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[2016] ZANCHC 79
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Dhor en Direkteur van Openbare Vervolging (CA&R136/2016) [2016] ZANCHC 79 (20 December 2016)
NOORDKAAP
HOË HOF, KIMBERLEY
REPUBLIEK
VAN SUID-AFRIKA
SAAK
NR
: CA & R136/2016
20
DESEMBER 2016
In
die saak van:
MK
DHOR
APPELLANT
teen
DIREKTEUR
VAN OPENBARE
VERVOLGING
RESPONDENT
J
U D G M E N T
The
appellant Mr MK Dhor was arrested on 13 October 2016 on a charge of
having contravened
section 49(1)(b)
of the
Immigration Act, 13 of
2002
, which provides that:
"Any illegal
foreigner who fails to depart when so ordered by the Director-General
shall be guilty of an offence and liable
on conviction to a fine or
to imprisonment not exceeding four years.”
The
charge against the appellant reads:
"That on 13
October 2016 while he was an illegal foreigner in South Africa he
unlawfully and intentionally failed to depart
from South Africa and
that he overstayed here since 9 August 2015.”
I
pause to point out that the charge contains no allegation that the
appellant had in fact been ordered by the Director-General
to depart
from South Africa.
On
24 October 2016 the appellant’s application to be released on
bail was dismissed by the Magistrate Upington. He now
appeals
against that decision. The appeal is opposed by the Director of
Public Prosecutions, represented by Adv Van der Bijl.
The
appellant is represented by Adv. IJ Nel. Because of the maximum
period of four years imprisonment provided for by the
Immigration
Act, a
contravention of
section 49(1)(b)
would be an offence as
envisaged in Schedule 1 of the
Criminal Procedure Act, 51 1977
.
Section 60(4)(a)
of the
Criminal Procedure Act provides
that the
interests of justice do not permit the release of an accused if there
is a likelihood that the accused will commit a Schedule
1 offence
while out on bail.
Section 60(5)(e)
of the
Criminal Procedure
Act provides
that, in considering the existence of such a likelihood
the court may take into account,
"Any
disposition of the accused to commit offences referred to in Schedule
1 as is evident from his or her past conduct.”
The
court may in terms of
section 60(5)(h)
also take into account,
"Any other
factor.”
Another
factor which would be relevant is the likelihood that the release of
an accused on bail will undermine the criminal justice
system, as
envisaged in
section 60(4)(d)
of the Criminal Procedure Act.
The
application for bail was refused on the basis, primarily, that if the
appellant was released on bail his continued presence
in the country
would amount to the perpetuation of the offence with which he had
been charged, because he would still not be departing
from the
country, as envisaged in
section 49(1)(b)
of the
Immigration Act.
It
would therefore appear that bail was refused on the basis of the
likelihood that the factors in sub-sections (a) and (d) of
section
60(4)
of the
Criminal Procedure Act were
applicable in this case.
Section
65(4)
of the
Criminal Procedure Act provides
that the court hearing
an appeal against a decision in an application for bail may only
interfere with that decision if the court
is satisfied that it was
wrong. Mere doubt about the correctness of the decision would
therefore not suffice.
Is
the appellant an illegal foreigner for purposes of
section 49(1)(b)
of the
Immigration Act? His
remaining in the country while on bail
could only result in a continued contravention of
section 49(1)(b)
if
he is an illegal foreigner. He is obviously a foreigner as
envisaged in
section 1(1)
of the Act. In terms of
section 1(1)
an illegal foreigner is a foreigner “who is in the Republic in
contravention of this Act.”
The
Magistrate seems to have reasoned that the appellant had failed to
depart in contravention of
section 49(1)(b)
, that he was therefore on
that basis in the country in contravention of the
Immigration Act and
that he was accordingly an illegal foreigner for the purposes of
section 49(1)(b).
This
reasoning would have been materially flawed. The contravention
envisaged in the definition of an illegal foreigner in
section 1(1)
must of necessity be one which already exists when the failure
envisaged in
section 49(1)(b)
occurs. To put it another way,
the offence envisaged in
section 49(1)(b)
can only be committed by a
person who is already in the country in contravention of the
Immigration Act. It
is a jurisdictional requirement of
section
49(1)(b)
that the person must already be an illegal foreigner at the
time that the failure to depart occurs. The person cannot
somehow
become an illegal immigrant simply by being accused of being
in the country in contravention of the
Immigration Act.
Even
if the appellant could have been regarded as an illegal foreigner on
this basis, the Magistrate would still have been wrong to
hold that
the appellant would be continuing what he was charged with, merely by
being out on bail and remaining in the country.
