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2022
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[2022] ZANCHC 54
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Lewis-Springfield v S (CA&R40/2022) [2022] ZANCHC 54 (4 October 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No.: CA&R 40/2022
Date
Heard: 27 September 2022
Date
Delivered: 04 October 2022
Reportable:
YES/NO
Circulate
to Judges: YES/NO
Circulate
to Regional Magistrates: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
CLYDE
LEWIS-SPRINGFIELD
Appellant
and
THE
STATE
Respondent
Coram:
Kgopa AJ
ORDER
The
appeal is dismissed.
JUDGMENT
Kgopa
AJ
[1]
This is an appeal against refusal of bail
pending the extradition enquiry by the Magistrate.
[2]
Appellant and his four children are citizens of
the United States of America (USA). He came to South Africa
towards the end
of October 2021. He used a visitor’s visa
expiring 29 January 2022 to be in South Africa. Three of the
children
he brought were minors and one was aged 18 years.
[3]
There was a custody agreement between the
appellant and the mother of the children NM and it was made a court
order. In the court
order, the appellant was to return the children
on 3 November 2021 at 2pm but he did not. The mother reported
the matter
to the authorities and appellant was subsequently sought
on allegations or charge of “
International
Parental Kidnapping”
.
[4]
The U.S Department of Justice made a request to
the South African Department of Justice to assist in the arrest and
extradition
of the appellant.
[5]
On the 1
st
of February 2022 the Pretoria Magistrate’s Court authorised and
issued a warrant for the arrest of the appellant.
[6]
Appellant was subsequently arrested on 16 March
2022 in Upington, Northern Cape. He appeared in court and was
remanded in
custody pending the holding of extradition enquiry in
terms of the Extradition Act 67 of 1962 (The Extradition Act).
[7]
The children were “
rescued”
and returned to their home country (and to the custodian parent).
[8]
The appellant brought bail applications on the
4
th
of April 2022 and on the 11
th
of May 2022 on new facts, and bail was denied.
[9]
It need be noted that extradition enquiry or
proceedings are still to be addressed or attended to at a later
stage. For purposes
of these appeal proceedings, the
Extradition Act will be referred to where relevant.
[10]
Section 3(1) of the Extradition Act provides,
“
Any person accused or
convicted of an offence included in an extradition agreement and
committed within the jurisdiction of a foreign
state a party to such
agreement, shall, subject to the provisions of this Act, be liable to
be surrendered to such state in accordance
with the terms of such
agreement, whether or not the offence was committed before or after
the date upon which the agreement comes
into operation and whether or
not the court in the Republic has jurisdiction to try such
person for such offence.”
[11]
Section 9(1) provides that, “
any
person detained under a warrant of arrest or a warrant for his
further detention, shall, as soon as possible be brought before
a
magistrate in whose area of jurisdiction he has been arrested,
whereupon such magistrate shall hold an enquiry with a view to
the
surrender of such person to the foreign State concerned.”
[12]
And in terms of section 9(2) , “
the
magistrate holding the enquiry shall proceed in the manner in which a
preparatory examination is to be held in the case of a
person charged
with having committed an offence in the Republic and shall, for the
purposes of holding such enquiry, have the same
powers, including the
power of committing any person for further examination and of
admitting to bail any person detained as he
has at a preparatory
examination so held.”
Therefore,
a Magistrate is empowered in terms of section 9(2) of the Extradition
Act to entertain bail pending extradition enquiry
or proceedings.
[13]
Mr Van Der Berg for the appellant argued that,
the basis for the appeal is that the magistrate was not to have held
bail application
as there is no offence in South African Law that
appellant committed or that is equivalent to “
International
Parental Kidnapping”
.
There is no offence here (in South Africa) as contemplated by
section
60(1)(a)
of the
Criminal Procedure Act 51 of 1977
for purposes of
bail proceedings and that meant the detention of appellant was wrong
and the appeal must be upheld.
[14]
Mr Makhaga for the Respondent argued that the
appellant is facing an extraditable offence and that bail provisions
are applicable
in extradition proceedings. The proceedings in
the Magistrate’s court proceeded under the correct bail
Schedule 5 and
the Magistrate correctly denied appellant bail as
there was a likelihood that if appellant was to be granted bail he
might evade
trial and his release might jeopardize the proper
functioning of the justice system. He submitted that the Appeal
should
be dismissed.
