Ali and Another v S (CA&R 8/09) [2009] ZAECPEHC 40 (21 August 2009)

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[2009] ZAECPEHC 40
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Ali and Another v S (CA&R 8/09) [2009] ZAECPEHC 40 (21 August 2009)

FORM A
FILING SHEET FOR EASTERN CAPE,
PORT ELIZABETH
PARTIES
:
BASHAARD ALI AND ZIA UL-HAQ V THE STATE
NOT
REPORTABLE
Case
Number:
CA& R
8/09
High
Court:
PORT
ELIZABETH
DATE
HEARD:
17
AUGUST 2009
DATE
DELIVERED:
21
AUGUST 2009
JUDGE(S):
EKSTEEN
AJ
LEGAL
REPRESENTATIVES –
Appearances:
for
the Plaintiff(s):
ADV
T PRICE
for
the Defendant(s):
ADV
THYSSE
Instructing
attorneys:
Plaintiff(s):
D
GOUWS INCORPORATED
Defendant(s):
DIRECTOR
OF PUBLIC PROSECUTIONS
CASE
INFORMATION -
Nature
of proceedings
:
Key
Words
:
Summary:
IN THE HIGH
COURT OF SOUTH AFRICA
NOT
REPORTABLE
EASTERN CAPE
,
PORT ELIZABETH
Case No.: CA&R 8/09
Date
delivered:
In the matter between:
BASHARAD ALI
First Appellant
ZIA UL-HAQ
Second Appellant
and
THE STATE
Respondent
J U D G M E N T
EKSTEEN AJ:
T
he
appellants have been charged with corruption in terms of the
Prevention and Committing of Corrupt Activities Act, 12 of 2004
and
of defeating or obstructing the administration of justice. The
appellants are both in custody and accordingly applied for
bail in
the Magistrates’ Court, Port Elizabeth. Bail was refused and they
now approach this Court in appeal against that refusal.
B
oth
the appellants are Pakistanis by birth and are currently resident in
South Africa.
The appellants
,
together with a number of other accused were charged earlier of
murder upon Abdullah Seedat, a Pakistani businessman in Port

Elizabeth. Following on their arrest on the charge of murder the
appellants applied for bail and they were both released on
R10 000
bail on 30 July 2008. One of the conditions of bail is that the
appellants were to hand in their passports to the investigating

officer.
The events which
gave rise to the charges currently under consideration occurred
whilst the appellants were on bail. The allegations
upon which the
State relies for p
urposes
of these charges appear from the evidence of the investigating
officer, one Hardy, during the bail application.
Hardy testified
that an approach was made to a member of the police services on
behalf of the appellants conveying that the appellants
wished to
purchase the original docket of the investigation into the murder of
Mr Seedat. As a result of this information an
application was made
to the Director of Public Prosecutions in Grahamstown in terms of
the provisions of Section 252A of the
Criminal Procedure Act
,
51 of 1977 (“the Act”), for authority to make use of a trap or
engage in an under cover operation as envisaged in the Section.

Hardy testified that authority was obtained from the Director of
Public Prosecutions to proceed with the operation under certain

specified conditions, which were strictly adhered to.
Having obtained
such authority
an
operation was launched on 10 February 2009 at the Universal Cellular
Shop in Traduna Mall, Port Elizabeth, a business conducted
by the
first appellant. The events which occurred there were all recorded
on a video recording and Hardy, who was present at
the time,
testified that he has viewed the content of the video.
He states that two
police agents entered the shop where the first appellant was
present. They appeared to be talking to one another
behind the
counter for some time. When the shop was quite the first appellant
retrieved a blue bread tin from under the counter
and handed it to
one of the police agents. In exchange the police agent handed the
original docket to the first appellant.
The first appellant, so
Hardy testified, proceeded to page through t
he
docket with the police agents pointing out certain statements to the
first appellant. Thereafter the first appellant began
to tear up
statements in the docket before placing the docket in a black
plastic refuse bag. Shortly thereafter the second appellant

arrived. The second appellant then handed money to the first
appellant.
Hardy states that
the docket handed to the first appellant in the operation was the
original investigation docket into the murder
of Mr Seedat. It is
apparent from his testimony that the blue bread tin handed to the
police agents contained an amount of money.
Upon counting such
money after the operation it transpired that an amount of R25 000
had changed hands.
R22 500 was handed over by the first appellant originally,
presumably in the bread tin, and the further amount of R2 500 was

