Brown Mogotsi's bail application continues

Added: 2026-05-31

[00:00:00]And what is also of significance your worship if the applicant was not residing there and the owner according to the municipality did not know that that applicant is there he would have been out of that place his his assets are there meaning that between whoever this Albert who signed the lease and the owner there's knowledge about the applicant living there.

[00:00:30]We've had instances where people applied to be released on bail who live in informal settlements.

[00:00:37]You can't even pin a location, but those people are admitted to bail and they given an opportunity to attend to court outside.

[00:00:56]Now your worship, there was also an issue with regards to previous convictions.

[00:01:07]The applicant made mention of two.

[00:01:14]He made mention of three previous convictions and the state made mention of five previous convictions.

[00:01:27]Six your worship your worship. The submission is that the three that were mentioned by the state that the applicant didn't mention he gave a plausible explanation to the court and he informed the court that all of them a fine was imposed and he did not serve any direct imprisonment.

[00:01:56]Hence on his limited understanding that did not make a previous conviction.

[00:02:09]I'll invite the court to look at the reality that the applicant is a lay person and accommodate the applicant in as far as the possibility of making errors, especially because these previous convictions are fines and he wasn't incarcerated for Um, I further invite the court to find that that omission was not malafid on the charges.

[00:03:07]The applicant is charged with defeating the ends of justice, possession of a firearm, which is a 9 mm firearm, possession of ammunition for a 9 mm, and discharging a firearm in public.

[00:03:31]My submission is that on the defeating the ends of justice even on the case law, nobody has ever gotten a lengthy term of imprisonment.

[00:03:47]The general notion is that 3 years if a court finds someone guilty is a sentence that is handed out by the court.

[00:04:01]Now your worship on the aspect of a firearm the definition of the state does not defy that 9 mm to be a semi-automatic firearm.

[00:04:13]My submission is that in the absence of it being a semi-automatic firearm, it does not invite the imposition of a minimum sentence.

[00:04:34]On the issue of ammunition your worship, I'll refer the court to the case of state versus It's a Z A GP JHC 368 where the court imposed a sentence of 2 years.

[00:05:06]Now your worship, let's look at these sentences that I've referred to the court holistically.

[00:05:18]They are not lengthy sentences.

[00:05:22]They thus take away the ability to incite the applicant to evade his trial.

[00:05:39]I do not see a reason in light of the charges that have been profered why the applicant will evade his trial on the likelihood of sentence.

[00:06:01]your worship. The state in its papers also confirms that the applicant does have a business because at some point the investigating officer went to the business premises.

[00:06:25]Needless to say that that business is situated on tribal land. It's a business that runs and it generates an income and the income that it generates contributes to the estate of the applicant before court.

[00:06:53]He's married.

[00:06:57]He handed over his passport to the investigating officer.

[00:07:08]That is also behavior that is inclining towards being honest.

[00:07:17]There is no need for the court to find that he is a flight risk.

[00:07:30]When he was called to the Majanga Commission, he appeared as he was requested on all occasions.

[00:07:47]He even sick except for when he was sick your worship uh he he he he did not make himself available your worship he also availed himself before the parliamentary committee when he was invited to do so the submission is that the applicant before court has made a proper case and he has demonstrated that the interests of justice permit his release on bail.

[00:08:30]Baby worship is a contract between the applicant and the court that if he pays x amount of money, the amount that he pays ought to give him a reason to come and appear in court.

[00:08:51]Having said that, your worship, the amount of bail is solely within the prerogative of the court. The court can order an amount as it deems fit and the court may further add any conditions which it would like the applicant to adhere to.

[00:09:15]He still enjoys his right to be presumed innocent.

[00:09:34]Your worship. May I take an instruction Jesus? Thank you. Yoship Yoship further that too. There were allegations before this this court that the applicant attempted to bribe the investigating officer and I believe it to be prudent that submissions are made in that regard.

[00:10:10]The applicant before court denies the allegation of bribery.

[00:10:21]The arrest of the applicant was in the presence of numeral police officials and media personnel.

[00:10:46]And at no stage was the applicant alone with the investigating officer.

[00:10:54]Further that to your worship that allegation is unsupported by independence evidence recordings or corroboration or witness confirmation.

[00:11:09]We therefore invite the court to look into this allegation with caution.

[00:11:26]What we are bringing to the court is not a determination on the guilt of the applicant, but whether or not the interests of justice permit his release on the facts that the applicant placed before court remain uncontested and together with the other submissions that the applicant has made.

[00:12:25]a proper case that he be admitted to bail and that he has passed the test for the interests of justice.

[00:12:40]The court ought to find in favor of the applicant Your worship, I have dealt with the issue of bail conditions.

[00:13:04]I've also dealt with the issue of the bail amount.

[00:13:12]The applicant had however informed the court that he would afford bail in the amount of 10,000 rands.

[00:13:24]You worship my submission on that amount is that that falls strictly within the ambit of the court.

[00:13:32]The court is not bound by the amount that the applicant requests and the court may order as it deems fit.

[00:13:44]Yoship, the applicant has demonstrated that no ground exists under section 64 A2E warranting continued detention and that he be released on bay.

[00:13:58]Y worship their heads of argument that are dated the 28th of May.

[00:14:04]May I inquire from the court? Is there any aspect upon which the court would like me to address it on as the court?

[00:14:33]your worship. I'm not going to regurgitate the submissions which have already been made by council in relation to this particular bail application.

[00:14:42]Uh your worship, the principles in relation to bail have already been adequately out outlined by council.

[00:14:53]uh what I am going to do is just to touch base on some of the aspects that uh the applicant would wishes for this court to be aware of is just for the purpose of clarity.

[00:15:08]The worship will remember that from the submissions by the investigating officer is that there is an issue in relation to the address which renders the applicant a flight risk. Now there is this aspect in relation to the number not necessarily the area or the street number or the street name.

[00:15:30]There is an issue relating to the number. Now the number that the investigating officer says he obtained recently. It's 4544.

