Savoi v S (722/11) [2011] ZASCA 235; 2012 (1) SACR 438 (SCA) (1 December 2011)

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[2011] ZASCA 235
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Savoi v S (722/11) [2011] ZASCA 235; 2012 (1) SACR 438 (SCA) (1 December 2011)

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No:
722/11
In
the matter between:
GASTON
SAVOI

APPELLANT
and
THE
STATE

RESPONDENT
Neutral citation
:
Savoi
v State
(722/11)
[2011] ZASCA 235
(1 December 2011)
Coram:
HEHER, SNYDERS and WALLIS JJA
Heard:
29 November 2011
Delivered:
1 December 2011
Updated:
Summary:
Criminal procedure – bail – amendment of
conditions – change of circumstances – absence of objectivity of
officials empowered
to consent to overseas travel – discretion
exercised in manner defeating the purpose of the condition.
ORDER
On
appeal from:
Northern
Cape High Court (Kimberley) (Hughes-Madondo AJ sitting as court of
first instance).
REASONS FOR JUDGMENT
HEHER
JA (SNYDERS AND WALLIS JJA concurring):
[1]
This is an appeal from a judgment of Hughes-Madondo AJ in the
Northern Cape High Court
in which the learned judge dismissed an
application by the appellant, Mr Gaston Savoi, for a variation of
bail conditions brought
in terms of
s 63
of the
Criminal Procedure
Act 51 of 1977
.
[2]
After hearing argument in the appeal we made an order in the
following terms:
‘
The
appeal is upheld and the order of the court a quo is set aside and
substituted by the following order:
(1)
Paragraphs 2, 4.2, 4.3 and 4.4 of the bail conditions imposed on the
applicant in this matter
(case no 1306/11) are hereby cancelled. The
remaining conditions are confirmed.
(2)
The applicant’s bail conditions are amended by adding thereto the
following further conditions:
(a)
The applicant shall surrender all his valid travel documents
including his passports to Col
T Pillay of the Directorate of
Priority Crime Investigations, Bellville who shall retain possession
thereof, except as provided for
hereunder;
(b)
The applicant must notify the investigating officer or his branch
commander in writing of
any proposed travel outside the country for
business purposes, which notification must reach the investigating
officer or his branch
commander at least ten days before the proposed
date of departure.
(c)
Col T Pillay must return the applicant’s passport to him to enable
him to travel outside
South Africa for business purposes within 24
hours after such notification.
(d)
The applicant shall furnish the investigating officer with a full
itinerary of his intended
travel at least seven days before his
departure;
(e)
The applicant may only travel outside the Republic of South Africa
for business purposes and
each such trip shall not exceed 14
(fourteen) days, inclusive of the date of departure and the date of
return.
(f)
The applicant must return his passport to Col T Pillay within 24
hours after his return
to South Africa.’
[3]
We indicated that reasons for the order would be furnished. These are
the reasons.
[4]
The existing conditions are those imposed in case number B798/11 in
the magistrate’s
court, Kimberley on 18 March 2011. On that
occasion the appellant was released on bail of R50 000,00 ‘on the
same conditions as
before and the said conditions be made the order
of this court’. It is common cause that ‘the same conditions as
before’ refers
to an order made in the same court in case number
B4265/10 on 10 November 2010 when the appellant, arrested on
different charges,
was granted bail of R100 000,00 on the following
conditions:
‘
1.
The Accused shall not change his physical residential address without
prior permission
of the Investigating Officer or his Branch
Commander, which permission shall not be unreasonably withheld with
due regard being had
to the proposed new physical residence to be
occupied by the Applicant.
2.
That the Accused shall surrender to the Investigating Officer or
Branch Commander
his passports and/or travel documents.
3.
That the Accused shall not contact or communicate in any way, whether
directly
or indirectly, with the witnesses and/or directly or
indirectly interfere, threaten or intimidate witnesses who are the
State witnesses
referred to in a list of witnesses attached hereto,
as will be amended from time to time.
4.
