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[2021] ZAWCHC 245
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Ali and Another v S (A212/21) [2021] ZAWCHC 245; 2022 (1) SACR 281 (WCC) (25 November 2021)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN
CASE
NO: A212/21
In
the matter between
MOOLID
ALI
FIRST
APPELLANT
AHMED
ABDULLE
SECOND
APPELLANT
And
THE
STATE
RESPONDENT
Heard
25 November 2021
JUDGMENT
delivered 25 November 2021
THULARE
AJ
[1]
This is an appeal by both appellants against the decision of the
Magistrate of Bellville to dismiss their application to be
granted to
bail. The accused were charged with two counts, to wit, unlawful
possession of a firearm and unlawful possession of
ammunition, both
counts were in contravention of the provisions of the Firearms
Control Act, 2000, (Act No. 60 of 2000). The application
fell within
the purview of Schedule 5 of the Criminal Procedure Act, 1977 (Act
No. 55 of 1977) (the CPA).
[2]
Both appellants were undocumented foreign nationals or illegal
foreigners. Both alleged that their country of origin was Somalia
and
that they had to flee because a terrorist organization in their
country, Al Shabaab, had threatened to kill them. The first
appellant
alleged that he had been residing at [….], Bellville since
February 2020 whilst the second appellant alleged that
he had been
residing at the same address for eleven months as at the date of
their application for bail, to wit, 5 January 2021.
The owner of the
resident was a family friend. Both alleged that they did not have
alternative addresses, but that the Somali community
would be able to
obtain alternative addresses for them if required. Both had not yet
approached the Department of Home Affairs
to apply for refugee
status. Second appellant’s reason was that Home Affairs was
closed due to lockdown.
[3]
The first appellant was 28 years of age, married and had four minor
children. His wife and children were in Somalia. The second
respondent was 18 years old, unmarried and had one child who was in
Somalia with the mother. Both were unemployed and did not own
any
assets. They had no previous convictions or pending cases. They did
not know the complainant or any state witnesses. The firearm
was
found in the shop but not on their person. They intended to plead not
guilty but did not wish to disclose the basis of their
defence. They
could each afford R1500-00 for bail. Although they were both healthy,
they were stressed and panicked because of
the Covid-19 pandemic. The
second appellant was exposed and had to self-isolate, which was
difficult due to overcrowding in prison.
[4]
The State opposed bail. Members of the South African Police Services
(SAPS) were tipped off by a member of the public and followed
up on
the information. The information led them to a shop at [….],
Bellville South. Both appellants were found at the shop.
The firearm
was found in the shop in the presence of both appellants. The
appellants faced serious charges and if convicted would
be sentenced
to long terms of imprisonment. An immigration officer, provided with
the personal details of the appellants, searched
on the National
Immigration System. There were no records that any of the appellants
had applied for asylum seeker’s permit
in the Republic of South
Africa. Both appellants were in the country illegally.
[5]
The parties agreed that the application fell within Schedule 5 of the
CPA. The magistrate’s judgment was seven sentences
in one
paragraph:
“
I
am not going to make a long sing and dance about this. This is a
Schedule 5 opposed bail application. You have a duty to convince
me
that it is not in the interest of justice for me to order that you
remain in custody. There are a few factors that counts against
you.
One, that you are here illegally. Two, that you have no proof that
you have approached Home Affairs for Asylum Seeker Permits.
Three,
you have denied possession, physical possession of the firearms, but
you do not deny that the firearms were found in your
presence. You
have not convinced me in terms of what was required. The provisions
of Schedule 5, bail is denied.”
[6]
One of the factors for consideration in this application, and which
from the record, appeared to have troubled the magistrate,
was the
status of the accused in the country. It forms the first two factors
that are referred to in the judgment. Immediately
after the
prosecutor announced that it was the state case, the record reads as
follows before judgment:
“
COURT:
Do you want to address me on the allegation, Ms Tovey, that it is
alleged here that they are here illegally?
MS
TOVEY ADDRESSES COURT: As the Court pleases your Worship. The Court
will note by both accused, or both applicants own submission
in their
affidavits, they have stated that they are in the country and that
they need to approach Home Affairs … [intervention]
COURT:
How did they get here?
