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[2016] ZAECPEHC 64
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Rajjab v S (CA&R 11/2016) [2016] ZAECPEHC 64 (22 September 2016)
IN THE HIGH COURT OF SOUTH
AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
CASE
NO. CA&R 11/2016
DATE:
22 SEPTEMBER 2016
In the matter between:
AKTARHUSEN AKBHABHAI
RAJJAB
...............................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
JUDGMENT ON BAIL APPEAL
Bloem J.
[1]
The
appellant was refused bail on two occasions in the magistrate’s
court in Port Elizabeth. He now appeals against the refusal
of bail.
[2]
On
27 August 2015 the appellant appeared in the magistrate’s court
in King William’s Town on one count of fraud and
one count of
corruption in contravention of section 3 (a) of the Prevention and
Combating of Corrupt Activities Act
[1]
.
Those counts arise from the appellant and his co-accused allegedly
compiling fraudulent documentation relating to the conclusion
of
marriages and the registration of such marriages by the Department of
Home Affairs. On that same day the magistrate granted
bail to
him and his two co-accused in the sum of R1 000.00 on condition
inter
alia
that he must hand his passport to
the investigating officer, captain Mawethu Kobese, that he must
report to the King William’s
Town police station every day from
28 August 2015 and that he must telephone the investigating officer
if and when he leaves King
William’s Town. On 4 September
2015 and upon the application of the appellant the magistrate amended
the last condition
so that, from that date, the appellant was
required to report to the police station in King William’s Town
every Monday.
[3]
On
Tuesday, 15 December 2015 and at Walmer Park, Port Elizabeth the
appellant was arrested by members of the South African Police
Service. On 30 December 2015 he applied for bail in the
magistrate’s court in Port Elizabeth (the first application)
which was refused because the magistrate held that the interests of
justice did not favour the appellant’s release on bail.
[4]
On
4 May 2016 the appellant applied for bail on the basis of alleged new
facts (the second application). On 9 May 2016 the
magistrate
again refused the application on the basis that the appellant did not
place new facts before her. The appellant now
appeals against the
refusal of the two bail applications.
[5]
I
will now deal with the allegations that the parties made in their
respective affidavits in the first application. The appellant
alleged that he was a 35 year old male residing at 4 Louisa Street,
King William’s Town where he had been residing for the
last 5
years. Regarding his family he alleged that he is married and
has 3 children aged 1, 3 and 5 respectively and that
he was residing
with his brother and some extended family at the above address, the
property of his “
wife’s
cousin
”. He owns two businesses
in King William’s Town which employ six members of staff and
carry stock to the value of about
R500 000.00. He alleged that
he did not know the identity of the state witnesses, was unaware of
any incriminating evidence
against him and has a valid defence.
[6]
The
appellant alleged that on 15 December 2015 he noted a man taking a
photo of him. He packed up his computer and ran to
his vehicle
where he was arrested by many members of the South African Police
Service attached to the Hawks Unit. They searched
his vehicle
and “
retrieved the evidence all
relating to the King William’s Town matter
”.
He was detained and interviewed by members of the Hawks and officials
from the Department of Home Affairs.
[7]
On
16 December 2015 he was visited by his girlfriend, Laika Geswindt, of
Schauderville, Port Elizabeth who undertook to arrange
legal
representation for him but, she said, “
for
now [he] must listen to warrant officer Pienaar, the member of the
Hawks in charge of [his] case
”.
Thereafter warrant officer Pienaar took him from the cells and drove
him to the Hawks office where he was interviewed.
He refused to
sign any document without first consulting a lawyer. Warrant
officer Pienaar told the appellant that his wife
was a lawyer and
that he needed R200 000.00 to get a good lawyer and bail. The
appellant said that he needed to contact his
brother in King
William’s Town. He used warrant officer Pienaar’s
cellphone to contact his brother. Warrant
officer Pienaar then
called his wife whereafter he told the appellant to inform his
brother to take the money to the Hawks offices
in Newton Park, Port
Elizabeth. The appellant spoke to his brother. After some
time warrant officer Pienaar also spoke
to the appellant’s
brother. Before his brother’s arrival the appellant was
handcuffed and caused to sit on the
backseat of a vehicle behind the
offices of the Hawks. Ms Geswindt joined him at the back of the
vehicle. He was later
informed that his brother and his
passengers were also arrested, but later released. His brother
later informed him that
when they arrived at the offices of the
Hawks, Ms Geswindt took the money. His brother did not know
what was happening.