[15]
It was agreed by the parties at the bail
proceedings that the offence appellant charged with or circumstances
falls under the provisions
of
section 60(11)(b)
of the
Criminal
Procedure Act (schedule
5 offence). The appellant could only be
released from detention if he adduces evidence which satisfies the
court that the
interests of justice permit his release. In the
United States, appellant has previous convictions involving a firearm
and
others were of domestic violence and was now facing kidnapping of
children.
[16]
The appellant submitted an affidavit to support
his application to be released on bail. His visa expired on 29
January 2022.
He was staying with the children in tents
together with a group referred to as a missionary group praying
together at a farm 10km
near the border of Namibia in Upington.
On the issue of returning the children, he indicated that he had
financial constraints.
He could not afford flights back to the United
States and the Covid-19 restrictions added to his problems as he had
to undergo
tests before flying to the United States. He and his
older child had to work at the farm to gather funds to return to the
United States as well survive in South Africa. He was also
intending touring Africa with the children. He insisted
he was
not in the wrong in the United States and is going to oppose his
extradition. He however was silent on the expired
visa and him
being illegally in the Republic of South Africa between 29 January
2022 and 16 March 2022 when he was arrested.
He conceded that
at the farm where they stayed in tents, other “
missionaries
”
were also arrested and released on bail. From the record it
appears that their charges were illegal possession of
firearms and
ammunition. He insisted that he wishes to stay in the Republic
and continue his prayer sessions with the missionary
group and also
to continue his relationship with the lover he found as well work in
South Africa.
[17]
Evidence by the State was that, other then the
arrest warrant as had been sought by the United States, at the farm
where appellant
and company lived, there were also allegations of
children being taught how to shoot.
[18]
In terms of section 1 of the Extradition Act,
an extraditable offence is, “
Any
offence which in terms of the law of the Republic and the Foreign
State concerned is punishable with a sentence of imprisonment
or
other form of deprivation of liberty for a period of 6 months or
more…”
[19]
The appellant contended that there is no
crime called “International Parental Kidnapping” and
therefore no extraditable
offence and consequently no crime or
offence where bail was to have been entertained by the magistrate.
[20]
In the United States, the conduct of appellant
clearly constituted an offence hence the pending extradition
proceedings or enquiry.
[21]
In the case,
Geuking
v President of the Republic of South Africa and others
,
2003(3) SA 34 (CC) at p50 [40], the court held that, “
the
name of the offence would not be determinative. The question
for consideration is whether the conduct which the evidence
discloses
constitute an offence in our law which would be punishable with a
sentence of imprisonment for a period of six (6) months
or more.”
[22]
The author, CR Snyman in his book,
“Criminal Law 6
th
Edition” at page 471 describes the crime of kidnapping as
“
consisting in unlawfully and
intentionally depriving a person of his or her freedom of movement
and/or if such person is under the
age of 18 years, the custodian of
their control over the child.”
On page 473[7], further wrote, “
A
parent cannot commit the crime in respect of his or her own child.
Accordingly, if the father and natural guardian of a
child, having
divorced his wife, removes the child from her care in order to keep
her in his own care, he does not commit the crime.
This true
even if the court awarded custody and control of the child to the
mother. However, this does not mean that
the divorced father
can with impunity remove a child from the care of the mother to whom
the court has awarded custody and
control, since by so doing he
infringes a court order, and may be guilty of contempt of court.”
[23]
Following this discussion, it appears conduct
of appellant in South African Law would fall under the definition of
kidnapping or
contempt of court as there is a court order in the
United States for joint custody and there was also an order
pertaining to when
the children were to be returned to the United
States and to the custodian parent.
[24]
In dealing with Child Abduction, Chapter 17 of
the Children’s Act 38 of 2005 gives effect to the Hague
Convention, see section
274(a). In combating parental child
abduction, section 275 provides that “
The
Hague convention on International Child Abduction is in force in the
Republic and its provisions are law in the Republic, subject
to the
provisions of this Act.”
[25]
Section 45(2) of the Children’s Act
empowers a children’s court to “
try
or convict a person for non-compliance with an order of a children’s
court or contempt of such a court (see section 45(2)(a),
and in terms
of section 45(2)(c), the Magistrate’s Court has jurisdiction in
such criminal matters referred to in section
45(2)(a).”
