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S v Aliyu (A12/2023) [2023] ZAGPJHC 697 (14 June 2023)

80 Reportability
Criminal Procedure
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Brief Summary

Bail — Appeal against granting of bail — Respondent charged with Schedule 5 offences and granted bail pending extradition — State's appeal against bail grant without prior leave — Respondent raises point in limine regarding lack of leave to appeal — Court finds it has jurisdiction to consider application for leave to appeal despite procedural irregularity — State alleges irregularity in magistrate's decision to grant bail — Court grants leave to appeal based on substantial concerns regarding respondent's flight risk and credibility of evidence presented.

Comprehensive Summary

Summary of Judgment


1. Introduction


The matter concerned a State appeal against the grant of bail in proceedings arising from an intended extradition enquiry. The respondent (the accused) had been arrested on an extradition-related warrant and applied for bail in the district magistrates’ court pending the extradition process. The State, dissatisfied with the magistrate’s decision to release the respondent on bail, approached the High Court in terms of the statutory bail appeal mechanism.


The parties were the State as appellant and James Junior Aliyu as respondent. The litigation posture was unusual in that the respondent raised a point in limine challenging the State’s competence to appeal without first obtaining leave to appeal, relying on section 65A read with section 310A of the Criminal Procedure Act 51 of 1977.


Procedurally, the magistrates’ court (Randburg) granted bail to the respondent on 18 January 2023 in a bail application accepted by the parties to fall under Schedule 5 of the Criminal Procedure Act. The State then launched an application seeking leave to appeal and pursued the appeal against the bail order in the High Court. The High Court determined, first, whether the matter was properly before it despite the respondent’s preliminary objection, and thereafter whether the magistrate’s bail decision was wrong on the merits under the constrained appellate standard applicable to bail appeals.


The general subject-matter was whether the interests of justice permitted the release of a foreign national facing serious allegations linked to extradition to the United States, and whether the magistrate committed material misdirections in the evaluation of risk (including flight risk) and the evidence placed before court.


2. Material Facts


The respondent was arrested pursuant to a warrant issued on 28 June 2022 under Article 13 of the Extradition Treaty between South Africa and the United States of America. He appeared in the magistrates’ court in extradition-related proceedings, and there was a formal request for his extradition under the Extradition Act 67 of 1962, seeking findings that he was liable to be surrendered to the United States and that he be committed to prison pending the Minister’s surrender decision.


It was common cause for purposes of the bail proceedings that the bail application fell under Schedule 5 of the Criminal Procedure Act. The respondent placed his case before the district court primarily by affidavit, and his partner testified. In addition to the extradition-related allegations, the respondent faced South African allegations relating to contraventions of the Immigration Act 13 of 2002 and fraud in relation to the opening of bank accounts.


In support of bail, the respondent asserted that he had a defence, would plead not guilty, and alleged that he had been framed by others, placing particular emphasis on allegations concerning a dispute with a person he identified as Mr Mushonga. He also asserted that his passport was in police possession and that he could not travel, contending that his release would not prejudice the administration of justice. The respondent maintained that he had no prior convictions and that he was not a danger to the public.


On the State’s version, supported by affidavits and statements including those of Captain Van den Heever of the South African Police Service and Mr Steven Dougherty of the United States Secret Service, the respondent presented a substantial flight risk and was implicated in serious offending. The State’s material allegations included that the respondent had used multiple identities and aliases, had registered numerous bank accounts using a false name, had access to false documentation, and had a pending criminal matter in the Randburg magistrates’ court involving multiple counts (including fraud-related charges and contraventions of section 49 of the Immigration Act). The State further alleged that the respondent possessed multiple passports, had travelled extensively, and could flee to a jurisdiction without an extradition treaty with the United States.


A significant factual feature for purposes of the appeal was the manner in which the district magistrate decided the bail application. The High Court recorded that the magistrate, by his own admission during judgment, conducted an independent search on Google regarding the existence of an extradition treaty between the United States and Nigeria, in circumstances where the parties held opposing views on the issue. This was treated as an irregularity because it introduced material not properly adduced and the parties were not given an opportunity to address it.


