About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Mpumalanga High Court, Mbombela
SAFLII
>>
Databases
>>
South Africa: Mpumalanga High Court, Mbombela
>>
2021
>>
[2021] ZAMPMBHC 13
|
|
Masuku v S (A15/2020) [2021] ZAMPMBHC 13 (14 May 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(MPUMALANGA
DIVISION, MBOMBELA)
(1)
REPORTABLE:NO
(2)
OF INTEREST TO OTHER JUDGES
:NO
(3)
REVISED: YES
14/05/2021
CASE
NO: A15/2020
In the matter
between:
BINA
MFANDAFUNA MASUKU
First
Appellant
and
THE
STATE
Respondent
JUDGMENT
MASHILE J:
INTRODUCTION
[1]
This is a bail appeal following the Court
a quo
per Magistrate
Ngcanga’s refusal to admit the First Appellant to bail. The
apprehension and subsequent detention of the
First Appellant emanated
from the following charges as amplified by the explanatory notes to
each count:
1.1
Count 1: Fraud –
The accused is guilty of the
crime of fraud in that during or about February to August 1994 and at
or near Johannesburg she pretended
to the Department of Home Affairs
that she was born in Durban, South Africa and her mother is Jane
Matseleng Masuku, whereas she
knew and was well aware that she was
not born in Durban, South Africa and her mother is not Jane Matseleng
Masuku, to the actual
or potential prejudice of the Department;
1.2
Count 2: Fraud –
The
accused is guilty of the crime of fraud in that during 1 August 2006
to September 2019 and at or near Pretoria and thereafter
at or near
Mbombela she pretended that she obtained her South African
Citizenship lawfully and her application for employment with
the
Department of Justice was
bona fide
,
whereas she knew and was well aware that she obtained her South
African Citizenship through false misrepresentation and her
application
for employment with the Department of Justice was not
bona fide
to the prejudice or potential prejudice of the Department;
1.3
Count 3: Contravention of Section 49 (14),
read with
Sections 1
,
49
(1) (a) and (b) and
48
, of the
Immigration
Act, 2002
–
In
that on or about February 1994 at or near Johannesburg the accused
did unlawfully and intentionally make false statement to
the
Department of Home Affairs for purposes of obtaining residence
in the Republic of South Africa; and
1.4
Count 4: Fraud (seven individual counts)
against all 3 accused –
The
accused are guilty of the crime of fraud in that during or about
October 2014 to November 2017 and at or near Mbombela the
accused
did unlawfully and intentionally and in furtherance of common
purpose did give forth and, among others, pretend to the
complainants in seven late estates mentioned in Schedule 1 to the
charge sheet that accused 2 will carry out the responsibilities
of an
executor, furnish accused 1 and / or the office of the Master of the
High Court in a manner stipulated by law and all assets
of the
estate will be accounted for; and the accused by means of the said
misrepresentation induced the complainants, to their
actual or
potential prejudice, to consider to request the appointment of
accused 2 as executor in the estates and accused 2 will,
among
others, not carry out the responsibilities of the executor, will not
furnish accused 1 and / or the office of the Master
of the High
Court and will not account for the assets of the estates.
FACTUAL MATRIX
[2]
The background facts were tersely traversed by the Court
a
quo.
To avoid
reinventing the wheel, I will
borrow extensively from the summary made in its Judgment.
The
Appellant and
another
were arrested
for fraud committed at Master of the High
Court, Mbombela. The Appellant is an employee
at the Masters Office.
It is alleged
that the Appellant referred estates to her co-accused, currently on
bail, and/;
or his company to administer estates.
Beneficiaries did not
obtain their inheritances. The
loss occasioned by the fraud perpetrated
on the beneficiaries
amounted in all to
approximately
R1 900
000.00
.
[3]
In support of its case that bail to the Appellant ought to be
refused, the State called
two witnesses, the first of which was a Home Affairs employee. He
testified that
the Appellant was a subject of investigation in their department
relating to her fraudulent attainment of South African
Citizenship. The Court heard further from
the same witness that her Citizenship
status has been revoked and was
due to be expatriated to Malawi, her alleged country of origin. The
Appellant could not be deported
solely because the South African
Police Services (“SAPS”) was still
awaiting the National Prosecuting Authority to complete the fraud
case committed
at the Masters Office in Mbombela.