[26]
Further in terms of section 305(1)(q) of the
said Act (“Children’s Act”), “
a
person is guilty of an offence if that person contravenes or fails to
comply with an order of a High Court, divorce court in a
divorce case
and Children’s Court in terms of this Act …. or fails to
comply with any condition contained in such/that
order.”
[27]
Article 12 of the Hague Convention
provides that, “
where a child
has been wrongfully removed or retained in term of article 3 and at
the date of the commencement of the proceedings
before the judicial
or administrative authority of the contracting state where the child
is, a period of less than a year has elapsed
from the date of the
wrongful removal or retention, the authority concerned shall order
the return of the child forthwith.”
[28]
The Children’s Act and article 12, of the
Hague Convention are a further illustration of possible crimes and
the powers or
jurisdiction the Magistrate has in dealing with the
said possible crimes.
[29]
In the case of
Geuking
(
supra
),
the court emphasised at p51 [44]-[45] that, “
Extradition
proceedings do not determine the innocence or guilt of the person
concerned. They are aimed at determining whether
or not there
is reason to remove a person to a foreign state in order to be put on
trial, … The enquiring Magistrate does
not have to know the
intricacies of the offence of the foreign jurisdiction, as this is an
aspect which South African Lawyers and
Judicial Officers will usually
have no knowledge or expertise.”
[30]
The discussion above illustrates that the
magistrate had sufficient information on possible crimes and the
international crime of
“
International
Parental Kidnapping”
to
entertain a bail application after the detention of appellant on a
warrant pending an extradition enquiry. It therefore
follows
that the contention by the Appellant that there was no offence and
bail application was not to have been entertained cannot
be sustained
in the circumstances.
[31]
It is true that the right not to be deprived of
freedom arbitrarily or without just cause applies to all persons in
South Africa
whether they are here illegally or not, see,
Lawyers
for Human Rights and Another v Minister of Home Affairs and Another
,
[2004] ZACC 12
;
2004,(4) SA 125
(CC).
[32]
Mr Van Der Berg in paragraph 35 of his heads of
argument for the appellant, submitted that the magistrate misdirected
himself holding
that a likelihood of flight risk had been
established. Also that, “
Appellant
clearly lacks the means to abscond: He is virtually
impecunious; he has no travel documents; the notion that he
would
escape over rugged terrain into Namibia without money, passport or
friendly contacts at the other end is with respect far-fetched
and
unsustainable.”
[33]
Section 60(11)(b)
of the
Criminal Procedure Act
51 of 1977
provides, “
Notwithstanding
any provision of this Act, where an accused is charged with an
offence referred to 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
given a reasonable opportunity to do so, adduces evidence which
satisfies the court that the interests of justice
permit his or her
release.”
[34]
The appellant is facing a serious offence in
the United States. He has previous convictions in the United
States involving
a firearm and others involving domestic violence.
In South Africa, his visa has expired, he has no “
work”
,
do not have permanent residence, money neither any ties except to the
“
missionary group”
he found in Upington and a possible lover. Appellant’s
position can be summed by what his legal representative placed
on
record in paragraph 32 above. Nowhere in the bail record did
the appellant indicate what steps he took to correct the
visa
situation. He did not lay as basis or reasons why he will be
opposing his extradition, instead, through his legal representative
in the appeal, argued that the charges in the United States will not
stand.
[35]
From the discussion above, there were objective
facts before the magistrate to support the decision that the
interests of justice
did not permit the release of appellant on bail
(pending the extradition enquiry).
[36]
Section 65(4)
of the
Criminal Procedure Act
provides
, “
the court or judge
hearing the appeal shall not set aside the decision against which the
appeal is brought, unless such court or
judge is satisfied that the
decision was wrong, in which event, the court or judge shall give the
decision which in his or her
opinion the lower court should have
given.”
[37]
As set out above, there are no basis for this
court to fault the decision of the court a quo.
[38]
In consequence, the following order is made:
The
appeal is dismissed
.
C.K
KGOPA
ACTING
JUDGE
On
behalf of the Appellant:
Adv.
John Van Der Berg
Instructed
by:
Liddell, Weeber, Van
Der Merwe Inc,
Wynberg, Western
Cape
On
behalf of the Respondent:
Adv.
R.R Makhaga
Instructed
by: Director
Public Protection, Kimberley