The High Court also treated as material that, in granting bail, the magistrate was said to have accepted the respondent’s denials and claimed “valid defence” without meaningfully engaging with, or giving reasons about, the State’s opposing version and the strength of the case described in the State’s affidavits.


3. Legal Issues


The central legal questions were, first, whether the State’s appeal was properly before the High Court given the respondent’s contention that leave to appeal had not been sought or granted in the manner required by sections 65A and 310A of the Criminal Procedure Act. This was a procedural and legal issue concerning statutory interpretation and compliance, together with the court’s approach to how the leave requirement should be handled on the facts before it.


Secondly, on the merits, the question was whether the magistrate’s decision to grant bail was “wrong” as contemplated by section 65(4) of the Criminal Procedure Act, which limits interference on appeal unless the appellate court is satisfied that the decision was wrong. This required evaluating whether the magistrate committed a material misdirection on fact or law, whether the discretion was exercised wrongly, and whether that entitled the High Court to consider bail afresh.


The dispute largely concerned the application of legal standards to the facts presented in the bail record. It also involved an evaluative judgment concerning the proper assessment of risk and the weight to be given to the State’s evidence in circumstances where the respondent chose to proceed mainly by affidavit and where disputes of fact arose between the parties’ versions.


4. Court’s Reasoning


On the preliminary issue, the High Court addressed the statutory scheme of section 65A, which permits the prosecuting authority to appeal against bail decisions, and which incorporates aspects of section 310A, including the requirement that leave to appeal be granted by a judge in chambers. Although the matter had come before the judge in open court rather than chambers, the High Court held that the State had in fact applied for leave to appeal and that the application was within the applicable time limits, rendering the accompanying condonation application unnecessary. The court considered it impractical and wasteful to insist that the matter be redirected purely to obtain a chambers order, only for it to return to the same judge, particularly where the judge was already apprised of the grounds of appeal.


The High Court further reasoned that the respondent had accepted service, was legally represented, had filed heads of argument, and was fully aware of the State’s case, so that granting leave at that stage would not prejudice him. Against that background, and given that the State alleged irregularities in the bail proceedings, the court held that the appeal should not be thwarted by a purely formal objection. Leave to appeal was accordingly granted.


On the merits of the appeal, the High Court emphasised that bail appeals are governed by section 65(4) of the Criminal Procedure Act and the approach stated in S v Barber 1979 (4) 218 (D), namely that the appellate court should not interfere unless persuaded that the magistrate exercised the bail discretion wrongly. The court noted that, where an applicant for bail proceeds by affidavit and a dispute arises between the defence papers and the prosecution’s version, the bail applicant bears the onus and the State’s version will prevail unless far-fetched.


The High Court identified several misdirections and irregularities attributed to the magistrate. A central irregularity was that the magistrate effectively introduced information from the bench by conducting an independent internet search and relying on it without affording the parties an opportunity to address the result. The High Court treated this as inconsistent with the judicial role and referred to the importance of impartiality as articulated in S v Le Grange [2008] ZASCA 102, linking the integrity of the justice system to the objective demonstration of judicial impartiality.


Beyond the irregularity, the High Court held that the magistrate materially failed to evaluate the evidence properly. The magistrate was criticised for accepting the respondent’s assertions that he would plead not guilty and had a “valid defence” without explaining what that defence was or why it was credible, while simultaneously ignoring material allegations and evidence in the State’s affidavits. The High Court considered that the magistrate did not investigate or adequately consider the respondent’s use of multiple aliases, the pending matters against him, and the State’s evidence suggestive of document fraud and the ability to obtain false identity documents.


The High Court also held that the magistrate ignored evidence said to demonstrate flight risk and the incentive to abscond, including the seriousness of the offences alleged in the United States, the pending warrant and extradition process, and the alleged magnitude of losses (approximately $12 million) described in the State’s version. The court further regarded it as a misdirection that the magistrate ignored aspects of the State’s evidence about the respondent’s alleged associations and involvement in international scams, as well as the alleged possession of a fraudulently obtained South African identity document.