[00:15:44]The name of the street is the same.

[00:15:50]The area is the same.

[00:15:53]The number which has been provided in the lease agreement in the proof of residence from the long bati the affidavit of the wife is different to the extent that it starts with 44 54. So it is just a a mistake an error and one can argue that it's an honest error.

[00:16:20]Which one is correct?

[00:16:22]>> Your worship will note that the correct one will be the one which is 45 44 which was confirmed 45 >> 44 >> 44. Yes. which was confirmed by the wife of the applicant in this matter.

[00:16:39]And this is according to the investigating officer's statement that when they arrived, she produced the lease agreement. And when we look at the lease agreement, it refers to 4454 and not 4544.

[00:17:03]Now it is clear that the applicant's wife clarified this just so that uh it is clear that the investigating officer initially in his state in in his statement he went to number 4454 where he found uh >> initially in the first affidavity went to 44 54 for where he found Miss Tandi.

[00:17:36]Just want to get that name correctly. I don't want to mislead the court. Yes.

[00:17:40]Tandi Suani.

[00:17:48]Now what is important worship is that all this these numbers are in the same area.

[00:17:59]It is >> same street.

[00:18:01]>> Same street.

[00:18:02]>> It is a matter of just uh one having made an error.

[00:18:10]An error which one can also argue that it's an honest error.

[00:18:16]It is clear that the applicant's wife was under the impression when he she went and and and submitted the affidavit and also when they went and obtained the approval of residence that where they are staying in terms of the lease agreement it's 4454 and not 4544. So it is it is just a technical error but the fact of the matter I worship is that there is an address and that particular address exist and the investigative officer was not misled in terms of that particular address. He went and found this particular address.

[00:18:56]Now there is nothing from the investigating officer that says he further made investigations around that particular area and this investigation resulted in a finding that the applicant does not reside in that particular address which it has been given to him.

[00:19:17]He may be dissatisfied that he he found minimal items but that cannot be a ground to say that a person is a flight or does not reside there.

[00:19:30]Is there a formula in terms of the number of items that you need to find in a particular area or in a particular house because a person can have three items or four items but that doesn't necessarily mean that they do not stay there. pictures were taken. It is a house. It's a property. A fixed property.

[00:19:51]A fixed address.

[00:20:00]Now I just wanted to clarify that because it appears that it borders on the the the the the the court asking itself that will the applicant be easily traceable under the circumstances.

[00:20:17]My plea with the court is for the court not to look at that particular issue in isolation but as my council has already submitted must look at the address together with this business address which was positively confirmed by the investigating officer in this matter.

[00:20:35]In his statement, he says he found a passer by who he asked about he who he asked the applicant regarding the information regarding the applicant and this passer by directed him to this particular restaurant or Liqua outlet where it's it's named Old School uh Old School. But but the fact of the matter is that when he got there, he found someone a lady which is a receptionist and that particular person gave the applicant's number. That is where they actually managed to phone the applicant.

[00:21:18]Now this the applicant is not a foreign national wherein we would say that he actually would have even any inclination to actually flee the Republic of South Africa.

[00:21:30]We're dealing with a South African citizen. In his affidavit, he has indicated that he was born in Mafik. The details of the mother, the details of the father, they've been placed in his affidavit.

[00:21:50]Fever to that your worship.

[00:21:54]The applicant is not someone that one can say that can easily disappear.

[00:22:02]It is not possible. He's very well known. He's been in the public, he's in TV. If he disappears anywhere in South Africa, he will be easily traceable unless if the court or unless if the state is saying that they do not have enough resources to actually trace the applicant in this matter, which I believe not.

[00:22:23]The state is very much equipped. We have intelligence in the Republic of South Africa that can actually easily locate the applicant if he disappears.

[00:22:39]Now, as he has indicated in his uh affidavit or the applicant, he further says the warrant was issued on the 17th or rather signed on the 20th of April. on the 29th of April and that is not a dispute.

[00:23:01]On the 29th he was at the commission. He attended to the commission.

[00:23:08]He could have been easily traced on the 15th again of May. He went and attended to the commission. Now when we look at that, would we say that someone who attended the commission and as my council has already submitted as well as the ad hoc committee can decide and to disrespect this particular court and evade trial.

[00:23:50]It is not possible. Actually the argument if there is any such argument it's baseless and he has kids you worship he has children he has indicated that he has four children and what the investigating officer doesn't also tell this court is that he confirmed that those particular children reside there at that particular address where the the applicant has indicated because if the court will remember the annexure which is the affidavit of the applicant's wife. It clearly specifies that I reside in this particular address with my three children.

[00:24:32]It is there.

[00:24:34]Now why would the applicant uh decide not only to abandon his children but to also evane when he has such strong family family ties in the Republic of South Africa it doesn't really make sense and as my counelors already submitted the seriousness of the charges that the applicant is facing is not such that will actually give him any inclination to actually evade his trial. It's not like he's facing minimum sentences.

[00:25:18]And regarding the previous convictions, now if the applicant did not want to uh rather to mislead this particular court so that he can actually obtain favor in relation to a bail application, he would have decided that he is not going to even disclose any of the previous convictions.

[00:25:50]Now such a disclosure by the applicant in this matter it shows that he was playing open card.

[00:25:56]It is however as it was argued by my my my council that he omitted those particular previous convictions which were less serious and he was not subjected to a direct imprisonment.

[00:26:13]The court will note that the last previous conviction it was in 2012 that is over 10 years since the applica the applicant in this matter had any rush with the law.

[00:26:29]It is clear that when we have regard to the submissions which were made by the investigating officer in his affidavit regarding why bail should not be granted. When we look at the part the person of the accused of the applicant in this matter those particular grounds which have been submitted by the investigating officer do not have any merit.

[00:27:00]And further to those particular previous convictions, they are all unrelated to this particular matter. They do not create a pattern in relation to a conduct of the applicant in this matter.

