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[2021] ZAECPEHC 7
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Beyene v S (CA&R 01/2021) [2021] ZAECPEHC 7 (4 February 2021)
IN THE HIGH COURT
OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
CASE
NO.: CA&R 01/2021
Heard
on: 21 January 2021
Delivered
on: 4 February 2021
In
the matter between:
ESTIFANOS
BEYENE
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
GQAMANA
J:
[1]
This case comes before me as an appeal in terms of s 65(1) of the
Criminal Procedure
Act 51 of 1977, (“the Act”). The
Appellant, Mr Beyene, an Eritrean national was arrested on 19 May
2020, and
charged with 22 counts.
[1]
The charges against him relate to corruption, incitement to commit an
offence, unlawful possession of counterfeit number
plates, fraud,
theft, falsification of vehicle licence, money laundering, possession
of suspected stolen property and escaping
from custody. He
appeared before the Magistrate Court in Port Elizabeth for the bail
hearing. During the bail proceedings,
the Appellant and the
State presented their respective case based on affidavits and no oral
evidence was heard. On 29 September
2020, the learned
magistrate handed down her judgment and refused to release the
Appellant on bail. It is that judgment which
is the subject
matter of this appeal.
[2]
The grounds of appeal are set out detail in the notice of appeal,
[2]
but in argument Mr Price SC, Appellant’s counsel summarised
them succinctly. The argument eventually advanced boils
down to
the contention that the learned magistrate misdirected herself on the
facts and in law and consequently her decision to
refuse the
Appellant bail was wrong.
[3]
As a point of departure, it was common cause that the charges against
the Appellant
are the offences referred to in Schedule 5. That
then automatically rendered the provisions of s 60(11) (b) to be
applicable.
It reads:
“
(11)
Notwithstanding any provision of this Act, where an accused is
charged with an offence referred to –
(b)
in Schedule 5, but not in Schedule 6, the court shall order that the
accused be detained
in custody until he or she is dealt with in
accordance with the law, unless the accused, having been given a
reasonable opportunity
to do so, adduced evidence which satisfies the
court that the interest of justice permit his or her release.”
[4]
In terms of s 60(4) of the Act, it is not in the interests of justice
to release an
accused if one or more of the consequences listed in
paragraphs (a) – (e) therein are established. However, in
considering
the question in subsection (4), the court must weigh the
interests of justice against the accused’s right to his
personal
freedom
[3]
and in that
process the factors as listed in paragraphs (a) – (g) of sub-s
(9) must be taken into account. Clearly
this is not a one-way
approach, but it is an assessment which requires a value judgment.
A bail court must always be alert
and not trample an accused’s
right to personal liberty as entrenched in our Constitution. In
S
v Mwaka
,
[4]
Le Grange J, expressed a view that ‘in terms of s 60(4), the
basic principle in our law is that, bail ought to be granted
unless
it is not in the interests of justice.’
[5]
In
S
v Dlamini
,
[5]
Kriegler J, (then) said:
“
In
deciding whether interests of justice permit the release on bail of
an awaiting trial prisoner, the court is advised to look
to the five
broad considerations mentioned in paras (a) to (e) of sub-section
(4), as detailed in the succeeding subsections.
And it then has
to do the final weighing up of factors for and against bail as
required by sub-ss (9) and (10). Subsections
(4), (9) and (10)
of s 60 should therefore be read as requiring of a court hearing a
bail application to do what courts have always
had to do, namely to
bring a reasoned and balanced judgment to bear in an evaluation,
where the liberty interests of the arrestee
are given the full value
accorded by the Constitution…....In making the evaluation, the
arrestee therefore does not have
a totally untrammelled right to be
set free. More pertinently than in the past, a court is now
obliged by s 60(2) (c), (3)
and (10) to play a proactive role and is
helped by sub-ss (4) to (9) to apply its mind to a whole panoply of
factors potentially
in favour of or against the grant of bail.”