[4]
The witness testified that investigations conducted by the Department
of Home
Affairs established that the person alleged to
be the Appellant’s mother in her birth
registration form did not have a child bearing the Appellant’s
details. Moreover,
she did not know the First Appellant. The alleged mother of the First
Appellant denied ever giving birth in Durban
as claimed
on the birth registration form.
[5]
Upon officials of the Department of Home Affairs seeking clarity from
her on the
discrepancy, she somersaulted and said that she was born in Tembisa,
Tembisa Hospital, Gauteng Province to a different mother from
the one
she had mentioned on the birth registration form.
Tembisa Hospital denied
the allegations and furnished a
register of all women who gave birth on the
alleged date of birth.
The woman supposed to bear the particulars
of the Appellant’s mother was
not on the
register. The conclusion that the first Appellant was not born in
Tembisa was
inescapable.
[6]
The second State witness was a police officer investigating fraud in
the office of
the Master in Mbombela. He told the Court that
the Appellant and her co-accused
live
in the same residence belonging to her as intimate partners. The
Appellant referred estates
to her co-accused for him to administer them. Heirs did not receive
all proceeds of their estates.
Her
co-accused utilized some of the proceeds for his own
benefit, transferred estate funds to his personal bank account
and
registered transfer of
ownership of deceased estate properties to his own name.
[7]
The Appellant and her co-perpetrator levied their testimony before
Court by way of
affidavits. The former admitted that she lived with
her co-perpetrator as her
boyfriend.
They were
married at some stage and had known each other from the
Office of the Master of the High Court
in Johannesburg where she
started working.
Her
boyfriend was an administration clerk for a firm of attorneys.
[8]
The Appellant denied defrauding the Master’s Office in Mbombela
and making
false representations to the
Department of Home Affairs. Instead, she laid the blame
on the Department of Home Affairs
officials who completed birth
registration forms and related
documents. She further denied
ever referring estates to her
boyfriend.
ISSUES
[9]
The issue is simply whether or not the Appellant has made a case for
her to be
admitted to bail. In considering that
questions, the Court should determine whether
it is in the interest
of justice that the Appellant be admitted to
bail as contemplated in
Section 60(11)
(b) of the
Criminal
Procedure, Act 51 of 1977
.
ARGUMENT
[10]
The entire argument of the Appellant is premised on the
characterisation of the
charges being classified as
Schedule 5 whereas they are not and should not have been so
categorised. From that premise, the Appellant
leaps to the conclusion
that had the Court
a quo
appropriately classified the
charges, it would have realised that she was, as a
matter of right, supposed to have
been admitted to bail. Insofar as
her possible abscondence was concerned, she asserted that the
Appellant has shown that she
is South African notwithstanding that
she did not have sufficient evidence to demonstrate this.
[11]
The essence of the State’s contention was that a
lthough
the notice of motion identifies
eight grounds on which the appeal is founded, these
are in fact only
three. These are that the Court
a
quo
erred in
finding that the State has strong case against the
Appellant, there is a risk of Appellant absconding
by returning to
Malawi and, the finding that there were no new
facts in the second bail application.
[12]
A bail application is not a trial and should not be used as dress
rehearsal for trial.
To argue about admissibility of evidence
and possible contradictions of witnesses is not the duty of a bail
Court to make a final
finding. The State submitted that the Judgment
of the Court
a quo
in the first bail application could not be
faulted and is based on the evidence that was placed before that
Court. In general,
an appeal Court will decide whether the judgment
appealed from is right or wrong, according to the
facts in
existence at the time it was given.
[13]
The Appellant has failed to demonstrate how the Court
a quo
erred in law and on the facts placed before it at the time when it
made the decision. On the evidence before the Court
a quo
the
Citizen status of the Appellant in South Africa had been revoked by
the Department of Home Affairs. The State then submitted
finally that
the Judgments of the Court should not be set aside and that the
appeal be dismissed.
LEGAL
FRAMEWORK
[14]
To the extent that admission to bail is regulated by
Section 60
of
the CPA, it will be instructive to make reference to the
Sections mentioned by the Appellant as being pertinent. To
start
with
Section 65(a):
“
A
n
accused who considers himself aggrieved by the refusal by a lower
court to admit him to bail or by imposition by such court of
condition of bail, including a condition relating to the amount of
bail money and including an amendment or supplementation of
a
condition of bail, may appeal such refusal or the imposition of such
condition to the superior court having jurisdiction or to
any judge
of that court if the court is not then sitting.”
