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[2021] ZAGPPHC 678
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Abbas v S (A127/2021) [2021] ZAGPPHC 678 (7 June 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: A127/2021
(1)
REPORTABLE:
YES
(2)
OF INTEREST
TO OTHER JUDGES: YES
(3)
REVISED: NO
In the matter
between
HANZAR
ABBAS
Appellant
And
THE STATE
JUDGMENT
MOSOPA J
Introduction
1.
On
3 December 2020, the appellant brought a bail application in the
Pretoria Commercial Crimes Court (Regional Court) before Magistrate
Mr Van Wyk. This bail application brought by the appellant, after
hearing evidence, was refused. Aggrieved by such decision, the
appellant brought an appeal against such refusal by the below court
in terms of section 65(1)(a) of the Criminal Procedure Act
51 of 1977
(“CPA”).
Background
2.
The
appellant was arrested along with three other people on 10 September
2020 and charged with one count of possession of suspected
stolen
property and two counts of fraud involving the purchase of motor
vehicles to the value of R451 157,50 and R383 016,78
respectively. His co-accused (accused 3 and 4) were released on
warning and eventually pleaded guilty. The appellant pleaded not
guilty and as a result thereof, the trials were separated. I was
informed during the hearing of the current matter that their cases
were finalized on 18 May 2021.
3.
At
the time of his arrest, the appellant was a resident at the place
which was rented by his co-accused (accused 1). Several items,
including, two pages of an ABSA account, two vehicle registration
documents and a birth certificate, were found inside the room
the
appellant resided in. Accused 1 has since been refused bail and is in
custody pending the finalization of his trial matter.
4.
The
appellant arrived in South Africa on a visitor’s visa on 16
October 2019. At the time of his arrest on 10 September 2020,
his
visitor’s visa had expired, as the appellant failed to renew it
after the expiry date. The appellant is therefore in
the country
illegally and his status was confirmed as such by the Department of
Home Affairs. I must also at this stage state that,
despite the
Immigration Officer stating in his affidavit that the appellant is an
illegal foreigner in the country in contravention
of
section 49
(1)
(a) of the
Immigration Act 13 of 2002
, the appellant was not
criminally charged for such a contravention. The issue pertaining to
the appellant’s status in the
country is not disputed, as the
appellant conceded that he is in the country illegally following his
expiry of the visitor’s
visa and has since instructed his
attorneys to apply for its renewal.
Legal
Principles
5.
It
is agreed by the parties that the offence which the appellant is
charged with, falls under the provisions of
section 60(11)(b)
of the
CPA (Schedule 5 offence). The appellant, in terms of the above
subsection, can only be released from detention if he adduces
evidence which satisfies the court that the interest of justice
permits his release.
6.
The
concept “interest of justice’” is not defined in
the sub-section. In the matter of
S
v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat
[1999] ZACC 8
;
1999
(2) SACR 51
(CC)
,
the concept of “interest of society” was defined as
follows;
“’
The
interest of society’ is the sense in which ‘the interests
of society’’ concept is used in sub-s(4)…It
is
read first and ‘the interest of justice’ bears the same
narrow meaning akin to the ‘interest of society’
(or the
interest of justice minus the interest of the accused) the
interpretation of the whole section falls neatly into place.”
7.
Section
60(4)(a)
-(e) of the CPA provides;
“
(4) the
interest of justice do not permit the release from detention of an
accused where one or more of the following
are established;
(a)
where there is the likelihood that the accused if he or she were
released on bail, will endanger
the safety of the public or any
particular person will commit a schedule 1 offence, or
(b)
where there is a likelihood that the accused, if he or she were
released on bail, will attempt
to evade his or her trial or
(c)
where there is the likelihood that the accused, if he or she were
released on bail,
will attempt to influence or intimidate witnesses
or to conceal or destroy evidence,
(d)
where there is a likelihood that the accused, if he or she were
released on bail, will undermine
or jeopardize the objectives or the
proper functioning of the criminal justice system, including the bail
system,
(e)
where in exceptional circumstances there is the likelihood that the
release of the accused
will disturb the public order or undermine the
public peace or security.”