What he was
charged with was the contravention of
section 49(1)(b)
of the
Immigration Act, the
other elements of which offence would, even if
the appellant is to be assumed to have been an illegal foreigner for
purposes of
the particular offence, be that he failed to depart after
having been ordered to do so by the Director-General. The
charge,
as already mentioned, contained no allegation that the
appellant had been so ordered and there also was no evidence to this
effect
in the bail application.
That
is not, however, the end of the matter. The appellant would in
my view on the evidence in any event in terms of other
provisions of
the
Immigration Act have
been in contravention of the Act prior to
his arrest on the present count.
Section 43
enjoins a foreigner
to depart from the country upon the expiry of his or her "status”.
The
word “status” is defined as meaning "the status of
the person as determined by the relevant visa or permanent
residence
permit granted to a person in terms of this Act.”
The
appellant’s visitor’s visa or permit expired in August
2015, and he did not depart then and still has not done so.
That
immediately turned him into an illegal foreigner and there is no
evidence on record that he had approached the Director-General
in
terms of
section 32(1)
of the Act for authorisation to "remain
in the Republic pending his or her application for a status.”
His
remaining in the country under these circumstances would constitute
an offence in terms of
section 49(1)(a)
of the
Immigration Act, which
provides that:
"Anyone who
enters or remains in, or departs from the Republic in contravention
of this Act shall be guilty of an offence and
liable on conviction to
a fine or to imprisonment not exceeding two years.”
It
follows that the appellant had indeed at the time of his arrest been
an illegal foreigner. It must be kept in mind, though,
that the
appellant is not charged with the contravention of
section 49(1)(a)
of the
Immigration Act, but
rather with the contravention of the more
serious sub-section (b). The Magistrate held that:
"When the
accused is released ... obviously he faces the risk of being arrested
again because his
stay has not been
corrected or legalise(d).”
that
"should this
court make a decision to release the accused today ... the court will
be facilitating an otherwise already illegal
matter” and that
this problem "cannot be rectified by the courts.”
The
Magistrate clearly was of the view that if released on bail, the
appellant’s continued presence in the country would constitute
a continued contravention of sub-section (1)(b) of
section 49
of the
Immigration Act. In
this the magistrate was wrong, because
there was no allegation or evidence that the appellant had been
ordered to leave the country.
The existence of such an order is
a jurisdictional requirement of that particular offence, as already
mentioned.
Ms
Van der Bijl’s argument that the expiry of the appellant’s
visa should somehow be deemed to have created or amounted
to such an
order, is untenable. The
Immigration Act specifically
provides
for the making of such orders by the Director-General. It
contains no provision that such an order can come into
existence in
any other way.
Even
if the Magistrate was, however, correct in his view that there would
be a continued contravention of
section 49(1)(b)
, his apparent
approach that bail could in no circumstances be granted in such a
case, would have been wrong. Whether or not
the appellant would
be arrested again if released on bail, would in the first place be in
discretion of the immigration officer
concerned, and one of the
factors that would have to be considered by the immigration officer
in the exercise of that discretion
would be the very fact of the
appellant having been released on the same charge. The
Magistrate’s order cannot simply
be ignored. (See
section 34(1)
of the
Immigration Act and
Ulde vs Minister of Home Affairs &
Another
2009 (4) SA 522
(SCA).)
Secondly
there is the provision in
section 32
of the
Immigration Act that
an
illegal foreigner may be,
"authorised by
the Director-General in the prescribed manner to remain in the
Republic pending his or her application for a
status.”
If
the Director-General grants authorisation the appellant would for the
period of that authorisation not be liable to be arrested.
The
finding that the appellant would, if released on bail and if he then
remained in the country, have been contravening
section 49(1)(b)
of
the
Immigration Act, was
therefore wrong, as was the approach that
granting bail to an illegal foreigner would be futile and would of
necessity not be in
the interests of justice.
I
am mindful of the fact, however, that without an authorisation by the
Director-General the appellant’s continued presence
would
constitute a contravention of sub-section (a) of
section 49(1)
of the
Immigration Act, which
would also have been an offence as envisaged
in Schedule 1 of the
Criminal Procedure Act, and
accordingly then
also one as envisaged in
section 60(4)(a)
of the
Criminal Procedure
Act.
Even
if the appellant’s continued presence in the country would
technically constitute the less serious offence of a contravention
of
sub-section (a) of
section 49(1)
of the Immigration Act, the question
would remain whether the Magistrate’s finding that his release
on bail would not be
in the interests of justice, was correct on the
evidence. The first important consideration, and one which the
Magistrate
had obviously not recognised, is that on the evidence
before the Magistrate, and having regard to the charge and the
absence of
an allegation that the Director-General had ordered the
appellant to leave the country, there simply was no prospect that the
prosecution
of the appellant on that charge would succeed.