MS
TOVEY: May I take instruction Your Worship? As the Court pleases.
COURT:
And when did they get here and how?
MS
TOVEY: As the Court pleases. (Ms Tovey takes instructions). May I
address the Court Your Worship?
COURT:
Yes.
MS
TOVEY: I have taken instructions with the assistance of the
interpreter and my instructions are as follows: The accused got here
around the beginning of February. And their instructions …
[intervention]
COURT:
This year?
MS
TOVEY: 2020 Your Worship.
COURT:
Right.
MS
TOVEY: February 2020. My instructions are further that both accused
feared for their lives and as a result of not having any
documentation and just fleeing their country, that they had to cross
the border Your Worship.
COURT:
So they are here illegally?
MS
TOVEY: Confirm Your Worship.
COURT:
On what basis should I then consider even granting them bail?
MS
TOVEY: Your Worship, both of the accused –I have taken this
instruction as well, and I have informed them that it is a
big issue.
However, my instructions was to proceed. Both of the accused feared
for their life.
COURT:
That may be so. They have feared for their lives in their country. I
have no issue with that. They are here now. They are
here unlawfully.
They are here since February. Lockdown started at the end of March.
What did they do in between two months in
terms of applying for
asylum seeker permits?
MS
TOVEY: Your Worship, I have taken an instruction. But I would like to
confirm, I do not want to mislead the Court Your Worship.
COURT:
No, I am not expecting you to do that, but I think there needs to be
an explanation if you arrived here in February, lockdown
started at
the end of March. What have you done?
MS
TOVEY: I confirm Your Worship. May I turn my back to the Court?
COURT:
Yes.
MS
TOVEY: If I may Your Worship. The instruction from both accused is
that they did make several attempts between when they arrived
in Cape
Town and before lockdown to approach Home Affairs, but as a result of
the queues being excessively long and not being able
to be assisted
at the end of the day, they did however attempt on a number of
occasions to …
COURT:
The important point is, that they are here unlawful. What prevents
them from leaving as they came in.
MS
TOVEY: Your Worship, as per the affidavit of the investigating
officer. He does submit that their residential address is [….]
in Bellville-South. This has also been submitted by both accused.
COURT:
That is the address of a family friend. It is not their addresses? It
is not their property? That is where they reside while
they are here,
unlawfully.
MS
TOVEY: As the Court pleases Your Worship.
COURT:
And that is my concern. They arrived here unlawfully, without papers.
And the allegation is made that they attempted to regularize
their
unlawful stay here. Nothing is before me to show that they actually
did that, except for the mere allegation. And then they
arrived here
unlawfully. How do I know, releasing them on any amount of bail- it
does not really matter- that they will not just
disappear in the same
way that they disappeared from Somalia. Why would I want to risk
that? My concern is, here they are found
– or the allegation is
that they are found in possession of firearms. They dispute that it
was found, the dispute that it
was found on their person. They are
not disputing the fact that it was found in their presence, or in the
shop, or wherever. They
are not disputing that. They are just
disputing the fact that it was veer found on their person. So that is
a problem. That is
a problem. And in terms of the provisions of
Schedule 5, they are supposed to convince me that it is not in the
interest of justice
to have them incarcerated.
MS
TOVEY: I understand Your Worship, that was my advice to both accused
with the assistance of the interpreter. I am just following
instructions Your Worship.
COURT:
It is one thing to follow instructions. It is another thing to be
realistic and actually apply the law. But I will do that
for you. I
understand your position. But please, I am not arguing
…[intervention]
MS
TOVEY: I understand Your Worship.
COURT:
I am not doing anything to your case, I am just trying to understand
what your case is. And if your case is as you have put
it, there is a
problem. And I so not think that they met the standards required by
Schedule 5. That is my view at this stage, unless
you have anything
else to say?
MS
TOVEY: I have nothing further to add at this point Your Worship.
COURT:
Thank you. Mr Nizam.
PROSECUTOR:
Your Worship, I am going to address Your Worship. At the end of the
day, as the Court … [intervention]
COURT:
It is still too long. Burt carry on.
PROSECUTOR:
As the Court have indicated …
COURT:
Let us not waste each other’s time.
