SCHOOL OF LAW

CRIMINAL PROCEDURE LAW

NAME: MR TL SOLOMON
STUDENT NO: 14008675
COURSE: Criminal Procedure Law
CODE: CRP 3541
EXAMINERS: Mr LB Tsweledi

Court Observation Report

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IN THE HIGH COURT OF SOUTH AFRICA

(LIMPOPO LOCAL DIVISION, THOHOYANDOU)
DATE: 12 APRIL 2016

In the matter between:

MAKUYA AZWINDINI COLBERT (Appellant) AND the State (Respondent)
M S SHAIK (Acting Judge of the High Court)
This was a case which I observed which dealt with bail for the appellant on 15
October 2015; by the learned Magistrate Mr Du plessis in the Tshilwavhusiku
Magistrates Court; Limpopo. After having heard the submissions by Adv P
Sengani for the Appellant and Adv A Poodhun for the Respondent, having read
the transcribed record and the notice of appeal as well as other documents filed
of record. This is an appeal against the refusal of bail for the appellant on 15
October 2015; by the learned Magistrate Mr Du Plessis in the Tshilwavhusiku
Magistrate's Court; Limpopo. After having heard the submissions by Adv P
Sengani for the Appellant and Adv S Poodhun for the Respondent and having
read the transcribed record, the notice of appeal and the heads of arguments by
both Counsel as well as other documents filed of record, the Court found as set
out below.
(a) Since his arrest on 28 September 2015, the appellant who is facing a charge
referred to in Schedule 5, namely, House-breaking and theft, has co-operate
fully with the police in recovering goods found to be in his possession.
(b) There is no evidence that since 22 July 2015, being the date of this offence,
appellant being a mere constable had tampered with any evidence, had any
influence over the investigating officer Warrant Officer Malukani that he
approached and communicated with any state witnesses.
( c ) The appellant is 29 years old, married with two children (who are 4 and 2
years old respectively); he is the sole bread winner, as his wife is a mere
housewife with whom he lives at Tswinga in Thohoyandou in two roomed
house. He has no assets outside South Africa.

(d) He is employed by the South African Police Service as a constable.

Currently he is on suspension due to this offence. The letter of suspension was
handed to the Magistrate Mr Du Plessis who requested same. He was
performing duties at Tshilwavhusiku police station.
(e) He does not have any previous conviction, except for this matter; he does
not have any pending cases. His continued detention since 28 September 2015
is causing him financial prejudice which also affects his wife and two minor
children; and it affects his constitutional right to earn monies to consult with his
legal representatives to assist in this case.
(f) The Court is satisfied that the appellant has adduced sufficient evidence in
terms of section 60(11) of the Criminal Procedure Act 51 of 1977, which placed
an onus on him to satisfy the Court that the interest of justice permit his release
on bail of R1500-00 with such conditions as the court may deem meet.
(g) The prosecutor in the magistrate's court did not convince the Court that it
shall be in the interest of justice to refuse the grant of bail as the grounds set out
in section 60(4)(a) to (e) were not sufficiently established.
Acting Judge M S Shaik of Thohoyandou High Court said the following:
1.

The appellant's appeal against the refusal of his bail application is upheld.

2.

Bail is granted to the appellant on the following conditions:

(a) The appellant shall only be released on bail if an amount of R2000-00

(two thousand rand) is deposited;
(b)

After release on bail:

(i)
The appellant shall not without the written consent of the investigating
officer leave the area of Tswinga in the jurisdiction of Thohoyandou
Magistrate's Court, whilst not on duty as a police officer at the Thohoyandou
Police Station.
(ii) The appellant is ordered to report three (03) times daily between 07h00
and 09h00; between 13h00 and 14h00 and between 18hOG and 20h00 at the
Thohoyandou Police Station.
(iii) The appellant shall not approach or discuss the main case of housebreaking and theft with any State witness (es) or any of his co-accused.
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(iv) The appellant shall not interfere with the prosecution of his case in any
manner whatsoever.
(v) A copy of the appellant's identity document with his photograph, as well as a
copy of this Order shall be provided immediately by the investigating officer to
all border posts of South Africa as well as to the immigration officers of all
Airports in South Africa.
(vi) The appellant is prohibited from obtaining any temporary or emergency
travel documents form any South African Department of Home Affairs or
elsewhere.
Acting Judge of the High Court as mentioned above
The case was heard on 13 and 17 FEBRUARY 2015
The Judgement was delivered on this date: 12 April 2016
Adv P. Sengani Instructed Kenny Sivhaga Attorneys, Maungedzo Attorneys for
the Appellant Adv S Poodhun of the Director of Public Prosecutions office,
Thohoyandou for the Respondent.