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[2010] ZAECPEHC 31
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Ali v S (CA&R14/10) [2010] ZAECPEHC 31; 2011 (1) SACR 34 (ECP) (17 June 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE, PORT ELIZABETH
CASE NO.: CA&R14/10
In
the matter between:
BASHARAD
ALI Appellant
and
THE
STATE Respondent
JUDGMENT
GROGAN AJ
:
[1] This is an appeal in
terms of section 65 of Act 51 of 1977 (“the Act”) against
a magistrate’s refusal to grant
the appellant bail. The
appellant, a Pakistani national, has been in custody since 10
February 2009 on charges of corruption and
defeating or obstructing
the administration of justice.
[2] These counts were a
sequel to earlier charges of kidnapping and murder brought against
the appellant and a number of other individuals,
including one Zia
Ul-Haq. After their arrest on the latter charge, the appellant and
Ul-Haq were released on bail of R10 000
on 3 July 2008, on
condition that they hand over their passports to the investigating
officer.
[3] Since the appellant
relies in part on the length of his detention pending trial, I set
out a brief chronology of events leading
to the present appeal.
[4] The appellant and
Ul-Haq were arrested on charges of corruption and attempting to
defeat or obstruct the course of justice on
10 February 2009. Their
application for bail (the first application) was dismissed on 25 May
2009. Both the appellant and Ul-Haq
appealed against that decision
(the first appeal). The appeal was heard by Eksteen AJ (as he then
was), who handed down his judgment
on 21 August 2009. The appellant’s
appeal was dismissed, and Ul-Haq was released on bail conditions set
by this Court.
[5] The appellant
launched another application for bail on 10 December 2009 (the second
application). That application was dismissed
by the same magistrate.
The trial on the charges of murder and kidnapping, set down for 19
October 2009 was postponed when the
defence disclosed that the copy
of the videotape upon which the State intended to rely had been
handed to the appellant’s
attorney without a sound track. Both
the appellant and Ul-Haq were in court on that day. The matter was
duly postponed to 29 March
2010. On that date, the State announced
that the Deputy Director of Public Prosecutions (DDPP) had decided to
withdraw the murder
and kidnapping charges against the appellant in
the magistrate’s court and to consolidate those charges with
those of corruption
and defeating the ends of justice, and to arraign
the accused in the High Court. Ul-Haq did not appear in court on 29
March 2010.
A warrant for his arrest was issued.
[6] The appellant
launched yet another application for bail on 7 April 2010 (the third
application). This was refused, again by
the same magistrate, on 21
April 2010. The present appeal against that decision was heard on 28
May 2010.
[7] The appellant’s
arrest on the charges for which he has been denied bail followed a
police trap which resulted in the arrest
of Ul-Haq and the appellant
for allegedly handing money to undercover agents, who in turn handed
over a copy of the original docket
of the murder and kidnapping case.
The police claim that after the agents pocketed the money, the
appellant went through the contents
of the file, tore up certain
statements he found in it and threw them in a rubbish bag. The
appellant then paid one of the agents
R22 500. The police
alleged that the balance of the “agreed” amount (R25 000)
was handed over shortly thereafter
by Ul-Haq
[8] This matter is
somewhat unusual in that the present appellant has appealed twice
against the same magistrate’s refusal
to grant bail. Since both
appeals emanate from the same starting point, the record and judgment
in the earlier appeal were properly
placed before the presiding
magistrate and this Court. I will not set out in detail the evidence
led in the application that gave
rise to the first appeal. Suffice it
to state that, the Court found that there was a strong
prima
facie
case
against the appellant, but not against Ul-Haq. The
ratio
of the judgment concerning the appellant is contained in paragraph
[14] thereof. It reads:
“
I have already
stated that the evidence establishes that the entire operation
carried out was filmed on video. Hardy [the police
witness] has
related in his evidence that which he says is revealed by the video.
In these circumstances I am unable to fault the
conclusion drawn by
the magistrate in respect of the first [and present] appellant. If
that evidence were established at the trial
the first appellant is
shown to have been willing to expend a substantial sum of money in
order to obtain and destroy the evidence
which has 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 and destroy evidence in future is manifest.”
[9] It is apparent from
this passage that the primary consideration which moved the Court to
refuse the earlier appeal was the likelihood
that the appellant would
interfere with the evidence relating to murder and kidnapping
charges.
[10] The reasons given by
the magistrate for his third refusal to grant the appellant bail are
scant but clear. I quote the relevant
extract:
“
The murder charge
that was pending against Applicant No 1 [the appellant] was withdrawn
and added to the corruption charge and he
will then stand trial on
both murder and corruption charges in the High Court. The Court then
is of the view that it will only
benefit Applicant No 1 to be
trialled (
sic
)
on the charges together and at one time as in the fact then decided
by the Director of Public Prosecutions. The fact that Applicant
No 2
disappeared is exactly what could happen if accused are released on
bail on charges of this nature....
“
The Court take
(
sic
)
into account that accused does have a right to a speedy trial and for
the matter to be finalised. The new developments related
to the
change of forum in respect of where accused No 1 will be charged, it
does not in any event influence the decision of the
Court.
“
The Court is still
of the view that the interest of justice still does not permit the
release of the applicant on bail.”
[11] It is unnecessary,
for purposes of this judgment, to set out all the considerations
listed by the legislature that are to be
taken into account when
assessing bail applications. Suffice it to state that, while the
magistrate was required to consider them
all, he retained a
discretion to decide the weight to be given each. Which
considerations will be taken into account depends on
the
circumstances of a particular case. But a major consideration in all
cases is the likelihood of an accused not facing trial
or perverting
the course of justice. I merely add that the charge in respect of
which bail was refused is a Schedule 5 offence,
which placed the onus
on the appellant to satisfy the magistrate that it was in the
interests of justice to order his release on
bail.