[00:27:17]Your worship will note that the case against the applicant more so regarding the staging of the assassination attempt.

[00:27:36]This particular case from the evidence which has been submitted by the state it's relying on ballistics.

[00:27:50]It's relying on CCTV footage and a witness.

[00:28:02]All we have to do right now is that it's not necessarily to say that there is a primmaafaki case against the applicant in this matter.

[00:28:11]That is a trial issue.

[00:28:14]This court is not enjoined to actually determine the guilt of the applicant in this matter. There's case law in relation to that.

[00:28:27]Those are triable issues which the applicant will at the correct forum h discredit and show that particular court that there is actually no case that the state has actually established against him in this matter.

[00:28:53]Now a applicant cannot say he was a is a violent person. The cases are dated 10 years ago.

[00:29:07]We cannot say that that is a danger to the public as it has actually been uh a by the investigating officer in the affidavit.

[00:29:16]The investigating officer in his own aid it further says that from the evidence that we have there was no one inside the vehicle when the shots were fired.

[00:29:27]Now you cannot then say that this person is a violent person when the alleged shots were fired when there's no one or these shots were not directed at anyone.

[00:29:52]Now when we look at the submissions which have been made, there is a a particular impression that has been created by the investigating officer that the applicant is an untrustworthy person.

[00:30:13]And this can be found in paragraph 20 of the investigating officers affidavit.

[00:30:27]Perhaps one should actually start in paragraph 16 where the investigative officer indicates that he visited uh the applicant's address on the 3rd of March or the business address. My apologies.

[00:30:45]The business address on the 3rd of March.

[00:30:51]And when we go further, there is something that the court will note from the applicant's own affidavit says, I had my skepticism about this person actually being a police officer who was contacting me.

[00:31:10]And when we look at the fact that there's been a history in relation to the applicant wherein there was an alleged illegal raid in November there was an attempted assassination that is according to him in December.

[00:31:30]Now on the 3rd of March and he is under protection because of the Madanga Commission. On the 3rd of March a person purporting to be an investigating officer, a person who is unknown to him contacts him.

[00:31:46]We cannot say that for the mere fact that the applicant was reluctant to actually meet with the investigating officer then means that the applicant is an untrustworthy person.

[00:31:58]He was reluctant based on the history of events which happened prior to the contacting by the investigating officer.

[00:32:06]That is where the reluctance emanate.

[00:32:18]Yes, it is correct that in paragraph 20 as the applicant he did not deny paragraph 20 that there were communications between him and the investigating officer. He doesn't deny that even in his supplementary affidavit he doesn't deny.

[00:32:36]But the issue is what the situation now is different because he knows who the investigating officer is. If the investigating officer now contacts the the applicant in this matter and the applicant h is doing is dodging and diving then we can say that the applicant knowingly that he is dealing with the investigating officer is evading or rather was was was avoiding the investigating officer in this matter.

[00:33:11]But then previously that is something different you worship uh he was he had his reluctance and his reluctance he worship I submit was justified I I'm told that the applicant is asking that I should approach May I just quickly approach Scott This is your worshipper. He wanted me to just clarify a submission which was made in relation to the passport.

[00:33:52]Uh he wanted to clarify that that particular passport which we submitted a copy of it's actually in possession of the wife.

[00:34:02]>> The original. years. So I I I I just recollected that there was a submission that the IO has already taken the passport. He just wanted me to clarify that particular point that the passport is available.

[00:34:18]uh the passport is available upon his release and if we can actually uh I'm not sure if the IO dealt with the movement of the applicant uh in and out of the Republic of South Africa but however the applicant does not deny that he has moved out of the Republic of South Africa but he says I do not have relatives I do not have h assets outside the Republic of South Africa so there are no financial or economic ties in those particular or rather outside the Republic of South Africa. So he does not have any issues if the a condition is placed that his passport actually be confiscated by the by the by the by the investigating officer in this matter. And in fact, should any need arise that perhaps he needs to use his passport, he will have to approach this particular court again so that he should actually have the court to vary this particular conditions of his bail conditions regarding the passport. And those arrangements will be done with the knowledge of the court and the knowledge of the investigating officer in this matter.

[00:35:36]Now I have dealt with the issue relating to the applicant the meetings not materializing and not necessarily meaning that the applicant is not a a reliable person.

[00:35:51]Now in paragraph 46.5 of the of the investigating officer's initial initial affidavity.

[00:36:05]The investigating officer in trying to qualify that the applicant is an he's an unreliable person. He goes further and says that in 2007 or rather a case in 2007 um and also a case in 2006 there was an incident wherein the applicant could not be circulated or rather there was a circulation because the applicant could not be found.

[00:36:34]I do not find this to be relevant to this particular a bail application on the basis that first this is something which happened a very long time ago and further to that in 2012 the applicant was in court tried or rather he pleaded guilty to two charges of assault and one of reckless driving and he was sentenced that particular circulation fell away it is not relevant Because if indeed he was circulated as it has been a by the investigating officer in paragraph 46.5 then they would have actually rearrested him and placed him uh on trial in relation to those particular circulation and no such thing has ever happened.

[00:37:26]So that cannot find any relevance in relation to this particular bail application the probability that you will abscond it it is it is not there at all and what I like your worship is that investigations in this matter are complete that is impar Paragraph H 51 of the investigating officers affidavit.

[00:38:04]There are no outstanding suspects.

[00:38:07]The matter is trial ready. There are no outstanding investigations which perhaps the state can say they are worried that he will interfere with those particular investigations.

[00:38:19]So there is nothing which is which we can say that the applicant can actually influence and in fact when we look at ballistics evidence and the other evidence which has been allegedly collected by the by the state it is now in the state's custody and there is no inclination that the applicant can actually try and manipulate or influence that particular evidence and further to that most of the investig I mean The witnesses if one has regard to the investigating officer statement they are members of the police most of the witnesses.

[00:38:59]So there is no way one can say that the applicant can undermine the rule of law or the functioning of the bail system as alleged by the by the investigating officer in paragraph 42 48.2 two.