He later learnt that Ms Geswindt gave the
money to warrant officer Pienaar. A further charge of
corruption was subsequently
opened against him. He alleged that
while he was in custody his business did not generate an income.
[8]
Captain
Kobese and warrant officer Pienaar deposed to affidavits on behalf of
the state. The latter performs duties as an
investigator at the
Organised Crime Unit in Port Elizabeth. He and his colleagues
received information that the appellant
was allegedly falsifying
documents for foreigners in exchange for money. He was allegedly
collaborating with officials employed
by the Department of Home
Affairs who the appellant paid so that they could unlawfully issue
permits and passports to foreigners.
On 15 December 2015 and at
Walmer when the appellant became aware that he was under surveillance
he attempted to run away.
He was caught. A vehicle
registered in his wife’s name, Shaheen Rajjab, was searched and
large quantities of passports,
documentation belonging to the
Department of Home Affairs and files of foreigners, were found in it.
[9]
The
state opposed bail on a number of grounds.
9.1.
In
the King William’s Town matter the appellant, his wife and an
official from the Department of Home Affairs were arrested
after an
operation was conducted by members of the South African Police
Service which allegedly revealed that they illegally sold
marriage
certificates. He was arrested for the same type of offence in
Walmer on 15 December 2015, namely “
corruption
and fraud and has therefore demonstrated a tendency to do so
”.
9.2.
The
appellant failed to comply with a bail condition, namely not to leave
King William’s Town without contacting the investigating
officer “
and simply continued with
his alleged illegal activities in the Port Elizabeth area
”.
9.3.
The
appellant attempted to evade arrest by running away from the police
and attempted to dispose of evidence implicating him by
throwing his
laptop and other documents to another foreigner and told him to run
away with those items.
9.4.
Although
the appellant told the police that he resided with his wife in King
William’s Town, a “
section
204 witness
” stated under oath
that she lived with the appellant in Port Elizabeth, that the
appellant paid the monthly rental and that
he goes to King William’s
Town only over weekends.
9.5.
After
his arrest on 15 December 2015 the appellant raised R80 000.00 in
cash within a few hours. Warrant officer Pienaar believed
that
had he had his cellphone after his arrest the appellant would have
transferred R200 000.00 into his (the investigating officer’s)
account. Warrant officer Pienaar furthermore believed that the
appellant had access to funds and would have no difficulty
to secure
funds to flee in order to avoid a trial.
9.6.
The
section 204 witness informed warrant officer Pienaar that the
appellant has family in India and that he will use his connection
with corrupt officials within the Department of Home Affairs to
obtain a passport to flee the country.
9.7.
Members
of society feel strongly about corruption and fraud. Through
his conduct the appellant unlawfully assists illegal
foreigners to
remain in the country “
which
indirectly places a burden on this country to care for its needs
”.
9.8.
The
appellant is likely to interfere with or intimidate state witnesses
as he and his wife have in the past threatened to kill the
section
204 witness.
[10]
Lastly,
warrant officer Pienaar alleged that when the appellant was arrested,
the state seized 79 passports, 57 birth certificates,
119 marriage
certificates as well as 3 South African identity books from the
appellant. In his view, if convicted, the appellant
faces a
long term of imprisonment.
[11]
On
16 December 2015 the appellant was charged with bribing warrant
officer Pienaar with an amount of R80 000.00 in exchange for
his
release on bail and for the return of the exhibits seized during his
arrest on the previous day.
[12]
The
magistrate was of the opinion that the state had a
prima
facie
case against the appellant, that
he was on bail in a case where he was facing corruption and fraud
charges and accordingly a candidate
for a term of imprisonment and
that, because he was found in possession of passports and South
African identity documents and continuing
with unlawful activities in
that regard, he had the potential to travel, even beyond the borders
of the country, which made him
a flight risk. The magistrate
also took into account that the appellant breached his bail
conditions in two respects.
Firstly, he left King William’s
Town without contacting the investigating officer and secondly, the
last time that he reported
at the King William’s Town police
station was on Sunday, 29 November 2015 and not on Mondays, as
ordered on 4 September 2015.
In the light of the above findings
the magistrate held that, if released on bail, there was a likelihood
that the appellant would
attempt to evade his trial, will undermine
or jeopardise the objectives or the proper functioning of the
criminal justice system,
including the bail system. She refused
bail because, in her view, the interests of justice did not favour
the appellant’s
release on bail.