8.
Finally,
the functions and powers of the court hearing appeal under
section 65
are similar to those in an appeal against conviction and sentence. In
the matter of
S
v Baber
1979 (4) SA 218
(D)
at 220 E-F, Heher J, when dealing with functions and powers of court
under
section 65
, remarked as follows;
“
It
is well known that the powers of this court are largely limited where
the matter comes before it on appeal and not as a substantive
application. This court has to be persuaded that the magistrate
exercised the discretion which he has wrongly…”
Discussion
9.
The
court below, when denying the appellant bail, reasoned as follows;
1)
That
bail is denied on the basis of threats the appellant made to
witnesses in a different matter where his co-accused was standing
trial;
2)
That
several items linking the appellant to the commission of the offence
were found in his possession at the time of his arrest
and;
3)
That
the appellant is willfully in the country illegally and the appellant
will not stand trial if granted bail.
10.
Both
the parties in favour and against granting bail, presented their
cases on applications and no oral evidence was led. Presentation
of
affidavits in bail proceedings is permissible and it is admitted
evidence. (
S
v Hartslief
2002 (1) SACR 7
(T)
).
The phrase that the party must “adduce evidence” does not
mean that the party must lead oral evidence.
11.
It
is common cause that the appellant’s status in the country is
classified as being that of an illegal foreigner by the Department
of
Home Affairs, as the appellant failed to renew his visitor’s
visa when it expired in 2019. At the time of his arrest,
his
visitor’s visa had been expired for almost a year. No reasons
were proffered by the appellant as to why such was not
renewed whilst
the appellant was not arrested. What is before me is that the
appellant has instructed his current legal representatives
to apply
for the renewal of such visitor’s visa, which means that his
status in the country remains illegal at this stage.
12.
It
is true that the bail applicant’s status in the country, mainly
as to whether he is a foreigner, is not the only consideration
in
refusing or granting bail. The main purpose for granting bail is to
secure the attendance of the bail applicant at court pending
finalization of his trial matter. If a court is of the view that a
bail applicant is a flight risk, then the court is entitled
to deny
the bail applicant bail.
13.
It
is must be noted in casu, that the status of the appellant as an
illegal immigrant is not a subject of any criminal proceedings,
as
the appellant is not charged with contravention of
section 49(1)(a)
of the
Immigration Act 13 of 2002
. The issue pertaining to his status
in the country was only raised for the below court to deny him bail.
The arrest of the appellant
was a sequel to allegations of fraud
committed and he was found in possession of suspected stolen property
and the arrest was effected
by the members of the South African
Police, as opposed to by immigration officers from the Department of
Home Affairs.
14.
In
contention Mr Rudman, on behalf of the appellant, contended that a
bail applicant is entitled to be released on bail irrespective
of
whether or not he is classified as an illegal foreigner. Mr Rudman
relied on the matter of
Ulde
v Minister of Home Affairs and Another (Lawyers for Human Rights
Amicus curae)
(2009) 3 ALL SA 323
(SCA)
;
which dealt with the discretion the immigration officer had in
detaining an illegal foreigner. The facts of the Ulde matter can
be
summarized as follows; Ulde, an Indian national, was arrested for
contravention of the
Immigration Act and
arraigned in the Kempton
Park Magistrate court for trial. Allegations against him were that
his passport and identity documents
issued to him by the Department
of Home Affairs were fraudulent. He then was released on bail by the
Magistrate Court despite being
in the country illegally and then he
was re-arrested while on bail on the same allegations despite being
released on the bail for
this.
15.
It
was correctly conceded by Mr Rudman in argument that I am not bound
by the decision of the Magistrate Court to release Mr Ulde
on bail.
Moreover, the circumstances that led to the release of Mr Ulde on
bail were not mentioned in that decision, but the main
factor for
determination was the exercise of a discretion by the immigration
officer.
16.