[00:39:20]Now in 48 the investigating officer mentions this issue of an attempted bribe or whatever that is neither here or there because in his own affidavity he also further says that when he asked the applicant said uh information needless to say that the applicant denies ever offering anything of a bribe because when one looks at a bribe The applicant would have actually said blatantly or if there was any intention to bribe, the applicant would have blatantly said, "Can I give you money so that you can actually give me bail?"

[00:40:01]That is now an attempt to bribe.

[00:40:08]So there was no offer which was made by the applicant in this matter which is why this particular issue in relation to a bribe was never even taken further by the investigating officer in this matter.

[00:40:22]The investigating officer in this matter is a canel. Someone who is highly ranked.

[00:40:28]He understands uh what is a criminal offense. He has been dealing with criminal offenses for over years as indicated in the in the in the in the affidavit.

[00:40:39]So if he felt or rather if there was an attempt and he believes that this particular attempt was real or rather there was an intention and there was unlawfulness he would have actually taken it upon himself to immediately arrest the or rather charge the applicant in this matter with a further charge over and above what he has already been charged with. So this particular amendment in relation to this it is just one of those particular elements which are basically being placed before the court to create this particular impression that the applicant is an unreliable person.

[00:41:44]Your worship will note further that my colleague dealt with the principles of Gatini as kitty cat.

[00:42:16]What is important just to place on record is paragraph 11 of that particular conal court decision which read reads as follows. I quote, "Furthermore, a bail hearing is an inqu is a unique judicial function. Also, although bail like the trial is essentially adversarial, the inquisitorial powers of the preiding officers are greater. An important point to note here about bail proceedings is so self-evident that it is often overlooked. it is that there is a fundamental difference between the objective of bail proceedings and that of the trial. In a bail application, the inquiry is not really concerned with the question of guilt. That is the task of the trial court. In a bail application, the inquiry is not really concerned with a question of guilt. That is the task of the trial court. The court hearing the bail application is concerned with the question of possible guilt only to the extent that it may bear on on where the interest of justice lie in regard to bail. The focus of the bail the focus at the at the bail stage is to decide whether the interest of justice permit the release of the accused person pending trial and that entails the main uh protecting the investigation and prosecution of the case against hindrance.

[00:43:45]This basically when we look at this part a particular quotation is that is there any hindrance protecting the investigation based on the investigating officer's own statement there is no hindrance whatsoever that may result in relation to h granting bail to the applicant in this matter.

[00:44:15]Your worship will further note that this particular principle relating to ba has been dealt with on many occasions.

[00:44:41]And I just want to highlight that there is also the principles as enunciated in the state versus Bakus case.

[00:45:06]Now I wish to also highlight the case of S versus D and another it's a 2013 volume 2 SACR 85 at paragraph 14 where Ubushi J stated as follows. I quote, "A court cannot find that the refusal of bail is in the interest of justice merely because there is a risk or possibility that one or more of the consequences mentioned in section 60 sub4 will result.

[00:45:49]The court must not grope in the dark and speculate.

[00:45:55]A finding on the probabilities must be made unless it cannot unless it can be found that one or more of the consequences will probably occur. Detention of the accused is not in the interest of justice and the accused should be released. Close quote.

[00:46:15]Now what this case basically confirms is that we do not have to look at this issue in relation to a flight risk as one of the elements or rather determining factor whether bail should be granted or not.

[00:46:38]We should look at all the personal circumstances, all everything that that is before the court and the court in determining whether there is any likelihood that the applicant will evade bail must look at his personal circumstances, the seriousness of the charges.

[00:47:07]his family ties. Those are the the the the aspects that needs that the court needs to actually uh look at Yo, what you put?

[00:48:05]The principles in relation to bay have been provided for in section 60 subsection 1A which states as follows. I quote, "An accused who is in custody in respect of an offense shall subject to the provisions of of section 50 subsection six be entitled to be released on bail at any stage preceding his or her conviction in respect of such offense. If the court is satisfied that the interest of justice so permit and a close quote and those particular principles they have been tested in section 60 subsection 4 A to E.

[00:49:00]In closing your worship, I would like to just regurgitate the s versus pranco case which principle states as follows. I quote, "A bail application is not a trial. The prosecution is not required to close every loophole at the stage of proceedings. However, a factor favorable favoring bail is whether the appalent has established a defense which has a reasonable prospect of success at the at the trial.

[00:49:34]Now when we look at that in conjunction with the fact that the state relies on this particular evidence, the witness, the cameras without turning this particular court in a mini trial. I submit your worship that the submissions which have been made by the investigating officer relating to uh the strength in the state case should actually be looked at objectively.

[00:50:20]And when we look at that particular uh evidence or rather submissions which have been made objectively, one will note that they are in direct contrast with the with the evidence which has been submitted by the applicant in his in his affidavit.

[00:50:48]Now I wanted to go to an extra AR 02 but may I just an extra AR02 to the investigating officers uh statement but before I do so I back leave just to approach the applicant in in relation to this matter.

[00:54:12]again the sister is there is listed h I can go on and on but what I'm trying to say is what the investigating officer has done when he submitted this particular document is to confirm to the court that the applicant has strong family ties in the Republic of South Africa.

[00:54:33]That is what I'm trying to highlight and this is not information that came with the applicant in this matter.

[00:54:39]irrespective of the issue of the address or whatever but we have a person who is South African the family tree it's there the the parents the investigating officer is aware and there's addresses if the court can note this particular page for there's addresses of those particular relatives of the applicant in this matter and none of those particular address is an address outside the republic of South Africa Yeah, as I close, is there a possibility that the applicant will evade fine? I submit that no.

[00:55:33]Is there a possibility that the applicant will influence the investigation? I submit no.

[00:55:44]Are the charges against the applicant in this matter serious? I submit no.

[00:55:55]All the circumstances your worship which have been placed before the court are more favorable to the applicant in this matter.