PROSECUTOR:
The onus is on the applicants and when one has regard to the
provisions of section 60(4) the likelihood, … [indistinct]
should they be released … [indistinct]
COURT:
Thank you. You may stand gentlemen.”
[7]
Section 65(4) of the CPA provides that:
“
65
Appeal to superior court with regard to bail
(4)
The court or judge hearing the appeal shall not set aside the
decision against which the appeal is brought, unless such court
or
judge is satisfied that the decision was wrong, in which event the
court or judge shall give the decision which in its or his
opinion
the lower court should have given.”
[8]
The appellants were arrested by members of the SAPS. A member of the
SAPS who arrest a person has a duty to establish the name
and address
of the person arrested [section 41(1) of the CPA]. The SAPS has a
duty to verify the name and address of the person
arrested, and may
by law utilize up to twelve (12) hours with the person in their
detention in pursuit of verification of personal
particulars. In my
view, where the person is a foreign national, verification of
personal details should necessarily include the
status of the person
in the Republic. An arrested person who alleged that they had fled
their country of origin for fear of persecution
should trigger the
preamble to the Refugees Act, 1998 (Act No. 130 of 1998) (the RA) in
the minds of the law enforcement officers,
public prosecutors and
judicial officers. The detention of such person for allegedly having
committed an offence, that is, in terms
of the CPA, does not absolve
the state to determine that person’s status.
[9]
The preamble read as follows:
“
Whereas
the Republic of South Africa has acceded to the 1951 Convention
Relating to Status of Refugees, the 1967 Protocol Relating
to the
Status of Refugees and the 1969 Organisation of African Unity
Convention Governing the Specific Aspects of Refugee Problems
in
Africa as well as other human rights instruments, and has in so
doing, assumed certain obligations to receive and treat in its
territory refugees in accordance with the standards and principles
established in international law, ...”
[10]
The RA allowed for the detention of an alleged asylum seeker pending
the finalization of an application for asylum [section
23]. The
detention was for a period not longer than was reasonable and
justifiable and if it was for a period longer than thirty
(30) days,
was subject to judicial review by a magistrate [section 29]. Amongst
other general rights of refugees was the formal
written recognition
of their status [section 27A(a)] and the right to remain in the
Republic [section 27A(b)], both rights were
pending finalization of
their application for asylum. The asylum seeker was also entitled to
the rights contained in the Constitution
of the Republic of South
Africa, 1996, in so far as those rights applied to an asylum seeker
[section 27A(d)]. An asylum seeker
was entitled to apply for asylum
[section 21] and to be issued with an asylum seeker visa allowing him
or her to remain in the
Republic temporarily, subject to conditions
where necessary, pending adjudication of their application for asylum
[section 22]
The principles and rights provided for in the RA, in my
view, were adequate guidance to the State and the Magistrate on how
to
approach an arrested person who claimed to be an asylum seeker in
the Republic.
[11]
Section 9(1) in Chapter 2 of the Constitution read as follows:
“
Equality
9(1)
Everyone is equal before the law and has the right to equal
protection and benefit of the law.”
Section
7(1) and (2) of the Constitution reads:
“
Rights
7
(1) This Bill of Rights is a cornerstone of democracy in South
Africa. It enshrines the rights of all people in our country and
affirms the democratic values of human dignity, equality and freedom
(2)
The state must respect, protect, promote and fulfil the rights in the
Bill of Rights.”
The
Magistrate was under a Constitutional duty to be independent and
subject only to the Constitution and the law, which he must
apply
impartially and without fear, favour or prejudice [section 165(1) of
the Constitution]. This duty of the Court, and the obligations
of the
State, are not suspended by the mere fact that the person sought to
be brought or who was appearing before the court was
an undocumented
foreign national. It is the duty of the courts, in upholding our
country’s obligations towards the nations
of the world to which
we deliberately bound ourselves, to ensure that foreign nationals
enjoy the equal protection and benefit
of the laws of the Republic.