Upon application by the Prosecuting Counsel, further conditions:
4.1
That the Accused must attend Court timeously before 09:00 and remain
in attendance until excused
by the Court / Presiding Officer on all
court dates until the case is finalised.
4.2
Accused shall not apply for any travel documents throughout the
duration of this matter, unless
it is with the approval of the Court
upon application.
4.3
The Accused is not permitted to leave the Republic of South Africa
without prior written consent
of the Director of Public Prosecutions,
Northern Cape and/or Investigating Officer and/or his Branch
Commander who would issue such
written consent in consultation with
the Director of Public Prosecutions.
4.4
The Accused is not permitted to enter the premises of any port of
entry or departure without
the prior written consent of the Director
of Public Prosecutions, Northern Cape and/or Investigating Officer
and/or his Branch Commander
who would issue such a written consent in
consultation with the Director of Public Prosecutions, Northern
Cape.’
[5]
On 15 August 2011 the appellant applied to the Northern Cape High
Court for an order
in the following terms:
‘
1.
That the bail conditions contained in
paragraphs
2, 4.2, 4.3 and 4.4
of
the order made by the Magistrate, Kimberley in case no. B4265/10 and
which were
mutatis
mutandis
made
applicable to the Applicant, when bail was granted to him in this
matter on 18 March 2011 by the Magistrate, Kimberley, are hereby
cancelled.
2.
The Applicant’s bail conditions in this matter are amended by
adding thereto
the following further conditions:
2.1
The Applicant’s Attorneys, Edward Nathan Sonnenbergs, Cape Town,
shall retain the Applicant’s
passport which shall only be returned
to the Applicant for business related travel.
2.2
The Applicant shall notify the Investigating Officer in writing of
proposed travel outside
the Republic of South Africa at least 10 days
before his proposed date of departure.
2.3
The Applicant shall furnish the Investigating Officer with a full
itinerary of his intended
travel at least 7 days before departure.
2.4
The Applicant may only travel outside the Republic of South Africa
for business purposes and
each such trip shall not exceed 14 days,
inclusive of the date of departure and the date of return.’
It
was this application that was dismissed by Hughes-Madondo AJ on 7
October 2011.
[6]
In his notice of appeal to this court, dated 1 November 2011 the
appellant’s attorneys,
while not abandoning the terms of the relief
originally sought, suggested the possibility of a different order
that they framed as
follows:
‘
1
That the bail conditions contained in paragraphs 2, 4.2, 4.3 and 4.4
of the order
made by the Magistrate, Kimberley in case no. B4265/10
and which were
mutatis
mutandis
made
applicable to the applicant, when bail was granted to him in this
matter on 18 March 2011 by the Magistrate, Kimberley, are hereby
cancelled.
2
The applicant’s bail conditions in this matter are amended by
adding thereto
the following further conditions:
2.1
the applicant shall surrender his passport to the investigating
officer or his branch commander
who shall retain possession thereof,
except as provided for hereunder;
2.2
the investigating officer or his branch commander must return the
applicant’s passport to
him to enable him to travel outside South
Africa for business purposes within 24 hours after the applicant has
notified the investigating
officer or his branch commander in writing
of such proposed travel outside the country, which notification much
reach the investigating
officer or his branch commander at least ten
days before the proposed date of departure;
2.3
the applicant shall furnish the investigating officer with a full
itinerary of his intended
travel at least seven days before his
departure;
2.4
the applicant may only travel outside the Republic of South Africa
for business purposes and
each such trip shall not exceed 14 days,
inclusive of the date of departure and the date of return;
2.5
the applicant must return his passport to the investigating officer
within 24 hours after
his return to South Africa.’
[7]
In his notice of motion the appellant appeared to be trying to kill
two birds with one
stone and the alternative order follows that
approach.
Section 63(1)
however, restricts the jurisdiction to amend
bail conditions on application to ‘any court before which a charge
is pending in respect
of which bail has been granted . . . whether
imposed by that court or any other court’. While it appears that
case number B798/11
has been transferred to the Kimberley High Court
and the charge is, therefore, pending before it, the appellant’s
founding affidavit
alleges that ‘[t]he matter under case no
B4265/10 is still pending in the Magistrate’s Court, Kimberley’.