[15]
Section 65
(4) provides
that:
“
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 its or his opinion
the lower
court should have given.”
[16]
Section 60
(11) (b) provides that:
“
Notwithstanding
any provision of this Act, where and 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 been given a reasonable opportunity to do so,
adduces evidence which satisfies
the court that the interests
of justice permit his or her release.”
[17]
Section 60(4)(B)
lists
likelihood that the accused will attempt to evade his or her
trial as a ground for refusing bail. In this regard,
the Appellant
has referred to John van der Berg: Bail - A Practitioner’s
Guide 3 edition (2012) where the learned author
writes:
“
the
risk of abandonment is likely to be assessed at a relatively high
level if the accused is a foreign national, a risk factor
that is
likely to be compounded by high mobility potential and access to
foreign travel. This does not mean, of course, that such
accused may
never be granted bail, for there is always the option of imposing
conditions to suit a particular case.
[18]
The Appellant has also referred this Court to the matter of
Ulde v
Minister of Home Affairs
(320/2008)
[2009] ZASCA 34
;
2009 (4)
SA 522
(SCA);
2009 (8) BCLR 840
(SCA);
[2009] 3 All SA 332
(SCA) (31 March 2009)
where the court held that the arrest of an
illegal foreigner under section 34 (1) of the Immigration Act, 2002
(Act No. 13 of
2002) is subject to the exercise of a discretion by
an immigration officer. The discretion is to be construed in
favorem
libertatis
. Where a Magistrate had granted bail to a
suspected illegal foreigner, an immigration officer could not ignore
this fact in the exercise of his discretion.
EVALUATION
[19]
One of the grounds pointed out by the Court
a quo
for refusing
bail is fear of abscondence. This is apart from the Court’s
discretion to lay down conditions to reduce
the risk of
evasion of trial. Conditions usually considered in these type of
matters would be surrender of travel papers and reporting
to the
local police station once every day or every alternate
day. The list is not exhaustive. The Court
a quo
was
evidently alive to that possibility but it discounted it as follows:
“
The
easy possibility of leaving the country to escape facing charges
against her. In effective policing of our borders, despite
surrendering her passport can tempt her to leave the country.”
[20]
The learned author, John van der Berg: Bail - A Practitioner’s
Guide 3rd edition
(2012) acknowledges that where it has
been demonstrated that an accused person is a foreign national, is
mobile and has travel
documents, the assessment whether to grant
bail would be more rigorous but that does not necessarily mean that
the accused person
should be refused bail. However, due to the porous
nature of our borders and lack of stringent measures to control
movements from
neighbouring Countries, the
assessment whether or not to grant bail must be more than just
strict. That should
include, in appropriate circumstances,
deprivation of liberty of an accused person.
[21]
This leads me to the case of Ulde
supra
to which the Appellant
has referred this Court. The Appellant would have this Court
believe that it finds application in
this case. That approach does
not and cannot find favour with this Court. The Appellant
conveniently overlooks the fact that the
Court in Ulde was concerned
with ‘a suspected foreign national’. Here we are dealing
with a person who has been apprehended
for being in this country
under false pretenses, and therefore illegally, and
whose Citizenship has been declared
unlawful. The Appellant is not
yet to be found to be an illegal immigrant but she is, and
would have been extradited to
Malawi had it not been for the charges
that she is required to face.
[22]
The Court
a quo
and correctly so in my opinion, accepted that
the classification of the charges as Schedule 5 is incorrect in view
of the new
evidence that was levied before Court.
The concession does not and will not assist the Appellant with
admission to bail. The reason for that is that she remains a flight
risk. The disquiet was pointed out by the Court
a quo
as
early as its first judgment.
[23]
In terms of Section 65(4) of the CPA, I am not satisfied that the
Court
a quo
misdirected itself in any manner
whatsoever. As such, there is no room for this Court to set
aside the judgments
refusing bail to the Appellant. In the premises,
I make the following order:
The bail appeal
application is dismissed.
B A MASHILE
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA
This judgment was
handed down electronically by circulation to the parties and/or
parties’ representatives by email. The date
and time for
hand-down is deemed to be 14 May 2021 at 10:00.
APPEARANCES:
Counsel for the
Plaintiff:
Mr Mashego
Instructed
by:
DIMA MASHEGO ATTORNEYS
Counsel for the
State:
Adv Nxumalo
Instructed
by:
NDPP
Date of
Hearing:
30 April 2021
Date of
Judgment:
14 May
2021