[6]
In the instant matter, the learned magistrate was not satisfied that
it was in the
interests of justice to release the Appellant from
detention, and consequently refused bail. From the judgment
itself it
is not pertinently clear which of those factors listed in s
60 (4) weighed heavily with the learned magistrate in arriving at her
decision. This uncertainty (at least from the Appellant’s
side) existed even at the time when the judgment was handed
down
because from the record
[6]
clarity was sought from the magistrate. The relevant portion of
the transcribed record on this point reads:
“
MR
PRICE
: Your Worship, can I just make sure I understood correctly?
The bail is being refused on the basis that he is a flight risk
and
it is not in the interest of the bail system that he be released,
that is (c), sorry (b) and (d)?
COURT
: (b) and (d)
MR
PRICE
:
Yes, (b) and (c)?
COURT
: (d). (b). Oh sorry.
MR
PRICE
: No, I just wanted to, I just wanted to make sure of that.
COURT
: Hm
.”
[7]
Alive to this uncertainty, at the commencement of the appeal hearing,
I enquired from
Mr Price SC, his understanding of the reasons for the
refusal of bail and his response was that, bail was refused by the
learned
magistrate solely on the basis that the Appellant was a
flight risk and accordingly the Appellant’s case would be
argued
on that basis. That was also consistent with the grounds
of appeal set out in the notice of appeal.
[7]
However, when I enquired from Ms Ford, counsel for the State at the
beginning of her argument, whether the State is in agreement
with the
aforesaid contention, her response was that, bail was refused based
on sub-s(4)(b) and (d), that is, the Appellant was
flight risk and
that there is likelihood of him undermining the objectives of the
proper functioning of the criminal justice, including
the bail
system. As a result of her response I then afforded Mr Price
SC, an opportunity to address me also on sub-s (4)(d).
Grouchy
and understandably so, Mr Price SC however, advanced submissions
apathetically that, there is even more justification for
this court
to set aside the learned magistrate’s decision because the
factors referred to in sub-ss (8)(a)–(d), and
(9) were not even
remotely considered by the magistrate. For fairness sake to
both parties, this appeal will be decided on
the basis that the
learned magistrate refused bail because the Appellant is a flight
risk. I now turn to deal with the facts.
[8]
The offences which the Appellant is charged of are commercial crimes,
save for that
of escaping from custody. They are all serious
offences. As indicated in paragraph 1 above, he was arrested on
19 May
2020, at Uitenhage. From there, he was taken to his flat
in Humewood, Port Elizabeth where he resides and share same with
his
partner/wife and his two minor children. Search (without a
warrant) at his flat was conducted by the police. The
lawfulness of such search is hotly contested by the Appellant, but
such challenge is an issue that would have to be resolved on
trial in
due course and it is not an issue that the bail court had to
resolve. Some documents were seized during such search.
[9]
The Appellant arrived for the first time in South Africa in
2001/2002. His legal
status in South Africa is seriously
contested by the State. However, from his side, he contends to
be a refugee from 2009
until September 2016 and blames the officials
from the department of Home Affairs for the non-renewal to date of
his refugee status.
However, on the evidence on record from
Home Affairs
[8]
as captured in
the National Immigration Information System (“NIIS”) his
application for asylum was submitted in July
2009. An asylum
seeker permit was issued to him on 2 July 2009
[9]
,
with a condition that he must report to a Refugee Status
Determination Officer (RSDO) for an interview. There is no
evidence
that he reported for such interview. The asylum seeker
permit which was issued to him expired on 2 October 2009. There
is no information about him between then and until the 23 August
2012, wherein he was issued with a s 24 permit in terms of the
Immigration Act 13 of 2002
permit.
[10]
This permit expired on 23 August 2016. From thereon there are
no records of the Appellant in the NIIS. In summary,
according
to the department of Home Affairs, there are no records of the
Appellant from 2001/2002 to July 2009 and again from 23
August 2016
to date and accordingly, he is classified as an illegal foreigner.
[10]
Without deciding his actual status, it is prudent to briefly set out
the procedure for application
for asylum (as it was applicable during
the period contested by the parties.)
[11]
Such procedure is prescribed in the Refugees Act and the
Regulations.
[12]
An
asylum seeker must submit his application to an RSDO at any refugee
reception office. Pending the outcome of such
application, an
asylum seeker must be issued with an asylum seeker permit in the
prescribed form allowing an applicant to sojourn
in the Republic
temporarily subject to any conditions not in conflict with our
Constitution or international law.