[00:56:04]The applicant did not commit such a heinous crime wherein people were killed, no one died.

[00:56:16]What will he be running away from?

[00:56:26]We have seen serious offenses where people are charged with robbery aggravating circumstances charged with six offenses premeditated murder but the court still finds that these particular persons provided that they have submitted exceptional circumstances they still are being permitted to bail.

[00:56:49]Now this particular applicant in this matter facing such less serious offenses, why would he run away from these offenses and further to the submission by council that bail is within the pre the bail amount is within the prerogative of the applicant.

[00:57:15]I further submit your worship that the court should also h be a considerate of the personal circumstances of the applicant when the bill amount is considered on the on the basis that he says he can be able to afford 10,000 rand any exorbitant amount your worship uh in light of the personal circumstances can be tantamount to a refusal of bail considering that this is what he says he can actually afford and as I'm still on my feet the court should be mindful of the fact that the wife of the although in the investigating officers the affidavit in paragraph 40 of the affidavit it says that the applicant is never married.

[00:58:26]The court is mindful of the recognition of the customary marriages act and the applicant and the wife have both under oath indicated that they are married in terms of that particular customs. So which is the reason why in paragraph 40 the investigating officer did not find any records of the applicant in this matter.

[00:59:13]Yeah. In paragraph 49, the investigating officer says that the public interest or rather says the public order will be undermined on the basis that the applicant frequently makes social media comments and posts as well as mainstream media statements.

[00:59:35]Uh that is one of the reasons that he indicates as the basis for bail being denied.

[00:59:42]Yeah worship. I'm not sure if what is being insinuated here is that the applicant must refrain from exercising his freedom of speech which is a right enshrined in the constitution of the Republic of South Africa because such a limit will be unconstitutional and making public statements doesn't necessarily mean that it will undermine public order.

[01:00:11]So that particular submission it's unfounded.

[01:00:21]Yeah worship subject to the uh submissions by the state.

[01:00:26]Uh I believe that that that is all that we have to submit at this stage on behalf of the applicant in this matter.

[01:00:33]It's got business.

[01:00:37]>> Yes.

[01:00:50]key location >> correct Josh >> that is correct >> and I'll take that according to the way you have provided >> your worship in It was forwarded to me and it was provided by me to the investigating officer and in the investigating officer statement he says he followed the pin and on the left he found this particular property.

[01:01:22]>> So that is the correct >> that is the correct pin. Yes.

[01:01:38]And there is no dispute regarding the house.

[01:01:41]>> There is no dispute regarding the house.

[01:01:43]And in fact, the pictures as they have been attached by the investigating officer are the same pictures that uh even though he did not indicate it in the affidavit. I also forwarded him similar pictures. Uh I'm not sure about the date uh but uh I forwarded similar pictures might it might have been on the on the Monday when we were here in C but similar pictures were forwarded to the investigating officer Scott Is this worship?

[01:02:29]>> Thank you for your worship.

[01:02:33]worship the starting point application.

[01:02:39]that it is a common cost that produce a schedule five application and in schedule application the is on the applicant that you must discharge it to uh satisfy the honorable court that it will be in the interest of justice If the applicant is the I will start off with exhibit A that is the that is a statement of the applicant where he's applying for for B um he made mention of the address of 44 5 and again in exhibit C in paragraph 9 he insist that there's no uh problem of uh the address there's no issue of the And my you worship sorry worship uh the uh when we move further when we look at the lecture on exhibit A there's an anure of uh the Bulong Bura TV traditional council The address that has been given here is 44 54 4.

[01:04:46]And when the police are visited to the address, they find the address which is uh on exhibit B. the photographs that are marked as exhibit A 6.

[01:05:19]This is presented to the applicant.

[01:05:23]Applicant sees this. It doesn't say, "No, no, no, no. This is the wrong house.

[01:05:29]You in fact went to a wrong house. This is not a house where I am staying.

[01:05:42]What the applicant is saying the instruction that was given is that he they need to go to another address which is now.

[01:06:00]I then refer the woman of court to D where now the investigating officer visit the area once and in exhibit B a R01 is attached which 7 L.

[01:06:31]The list agreement says uh 44 5 4 when we then looked at this um 4454 and we Contrast it with uh exhibit A paragraph 5.5.

[01:07:17]It's 44 54. It's the same at least.

[01:07:22]Now one would ask himself as to is this all the mistake?

[01:07:31]Is it a mistake that the all these addresses um are not correct? Because when we go to uh further to exhibit D when he when the address when the investigating officer ask what is the address of this and then I would refer the port to paragraph 111 CD where the uh wife of the applicant says she immediately in fact the Bible says she immediately told me that the number is 45 44 now does the lease agreement exist the answer is no Because the investigating officer had gone to this is now for the second time and is also according to executive duty.

[01:08:54]The investigative officer had gone to 4544.

[01:09:04]Now we then move to others that are attached on exhibit D.

[01:09:19]Now this property is a registered under 80 and we then look at the AR 01.

[01:09:45]It's 01 and uh it indicates that it's landlord is alo so it is clear that this property the uh these are two different properties and um And the confirmation of the of the chief to say that he is in fact staying at 44 5 is also incorrect. He's the chief person of the submission from the respondent. There's no fee state. This has been delivered by and if we also look at exhibit B, this is the statement of the investigating officer where the investigative officer indicates that Um this um lecture that is the statement of the wife of the applicant.

[01:11:25]She maintains the same address 44.

[01:11:36]Now the question is uh how then do we know that the applicant is in fact staying at the advisor that he is saying that he's worship it must bear in mind that uh the honors is on the applicant the honor is to end responding to what was said by uh my learning colleagues before this court is that uh the U applicant holds a view that they are not a flag.

[01:12:39]Um because they made themselves available that commission and as well as that committee.

[01:12:53]But when the applicant was making himself available, he was just a witness. He was not a suspect or in person.

[01:13:05]And before this woman caught, he is appearing as an applicant in brackets of an accused person.