Having found material misdirection, the High Court invoked the principle that where a misdirection appears on the record on fact or law, the appellate court is at large to interfere and may consider bail afresh. In that regard it cited S v M 2007 (2) SACR 133 (E) and referred to authority that, once misdirection is established, the appeal court may reconsider whether bail should have been granted, as reflected in S v Mpulampula 2007 (2) SACR 133 (E) and S v Jacobs 2011 (1) SACR 490 (ECP).


Applying these principles, the High Court concluded that the magistrate’s decision to grant bail was wrong. The court stressed that at the bail stage the inquiry is whether the interests of justice permit release, with emphasis on protecting the investigation and prosecution from hindrance. On the record, and given the magistrate’s inadequate engagement with the State’s version and the identified misdirections, the High Court determined that the correct decision was to refuse bail.


5. Outcome and Relief


The High Court upheld the State’s challenge to the bail order. It set aside the Randburg district magistrate’s order of 18 January 2023 granting bail and replaced it with an order refusing bail.


The respondent’s bail was revoked and he was remitted to custody. The court further authorised the issuing of a warrant for the respondent’s immediate arrest in terms of section 65A(3) of the Criminal Procedure Act.


The judgment did not record any separate or express order as to costs.


Cases Cited


S v Barber 1979 (4) 218 (D)


S v Le Grange [2008] ZASCA 102


S v M 2007 (2) SACR 133 (E)


S v Mpulampula 2007 (2) SACR 133 (E)


S v Jacobs 2011 (1) SACR 490 (ECP)


Legislation Cited


Criminal Procedure Act 51 of 1977, including Schedule 5 and sections 60, 65(4), 65A, 310A


Extradition Act 67 of 1962, sections 10 and 19(1)


Immigration Act 13 of 2002, section 49


Law of Evidence Amendment Act 45 of 1988, section 1(1)


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The High Court held that leave to appeal could and should be granted despite the respondent’s preliminary objection, in circumstances where the application for leave had been brought within time, the matter was effectively before the court, and no prejudice to the respondent was shown.


On the merits, the High Court held that the magistrate materially misdirected himself in granting bail, including by relying on information independently obtained via an internet search and by failing to evaluate and weigh the State’s evidence. Those misdirections entitled the High Court to interfere with the exercise of the magistrate’s discretion under the bail appeal standard.


The High Court held that the magistrate’s decision was wrong and that the appropriate order was to refuse bail, revoke the respondent’s release, remit him to custody, and authorise a warrant for immediate arrest.


LEGAL PRINCIPLES


The appellate court’s power in a bail appeal is limited by section 65(4) of the Criminal Procedure Act 51 of 1977. The bail decision will not be set aside unless the appeal court is satisfied that the lower court’s decision was wrong, and the appellate court should not substitute its view merely because it would have reached a different conclusion, consistent with S v Barber 1979 (4) 218 (D).


Where a bail applicant proceeds on affidavit and disputes arise between the defence version and the prosecution’s version, and the applicant bears the onus, the prosecution’s allegations will prevail unless they are far-fetched.


Judicial officers must remain impartial and must not introduce evidence from the bench. Reliance on independently sourced material, without it being properly introduced and without giving parties an opportunity to respond, is treated as an irregularity inconsistent with the requirements of impartial adjudication, with reference to the considerations articulated in S v Le Grange [2008] ZASCA 102.


Once a material misdirection on fact or law is established in the bail decision, the appellate court is at large to interfere and may reconsider the bail question afresh, as recognised in the cited authorities including S v M 2007 (2) SACR 133 (E), S v Mpulampula 2007 (2) SACR 133 (E), and S v Jacobs 2011 (1) SACR 490 (ECP).