[12]
In
S v Dlamini; S v Dladla and Others, S v Joubert; S v Schietekat
[1999] ZACC 8
;
1999 (2) SACR 51
(CC)
(1999 (4) SA 623
;
1999 (7) BCLR 771)
it was
said at para 11:
“
[11]
Furthermore a bail hearing is a unique judicial function. It is
obvious that the peculiar requirements of bail as an interlocutory
and inherently urgent step were kept in mind when the statute was
drafted. Although it is intended to be a formal court procedure
it is
considerably less formal than a trial. Thus the evidentiary material
proferred need not comply with the strict rules of oral
or written
evidence. Also, although bail, like the trial, is essentially
adversarial, the inquisitorial powers of the presiding
officer 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 enquiry is not really
concerned with the 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
where the interests of justice
lie in regard to bail. The focus at
the bail stage is to decide whether the interests of justice permit
the release of the accused
pending trial and that entails in the main
protecting the investigation and prosecution of the case against
hindrance.”
[13]
It would have been advisable if the Magistrate stood the matter down
to allow the defence to adequately address the status
of the accused.
It remains unknown what the address of the Prosecutor would have
been, as the Magistrate simply denied the Prosecutor
an opportunity
to address the court, as the State was entitled to. Had the
Magistrate allowed himself to be led by amongst others
the arguments
of the public prosecutor, it may be that justice would have
prevailed. In
S v Mabena and Another
2007 (1) SACR 482
(SCA)
at para 7 it was said as regards a bail application:
“
The
form that an inquiry and evaluation should take is not prescribed by
the Act, but a court ought not to require instruction on
the
essential form of a judicially conducted inquiry. It requires at
least that the interested parties- the prosecution and the
accused –
are given an adequate opportunity to be heard on the issue. For
although a bail inquiry is less formal than a trial,
it remains a
formal court procedure that is essentially adversarial in nature. A
court is afforded greater inquisitorial powers
in such an inquiry,
but those powers are afforded so as to ensure that all material
factors are brought to account, even when they
are not presented by
the parties, and not to enable a court to disregard them. And while a
judicial officer is entitled to invite
an application for bail, and
in some cases is even obliged to do so, that does not make him or her
the protagonist. A bail inquiry,
in other words, is an ordinary
judicial process, adapted as far as need be to take into account of
its peculiarities, that is to
be conducted impartially and judicially
and in accordance with the relevant statutory prescripts.”
[14]
Section 60(3) of the CPA provides as follows:
“
60
Bail application of accused in court
(3)
If the court is of the opinion that it does not have reliable or
sufficient information or evidence at its disposal or that
it lacks
certain important information to reach a decision on the bail
application, the presiding officer shall order that such
information
or evidence be placed before the court.”
On
a proper consideration of the case, the Magistrate did not have
reliable and important information necessary to reach a decision
on
the question whether the appellants were refugees in terms of the
laws of the Republic of South Africa [S v
Green and Another
[2006] ZASCA 3
;
2006 (1) SACR 603
(SCA) at 610c]. Against the background of the
Covid-19 pandemic and the resultant Prescripts and Regulations issued
by the State
through announcements by the President, Ministers and
Departments to limit movements and access to government buildings,
including
the Department of Home Affairs which administers the RA, it
was incumbent upon the Magistrate to ensure that the appellants had
access to the services of a Refugee Reception Officer designated by
the Director-General in the Department of Home Affairs as well
as
related services in terms of the RA, for a proper determination. In
my view the Magistrate was wrong to refuse bail, without
more.
[15]
It is apposite to conclude this judgment with the expression from the
highest court in the land in
Lawyers for Human Rights v Minister
of Home Affairs
[2004] ZACC 12
;
2004 (4) SA 125
(CC) at para 20:
“
The
very fabric of our society and the values embodied in our
Constitution could be demeaned if the freedom and dignity of illegal
foreigners are violated in the process of preserving our national
integrity.”
[16]
For these reasons I make the following order:
(a)
The appeal succeeds.
(b)
The order of the Magistrate is set aside and replaced by the
following order:
1.
No order on the bail application is made at this stage.
2.
The State is ordered to assist both appellants to present themselves
before a Refugee Reception Officer within five (5) working
days of
this order.
3.
The matter is remitted back to the Magistrate for a decision, on
whether or not to grant bail, to be made thereafter.
DM
THULARE
ACTING
JUDGE OF THE HIGH COURT