[13]
The
second application was set down for hearing on 12 April 2016.
Although this aspect is not dealt with in detail in the
affidavits,
it appears that the magistrate refused to hear the second bail
application and postponed it to 11 May 2016. The
appellant
approached this court and on 6 May 2016 Pickering J set aside the
magistrate’s decision to postpone the second
application to 11
May 2016 and ordered the magistrate to hear it by no later than 9 May
2016 and give judgment as soon as possible
thereafter but not later
than 12h00 on 10 May 2016.
[14]
The
appellant deposed to the main founding affidavit in the second
application. Confirmatory affidavits by his wife and friend
were delivered. His wife confirmed that they married on 23 July
2009 which marriage still subsists, that she and the appellant
are
the parents of three minor children who reside with her at 4 Louisa
Street, King William’s Town, that prior to his arrest,
she and
the children were maintained by the appellant and that his continued
incarceration causes prejudice and harm to her and
the children
because no one pays their creditors and the school fees in respect of
the eldest child. She denied that the
appellant was a flight
risk. One of the appellant’s friends also deposed to a
confirmatory affidavit about the alleged
cellphone calls to and from
warrant officer Pienaar and the alleged bribery on 16 December 2015.
The state opposed the second
application. In his affidavit
warrant officer Pienaar alleged that his investigation revealed
inter
alia
that the appellant and his wife
are registered as directors/partners of a company registered as
Aktarhushen Immigration Practitioners
and that the appellant was an
accused in a criminal case in King William’s Town wherein he
allegedly contravened his bail
conditions. The state also
delivered the affidavit of Corne Botes, the manager of PostNet in
Walmer. According to him
he was present when the appellant was
arrested on 15 December 2015. He saw the appellant on almost a
daily basis in PostNet
where he used the internet facilities and used
to serve his clients between 08h15 and 14h30, depending on the number
of clients.
Mr Botes and the personnel at PostNet would, on the
appellant’s request, make photocopies, print or scan documents
for him.
[15]
On
10 May 2016 the magistrate refused the second application. She
found that the appellant did not place new facts before
the court but
“
merely an elaboration of facts
presented in the first bail application
”.
The magistrate furthermore found that it was the state that placed
new facts before the court, namely that the appellant
faced
“
additional charges of fraud
relating to the illegal issuing of passports, birth certificates and
marriage certificates
”. The
magistrate found that the appellant is a person who cannot be trusted
and who was contemptuous of the administration
of justice because in
paragraph 62 of his affidavit he stated that he has no previous
convictions and has “
not been
released on bail pending any charges
”.
That is obviously incorrect because on 27 August 2015 he was released
on bail pending the corruption and fraud charges
in King William’s
Town. The magistrate furthermore found that the impact that the
appellant’s incarceration has
on his family was an aspect
raised in the first application. She also held that, although
she did not mention it in her judgment
in the first application, such
impact is “
far outweighed by the
interests of justice
”.
[16]
I
agree with the magistrate that, despite his affidavit consisting of
78 paragraphs, the appellant did not place a single new fact
before
court in the second application. He simply elaborated on
aspects raised in the first application. However, the
second
application attracted certain responses from the warrant officer
Pienaar. In his answering affidavit he pointed out
that a
criminal case had been registered in King William’s Town
against the appellant for contravening his bail conditions.
A
charge sheet was also placed before the magistrate during the hearing
of the second application from which it is apparent that,
arising
from the events of 15 December 2015, on 6 January 2016 the appellant
was charged with one count of fraud in the magistrate’s
court
in Port Elizabeth. These facts were not before the court when
the first application was considered.
[17]
Mr
Price SC, counsel for the appellant, submitted that, because the
magistrate found that the appellant did not place new facts
before
the court and dismissed the second application on that basis, the
magistrate should not have had regard to the facts that
warrant
officer Pienaar placed before her in the second application. He
submitted that I should also not have regard to those
facts.
The submission was, because the application was dismissed, regard
should not be had to any of the facts contained
in the affidavits
filed on behalf of the state. No authority was referred to and
I am unaware of any authority in support
of that submission. As
I understand it, a determination of whether or not an accused should
be released on bail, can only
be made after a consideration of all
the facts placed before the presiding officer.
[2]
[18]
In
view of the fact that the magistrate correctly found that the
appellant adduced no new facts in the second application, I shall
now
assess the grounds upon which she dismissed the first application in
the light of all the evidence – old and new.