[12] Mr Dauberman, who
appears for the appellant, conceded in argument that there remains a
strong
prima
facie
case
against the appellant in respect of the charge of corruption and
defeating and/or obstructing the administration of justice.
However,
he contended that the appellant’s main argument will be
directed at the legality of the trap. Since no evidence
was led or
submissions were made in that regard in any of the bail applications,
this Court cannot evaluate the prospects of such
a defence. The fact
remains that the State has adduced evidence which gives rise to a
strong if
prima
facie
inference
that the appellant in fact handed a substantial sum of money to
undercover agents to obtain and destroy evidence in the
State’s
possession.
[13] The appellant now
relies principally on the delay occasioned by the State’s
decision not to proceed with the charges
against the appellant in the
magistrate’s court. It appears common cause that the matter
will not be enrolled in the High
Court before the fourth term in
2010. This means that the appellant must remain in custody as an
awaiting trial prisoner for some
seven months longer than he would
have been held in that status had the trial continued in the
magistrate’s court as originally
scheduled.
[14] This Court cannot
interfere with the magistrate’s decision unless he misdirected
himself in some material way when considering
the bail application (
S
v Barber
1979
(4) SA 218
(D)). The appellant contends that the magistrate erred in
a number of respects. But his grounds of appeal may fairly be
distilled
into the submissions that the magistrate failed to have
proper regard to the effects of the DDPP’s decision to combine
the
charges against the appellant and to arraign him in the High
Court, and that the delay occasioned thereby has unfairly prejudiced
the applicant by adversely altering his personal circumstances.
[15] I have already
adverted to the brevity of the reasons the magistrate gave for his
decision to dismiss the appellant’s
third bail application.
However, brevity is not in itself sufficient basis for concluding
that the magistrate ignored or gave insufficient
weight to the
considerations set out in section 60 of the Act. It is clear that the
magistrate concluded that it was in the interests
of justice that the
magistrate should be denied bail because he is a flight risk.
[16] Mr Dauberman
contends that the magistrate nonetheless misdirected himself by
failing to have proper regard to the DDPP’s
decision to move
the matter to the High Court, especially because the State led no
evidence to explain or justify that decision.
The short answer to
this submission is that the State was under no obligation to justify
its decision. Being
dominis
litis
,
the DDPP has a discretion on how to proceed with criminal actions. I
can find nothing in section 60 which requires magistrates
in bail
applications to scrutinise the procedures chosen by the State to
prosecute suspected offenders. In the absence of proof
that the State
has acted
mala
fide
,
delays caused by decisions of the prosecution are not in themselves a
reason for finding that arrested persons are entitled to
bail. I
cannot therefore agree that the magistrate misdirected himself in
this regard.
[17] The same can be said
of the appellant’s averment that the magistrate misdirected
himself by alluding to the fact that
the appellant’s co-accused
had absconded after he was granted bail. While it would certainly be
wrong to attribute intentions
to the appellant on the basis of the
conduct of another, I am not persuaded that the magistrate reasoned
that the appellant should
be denied bail merely because his
co-accused failed to appear in court on 29 March 2010. The
magistrate’s remark about Ul-Hak’s
“disappearance”
was merely illustrative. The illustration was apt. The disappearance
of a co-accused in circumstances
such as the present is indeed a
warning of the risk inherent in granting the appellant bail.
[18] The appellant has
already spent considerable time in custody as an awaiting trial
prisoner. However, on the evidence before
me I am unable to find that
the passage of time has diminished the likelihood of the appellant’s
flight or of his making
further endeavours to interfere with
evidence, to which Eksteen JA referred. The magistrate cannot
accordingly be criticised for
reaching the same conclusion in the
bail application presently under appeal.
[19] This leaves the
appellant’s personal circumstances. No evidence was led in this
regard in the third bail application.
The submission in that regard
was simply that the situation outlined in the appellant’s
evidence in the second bail application
would inevitably be
aggravated by the delay resulting from the DDPP’s decision. The
evidence led in the second bail application
was that the appellant’s
cell phone shop (the same in which the trap was set) was losing money
because he was unable to attend
to the business personally. In
addition, to avoid retrenchment, the appellant’s wife had been
forced to accept a reduction
of her salary. The consequences were
that the appellant’s wife and their son must live on less than
the amount to which they
had become accustomed before the appellant’s
arrest, and that his business was suffering.
[20] Financial loss is an
inevitable consequence of the incarceration of any gainfully employed
person. In the present case, the
evidence does not go so far as to
prove that, straitened as their circumstances may be, the appellant’s
dependants will starve
if he is not released to fend for them. I am
prepared to accept that the withdrawal of the case in the
magistrate’s court
will prolong and even exacerbate the
privations of the appellant’s dependants. But in the absence of
proof of bad faith on
the part of the prosecution or of any fresh
evidence relating to the appellant’s personal circumstances, I
do not agree with
the submission that the magistrate erred by failing
to change his earlier finding that the appellant’s personal
circumstances
were outweighed by the possibility that he might
attempt to evade trial or tamper with evidence.
[21] In short, I find
that the situation which prevailed on 21 August 2009, when Eksteen J
dismissed the appellant’s appeal
against the magistrate’s
refusal to grant him bail, has not changed sufficiently to displace
the conclusion reached by him.
It follows that the appellant has
failed to discharge the onus of proving that his release on bail is
in the interests of justice.
[22] I accordingly make
the following order:
The appeal is dismissed.
________________________________
J
G GROGAN
ACTING
JUDGE OF THE HIGH COURT
9