Mulder was also satisfied, at least prima facie, that the State’s case against the appellant was strong
THE DECISION of a Postmasburg magistrate to deny bail to a Kimberley man who drove over five people, killing one, after the man’s 13-year-old son was slapped, has been upheld by the Northern Cape High Court.
The applicant, Mbuyiselo Ashley Mphetsheni, applied for bail in the Postmasburg Magistrate’s Court, but his application was turned down by Magistrate P Mulder.
Mphetsheni then turned to the high court to appeal the decision.
Northern Cape High Court Judge Mpho Catherine Mamosebo, who made the ruling, pointed out that it was common cause that Mphetsheni, who is facing one count of murder and four of attempted murder, also has a pending case of theft in the Kimberley Regional Court involving goods to the value of R1.2 million.
According to a police report issued at the time of Mphetsheni’s arrest, it was alleged that on January 13, at around 8.35pm, a 13-year-old boy was walking in the street with his friends and started throwing stones at other children. The deceased, aged 29 years, tried to stop them but the boy allegedly insulted him and he hit the boy.
“The same boy ran to his father who came to the victim’s yard to confront him. The father allegedly got into his car and drove into the victim,” the police report stated. The victim died en route to hospital.
In the court papers, it was pointed out that the appellant (Mphetsheni) is a 42-year-old South African citizen born in Postmasburg. He is not married but has a life partner and they reside in Galeshewe, Kimberley.
“His life partner is employed by the Department of Health and earns about R19 000 per month, while he assists at his brother’s guest house and he receives R5 000 every month,” the court papers state.
According to the investigation officer, Constable Christine van der Westhuizen, who testified at the original bail application hearing, Mphetsheni used his vehicle to chase his victims down the street, killing one and attempting to kill the others by colliding and/or driving over them.
This, she said, happened after an altercation between him and the Mooki family.
Van der Westhuizen added further that the appellant’s profile reflected an aggressive person.
“She says when she enquired from the appellant whether he has any previous convictions, he denied having any. The appellant testified to having paid R200 admission of guilt fine for assault.
“However, his SAP 69s, that is record of his previous convictions, portray something different. He was convicted of assault and of discharging a firearm in an urban area. Both offences were committed in Postmasburg,” the court documents state.
In denying bail, Magistrate Mulder found that Mphetsheni’s personal circumstances were not exceptional, while his failure to disclose his “forgotten” previous convictions could also not be ignored.
Mulder pointed out further that while the evidence of the appellant was that he was attacked and had to flee the scene, the evidence of Van der Westhuizen was to the effect that the appellant could have proceeded straight which would have resulted in him leaving the scene.
“It is incomprehensible how the appellant, fleeing from an emergency situation, would tum his vehicle instead of proceeding straight.
“The magistrate found that what was presented by Van der Westhuizen watered down the appellant’s version.”
Mulder was also satisfied, at least prima facie, that the State’s case against the appellant was strong.
“The appellant uttered threatening words to the people who walked him out of the Mooki family home saying ‘he will show them, he fears no one and they were nothing in his eyes’. This happened before he got into his vehicle.
“Sight should not be lost of the fact that the appellant was prevented from confronting the person who allegedly assaulted his son. That person is now known to him and it is that very incident that caused him to find himself in conflict with the law. Worse still, while out on bail in another matter.
“This means that being out on bail failed to deter him from committing further offences. The court also has to take into consideration any form of resentment that the appellant is alleged to harbour against any person.”
Judge Mamosebo pointed out that she was “not satisfied that the magistrate had exercised his discretion wrongly by not admitting the accused to bail”, adding that the applicant had failed to show the exceptional circumstances which, in the interests of justice, permitted his release on bail.
“What is disturbing and inexplicable is how the appellant expects to be afforded yet another opportunity to be out on bail when he is currently out on bail in another matter and these offences are committed during that indulgence.
“It cannot be said that the magistrate was wrong in refusing to admit the appellant to bail. There is no basis for the appeal court to interfere with the discretion exercised by the magistrate. The appeal must therefore fail.”