The
matter in my view is distinguishable from the current matter for the
following reasons;
16.1 the appellant’s
detention in casu, was for the commission of a fraudulent activity
and not for him being in
the country illegally;
16.2 the appellant
entered the country legally on a visitor’s visa until it
expired, whereas Ulde entry into
the country was deemed illegal;
16.3 the appellant
status is not a subject of a criminal proceedings, and evidence is
that he is in the country
illegally, and
16.4 the
Ulde
matter dealt with the discretion to be exercised by the immigration
officer when detaining an illegal foreigner, whereas such issue
does
not arise in the current matter.
17.
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 illegal or not. (See
Lawyers
for Human Rights and Another v Minister of Home Affairs and Another
[2004] ZACC 12
;
2004 (4) SA 125
(CC)
).
18.
In
the
Ulde
(supra)
matter, the following was stated at para 7;
“
bearing
in mind that we are dealing here with the deprivation of a person’s
liberty (albeit of an illegal foreigner’s),
the immigration
officer must still construe the exercise of his discretion in favorem
libertatis when deciding whether or not to
arrest or detain a person
under
s 34
(1)- and be guided by certain minimum standards in making
the decision.”
19.
I
was further referred to the matter of
Phale
v Minister of Home Affairs and others
(2011) JOL 27250
(GNP
)
wherein an illegal foreigner was released on bail on the charges of
fraud and contravention of
Immigration Act 13 of 2002
by the
Rustenburg Magistrate Court. Bail was not opposed by the
Investigating Officer but by another party to the proceedings,
the
Director General: Department of Home Affairs. The same principle
adopted in the
Ulde
(supra) matter was followed in the
Phale
matter relating to a discretion to be exercised by the immigration
officer. Reasons for the Investigating Officer not opposing
bail,
were not provided in the
Phale
,
but what is evident in the
Phale
matter is that the applicant lived in Botswana and South Africa and
then returned to Botswana in 1996. His father was a South African
and
his mother is a Botswana citizen.
20.
In
casu, the appellant has no relatives in South Africa and when he came
to South Africa he stayed with friends in the Kwa-Zulu
Natal Province
and later on Gauteng where he stayed with his co-accused, accused 1
in the below court. Accused 1 has since lost
his property and they
intended to stay with a friend if released on bail. However, the
problem with that place, is that it is a
rented place and the person
who stays there himself has criminal proceedings pending against him
and he is currently out on bail.
That person is only known by accused
1 and accused 1 was denied bail, by the below court, even though that
person confirmed that
he is willing to accommodate the appellant in
the event he is released on bail, no further affidavits were received
from him to
further confirm whether the same position stands even if
accused 1 is denied bail.
21.
Bail
was not only denied because of the appellant’s being an illegal
foreigner in the country, but for the fact that he threatened
witnesses together with accused 1, in the matter where accused 1 is
released on bail and that is undisputed evidence before his
court.
22.
The
court below also denied bail because of the strength of the state’s
case as some evidential material was found in possession
of the
appellant at the time of his arrest.
23.
It
is therefore my considered view that when the appellant was denied
bail, the provisions of
section 60(4)(a)
-(e) were properly considered
and there is no need for this court to interfere with the decision of
the below court. The below court
correctly found that the one or more
of the jurisdictional aspects provided in the sub-section exist in
this instance and thus,
exercised the discretion it had correctly. In
my view, given that the appellant is an illegal foreigner, if he is
granted bail,
it will be difficult to monitor him and ensure that he
attends court until the matter is finalized, as he has no place to
stay
in the Republic. The person who promised to share
accommodation with the appellant, is renting the accommodation and is
himself
also subject to criminal proceedings. Further, the appellant
has no relatives in the country. The witnesses in this matter are
known to the appellant and it will be easy for him to interfere with
them, as he had done so previously in an unrelated matter.
24.
Having
regard to the above, the following order is made;
1.
The
appeal against the refusal to grant appellant bail is refused.
__________________________
MJ
MOSOPA
JUDGE
OF THE HIGH
COURT,
PRETORIA
Appearances:
For
the Appellant:
Mr A Rudman
Instructed
by:
Anton Rudman Attorneys
For
Respondent:
Mr WJ van
Zyl
Instructed
by:
The DPP
Date
of hearing:
20
May 2021
Date
of Judgement:
Electronically transmitted