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[2023] ZAGPJHC 697
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S v Aliyu (A12/2023) [2023] ZAGPJHC 697 (14 June 2023)

REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA,
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO:
A12/2023
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
REVISED
14.06.23
In
the matter between:
THE
STATE

Appellant
and
JAMES
JUNIOR ALIYU
Respondent
JUDGMENT: BAIL APPEAL
Johnson
AJ
[1] The respondent, who
is charged with an offence mentioned in Schedule 5 of the Criminal
Procedure Act 51/1977 (CPA), has applied
for bail in the district
court in terms of section 60 pending his extradition enquiry to the
United States of America.
[2] He was granted bail.
The State is subsequently bringing an application to appeal the
granting in terms of section 65A.
[3] The respondent has
raised a point
in limine
that the appellant has not applied
for leave to appeal the granting of bail to the respondent. He relies
on the provisions of section
65A of the Criminal Procedure Act
51/1977 (CPA). It determines as follows:
1. (a)  The
attorney-general may appeal to the superior court having
jurisdiction, against the decision of’ a lower court
to release
an accused on bail or against the imposition of a condition of bail
as contemplated in section 65(1)(a).
(b)
The
provisions of
s
ection
310A
in
respect of an application or appeal referred to in that section by an
attorney-general, and the provisions of
section
65 (1) (
b
)
and
(
c
)
and
(2)
,
(
3)
and
(4)
in
respect of an appeal referred to in that section by an accused, shall
apply
mutatis
mutandis
with
reference to a case in which the attorney-general appeals in terms of
paragraph (
a
)
of this subsection.
[4] Section 310A (1) (a)
of the CPA provides that: “The attorney-general may appeal
against a sentence imposed upon an accused
in a criminal case in a
lower court, to the provincial or local division having jurisdiction,
provided that an application for
leave to appeal has been granted by
a judge in chambers. Subsection (b) determines that: “The
notice shall state briefly
the grounds of the application.”
[5] The matter came
before me in court, not in chambers, during the hearing,
[6] The State has applied
for leave to appeal the judgement of the court
a quo,
delivered
on 18 January 2023
,
in an application on pp 004-7  –
004-22 of the papers, dated 10 February 2023 which was filed on 13
February 2023. It
is accompanied by an application for condonation
for the late filing of the application for leave to appeal on pp
004-26 - 004-33,
which is unnecessary as the application was brought
within the time limit provided for in terms of section 310A(2)(a) of
the CPA.
I am satisfied that this matter is correctly before me. To
refer it back to the Registrar to place it before a judge in chambers