Compare
S v Botha & ‘n Ander
2002 (1) SACR 222
(SCA) paragraph 21.
As
regards the evidence in general the following is common cause, or not
seriously in dispute. The appellant is a Bangladesh
citizen.
His visa or permit, and therefore status, expired in August 2015.
It was in his passport, which at that stage
was in the possession of
the police pending his prosecution on a charge of theft. After
having been sentenced in September
2015 (for that charge) to a fine
of R5 000 or two years imprisonment, wholly suspended, he
attempted to retrieve his passport,
but only succeeded in December
2015.
In
January 2016 he was arrested because his papers were not in order,
presumably because he no longer had a permit or visa to stay
in South
Africa. On 15 January 2016 he was released on warning to afford
him the opportunity of addressing the problem and
getting his papers
in order.
He
then on 18 February 2016 applied for a police clearance certificate,
as envisaged in the Immigration Regulations published in
Government
Notice R413 on 22 May 2014. An application for the visa
required by the appellant is not possible without such
a certificate.
In
March 2016 that case was struck off the roll when the Immigration
Official did not attend court to testify against the appellant.
On
13 October 2016 the appellant was then arrested on the present charge
after his tenant, having himself been confronted because
his papers
were not in order, drew the attention of the immigration officials to
the appellant.
An
affidavit by the appellant was submitted in support of his
application. From it the following appeared:
1.
He has been staying in South Africa
and in the same area for 12 years.
2.
He is the owner of a house,
purchased in 2012, where he co-habits with Ms De Wee and their
two
minor children, aged 10 years and 5 years old.
3.
The appellant is 36 years old and has
only the one previous conviction already alluded to.
4.
He is the owner of a shop which he
rents out at R8 000 per month, but the tenant fell
in arrears
with the rent. It was when he took steps to have the tenant
evicted that the latter told the immigration officials
about him.
5.
The appellant is his family’s sole breadwinner.
6.
His passport is with the police at the moment.
The
prosecutor presented the evidence of Mr Andreas, an immigration
official. He testified that the appellant had in the form
of a
permit endorsed in his passport been "admitted” for a
period of 30 days from 10 July 2015 until 9 August 2015,
when that
permit expired. It is not clear if Mr Andreas by the word
“admitted” in fact meant that the appellant
had before
the granting of that visa been outside the country.
Mr
Andreas testified that the records of the Department of Home Affairs
reflected that the appellant has not yet again applied for
a permit
or visa, but he also testified that he noticed, presumably while
testifying and in the process of discussing the Department’s
records, that "there is police clearance that was sent
through.” He unfortunately did not say and was not asked
when the police clearance was sent through and to whom.
Mr
Andreas furthermore referred to previous unsuccessful applications by
the appellant for a visitor’s visa and for permanent
residence,
the former having failed because of the absence of a police clearance
certificate and the latter
inter alia
because it had been
found that the appellant was in possession of a temporary residence
permit that had been issued fraudulently.
Three
other considerations weighed by the Magistrate when considering the
application for bail.
The
Magistrate found that the appellant had not, since the previous case
had been struck off the roll, taken steps to regularise
his stay in
the country. This would be correct to the extent that a police
clearance certificate had been requested before
that case was struck
off the roll and there was no evidence of any steps that had been
taken by the appellant in the more than
seven months after that.
It appears, however, that the appellant believed that there was
nothing more that he could do, because
of the fact that an
application for a visa was not possible without the police clearance
which he had applied for.
The
second other consideration mentioned by the Magistrate was that
previous applications by the appellant for similar permits had
been
unsuccessful. Mr Andreas mentioned only one that was refused in
November 2014, in other words before the appellant was
obviously
successful in his application for a permit that expired in August
2015.
The
Magistrate also referred to the fact that the appellant had been
found in possession of a fraudulent permit, but that was already
in
2013, and therefore once again before his successful application in
2015.
In
any event, these factors fell to be considered by the Department when
considering an application for a visa. As already
mentioned,
the Department granted the appellant the 2015 visitor’s visa
despite his earlier unsuccessful applications and
the history
referred to, so the Magistrate would have been wrong if he on the
basis of these factors considered that an application
by the
appellant for at least a temporary visitor’s visa would not
succeed. Such a visa can in terms of
section 11
of the
Immigration Act be
granted or renewed for up to three months at a
time, and in some cases for even up to three years.
It
was on the strength of these considerations, together with the
consideration that the release of the appellant would amount to
facilitating a crime, that bail was refused.