brought by the second appellant which he had handed in the operation
to the first appellant. The circumstances under which
this R2 500
was handed to the police agents is not canvassed in evidence. In
addition Hardy testified that during the operation
the appellants
had requested one of the police agents to retrieve their passports.
The appellants
both testified. They denied the charge against them. Second
appellant, however, admits that on the day in question
he was phoned
by the first appellant and requested to bring an amount of money to
the shop
in order to purchase stock for his business. He states that the
amount was R2 300. The second appellant did proceed to the
shop and
did hand a certain amount of money to the first appellant. He
states that whilst at the shop the police stormed in
and they were
arrested.
It is common cause
that the appellants stand charged of an offence set out in Schedule
5 to the Criminal Procedure Act both because
of the nature of the
offence of which they are accused and the fact that they are accused
in a pending matter of murder against
them. The terms of the
provisions of Section 60(11) of the Act the appellants accordingly
bore an
onus
to adduce evidence which would satisfy the magistrate that the
interests of justice permit their release. The magistrate was
not
satisfied that the interests of justice permitted their release and
refused their application for bail. The essence of the
magistrate’s
reasoning is simply that the evidence indicates that the State has a
strong
prima
facie
case against the appellants. He concludes as follows:
“There is
therefore, the court finds, a strong
prima
facie
case against the accused. Now taking into account the strong
prima
facie
case that the State has against the accused, their personal
circumstances, the accused in the court’s view did not discharge

the onus placed on them in terms of the Act, to show that it was
in the interests of justice that they be granted bail.”
Mr
Thysse
,
on behalf of the State, has urged upon me that by virtue of the
provisions of Section 65(4) of the Act this Court is not empowered

to set aside the decision of the magistrate unless I am satisfied
that the decision was wrong. In my view this Section should
not be
over-emphasised. It does not create any greater limitation on this
Court than is the case in any criminal appeal. Compare
for example
S
v Barber
1979 (4) SA 218
(D);
S
v De Abreu
1980 (4) SA 94
(W) and
Hiemstra
Suid-Afrikaanse
Strafproses
(6
th
edition) p. 171.
Mr
Price
who appears on behalf of the appellants emphasises the provisions of
Section 60(9) of the Act which provides that this Court,
in
considering whether the interests of justice do permit the release
of the appellants, should decide the matter by weighing
the
interests of justice against the rights of the appellants to their
personal freedom and in particular the prejudice which
they are
likely to suffer if they were to be detained in custody. I do not
intend dealing extensively with each of the considerations
set out
in Section 60(4) nor those set out in Section 60(9). Suffice it to
say that some considerations will weigh more heavily
than others.
The weight to be attached to each must depend upon the circumstances
of the particular case in issue. In considering
the various factors
set out in Section 60(4) of Act the Court is necessarily engaged in
an enquiry into the probable future conduct
of the applicant. In
this regard Ngcobo J in
S
v Thornhill (2)
1998 (1) SACR 177
, at 182e-f said:
“This
future conduct has to be determined on the basis of information
relating,
inter
alia
,
to the applicant’s past conduct. What has to be determined,
therefore, is not a fact or a set of facts but merely a future