[13]
Such permit may be extended from time to time. The department
of Home Affairs may at any time withdraw such permit
under the
circumstances prescribed in s 22 (6) of the Refugee Act. The
RSDO must is the repository of the powers to make
a decision
regarding the application for asylum.
[14]
Once an application is granted, a refugee is entitled to a formal
recognition of refugee status and he enjoys full legal
protection
which includes the rights set out in Chapter 2 of the Constitution
and is entitled to an identity document issued to
refugees in terms
of s 30 of the Refugees Act. If it is refused an applicant may
either appeal or review such decision.
Pending such an appeal
or review, an applicant may not be deported.
[11]
Reverting to the facts herein, the Appellant came to South Africa in
2001/2002 as a ‘
refugee
’.
[15]
His evidence was that on his arrival in South Africa, he applied for
a temporary refugee permit and was issued with a formal
recognition
of refugee status in the prescribed form. He further contends
that his refugee status expired in 2016 and he
took steps trying to
extend it, but there was a problem with the allocation of his
file.
[16]
He had
travelled and visited the offices of Home Affairs in Pretoria on six
occasions trying to resolve his problem without
success due to long
queues. His last attempt was in December 2019, but even then he
was not assisted due to long queue.
According to him, his
predicament was conveyed to one Mr Ntezo, an official from Home
Affairs in Port Elizabeth. He was however,
issued with
‘immigration papers’ which were valid for three months at
a time pending resolution of his problem.
[17]
As a proof of his refugee status, he submitted annexure “ESGB2”,
which is a document issued in terms of s 24(3)(a)
of the Refugee
Act. In terms of it, the person whose particulars appear
therein
[18]
was recognised as
a refugee in the Republic of South Africa from 23 August 2012 to 23
August 2016. The legitimacy of this
document was placed in
dispute by the State.
[12]
On the evidence presented by the State
[19]
,
there are serious discrepancies between annexures “ESGB2”
and “LM3” which cast doubts on the accuracy
and
legitimacy his refugee status. Both are copies of the
Appellant’s alleged formal recognition of refugee status.
However, these two documents are materially different in so far as
the Appellant’s date of birth, his passport number, his
marital
status, his first date and place of asylum seeker application, the
validity period of his recognition of refugee status
in South
Africa. And to add more, the fingerprints on these two
documents were from two different individuals. The
aforesaid
discrepancies were material factors which in my view could not simply
be brushed off by the magistrate. It was
an evidence which was
vital to the court to consider.
[13]
The significance of this evidence it lends credence on how easy it
could be for the Appellant
to access official documents that could
assist him to skip the country without being noticed and / or to
remain in the country
without trace.
[14]
Mr Price SC argued that the learned magistrate misdirected herself on
the facts and in law and
was accordingly wrong in refusing to release
the Appellant on bail on the basis that he is a flight risk. It
was argued that,
the learned magistrate ignored the submissions that
the police deliberately lied in their affidavits and presented false
information
on three points to the court about the Appellant.
The first point was about an assault of a witness. Mr Price SC,
argued
that the purpose of bringing such false information in the
affidavit was to paint a picture that the Appellant was a violent
person
in order to bring in the provisions of s 60(4)(a) into
account. The second point was that the Appellant had pending
cases
against him. All those cases were struck off without the
Appellant appearing in court. The third point was that the
police acted dishonestly in that they obtained a statement from the
Appellant’s wife without informing her fully of her rights
and
that she was not a compellable witness against the Appellant as
envisaged in s 195(2) of the Act.
[15]
In response to these submissions, Ms Ford argued that, the police
were in possession of a statement
in the police docket that supported
the assault contention.
[20]
As such, the investigating officer did not lie in his affidavit about
this issue. On the second point, Captain Kriel
in his affidavit
had mentioned that he was an investigating officer of Humewood CAS
69/01/2017, Bethelsdorp CAS 53/01/2017 and
Gelvandale CAS 41/01/2017,
and that the matter was pending and may be enrolled in due course.
It was disclosed in the said
affidavit that the matter was not
enrolled.