to grant permission for leave to appeal, and then refer it back to me
to hear the State’s application, will be absurd, time
consuming
and costly. I am of the view that I am able to consider the
application for leave to appeal as the matter had been placed
before
me twice, and I am aware of the grounds of the application. As the
State alleges that the magistrate committed an irregularity
in the
granting of bail, a court cannot shut its eyes to the allegations
merely because the application was not placed before a
Judge in
chambers to grant leave to appeal.
[7] The fact that further
steps were taken when the accused was served with a notice of the
appeal, indicates that he and his attorney
was satisfied with the way
in which the Director of Public Prosecutions handled the matter. They
accepted service of the papers.
He is acutely aware of the contents
of the State’s application, he has appointed council to
represent him in the matter,
and he has filed Heads of Argument in
opposition to the State’s application in terms of section 65A
(1) (a). There will no
prejudice to the applicant if I grant the
State leave to appeal at this stage.
[8] I therefore granted
the application for leave to appeal.
[9] The Respondent who
goes by the names of James Junior Aliyu, Old Soldier and Ghost,
appeared in the magistrate’s court
subsequent to his arrest on
a warrant of arrest, issued on 2022/06/28 in terms of Article 13 of
the Extradition Treaty between
the Government of the Republic of
South Africa and the Government of the United States of America (USA)
for his extradition to
the United States of America following
information under oath, to stand trial on counts of:
9.1. Conspiracy to commit
wire fraud in violation of Title 18, United States Code, section
1349;
9.2. Wire fraud and
aiding and abetting wire fraud, in violation of 18 U.S.C section 1343
and 2;
9.3. Conspiracy of money
laundering, in violation of 18 U.S.C. section 1956(h); and
9.4. Money laundering and
aiding and abetting money laundering, in violation of 18 U.S.C
section 1956(a)(1)(A)(i), 1956(a)(1)(B)(i)
and 2.
[10] There is a formal
request for his extradition in terms of the Extradition Act 67/1962
(The Act) to the United States of America,
requesting a finding:
10.1 in terms of section
10 of the Act, that the Respondent is liable to be surrendered to the
USA; and
10.2. that the respondent
be committed to a prison in terms of section 19 (1) Act to await the
decision regarding the surrender
of Minister of Justice and
Correctional Services.
[11] The parties have
agreed that the bail application in the district court resorts under
schedule 5 CPA.
[12] The respondent
placed his matter before court by way of an extensive affidavit and
his partner testified under oath. He is
a Nigerian citizen. The State
has charged him for various contravention of the Immigration Act
13/2002 and various counts of fraud
in relation to the opening of
bank accounts. He has a valid defence and will plead not guilty.
[13] He was involved in
business dealing with a Mr Mushonga, who gave him two vehicles as
surety for money he owed him. Instead
of setting out what his defence
is, he attacks the character of Mr Mushonga in a large part of his
affidavit, and accuses him for
the predicament that he is in. His
life and that of his partner is in danger. The police abducted him
and said they would release
him if he stopped his feud with Mr
Mushonga. He was released on bail 2 days later, but the police did
not pursue the matter of
the fake identity card for which he was
apparently arrested. His partner was also harassed by suspected
policemen. It demonstrates
that he was framed and set up. Mr Mushonga
has sufficient money and wields power to have police officers commit
criminal offences
on his behalf. This demonstrates the circumstances
under which he is prosecuted and is a clear indication of his valid
defence.
[14] His release will not
prejudice justice and he has no way of travelling as his passport is
in the hands of the police. He poses
no threat to the public, or any
person and he has no previous convictions.
[15] When evaluating this
version, it is clear that the respondent places all the blame on
others, and tries to exonerate himself.
The learned magistrate
ignored these facts and merely concluded that that the
respondent denies the offences and has
a valid defence. He completely
ignored the fact that the respondent is playing the blame game and
gave no explanation why he believed
he had a valid defence. The
respondent made all these unsubstantiated allegations without
affording the State an opportunity to
cross- examine him on his
allegations.
[16] Mr Stephen Dougherty
from the USA Secret Service and Capt. Van den Heever of the South
African Police Services gave statements
disputing his allegations.
The learned magistrate ignored the evidence of Mr Dougherty and Capt.
Van den Heever, and decided to
accept the version of the respondent,
without good cause or giving any reasons. A presiding officer cannot
selectively decide what
evidence he prefers to take cognisance of in
a bail application. All the evidence needs to be
considered.
[17] The respondent
further pronounced that he has no pending criminal cases against him.
This is false. According to the statement
of Capt. Van den Heever
there are various matters pending against him in the Randburg
Magistrates’ Court. He also has various
identities and it
appears that he has access to the Department of Home Affairs to
obtain false documents. The court
a quo
ignored this.
[18] He has made many
unsubstantiated allegations regarding newspaper reports to give
credence to his statement. Although hearsay
evidence is permissible
in a bail application, one must never lose sight of the fact that its
probative weight is not similar to
direct evidence.
[19] He further alleged
that he has no real ties in Nigeria, but this is farfetched. He does
not explain his frequent travels, except
when his father passed away.
The reasons for his extensive travels remain a mystery. Due to the
fact that he travelled extensively
to Nigeria from 2016, despite the
fact that he allegedly permanently resides in South Africa and
considered it his home, one would
have expected him, where he carries
the burden of proof, to enlighten the court in this regard.
[20] The partner of the
respondent changed the address that he gave as his when he was
arrested, to a different one, despite warnings
from her attorneys not
to do so. She concealed her second address from the police and they
could not confirm it, contrary to what
the respondent said in his
statement. She stayed there for 3 months before she revealed that it
was the respondent’s address.
The fact that she freely changed
it, points to the fact that it was her address, not that of the
respondent.
[21] When the respondent’s partner was recalled,
her evidence sounded like an extract from a James Bond movie. There
were
hidden video cameras, video footage and masked faces. One cannot
help but see a picture emerge where everyone, even the police,
was
out to get the respondent and frame him. When she was confronted with
video evidence which was meant to support her evidence,
she was
unsure of the date of the footage, and the identities of the persons
who appeared in the video.
[22] The respondent
declared that she had a South African passport, but he concealed the
fact that she also has a British passport.
[23] Capt. Van den Heever
deposed of an affidavit which in great detail described the
involvement of the respondent in the charges
that he is sought for in
the USA. His involvement has caused a loss of approximately $12
million, which was sent to his and other
bank accounts.
[24]
He registered 13 bank accounts using a false name. He is a flight
risk and has three passports of which one is valid. His previous