[01:13:16]Now when the investigating officer calls him trying to uh obtain a warning statement from him is avoiding.

[01:13:36]If the honorable court can look at exhibit B and look at um paragraph 16 up to 19.

[01:13:54]The applicant is being informed that I want a winning statement from you.

[01:14:04]And his respond is that in exhibit A in responding to this he was skeptical.

[01:14:16]He uh was not sure whether this might be a police officer, but he can easily go to the police station, the nearest police station near and indicate to this person that you are saying that you're a police officer. I am at this police station. Come and get a not So that it is it is an indicative that he is in fact a in flight risk because he knew that he's now in trouble. So he must avoid the police as much as he can.

[01:15:13]And in the matter of force Morris where he is the complainant the incident took place on the 3rd of November 2025.

[01:15:32]He gives his statement to an 10 days thereafter.

[01:15:44]This is a person who is uh who's fearing from his life and in his statement he can test so that when he's wanted to be called investigation he should be easily contacted The only thing is that this is um attached by worship exhibit B and it is marked as a AR01.

[01:16:39]It is at that time when he was contacted by the police about he was aware that the police had now established that he is no longer a witness. It is upon the completion of the investigation that the investigative officer then registered a docket of different justice.

[01:17:11]>> Um, it was registered in March. Um, I would refer the honorable court to pay to exhibit D. accord it's also in exhibit B.

[01:17:31]It's a a case of BC.

[01:17:40]>> Um, your is exhibit but I I have found it on exhibit uh on exhibit D is paragraph 3 and then in exhibit B it would be on paragraph It's on paragraph 13. That's why we listening in ex.

[01:18:28]But anyway, your I think exhibit B3 proceed with your >> um is further to that the exhibit B of the investigative officer also indicates that at on stage the uh applicant made somees that uh he then concluded that it is a crime.

[01:19:13]I I submit that that in itself shows that he may interfere with the administration of justice.

[01:19:41]And it was also invited to before this court at the he with ballistic report CCTV and as well and as well as eight witness.

[01:19:57]It is incorrect to say a witness. It's witnesses and it was further submitted before the court that the issue of circulation is neither here nor there.

[01:20:28]uh the state uh submit differently in that submission in that there was an effort from the police.

[01:20:39]They had to circulate him uh to be able to get hold of him.

[01:20:46]Therefore he is submitted that that is in fact relevant when it comes to a a person being a flight.

[01:21:01]Further >> the issue of circulation is it can relate to the police or someone to attain the war? No. Um the issue of the circulation is the issue uh in about the previous taxes that for the police to try and get hold of him, they had to circulate because it was not easy. They were unable to get hold of the that's why they had to May I proceed?

[01:22:05]Um the worship it is also being indic submitted to this honorable court that the uh strength of the state case is uh is weak I give with that the submission that is making is that there are witnesses, eyewitnesses sawing, being saw the car being stopped and a a person sliding from it by few shots towards the car and at the time person was driving.

[01:22:53]He was alone in the car. There was no passengers in the car.

[01:23:05]And the CCTV also indicates that there was there wasn't any other party that had tailed the the applicants of the applicant at the time was his car was the only car in uh your I would also want to submit that the reason that a J50 was authorized and issued. It was because of uh the state was unable to get uh the applicant.

[01:23:55]Um because at the time when the investigating officer had gone to Mabatu and uh also to his place of business, the investigating officer was only looking for a one mistake.

[01:24:12]It is then upon realizing that uh it is not possible for them to get hold of him so that they can attain it to Wednesday.

[01:24:27]A warrant of arrest was then applied for and it was then authorized by now the only time moment that was uh that was available for the uh state or the the police officers to uh arrest the applicant.

[01:25:02]It was only after he had testified that he was finished because at the time the state did not know where he stays because when you look at exhibit BIP the uh there are a number of addresses there which were visited by the investigative officer but could not get old of the accused person rather the applicant >> um those that appear on the profile.

[01:25:46]>> Yes.

[01:25:56]And at that stage there was no address given including the 445.

[01:26:03]>> There was no address. Uh you the address was the uh five the 44 address. It was only given during the first appearance when the police officer wanted or requested from me at the time when the investigating officer was charging me.

[01:26:31]There was no address that was given that that the investigative officer was able to verify on that point of the address worship submitted that the address the 44 4 and the 54 is on the same um is on the same street.

[01:27:12]I just want to the front. I'm going to be called to exhibit D on the exhibit D on A1.

[01:27:32]The street there is 44.

[01:27:37]Uh it's 4454 street unit 13.

[01:27:46]And when one goes to the utility bill which appears on the statement which is marked as a RO um five it's a Prince Street.

[01:28:20]The state is according to this is uh no hearts are close.

[01:28:34]So it differs. So it is not um you worship. It was also argued before this report that the uh the charges that the applicant is facing are not serious and uh it was further indicated that they do not carry any minimum sentences.

[01:29:29]uh your worship I had to differ with the with that submission.

[01:29:37]If one looks at the uh the charge sheet count one which is unlawful possession of firearm it is a right together with 51 with section 51 two of the criminal law amendment act 5 of 1997. Therefore, it does attract the minimum service and it was further argued that there's no indication as to whether that the firearm that was used is safe to continue while the state is alleged on count one and will then prove it to join the trial.

[01:30:29]So I then submit that uh the uh I submit that the the charges that the appellent is facing and further to that I submit that the uh public research and refer to case faces. Uh it's state versus it's a 1991.

[01:31:14]Okay. So it's volume one SR 464 B where Judge Hler J where Judge Hler J held at page 4 63 paragraph E to F open code having considered the authorities more particular versus 1961.3 SA 468D state versus 1980 volume 4 SA 94 WLD and S versus Williams 1991 SA uh 171 1 Z A I am satisfied that for the applicant to succeed in this application there is there is an honest upon him to show on the balance of probabilities uh that the interest of justice will not be prejudized if granted worship I submit that if the honorable court is of the think that the that the applicant is the charge response.