In
my view the only one of these considerations which may have had
substance is the absence of evidence about further steps by the
appellant after having applied for a police clearance certificate.
There is no evidence that he attempted to obtain the
Director-General’s authorisation to remain in the country
pending an application for a permit. There is also no evidence
that he attempted to apply pressure on the police to make a decision
on his request for a police clearance certificate, if necessary
even
by means of an application for a
mandamus
.
On
the other hand the appellant is clearly a layman, and his attorney
has now advised him to get the assistance of someone who specialises
in these matters.
All
these steps can be taken if the appellant is released on bail.
The possibility that he may not, and that he may sit back
and do
nothing to end his illegal presence in the country, is a factor that
would in terms of
section 60(9)
of the
Criminal Procedure Act be
relevant when weighing up the interests of justice against the right
of the appellant to his freedom and the prejudice he would
suffer if
detained.
It
is in any event something that could, at least to an extent, be
addressed by appropriate conditions. One such condition could
be that
the appellant within a specified period applies for the
Director-General’s authorisation as envisaged in
section 32(1)
of the
Immigration Act, which
would regularise, subject to the
conditions of that authorisation, his presence in the country pending
his application for a visa.
Another could be that he submits an
application for a visa or a residence permit within a specified
period, if it can be accepted
that the police clearance certificate
is now available.
The
prejudice that the appellant will suffer if he is to remain in
custody is obvious. He is his family’s sole source
of
income, as already mentioned. It would appear as though his
tenant remained in occupation of his shop after the appellant
was
arrested, which could for obvious reasons also lead to irreparable
damages. The tenant was also in arrears at the time
of the
appellant’s arrest, so there is no merit on the evidence in Ms
Van der Bijl’s argument that the appellant and
his dependants
would not be deprived from an income in the form of rental while he
is detained.
It
must also be kept in mind that the appellant’s permit expired
while his passport was in possession of the police.
The
prosecutor presented no evidence to refute the appellant’s
statement on oath that he had experienced difficulty to retrieve
the
passport.
At
the hearing of the bail application the appellant’s attorney
conceded that the offence that he was charged with fell under
Schedule 5 of the
Criminal Procedure Act, because
of the appellant’s
previous conviction of theft, and that this meant that in terms of
section 60(11)(b)
of the
Criminal Procedure Act the
appellant bore
the onus of satisfying the court that the interests of justice
permitted his release.
In
terms of Schedule 5 an offence in terms of Schedule 1 would also be
an offence for purposes of Schedule 5 if the accused has
a previous
conviction for a Schedule 1 offence. The offence with which the
appellant is charged is a Schedule 1 offence because
the prescribed
maximum sentence of “a fine or ... imprisonment not exceeding
four years” exceeds the threshold in Schedule
1 of six months
imprisonment without the option of a fine. The appellant’s
previous conviction of theft is also a Schedule
1 offence. The
concession was therefore correct.
In
my view the appellant had, however, in the circumstances and on the
evidence, shown that the interests of justice permitted his
release
on bail.
The
Magistrate committed the misdirections already referred to in
deciding that the appellant would remain in contravention of
section
49(1)(b)
of the
Immigration Act if
released on bail and in assuming
that the appellant would necessarily be liable to be arrested again
if released. This led
to the Magistrate not doing the weighing
up required by the provisions of
section 60(9)
of the
Criminal
Procedure Act.
I
have already dealt with the issue of the prospects of a successful
prosecution on the present charge.
Ms
Van der Bijl argued that the appellant had more than 10 years to
apply for permanent residency and that he must be assumed to
have no
intention of doing so. This argument loses sight, firstly, of
the fact that on the prosecution’s own evidence
the appellant
has at least once applied for exactly that. Secondly Ms Van der
Bijl did not refer me to any provision of the
Immigration Act or
the
said Regulations that would require an applicant for a temporary visa
to have already applied for permanent residency.
It is only in
the case of a visitor’s visa being issued in terms of
sub-section (6) of
section 11
of the
Immigration Act that
there is a
requirement that an applicant must apply for permanent residency, but
even then only "within three months from
the date upon which he
or she qualifies to be issued with that visa.”
Lastly
it was common cause that none of the factors listed in sub-sections
(b), (c) or (e) of
section 60(4)
of the
Criminal Procedure Act, that
could otherwise have militated against a finding that the interests
of justice permitted the appellant’s release on bail,
existed.
I
am therefore of the view that the
APPELLANT SHOULD BE GRANTED
BAIL
and I will grant counsel a short adjournment to discuss
the amount of bail and possible specific conditions, other than of
course
the condition that the appellant attend court on the date to
which the matter was adjourned on the last occasion.
---oOo---