The
magistrate refused bail primarily because she found that if the
appellant were released on bail there is the likelihood that
he would
evade his trial and he will undermine or jeopardise the objectives or
the proper functioning of the criminal justice system,
including the
bail system.
[19]
Section
60 (3) (b) and (d) of the Criminal Procedure Act
[3]
provide that the interests of justice do not permit the release from
detention of an accused while there is the likelihood that
the
accused, if released on bail, will attempt to evade his or her trial
or will undermine or jeopardise the objectives or the
proper
functioning of the criminal justice system, including the bail
system.
[20]
Regarding
the likelihood of an evasion of his trial, the magistrate took into
account that the appellant faces a criminal prosecution
in King
William’s Town relevant to the alleged compilation of
fraudulent documentation relating to the conclusion of marriages.
He was released on bail on the above conditions. On 15 December 2015
he was arrested and documentation was found in his possession
or
under his control which created the impression that the appellant
could arrange fraudulent travel documentation for himself
and his
family to leave the country and so evade his trial. It should
also be borne in mind that in the first application
the appellant
referred to 4 Louisa Street, King William’s Town as a property
belonging to his “
wife’s
cousin
”. However, in the
second application he attached a lease agreement that he concluded as
early as 2 January 2014 with
the lessor in terms whereof he leased a
flat at 4 Louisa Street, King William’s Town from that date for
a period of 3 years.
Interestingly his wife concluded another
lease agreement for the same flat, rental and period with the same
lessor. The appellant
did not explain in his affidavit in
support of the second application why he lied under oath when he said
that the property belonged
to his wife’s cousin when, according
to the lease agreement, Lainprops 2 CC was the lessor. He also
did not explain
why he and his wife concluded different lease
agreements in respect of the same flat for the same period and
rental. The
fact remains that he and his family are tenants at
the above address. He is neither the owner thereof nor did he
state that
he was the owner thereof. He also did not state that
the immovable property from which the two businesses are conducted
belong
to him. To the contrary, those businesses are lessees of
Red Square Properties.
[21]
When
he was released on bail on 27 August 2015, the appellant was required
to hand his passport to captain Kobese, which I understand
he did.
The fact that the appellant had 79 passports in his possession or
under his control gives credence to warrant officer
Pienaar’s
belief that the appellant would fraudulently obtain passports for
himself and his family to enable them to leave
the country and so
evade his trial.
[22]
Save
for the documents allegedly found in the appellant’s possession
or under his control on 15 December 2015, other factors
to be taken
into account are the nature and the gravity of the charges on which
the appellant is to be tried, the strength of the
case against him
and the nature and gravity of the punishment which is likely to be
imposed should he be convicted on the charges
against him.
[4]
The events of 15 December 2015 gave rise to a charge of fraud against
the appellant, it being alleged that on that day he
unlawfully,
falsely and with the intent to defraud and to the prejudice or
potential prejudice of the Department of Home Affairs
gave out and
pretended to various foreign nationals that he was authorised to
issue passports, birth certificates and marriage
certificates and
permits when in truth and in fact he knew at all material times that
he was not an employee of the Department
of Home Affairs and was not
authorised as such to issue or extent those passports, certificates
and permits. The events of
16 December 2015 gave rise to a
charge of corruption against the appellant, it being alleged that he
bribed warrant officer Pienaar
to release him on bail and to return
the documents seized from him on the previous day.
[23]
The
evidence adduced by the state leads me to the conclusion that the
prima facie
strength of the state’s case is reasonable, regard being had to
the evidence of warrant officer Pienaar and Mr Botes as well
as the
fact that the Director of Public Prosecutions approved the sting
operation on 16 December 2015. I have also considered
the
hearsay evidence of the section 204 witnesses.
[24]
Corruption
and fraud are serious offences.
[5]
Those two offences are so serious that the legislature has
prescribed minimum sentences. In this regard reference is
made
to section 51 (2) as read with Part II of Schedule 2 of the Criminal
Law Amendment Act
[6]
for which an accused convicted of corruption or fraud might be
sentenced to imprisonment for a period ranging between 15 and 25
years, depending on whether he or she is a first, second or third or
subsequent offender.
[25]
In
the light of all the factors the magistrate cannot be faulted for
having found that, because the appellant is likely to evade
his
trial, the interests of justice do not permit his release from
detention.
[26]
I
now consider the magistrate’s finding that, if released on
bail, the appellant will undermine or jeopardise the objectives
or
the proper functioning of the criminal justice system.