[21]
Therefore
it was not a lie and in any event, the magistrate did not rely on it
in arriving at her decision which is the subject
matter of this
appeal. On the third point the argument was that Warrant
Officer Bosch, the police officer who took the Appellant’s
wife
statement was an investigating officer in a murder case of Ms
Belachew’s brother and in the course of their conversation
about that case, she informed him that she had more information
concerning the murder of her brother. An arrangement was
then
made with her for the following day. The case under
investigation by Kriel did not involve the Appellant hence she was
not advised of her rights and that she was not a compellable witness
against the Appellant. The contention that the police
were
dishonest was refuted.
[16]
I agree fully with the submission by Mr Price SC that, the duty of
the prosecutor and the police
is not to keep an accused person in
jail and deprive him his freedom arbitrary,
[22]
but they have a public law duty to assist the court in giving effect
to and protect the accused’s rights in terms of s 12
(1)(a) of
the Constitution.
[23]
In
the instant matter, the Appellant was given the opportunity to place
before the bail court evidence to persuade it that
interests of
justice permit his release. The State in rebuttal also
presented evidence on the strength of its case, its bases
for
opposition of bail together with supporting evidence thereto.
Therefore, there was evidence before the learned magistrate
for her
to consider whether it was in the interests of justice to release the
Appellant on bail.
[17]
In the context hereto and having regard to all the evidence on
record, I disagree that the police
acted contrary to their public law
duty and that they lied in court. On the contrary, the police
(and the prosecutor, I must
add) executed diligently their public law
duty to assist the court in giving effect to the right of the
Appellant in terms of s
12(1)(a) of the Constitution. All the
evidence was presented to the learned magistrate and from that
evidence, she was able
to decide which of it was to be disregarded
for purposes of consideration whether to release the Appellant on
bail or not.
The statement obtained from the Appellant’s
wife / partner was not taken into account in arriving at the decision
to refuse
bail. Also no reliance was placed by the learned
magistrate on the cases referred to in Warrant Officer Kriel’s
affidavit.
The learned magistrate treated the Appellant on the
basis that there was no pending case(s) against him. The
Appellant
was also not treated as a violent person and the provisions
of sub-s (4)(a) were not brought into account. The Appellant’s
release on bail was refused on the basis that he was a flight risk as
contemplated in sub-s (4)(b).
[18]
The facts that were advanced on the Appellant’s behalf as
factors that weighed heavily
in his favour were the following, that
he has been in South Africa since 2001/2002 and has never left this
country since then.
He has a wife and two minor children in
South Africa. Both his minor children were born in South Africa
and are accordingly
citizens of this country. He was
self-employed. He was the breadwinner and responsible for the
maintenance of both
his minor children and his wife. His
ability to ambulate was extremely compromised, as he was in a
wheelchair. He enjoyed
a refugee status until 2016. He
has no travel documents, nor means and funds to obtain same.
Although he has a sister
in the United States of America and a
brother in Germany, but he has never been to any of them and has no
funds or an understanding
of how to travel there. He had no
pending cases or previous convictions.
[19]
In considering whether there is a likelihood that an accused person
will attempt to evade his
trial if he is released on bail, the bail
court must take into account the factors listed in sub-s (6), (9) and
(10).
[20]
In
S
v Acheson
[24]
,
Mahomed J said the following:
“
An
accused person cannot be kept in detention pending his trial as a
form of anticipatory punishment. The presumption of the
law is
that he is innocent until his guilt has been established in Court.
The Court will therefore ordinarily grant bail
to an accused person
unless this is likely to prejudice the ends of justice.”
[21]
Where there is a cognisable indication that an accused person would
evade his trial if released
from custody, the bail court would be
serving the interests of justice by refusing bail. The liberty
of an accused person
would have to be compromised under those
circumstances. However, the decision to refuse bail must not be
taken lightly based
on speculation or possibilities but on
probability. In
S
v Dial and Another
[25]
,
at [14], Kubusi J said:
“
A
court cannot find that the refusal of bail is in the interest of
justice merely because there is a risk or possibility that one
or
more of the consequences mentioned in s 60(4) will result. The
court must not grope in the dark and speculate : a finding
on the
probabilities must be made. Unless it can be found that one or
more of the consequences will probably occur, detention
of the
accused is not in the interest of justice and the accused should be
released.”