[01:32:50]I would submit that when it comes to it has been suggested by my my colleague that uh the amount that the uh applicant can afford is an amount of 10,000.

[01:33:09]I disagree with the amount. My submissions, my counter submission that is that an appropriate amount uh would then be at 100,000.

[01:33:29]the ocean. It was fed up and further to that.

[01:33:37]the uh conditions.

[01:33:40]Um if the court comes, the condition then should then be that uh the uh he must report at the police station and uh he must uh hand over his passport.

[01:34:00]That would be that with regard to conditions.

[01:34:05]It was also argued about the jurisdiction um this is a original and the states sub does have jurisdiction to decide this matter.

[01:34:34]whether the letter is from your so it is within the region of our game the worship it is indeed so that the defense were not informed as Why was the matter brought to James original court um I don't think that would be irrelevant at this stage even they will be informed as to why was the matter brought to to this court um worship if I may just comment on that today the this part is permission must ask that the matter should in fact be brought to this court so that uh if the matter proceeds and then uh the trial can be finalized as quickly as possible worship unless if the honorable court wants to in a nutshell your worship state is still as I have two questions >> two questions I don't want to go deeper into the next 2021 That is correct.

[01:36:58]>> When you address after the incident, he may have reported this, but after 10 days of submitting.

[01:37:15]So I'm thinking that there was no case open.

[01:37:18]>> Um there was a case that was opened by the police. The police uh opened a case because of what he told the police. So it was a years and the case was not going to go any further without >> just the case was opened by the applicants reporting the incident.

[01:37:42]>> Yes. And then the police then registered and took it to Should I maybe give uh one or two aspect to to or should I amplify it?

[01:38:22]Exhibit is in exhibit exhibit exhibit exhibit. physical accident.

[01:38:55]So this and this one that is what we have to report 39.

[01:39:10]>> That is correction.

[01:39:28]When he was traced to obtain the war statement, his will in relate to case number 39.

[01:39:40]when he was traced to obtain a statement, >> warning statement, >> a warning statement. He was in respect of the case that now leg.

[01:39:59]>> Yes.

[01:40:05]Just after the investigations regarding 391 that you Was there any firearm found in possession of the applicant? If yes, where and how?

[01:41:00]Answer is no.

[01:41:17]>> Um you should be trial court as >> it's fine. Yes. Not enough what you have said.

[01:41:53]paragraph of xp. Baby, is there anyone that is in this other cases that we've mentioned here? All the other case 21 as well as >> the applicant is not personally named.

[01:42:29]It's the used firearm that is the same cages that were found at the scene of the crime at Oslo.

[01:42:55]They are related to these two cases.

[01:42:58]>> That is correct. Sure.

[01:43:16]>> So I can conclude that they come from one file >> according to the report. Yes.

[01:43:45]I get something.

[01:44:08]I try to get in case I can't get to go.

[01:44:33]What's going on?

[01:44:38]Heat.

[01:44:59]Heat.

[01:45:54]Heat.

[01:46:14]Heat.

[01:46:18]Heat. Heat.

[01:46:52]addresses at the businesses. None of those was found. Um the worship I the investigative officer was there personally and he saw the the business but uh I don't think there was no inquiry about the address of the business but the business are known and their location is also known.

[01:47:37]Thank you.

[01:47:47]Heat. Heat.

[01:48:21]As the courtship may quickly approach the accused on one aspect, I apologize.

[01:48:39]Heat. Heat.

[01:48:57]Oh my god.

[01:49:09]Heat.

[01:49:18]Heat. Heat.

[01:50:02]Okay.

[01:50:18]Thank you for having us on your worship. The issue of the address we we have visited on numerous occasions and I submit that it has been resolved.

[01:50:37]The wrong address emanates from a lease agreement that the applicant entered into.

[01:50:46]It is not of his own accord that this was the address that was made available.

[01:50:55]Now if the court looks at anx which is the supplementary affidavit that was written by the investigating officer AR R02 there's a photo there.

[01:51:08]It's photo number 10.

[01:51:41]If the court looks at photo number 10, there's a jacket. It's it's that jacket that made waves from the Mazanga Commission at at one point or another.

[01:51:52]It ended up being a meme. It's the same jacket that was worn by the applicant in the Masanga proceedings.

[01:52:01]Now, this is the jacket that is found at the now correct address which is 4544.

[01:52:10]I submit that it is not in dispute that the applicant resides at the rat.

[01:52:18]The remainder of whether it's a 44, it's a 45, it's a 54. Those are trivial issues. Where he resides has been established.

[01:52:30]Now the state says that the applicant deliberately wanted to mislead it or rather not provide the correct address.

[01:52:40]There's a pin that was shared and there's a business address that the investigating officer also knows about. Now on those two aspects alone and not looking at the other issues in completion there is no way that one would have this and also at deliberate.

[01:53:06]The instruction is that both these streets that have been mentioned by the state are actually one goes in another direction and the other one goes in another direction.

[01:53:20]Sadly, there's a photo that hasn't been discovered and it contains a street sign which has got one street on this side and that street on this side. Hence the submission that they are minutes apart from each other.

[01:53:36]That is a difference that is not material and the applicant ought not be denied bail on those reasons.

[01:53:52]Now your worship the the the state further says that the applicant is a flight risk because he he was not available to give a warning statement. He was sought he could not be found.

[01:54:09]The applicant has explained to the court that these engagements fell in the time frame where he had to go and appear before the commission.

[01:54:19]He was also uncertain as to whether or not this person that was calling him is a police officer.

[01:54:27]There were issues of safety that were of concern to the applicant.

[01:54:35]Now further there to the state makes reference to circulation.

[01:54:40]I believe it was in 2002 where the applicant was sought and that the court draws an inference that he's a flight risk because he was put in circulation.

[01:54:56]That issue has been dealt with. As the matter stands now, the applicant before court is not being sought for anything.