The application to
have the conditions made applicable in that case
amended would accordingly have been still-born. Counsel however
disavowed any intention
to set aside the order in case B4265/10. In
what follows I restrict consideration to case number B798/11, which
has, so we are informed,
become case number 1306/11 in the high
court.
[8]
The motivation for the amendment, as it appears from the founding
affidavit, has two
aspects:
1.
The circumstances have changed since the conditions were imposed
because the Director
of Public Prosecutions, Northern Cape, the
investigating officer and his branch commander, who were designated
as the decision-makers
in relation to any application by the
appellant to leave the country temporarily, have shown themselves
unwilling to apply or incapable
of applying an objective judgment to
the exercise of that power.
2.
The evidence concerning the purported exercise of the power
demonstrates such a
lack of objectivity that it warrants the
amendment of the conditions in a manner consistent with the intention
and spirit of the
bail order to which the functionaries were supposed
to give effect.
[9]
If the circumstances have altered in the respects relied on by the
appellant such an
alteration would represent a material ground for
reconsideration of the existing conditions. Simply stated, the
designated officials
would no longer be persons properly able to give
effect to the terms.
[10]
The question which has thus to be decided is whether the evidence
establishes that the three designated
officials are unwilling to
exercise or incapable of properly exercising the power conferred on
them. It may be noted at the outset
that each official appears to
consult with and to some extent defer to the others. In so doing they
make common cause and share the
same strengths and weaknesses.
[11]
The learned judge regarded only those conditions that were the
subject of the proposed amendment as pertinent
to the proceedings
before her. I respectfully disagree. Those conditions form part of
the broader bail order and are designed to
make the order work. A
decision on whether they have been properly applied must have regard
to the whole.
Identifying
the nature of the power
[12]
According to the conditions the designated officials (or one of
them):
1.
may grant permission for a change of the appellant’s residential
address;
2.
shall take possession of the appellant’s passports and travel
documents;
3.
may issue prior written consent for the appellant to leave the
Republic;
4.
may issue prior written consent for the appellant to enter any port
of entry or
departure.
The
first of these powers has not given rise to dispute and is not at
present in question.
The
appellant’s complaints about the exercise of the power
[13]
It is common cause that the appellant is a businessman who operates
principally under the umbrella of
the Intaka group of companies. The
business of the companies apparently includes the sale of water
purifiers, their installation
and perhaps maintenance, and the sale
of pharmaceuticals. The charges of fraud and racketeering that have
been preferred against
him seem, as far as one can determine, to
arise from his activities as an executive of those companies. Some
R140 million has been
secured by the National Prosecuting Authority
under the
Prevention of Organised Crime Act 121 of 1998
and the
Intaka group has been placed under curatorship. Nevertheless its
continued pursuit of its legitimate activities is by common
accord in
the interest of the State, the companies themselves and the
appellant. An important customer is the Government of Angola.
The
appellant is the key negotiator for the group and his expertise and
personal contacts are vital to its survival and prosperity.
[14]
In paragraphs 13 and 14 of his founding affidavit the appellant
deposed as follows:
‘
13.
As was stated by the curator in his report to Court, my ability to
trade in pharmaceuticals has
to a large extent provided the continued
inflow of capital to keep the business alive. It remains my concern
to provide capital to
the group as far as I possibly can. I feel
personally responsible to the employees that are relying on the group
for their financial
survival.
14.