[22]
A finding on whether an accused person is likely to evade his trial
must be made after the court
has considered the factors listed in
sub-ss (6), (9) and (10).
[23]
While the exact path travelled by the learned magistrate to arrive at
her decision and the potholes
encountered in her journey are not
clear from the body of the judgment, but on objective reading and
analysis of her decision,
the order refusing to release the Appellant
on bail is supported by the evidence adduced and a proper evaluation
of the factors
relevant in sub-ss (6)(9) and (10). Some
of those listed factors weighed in favour of the Appellant and others
against
him. It was within her knowledge and was considered by
the learned magistrate that the Appellant had family ties in this
country (his wife and two minor children) and he had no pending cases
nor previous convictions. However, some of the factors
were
against him. I have mentioned in paragraph 12 above the
discrepancies documented and evident from annexures “ESGB2”
and “LM3” and the materiality thereof. The
Appellant has the means and ability to access and obtain false
official
documents from Home Affairs.
[24]
Although the Appellant has no travel documents, but viewed from this
perspective and having regard
to this evidence, he has the means and
ability to obtain travel documents. There is a real probability
that he may skip the
country or may simply disappear on the radar.
In
Novella v S
(A340/16),
[2016] ZAWCHC 141
12 October 2016)
at para [28], Le Grange J said:
“…
the
lack of travel documents in recent times is hardly a deterrent to
persons who are serious and have the means to skip the country.
Experience in courts has shown that these documents can readily be
obtained and one may depart the country with ease.”
[25]
Furthermore, the Appellant has no assets in this country. It
would not be difficult for
him to disappear from the radar. He
has no bank account despite being an astute businessman with a
lucrative income of an
average of R30 000.00 per month.
[26]
The State has a strong case against him. Mr Price SC, argued
that it was difficult to comment
of the strength of the State case
because the Appellant is not in possession of the police docket,
however he intends to plead
not guilty. The request to have
access to the police docket was declined by the magistrate. The
decision to decline
his request for access to the police docket is
not a subject matter of this appeal. Mr Price SC, raised doubts
on the strength
of the State case and the basis upon which his
argument was premised was the fact that, the police indicated that
they still need
to obtain statements from four accomplices. It
was argued that if the State has a strong case, why is still
necessary to
obtain more statements from four accomplices. It
further argued that the fact that there is still more statements to
be obtained
points to the fact that the State case is not that
strong. Assessment of the strength of the State case at this
stage is
not whether there is watertight evidence against an accused
person which guarantees a conviction on all the charges, otherwise to
give such an interpretation, the court will be setting the bar too
high. Therefore, the strength of the State’s case
weighed
against the Appellant.
[27]
Another factor which played heavily against the Appellant as evident
from the magistrate’s
decision is the fact that, he attempted
to escape from the police. This finding is criticised by Mr
Price SC on the basis
that, on Appellant’s version his
intention was never to escape but to get away from the torture,
bullying and threats perpetrated
against him by the police and to
protect himself. The argument was that when he was arrested in
Uitenhage, he co-operated
with the police and took them to his
residence and at no stage he attempted to escape. Furthermore,
the police did not see
him jumping from the balcony and no statement
was obtained from the alleged witness that informed the police that
he was hiding
in the outside toilet.
[28]
The learned magistrate rejected Appellant’s version as being
improbable. The Appellant’s
version that he was tortured,
threatened and bullied by the police during the search at his flat
was not corroborated by his wife.
Further, the police conceded
that they did not see him jumping from the balcony on the second
floor down, but the investigating
officer was told by the Appellant’s
children that “daddy jumped” through the balcony.
When the police went
to the ground floor to search for him, they
found him hiding in an outside toilet. I must add further that
the Appellant
seriously injured himself when he jumped out of the
balcony and landed on the cement slab on the ground. He had to
be admitted
at hospital for such injuries and as a result he had to
ambulate using a wheelchair.