[7]
In considering this ground the magistrate took into account
that the appellant failed to comply with two bail conditions,
namely
that he did not report to captain Kobese before he left King
William’s Town and he did not report at the King William’s
Town police station at least on Monday, 14 December 2015. In
addition, from his affidavit in the second application, it is
apparent that the appellant, knowing it to be false, supplied false
information about the ownership of his place of residence during
the
first application.
[8]
[27]
I
also take into account that the charges that arise from his conduct
on 15 and 16 December 2015 are similar to the charges that
he faces
in King William’s Town. He is accordingly likely to
continue committing similar offences if he were released
on bail and
thereby undermine the objectives of the criminal justice system,
including the bail system. In that regard (the
propensity to
commit a similar offence or offences), Mr Price referred to the
unreported judgment of
Wendy Galada v
the State
[9]
where a magistrate refused bail to an accused who had been convicted
of fraud and sentenced to six years’ imprisonment of
which two
years’ imprisonment were suspended. She was subsequently
charged with various counts of fraud and corruption.
The
relevant parole board indicated that she could be released on parole
if granted bail. She applied for bail. The
magistrate
refused to release her on bail on the grounds that there was the
likelihood that she would abscond and not stand trial
and commit
further offences. The magistrate subsequently found that it
would not be in the interests of justice for her to
be released on
bail. On appeal it was submitted on behalf of the state
inter
alia
that she had the propensity to
commit fraud and that her past conduct justified the conclusion that
there was a strong likelihood
that she would commit further crimes if
she were released on bail. Smith J found that the magistrate
did not consider that,
if released on parole, there would be
stringent parole conditions and she would have a two year suspended
sentence hanging over
her head. The learned Judge found that,
with the appropriate conditions, the interests of justice permitted
her release on
bail. The magistrate’s refusal to release
her on bail was set aside. Ms Galada was accordingly released
on bail
on conditions similar to the ones with which the appellant
herein allegedly failed to comply.
[28]
Galada
is distinguishable from the present case.
All the offences of corruption and fraud with which Ms Galada was
charged were allegedly
committed before she was sentenced to prison.
In other words she was not charged with an offence which she
allegedly committed
after she was convicted or sentenced. She
was previously granted bail for a period of one year before she was
sentenced to
prison. There is nothing in the judgment to
suggest that she broke any of her bail conditions. In this case
the appellant
allegedly failed to comply with two of his bail
conditions and he allegedly committed similar offences as the ones in
respect of
which he was granted bail. In my view,
Galada
does not assist the appellant.
[29]
In
the light of all the evidence, I am not persuaded that the magistrate
should have released the appellant on bail. He was
previously
released on bail with conditions. He failed to comply with
those conditions. After he was released on bail
he allegedly
committed similar offences to the ones in respect whereof he was
released on bail. In the circumstances, the interests
of justice do
not permit the appellant’s release from detention.
[30]
In
the result, the appeal is dismissed.
G H BLOEM
Judge of the High Court
For
the appellant: Adv T C Price SC,
Instructed
by Changfoot van Breda Attorneys, East London and Roelofse and
Roelofse, Port Elizabeth.
For
the state: Adv I C Loots of the office of the DPP, Port Elizabeth.
Date of hearing: 16 September
2016
Date of delivery of the judgment:
22 September 2016
[1]
Prevention
and Combating of Corrupt Activities Act, 2004 (Act No.12 of
2004).
[2]
Jacobs and
others v S
[2004] 4 All SA 538
(T) at 542c-d.
[3]
Criminal
Procedure Act, 1977 (Act No. 51 of 1977).
[4]
Section 60
(6) (f), (g) and (h) of the
Criminal Procedure Act.
>
[5]
S v Shaik
and Others
[2006] ZASCA 105
;
2007 (1) SACR 247
(SCA) in respect of corruption.
[6]
Criminal Law
Amendment Act, 1997 (Act No. 105 of 1997).
[7]
Section 60
(4) (d) of the
Criminal Procedure Act.
[8
]
In terms of
section 60
(8) (a) of the
Criminal Procedure Act in
considering
whether the ground in subsection (4) (d) has been established, the
magistrate was entitled to take into account the
fact that the
accused, knowing it to be false, supplied false information during
the bail proceedings.
[9]
Galada v
The State
,
delivered on 7 April 2015 in the Eastern Cape Division under case
number 6/15.