Three of the four major clients to whom I sell pharmaceuticals on
behalf of the company conduct
business in Brazil whilst the fourth
client conducts its business in Argentina. It is imperative for the
continued business relationship
that I travel to Brazil and Argentina
from time to time to visit these clients. It is a fact that business
in the pharmaceutical
industry is by and large based on personal
relationships and interaction. It was for this very reason that I had
to travel to Paris
last year to attend the pharmaceutical conference
that was held in that city. I submit that it is absolutely essential
that I am
able to travel to Brazil and Argentina for business
purposes from time to time. As was demonstrated hereinabove I am also
required
to travel to Angola. I also intend to travel to certain
other African states, such as Uganda, to which states Intaka can
hopefully
extend its business with the purpose of promoting the sale
of the equipment Intaka manufactures. Furthermore, I will have to
travel
to Europe again to attend the annual pharmaceutical fair which
I attended last year. The suppliers of the pharmaceuticals we order,
are in Europe and I need to pay them visits too. It is for these
reasons that I travelled as often as I did prior to my arrest.
[15]
The response of Detective Lieutenant Colonel Dylan Perumal, the
investigating officer, goes to the heart
of the complaint. He said,
simply:
‘
The
averments have no relevance to the point in issue.’
On
the contrary, it seems to me, the allegations in paras 13 and 14
explain why the appellant needs to travel outside of South Africa,
has done so repeatedly and will need to do so in the future. They
provide the context in which each application to the designated
officials for consent to leave the Republic is to be understood and
evaluated.
[16]
Lt Col Perumal is the investigating officer in a number of cases
involving the appellant. He is attached
to the Directorate for
Priority Crime Investigations (‘the Hawks’) and is the Commander
of the Anti-Corruption Investigation
Team, Northern Cape.
[17]
Col Clarence Jones is also attached to the Hawks. He is the KZN Head
of the Anti- Corruption Task Team
and National Project Manager. He
would appear to fulfil the role allotted to the branch commander of
Lt Col Perumal in terms of the
bail conditions. He deposed to an
affidavit in answer to the application. As he did not address paras
13 and 14 of the founding affidavit
or express dissent from Perumal’s
response one is driven to conclude that he shares the same attitude
to its relevance.
[18]
According to his founding affidavit the appellant became aware of the
investigations against him some
4½ years previously. Since then he
has travelled abroad on more than forty occasions and has always
returned and made himself available
to the police and prosecution. In
answer the respondent avers that, according to the official records,
the appellant has only left
the country twenty-three times (and
failed to return on the last occasion!). In reply, the appellant
admits that his original estimate
was inaccurate and provides chapter
and verse for fifty overseas visits. The numbers do matter. It is
clear that such trips were
frequent, and that the appellant has
returned on each occasion without giving rise to dissatisfaction on
the part of the investigating
team. One may readily infer that the
purpose not only of granting him bail but of providing mechanisms for
undertaking such travel
was to facilitate the carrying on of his
business activities in the context to which I have earlier referred.
[19]
The appellant’s counsel has furnished a chronology of the events
surrounding the application. It will
conduce to a better
understanding of the role played by the responsible officials if I
set out the more important of those events
here and thereafter draw
brief attention to the deponent’s evidence concerning certain of
them.
[20]
1. November 2006
2. 30 July 2010
3. 25 August 2010
4. September 2010
5. September 2010
6. 2 – 11
October 2010
7. October 2010
8. 4 November
2010
9. 5 November
2010
10. 9 November
2010
11. 18 March 2011
12. March 2011
13. 22 June 2011
14. June 2011
15. 27 June 2011
16. 30 June 2011
17. 6 July 2011
18. 6 July 2011
19. 6 – 8 July
2011
20. 12 August
2011
Appellant became
aware of the investigation against him
Appellant
volunteers his surrender
Appellant
arrested, brought before Regional Court, Bellville and matter
transferred to Regional Court Pietermaritzburg. Preservation
order
and application for same served on appellant.
Appellant again
arrested and appeared in the Regional Court Pietermaritzburg –
released on warning.
Appellant granted
permission by the Director of Public Prosecutions, KwaZulu, Natal,
to travel to Paris, France, between 2 October
and 11 October 2010.
Appellant travels
to Paris, France and returns to South Africa.
Appellant granted
permission to travel to Luanda in Angola for meeting on 22 October
2010.
Appellant again
arrested and transported in custody to Kimberley.
Appellant’s
first appearance in the Kimberley Magistrate’s Court. Matter
postponed to 9 November 2010 for bail application,
appellant to
remain in custody.