[29]
It is hard for me to accept and believe that the Appellant would risk
his life and jump from
the balcony merely to get away from the
alleged police conduct which in any event was not corroborated by his
wife, instead of
standing firm and contest such conduct. In the
circumstances, I am unable to agree with Mr Price SC that the learned
magistrate
misdirected herself in this regard. The Appellant’s
version was improbable having regard to all the evidence adduced
during the bail proceedings. This was a relevant factor to be
considered and weighed up against all other factors in the
determination of whether the Appellant was a flight risk.
[30]
The fact that the Appellant was a breadwinner and was responsible for
the maintenance of his
wife and minor children, and the impact of his
further detention to his ability to earn a living and to provide such
maintenance
was also considered by the magistrate. As well as
his health and that his mobility was restricted were also considered
by
the magistrate. I am aware that the investigation has not
been completed and that the case will on probabilities not be trial
ready soon, however on cumulative assessment of all the evidence on
record, the factors against the Appellant reduces my confidence
that
he would stand trial if he were to be released on bail.
[31]
Therefore, upon careful consideration of all the facts and the
circumstances based on the evidence
on record pertaining to the case
herein, weighing up the interests of justice against the right of the
accused to his personal
freedom and any potential prejudice because
of his detention, I am satisfied that interests of justice does not
permit his release
on custody. There is a likelihood that he will
attempt to evade his trial. In the circumstances, I am not
persuaded that
the learned magistrate misdirected herself on the
facts and in law in her decision to refuse the Appellant bail.
[32]
Accordingly, the appeal is dismissed.
________________________
N GQAMANA
JUDGE
OF THE HIGH COURT
APPEARANCES:
Counsel for the
Applicant
:T Price SC
Instructed
by
:Griebenow Attorneys
PORT
ELIZABETH
Counsel for the
Respondent
C Ford
Instructed by
Director of Public Prosecutions
PORT
ELIZABETH
[1]
Record
Vol 1, pp1–36, the provisional charge sheet.
[2]
Vol
Ш paras 1–10 thereof.
[3]
S
60 (9) and (10) of the Act.
[4]
2015(2)
SACR 306 (WCC) at para [16].
[5]
[1999] ZACC 8
;
1999
(2) SACR 51
CC.
[6]
Vol
П p 254 lines 14 – 21.
[7]
Pages
3 and following, from paras 4 onwards.
[8]
Annexures
“RS2” and “RS3” to exhibit H, “LM1”
and “LM3” to exhibit C.
[9]
Annexure
“RS2; “p1”
[10]
Section
24 reads:
(1)
The Department may issue a cross-border pass with the same effect
as
a multiple admission visitor’s permit to a foreigner who is a
citizen of a prescribed foreign country with which the
Republic
shares a border and who does not hold a passport but has received a
prescribed identity document by the Department and
is registered
with the Department.
(2)
The Department may issue a transit visa authorising a foreigner
travelling to a foreign country to make use of the transit
facilities at a port of entry.”
[11]
From
1 January 2020, the Refugees Amendment Act 11 of 2017 and Refugees
Registration as published in the GG 42932, GNR 1707 27
December
2019, came into operation and which governs the new procedure,
[12]
GN
R366, GG 21075, 6 April 2000 as amended by GN R938, GG 21573, 15
September 2000.
[13]
S
22 of the Refugee Act.
[14]
S
24 of the Refugee Act.
[15]
Exh
C, p2, para 5 presumably the use of the word “refugee”
was an error from his legal representative(s) that assisted
him in
drafting and settling of his affidavit, and I assume they intended
to say he was “an asylum seeker.”
[16]
Exhibit
C, p3 paras 7 and 8.
[17]
Exhibit
C p4, para 8.6–8.8.
[18]
Estifanos
Ghebre Selassie Beyene, born on 10/10/1985.
[19]
Exhibit
G, read with annexures “LM3” and “LM4”
thereto.
[20]
Exhibit
G, p27, para 113.
[21]
Exhibit
N pp 1, paras 5–15.
[22]
National
Director of Public Prosecutions v Hyron Swarts
unreported
judgment of Ronaasen AJ, CA 164/2019, dated 17 June 2020.
[23]
Woji
v Minister of Police
2015 (1) SACR 409 (SCA).
[24]
1991
(2) SA 805
(Nm) at 822 A – B, at para [14].
[25]
2013
(2) SACR 665
(GNP).