Nigerian passports expired on 27 July 2015 and 14 July 2020. He has
no doubt that the respondent will flee to a country that does
not
have an extradition treaty with the United States of America. He has
no fixed address in the RSA, and no fixed employment.
He is in good
health which enables him to travel easily. He has obtained a South
African ID document under a false name containing
his photo. The
Department of Home Affairs has no physical or electronic record of
him and his birth certificate cannot be traced.
[25]
He has a pending criminal matter in the Randburg magistrates’
court and is charged with 15 counts of fraud, uttering
and
contraventions of
section 49
of the
Immigration Act 13 of 2002
.
[26]
Steven Dougherty is an agent in the services of the United States
Secret Services. He does global investigations. He investigated
the
respond after he received information about him
[27]
He has established that the respondent and his co-conspirators
created fraudulent email addresses which mimicked actual email

addresses of individuals. He gave an elaborate description of how the
crimes were committed for which his extradition is sought.
The
extradition application contains various affidavits which I find
unnecessary to deal with at this stage.
[28]
Bail appeal is governed by
section
65(4)
of
the
CPA
which
states that:
“
The
court or judge hearing the appeal shall not set aside the decision
againstwhich the appeal is brought, unless such court or
judge is
satisfied that the decisionwas wrong, in which event the court or
judge shall give the decision which in its or his opinion
the lower
court should have given.”
[29]
The meaning attached to this was stated as follows in
S v Barber
1979 (4) 218 (D)
at 220E-H:
“
It
is well known that the powers of this court are limited where the
matter comes before it on appeal and not as a substantive application

for bail. This court has to be persuaded that the magistrate
exercised the discretion which he has wrongly. Accordingly, although

this court may have a different view, it should not substitute its
own view for that of the magistrate because that would be an
unfair
interference with the magistrate’s exercise of his discretion.
I think it should be stressed that no matter what this
court’s
own views are the real question is whether it can be said that the
magistrate who had the discretion to grant the
bail exercised that
discretion wrongly
”.
[30]
Where the applicant in a bail application decides to bring his
application for bail by way of an affidavit and there is a dispute

between his papers and that of the prosecution’s, the
allegation of the State, unless farfetched, would prevail, because