Appellant granted
bail in the amount of R100 000,00 on the conditions as set out.
Appellant again
arrested in Kimberley in respect of the charges presently pending
in the High Court, Kimberley. Released on
bail of R50 000,00 on
same conditions.
Appellant applies
for permission to travel to Angola for business purposes.
Appellant brought
application for leave to travel to Angola in the Pietermaritzburg
Regional Court and granted permission to
travel to Angola between
4 and 8 July 2011.
The investigating
officer in the Northern Cape refuses appellant permission to
travel to Angola.
Application for
permission to travel to Angola brought in the Magistrate’s Court
Kimberley and permission granted.
Notice of Appeal
by the State in application for permission to travel.
State’s appeal
struck from the roll.
Notwithstanding
court orders Col. Clarence Jones threatened to arrest the
appellant should he travel to Angola.
Appellant’s
attorneys complain to General Dramat.
Appellant lodges
application to amend his bail conditions to allow him to travel
without prior permission.
The
context in which the designated officials considered the appellant’s
applications for permission to leave the country
[21]
The appellant was and is not regarded as a flight risk. The
respondent does not say in its affidavits
that he was so regarded at
any time. The learned judge said in her judgment that so much was
common cause between the parties. That
finding was attacked in
argument on appeal but counsel was unable to point to any factual
allegation by Lt Col Perumal that he had
grounds for thinking the
appellant to be a flight risk, or, indeed, any allegation that
despite the absence of grounds, he believed
that the applicant was a
flight risk. Although the appellant’s applications for consent were
directed solely to business trips
the terms of the bail conditions
did not limit the discretion to such purposes although counsel were
agreed that only business travel
was intended.
[22]
It may be accepted that the danger of a bailed accused avoiding
attendance at his trial can never be
entirely ruled out. But courts
must determine cases according to the facts and whether an accused
person will or will not attend
in due course is entirely a question
of fact and inference from fact. The facts must be relevant to the
conclusion. Thus the absence
of an extradition treaty with a given
country is of itself meaningless; it only becomes meaningful if there
is reason to believe
that the accused may take advantage of that
fact. By contrast, an increase in the number and seriousness of the
charges that an accused
faces may of itself be a relevant factor as
exercising a new influence on a previously compliant accused. So also
might the proximity
of a trial in which an accused faces a real
prospect of a term of imprisonment. But in all these cases not only
must the facts be
established but also the reliance on them by the
functionary, since otherwise it becomes merely counsel’s
speculation as to how
the facts could or might have affected the
application to the functionary. As I have pointed out, none of the
three decision-makers
under the existing bail conditions made any
pretensions to being influenced by facts relevant to the refusal of
the application.
[23]
It should further be emphasised that the officials in question were
well aware (or should have been)
that the appellant, his wife, two of
his sons and his grandchildren live in Cape Town; the appellant came
to this country in 1999
and has been permanently resident since 2004;
his family trust has invested heavily in immovable property here; the
companies through
which he operates his business are registered here
and have very substantial assets (although presently under legal
restraint).
[24]
There is a history of correspondence between the legal
representatives of the appellant and the prosecution
and police
authorities. In this there is to be found no expression of doubt as
to the intention of the appellant to stand his trial.
[25]
The appellant’s reasons for leaving the Republic on business have
been motivated on each occasion and
the relevant officials have not
raised genuine or serious grounds for questioning them.
[26]     The
discretion conferred on the officials did not require them to look
for reasons why the appellant
should not be allowed to leave but
rather to consider whether, on the
facts
known to them, there
were such reasons. That decision had to be rationally connected with
the facts.
How the designated officials
exercised their powers
[27]
Intaka sold 71 water purification plants destined
for the Angolan government and it has certain ongoing obligations in
respect thereof.
The agreement of sale provided for the installation
and commissioning of the plants as well as for training of people to
maintain
and operate the plants.