[01:55:05]He's not circulated for anything. The IO himself says that in his affidavit that he went to the place of residence and could not get him for a warning statement and these are submissions that are made by the state.

[01:55:29]Now what then becomes obvious is that where he resided has always been common knowledge.

[01:55:39]It's it's it's been evasive or difficult in not wanting to accept that there is an address and he can be found in the hope that the applicant will be denied bail.

[01:55:54]This is the demonstration of how this is being conducted.

[01:56:00]The state further alleges that he was arrested only after he had testified at the majanga commission. When he went to Majanga, he had attorneys off record.

[01:56:12]If the state really wanted the applicant, they could have communicated with the attorneys and found him. And when they arrested him, members of the media were present, meaning that they also had knowledge that the arrest was to take place. My submission is that that was not somebody who was evading who was caught because he was at that time on that particular day. The whole intention of that exercise was to embarrass Mr. Mui.

[01:56:51]Now your worship further the state says that in the event that court grants bail an amount of a 100,000 rand is reasonable. I wish to reiterate that Mr. Mosi said in his papers that he makes 32,000 rand. That's his salary. That's what he earns.

[01:57:15]And those type of amounts would would be unjust and it would be unreasonable given his socioeconomic circumstances.

[01:57:28]That's the Jesus.

[01:57:37]Your worship, I will not be long. Your worship will remember that we supplemented our papers and when we supplemented our papers, there was a screenshot which was attached to the supplementary affidavit. That particular screenshot which has the pin location that was sent to the investigating officer. If we look at this screenshot, the pin it's on Mushu Street, if we look closely to that particular screenshot, it's on Mushu Street, that particular pin.

[01:58:13]Then when we look at the second attachment where it shows the location of the actual house even though the number is different it shows Mohatra's Mohatra close that is in relation to the pin that was provided to the investigating officer.

[01:58:44]I'm not sure if the court is able to see because it's it's in black and white but I have it in color which is the reason why I can actually be able to see that there's a strict name which is Mu Mushu on the pin that was sent to the investigating officer and then on the screenshot with the house with the actual house it's Muhat doesn't show >> uh on the bottom uh it's it's it's it's 4545 and then there on the bottom on the bottom of the screenshot I'm not sure if it's it appears >> an shall be Five.

[01:59:37]>> Yes.

[01:59:40]I think it's five and six.

[01:59:43]>> Is there?

[01:59:44]>> Yes. Then six on the bottom. Bottom. Right on the bottom. Yoshi.

[01:59:55]Unless if the screenshot worship did not at number six is Mala.

[02:00:04]>> It's Muhata. Close.

[02:00:06]No, unless it's maybe because of the this error on top might have been not not I see the arrow you're washing but on the right at the bottom where there's also two years ago the picture taken two years ago on the bottom bottom >> why it say 45 >> that's correct that's correct that is the name of the street the screenshot from the same pin location and then uh I've listened to the argument about the state that at the Madanga Commission the applicant was appearing as a witness and now he was being sought after as a suspect but on the 3rd of March March when the investigating officer went to his house, he did not know that he was a suspect.

[02:01:30]And even if he knew that he was a suspect and he had any reason to actually evade or want to evade, then he would have disappeared and no longer appeared at the Madanga Commission because it is public knowledge that he was going to appear on the date of his arrest.

[02:01:49]Because if we are saying that he was trying to evade the arrest or giving the winning statement to the investigative officer, if he knew on the third of March that he's been sought after and he doesn't want to cooperate with the police, then he would have decided that I'm no longer even going to attend this particular commissions cuz now I'm already aware that there's a winning statement that needs to be obtained or there's an imminent arrest.

[02:02:19]by the state or by the police then he would have decided to stay away. So that argument does not stand.

[02:02:30]Now the issue regarding the statement and the giving of or rather the failure to provide information he made that particular statement with the advice of his attorney who were representing him. The fact that he took 10 days before he submitted a statement cannot be an an indictment on the applicant in this matter.

[02:02:56]It is clear that he indicated that he was in hiding that is also in the investigating officer statement and he did the statement through the attorney.

[02:03:09]So that particular point that he took long perhaps an adverse inference should actually be drawn in relation to this particular time frame.

[02:03:20]It's baseless.

[02:03:31]That is all I have to submit at this place. Call please only two aspects that the issue of the malama commission that he was wearing. I think my colleague is testifying because he cannot she she cannot say that that that jacket is in charge that uh the applicant was wearing.

[02:04:04]Um the other thing uh your worship is then that it is not correct that investigative officer went to the place where the applicant stays to obtain his state.

[02:04:24]He did not know the place. I only went to the business addresses and I also I've also noted that my colleague have now changed that uh these numbers they are not on the same state because it was submitted this report was informed that these numbers are on the same state and now my colleague is now showing the honorable court about the pin and and indicating that it is black and white.

[02:05:02]But earlier all said that this numbers all the same.

[02:05:10]>> I'm going to receive my announcement.

[02:05:12]Can we date our 29 of the 29 of >> you worship the date is in order to >> the date is in order.

[02:05:26]>> Are you available?

[02:05:27]>> That is tomorrow.

[02:05:30]>> Yes.

[02:05:33]>> Yes. if it's tomorrow.

[02:05:40]>> Um, no, let's give it a go for it.

[02:05:46]I'm actually looking at next week. My apologies.

[02:05:53]>> We were just excited to worship for some time.

[02:05:59]Um, next week Thursday >> the phone is suitable.

[02:06:18]Yep.

[02:06:20]>> I'm not sure.

[02:06:27]I think applicant want to say something.

[02:06:29]I just Thank you.

[02:06:57]Thank you. Worship your worship. The voice is in order.

[02:07:22]Mr. Makosi, please postpone to the 4th of June for court ruling.

[02:07:28]>> You are in custody, Mr. D.

[02:07:34]Thank you.

[02:07:36]>> All right.

[02:07:47]Thank you.

[02:08:12]>> All right.