the applicant bears the onus to prove his case on a balance of
probabilities.
[31] The learned
magistrate unfortunately, acted as a witness in the case, by
searching, by his own admission during his judgement,
on Google for
evidence of an extradition treaty between the USA and Nigeria. The
State and the respondent’s lawyer had opposing
views on the
existence of such a treaty. It is irregular for a court to search for
evidence on Google, which had not been proved
to be a reliable source
of information, to contradict the arguments of one party or the
other. Neither the State nor the respondent
was thereafter given an
opportunity to respond to the presiding officer’s finding. It
is not permissible for an independent
judicial officer to give
evidence from the bench. It is permissible in certain defined
circumstance to take judicial cognisance
of certain facts and in this
case, law of a foreign State. It is a condition however, that such
law must be ascertained readily
and with sufficient certainty. (See
section 1 (1) of the Law of Evidence Amendment Act 45/1988). An
extradition treaty between
two foreign countries cannot be
ascertained readily and with certainty.  It was irregularly for
the learned magistrate to
take cognisance of what he had uncovered on
Google, and does not bode well for the independence, and impartiality
I might add,
for the Judiciary.
[32]
In
S
v Le Grange
[2008]
ZASCA 102
at
[21]
the
court confirmed it as follows:
“
It
must never be forgotten that an impartial judge is a fundamental
prerequisite for a fair trial. The integrity of the justice
system is
anchored in the impartiality of the judiciary. As a matter of policy,
it is important that the public should have confidence
in the courts.
Upon this social order and security depend. Fairness and impartiality
must be both subjectively present and objectively
demonstrated to the
informed and reasonable observer.”
[32] The trial court did
not investigate why the respondent, who is a Nigerian citizen, goes
by different aliases. He gave no consideration
to the strength of the
State’s case as put forward by the witnesses, and merely echoed
the respondent’s allegation
that “he will plead guilty
and has a strong defence”. It was never considered in judgement
what that defence of the
respondent is and on what credible evidence
it is based. Of greater importance, is that the evidence of the State
regarding the
commission of the offences, were ignored.
[33] The evidence of the
investigating officer Capt. Van den Heever, that the respondent is a
member of a movement “Black
X”, that they are involved in
internet scams and wire fraud internationally and has members across
the world, was also ignored
without giving any valid reasons for not
considering it. The court thus misdirected itself by finding that
there is no evidence
to support the fact that he is a member of
“Black X”.
[34] Evidence that the
respondent obtained a South African ID fraudulently under the name
William Khosi Mtsweli, which ID was found
in his possession and was
indicative of a warning sign that he is a flight risk, was also
ignored by the court
a quo.
[35] He also echoed the
allegation by the respondent that he is not flight risk and will
stand trial, completely ignoring the opposing
evidence and opinions
of the witnesses for the State, who disputed this.
[36] The magistrate has
failed to consider that there is a pending warrant for his arrest in
the USA and that an application for
his extradition is pending. He is
charged there for serious crimes. This is a great incentive to
abscond.
[37]
It is trite that once a misdirection is apparent from the record
either on the findings of fact or law, this Court is at large
to
interfere with the decision of the magistrate.[
S
v M
2007 (2) SACR 133
(E)
]
[38] Where a court
a
quo
misdirected itself materially on the facts or legal
principles, the court of appeal may consider the issue of bail
afresh. See
S v Mpulampula
2007 (2) SACR 133
(E) at 136
e
and
S v Jacobs
2011 (1) SACR 490
(ECP) at [18].
If
misdirection is established, the appeal court is at large to consider
whether bail ought, in the circumstances, to have been
granted or
refused.
[39] It is not lost out
of sight that 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
.
[40] The trial magistrate
merely ignored the appellant’s evidence regarding the
commission of the offences, and did nor evaluate
it. As far as the
allegation by the respondent is concerned, he only gave a terse
remark that: “
He will plead not guilty
and has a valid defence.”
Bearing
in mind that he has the onus to prove, such an empty remark does not
carry any weight.
[41]
What the court is called upon to consider in a bail
application, is the nature of the evidence that is available to the
prosecution
and, absent a challenge in the bail proceedings to the
admissibility or reliability of that evidence, the court will accept
the
evidence. It is upon this acceptance that the court decides
whether the case is strong or weak.
[42] In the result I am
satisfied that the learned magistrate misdirected himself and that
his decision to grant the respondent
bail, was wrong. The correct
decision in view of the above was to refuse the respondent’s
application for bail.
[43] In the result
I made the following orders yesterday on 13 June 2023:
1. THAT the order of the
District Magistrate, Randburg to grant bail to the Respondent, dated
18 January 2023 in case number 3/3517/2022,
is set aside;
2. THAT the bail of the
Respondent is revoked and he is remitted to cusody;
3. THAT the order that
bail be granted to the Resondent is replaced with the following
order: “The application for bail is
refused”;
4. THAT a warrant for the
immediate arrect of the Respondent is authorized in terms of section
65A (3) of the Criminal Procedure
Act 51/1977.
P Johnson AJ
Acting Judge of the
High Court
Gauteng Local Division
FOR
APPELLANT:             S.W.
van der MERWE,
MONTANO
ATTORNEYS
THE ITALIAN CLUB
7 MARAIS ROAD
BEDFORD VIEW
FOR
RESPONDENT:        ADV. C.
MACK,
OFFICE OF DIRECTOR OF
PUBLIC PROSECUTIONS
DATE
OF HEARING:
13 JUNE 2023
DATE
OF JUDGMENT:         14 JUNE
2023
This
judgment was handed down electronically by circulating it to the
parties and/or parties’ representatives by email and
by being
uploaded to CaseLines.

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