[28]
Appellant had to travel to Angola personally to deal with problems
that have arisen with regard to the
execution of the contract. He
would also have been able to market and negotiate for the supply of
further water purification plants
to the Angolan government. As he is
the face of Intaka, and these negotiations are based on personal
relationships, it was absolutely
essential that he personally
travelled to Angola to prevent major losses of revenue on the
existing contract and to attempt to procure
further business for
Intaka.
[29]     In
compliance with his bail conditions, the appellant wrote to Lt Col
Perumal during March 2011 to obtain
permission to travel to Angola.
Perumal suggested that he obtain confirmation from the Angolan
government that the visit was required.
This was done and the letter
from the Angolan government was forwarded to Perumal on 2 June 2011.
[30]
Perumal requested further information from the appellant’s
attorneys on 7 June 2011.
On the following day the attorneys furnished the information and the
next day stressed the urgency of the matter.
[31]     When
the required permission was not forthcoming, the appellant was
advised to apply to court in both
KwaZulu-Natal and the Northern Cape
for permission to travel to Angola. The prosecution in KwaZulu-Natal
had no objection to the
proposed travel to Angola and consented to an
order in this regard. Perumal, however, refused to grant the
appellant permission to travel, despite the Court order taken
by consent in KwaZulu-Natal. The only reason he advanced for his
refusal
was that it was not essential for appellant to travel to
Angola.
[32]
Perumal stated that he discussed the issue with the lead prosecutor
in the Northern Cape matters, Adv
Tshweu, who told him that the
appellant must apply to Court and that such an application would be
opposed, before he had even seen
the application.
[33]     The
appellant accordingly brought an application in the magistrates
court, Kimberley, where the matter
was then pending, to allow him to
travel to Angola between 4 and 8 July 2011. This application was
opposed by the State.
[34]     A
belated attempt to hand in an answering affidavit by Perumal was not
successful. However, it is clear
from this affidavit, which is before
us, that there was no just cause for refusing appellant permission to
travel to Angola and the
Court granted him permission to travel to
Angola.
[35]     The
State decided to appeal against the magistrate’s decision to the
Northern Cape High Court in terms
of
section 65A
of the Act. The
prosecutor, aware that he would need the leave of a judge in chambers
in terms of
section 310A
of the
Criminal Procedure Act, 1977
, before
such an appeal could be brought, filed a notice of appeal the very
next day, 30 June 2011, without first applying for leave.
[36]     The
urgency in filing this defective notice of appeal was apparently to
prevent the appellant from travelling
until the appeal was heard, on
the basis that an appeal suspends the execution of a judgment (this
despite the absence of leave to
appeal). The appeal was set down for
6 July 2011, whilst the court order allowed the appellant to travel
to Angola between 4 to 8
July 2011.
[37]     Col
Jones threatened to arrest the appellant on further possible charges,
should the appellant attempt
to travel to Angola before the hearing
of the appeal. As a result, the
appellant decided to await the outcome of the appeal on 6 July
2011.
[38]     On 6
July 2011, the High Court struck the defective appeal from the roll.
The appellant was thus free
to travel to Angola between 6 July 2011
and 8 July 2011.
[39]     Col
Jones thereupon informed the appellant’s junior counsel that the
appeal had been struck from the
roll and told him that should the
appellant travel, he would, despite the Court order, be arrested.
Jones said that he had personally
arranged for the appellant’s
arrest by the border control authorities, should he attempt to travel
in terms of the court order.
[40]
There can be no question that this was an abuse of power by Jones to
thwart the court orders of both
KwaZulu-Natal and the Northern Cape
Courts, which granted the appellant leave to travel to Angola during
the period 4 to 8 July 2011.
This is also what the court a quo found.
[41]     It
is against this background that appellant brought the application in
the court a quo and submitted
that the Director of Public
Prosecutions, the investigating officer (Perumal) and his commander
(Jones) have demonstrated that they
cannot be relied upon to consider
requests by the appellant to travel in a reasonable and just manner
as was expected that they would
when the court initially imposed the
bail condition that their consent be obtained for travel outside the
borders of South Africa.
