The applicant had tried to use his children as
an excuse for his realise, however his reason was one which aimed at misleading the
court. It was established that the mothers of the children also provided for their
children. We are therefore of the opinion that those mothers would not leave their
children destitute his because bail is denied but would do anything for the wellbeing
of their child as mothers instincts would prevail in this case.

On account of the investigating officers opposition of bail, the court draw reasonable
inference in that the applicant I likely not to attend the trial or harm witness or threaten
them. The description of occurrence of events and the experience of the officer cannot
be done away with. The fact that the officer had not recorded the dates when the
applicant escaped does not exclude the possibility of such occurring.

On account of pervious conversions. Granting the accused bail would not serve any
purpose since it appears that he is habitual criminal, specialising on one kind of crime.
Though we do not know in details the facts of the previous offences which he was
convicted for, we are of the opinion that they are likely to be closely related to those of
the charge he is currently facing. Although his application took months to be finalised
the decision to deny him bail was correct in the interest of just. And the fact that he
had failed to establish exception circumstance as require by the nature of his offence
forms exceptional bases for the denial of his bail.