prospect which is speculative in nature even though it is based on
proven facts.”
I have already
stated
that
in this matter the appellants had been released on bail facing a
charge of murder when the events upon which the State relies
for the
present charges occurred. It appears from the evidence of Hardy
that when the appellants were released on bail each
of them attested
to an affidavit in which they undertook,
inter
alia
,
not
to intimidate witnesses or to destroy evidence. The current charges
against them relates specifically to an alleged attempt
to destroy
evidence by seeking illegitimately to obtain the entire original
investigation docket relating to the murder charge.
It seems to me
that if the magistrate was correct in holding on the evidence that
the State probably has a strong
prima
facie
case against the appellants then that would weigh very heavily in
predicting the probable future conduct of the appellants relating
to
evidential material. Similarly if the evidence of Hardy is accepted
that during the course of the operation the appellants
requested the
police agents to obtain their original passports that would serve as
a strong indicator of the risk of flight were
they to be released.
I have already
stated that the evidence establishes that the entire operation
carried out was filmed on video. Hardy has related
in his evidence
that which he says is revealed by the video. In those circumstances
I am unable to fault the conclusion drawn
by the magistrate in
respect of the first appellant. If that evidence were established
at the trial the first appellant is shown
to have been willing to
expend a substantial amount of money in order to obtain and
destroy
the evidence which had been gathered over an extensive period
relating to the murder of Mr Seedat. Using that as an indicator
of
his probable future conduct the likelihood of him endeavouring to
obtain control of and destroy evidence in future is manifest.
In
these circumstances I do not consider it necessary to consider the
effect of the evidence relating to his passport.
The evidence of
Hardy relating to the second appellant is, however, considerably
weaker. Hardy does not state in his evidence
wh
o
is alleged to have approached a policeman in order to obtain the
docket. It appears to be common cause on the evidence that
at the
time when the operation was commenced the first appellant was alone
in his shop. The second appellant arrived some time
later with a
further some of money. This is confirmed by the second appellant in
his own evidence where he testifies that he
was phoned at home by
the first appellant and was requested by to bring to the shop a
certain amount of money in order to purchase
stock.
Hardy testifies
that when the second appellant arrived at the shop he approached the
first appellant and handed over a
sum
of money to the first appellant. This can be seen on the video.
Thereafter the signal was given that the transaction had
been
completed and the police arrested the appellants.
The conduct of the
second appellant
during
the operation is not in dispute on the evidence presented at the
bail application, however, I am not persuaded that there
is anything
in the evidence relating to the second appellant which justifies the
conclusion that he was probably a party to the
attempted purchase of
the docket. There is no evidence linking him to any prior
information held by the police in respect of
the purchase of the
docket. On the evidence of Hardy, by the time the second appellant
arrived the docket had already been placed
in a black refuge bag and
there is nothing to indicate that the second appellant was ever
aware of the presence of the docket
in the shop. He is not alleged
to have handled the docket nor to have seen it. The evidence of
Hardy is, in my view, fully
compatible with the explanation of the
second appellant. In these circumstances I am satisfied that the
magistrate erred in
holding that the evidence in the bail
application reveals,
prima
facie
,
a strong case against the second appellant. There is nothing in
the evidence of Hardy to suggest that the second appellant
is likely
to attempt to destroy evidence.
One further matter
remains to be considered. I have referred above to the statement by
Hardy that during the operation the appellants
requested one of the
police agents to steal their passports for them. This evidence was
tendered
in chief and was not followed up by the prosecutor. No greater
detail appears from the record as to when in the course
of the
operation this occurred and who on behalf of the appellants made
this request. On the evidence set out in the bail application
it
appears to be most unlikely to have been the second appellant.
Hardy testified that on the arrival of the second appellant
he
handed over an amount of money to the first appellant and
immediately thereafter the police closed in and arrested them.
The evidence relating to the
passports goes hand-in-hand with the somewhat tentative suggestion
by Hardy in cross-examination
that information had been received
from a Pakistani citizen that the appellants wished to leave the
country. Suffice it to say
that Hardy was not convincing on this
aspect of his evidence when cross-examined.
As against this
the second appellant testified that he is currently permanently
resident in South
Africa.
The passport which he held and which was handed to the
investigating officer under the bail conditions granted on the

charge of murder is a South African passport. He has no other
passport and has not left South African shores since 2001. He
owns
his own cell phone business known as “Cell phone Cellular Village”
situated in Korsten, Port Elizabeth.
I am advised from the Bar that the
trial has been enrolled for 19 and 20 October 2009.
On a consideration
of all the evidence I am of the view that the second appellant has
discharged the
onus
of establishing that the interests of justice do permit his release.
In the result the order which I make
is the following:
1. The appeal of the first appellant
is dismissed.
2. The appeal of the second appellant
is upheld and the order made by the magistrate in respect of the
second appellant is set aside
and replaced with the following:
2.1
Applicant
No. 2 is granted bail in the amount of R10 000 (ten thousand rand) on
the following conditions:
2.1.1 he
shall
be confined to the magisterial district of Port Elizabeth and he may
not leave the said district without the written consent
of the
Investigating Officer herein, Inspector Claude Hardy;
2.1.2 he is to
report to
an
officer nominated by Inspector Hardy at the Mount Road Police
Station, Port Elizabeth each day between 06h00 and 18h00;
2.1.3 he is to
inform Inspector Claude Hardy in writing prior to his release of the
residential address where he will be resident
pending the conclusion
of his trial and to inform the said Hardy in writing of any change in
his residential address
from time to time prior to such change;
2.1.4 he
shall
be confined to the said residential address each day between 18h00
and 06h00 and may not leave such premises during the said
hours.
_________________________
J W EKSTEEN
ACTING JUDGE OF
THE HIGH COURT