[42]     In
the answering affidavit deposed to by him Lt Col Perumal states:
‘
I
submit that no compelling reasons or explanations were forwarded to
me to indicate that it was imperative for the applicant to travel
to
Angola . . . I was not convinced that it was necessary for the
applicant to travel to Angola . . . It is common cause that the
applicant is a Uruguayan national and that he is facing charges of
racketeering, fraud, corruption and money laundering separately
in
two provinces. These are charges of serious magnitude. The applicant
is a common denominator in all three court cases and failure
to stand
trial will seriously affect the administration of justice. South
Africa has no extradition agreement with countries such
as Angola,
Brazil and Uruguay.’
[43]     The
affidavit of Col Jones carried the matter no further.
[44]     The
objection derived from the alleged failure to demonstrate the
essentiality of
travel is
the only one put forward. It is not relevant to compliance with the
bail conditions. Nor was it within the proper exercise
of the
discretion to limit travel to business that could only be carried out
by the appellant. Significantly, Lt Col Perumal did
not suggest that
he had reason to believe that the so-called ‘business’ was a
pretext.
[45]     It
is apparent that the investigation team has not now and did not have
at any earlier time any sustainable
factual objection related to the
breach of his bail conditions to the appellant leaving South Africa
for business purposes. Equally
clear is that they were aware of their
inability to meet his applications on grounds related to such
conditions. Instead they resorted
to delay and obstruction albeit
that their motives may have been pure. Their response was arbitrary
and inappropriate and not such
as the public is entitled to expect
from persons in their positions. It may fairly be described as an
abuse of power. If the court
were not to amend the order the
appellant could not be assured of a fair, expeditious and objective
assessment of future applications.
The reasons of the court below
[46]     The
learned judge, recognised that the appellant was not regarded by the
State as a flight risk and that
the officials had not acted as
contemplated by the bail conditions refused the application. She
found that this amounted to a change
in circumstances that justified
an alteration of his bail conditions. Nonetheless she refused the
application. Her reasoning was
two fold. First, whereas such
conditions should be subject to the control and scrutiny of the
authorities, the conditions proposed
by the applicant brought about a
shift of power and control over his movements from the State to his
own attorney. Second, bail conditions
should be in the interest of
justice and practically feasible:
R v Fourie
1947 (2) SA 547
(O) at 577. The learned judge concluded, however, that the exercise
of amendment in the terms applied for by the appellant would
be
futile and ineffective because there would be
(a)
a co-existence of different conditions imposed in different courts
giving rise to practical
problems such as different persons holding
or being entitled to hold the same passports;
(b)
an absence of monitoring, control and scrutiny by the authorities
thereby defeating the purpose
of bail.
[47]     The
task of the trial judge was primarily to consider the interests of
justice in the case before her.
If she was satisfied that the rights
of the appellant were being frustrated by the manner in which the
designated officials were
carrying out their duties, as she was, the
terms of the order could have been adapted to meet the perceived
difficulties with due
regard to the maintenance of adequate State
oversight. That, no doubt, is why the appellant, in its notion of
appeal, suggested a
revised formulation. In so far as an
inconsistency might have arisen with orders made in other courts,
unless the conflict was irreconcilable
(which it was not) that was a
matter that could be left to the parties to sort out.
[48]
Taking all the factors to which I have referred into consideration we
were satisfied that the interests
of justice required changes to the
conditions of bail. The order made will better honour the spirit of
the original grant of bail
without prejudicing the State. Should the
respondent have reason to fear a breach of the terms of bail it will
have ample time to
pre-empt any planned overseas travel by the
appellant. In that case the onus rests upon it to apply for an
amendment of the terms.
J A Heher
Judge of
Appeal
APPEARANCES
APPELLANT:
H F Van Zyl SC (with him J Howes)
Edward Nathan
Sonnenbergs, c/o Haarhoffs Inc, Kimberley
Symington &
De Kok Attorneys, Bloemfontein
RESPONDENT:
K M Vorster (with her T Chitha)
Director
of Public Prosecutions, Kimberley
Director of
Public Prosecutions, Bloemfontein