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[2016] ZAGPPHC 1093
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Rauf and Another v S (CC29/2015) [2016] ZAGPPHC 1093 (25 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
25/11/2016
CASE
NO: CC29/2015
Reportable:
Yes
Of
interest to other judges: Yes
Revised.
In
the matter between:
ABDUL
RANA
RAUF
First
Applicant
MUHAMMAD
SHABBIR
Second
Applicant
and
THE
STATE
Respondent
JUDGMENT
Bagwa
J
Bail
pending appeal
-
The requisite approach
-
Granting
leave to appeal not entitling applicant serving long sentence for
a
serious offence entitlement to release on bail
-
All
relevant factors to be weighed.
Summary
The
appellants had been granted leave to appeal after being convicted on
charges of kidnapping, murder, unlawful possession of a
firearm and
unlawful possession of ammunition. They were sentenced as follows:
On count 1 of kidnapping two (2) years
imprisonment.
On count 2 of murder, life
imprisonment.
On count 3 of unlawful possession of a
firearm five (5) years imprisonment.
On count 4 of unlawful possession of
ammunition one (1) year imprisonment.
It
was further ordered that the sentences one counts 1, 3 and 4 would
run concurrently with the sentence on count 2 and they were
declared
unfit to possess a firearm in terms of the
Firearms Control Act 60 of
2000
. The applicants are currently serving their sentences at Kgosi
Mampuru II Correctional Centre, Pretoria.
The
applicants emigrated from Pakistan to South Africa in 2003 and 2007
respectively. The first applicant had obtained a visitor's
permit
which he had failed to renew until it expired on 6 May 2015. The
second applicant, a businessman who operated four businesses
in
Pretoria had been given a permanent residence status by the
Department of Home Affairs but evidence was led that his permanent
residence had been withdrawn on 21 May 2015 after Home Affairs
discovered that he had failed to disclose a previous conviction
for
corruption in terms of
section 4
(1) (a) (iii) of the
Prevention and
Combating of Corrupt Activities Act 12 of 2004
when he applied for
permanent residence. Both the applicants proffered the fact that the
court had stated the possibility that
another court might come to a
different conclusion and that therefore there were prospects of
success as a special circumstance
entitling them to be released on
bail.
The
applicants had been granted bail after their arrest by the Regional
Court, Pretoria. Bail was subsequently withdrawn in terms
of
section
68
of the
Criminal Procedure Act 51 of 1977
by the High Court,
Pretoria for intimidating witnesses. That decision had subsequently
been confirmed on appeal by the Full Court
of the Gauteng Division of
the High Court.
Held,
that the finding by the Court that another court might come to a
different conclusion did not
ipso facto
entitle them to bail.
Held,
further that the trial court had found that the State had proved
its case beyond a reasonable doubt and that the said decision was
not
watered down by the granting of leave to appeal. All the relevant
facts had to be weighed anew.
Held,
that in the light of their declaration as illegal immigrants by
the Department of Home Affairs that factor had heightened the flight
risk.
Held,
that their application for release on bail pending appeal be
dismissed.
Annotations:
Reported
cases
R
v Blom
1939 AD 188
at 202 - 203
S
v Shabalala
1966 (2) SA 297
(A) at 299 C
S
v Rawat
1999 (2) SACR 398
at 401 g to h
S
v Branco
2002 (1) SACR 531
(VV)
Statutes
Criminal
Procedure Act 51 of 1977
Criminal
Law Amendment Act 105 of 1997
Firearms
Control Act 60 of 2000
Prevention
and Combating of Corrupt Activities Act 12 of 2004
Immigration
Act 13 of 2002
[1]
The applicants herein are applying for bail pending appeal after they
were arraigned, tried and convicted by this court on charges
of
kidnapping, murder read with the provisions of
section 51
(1) of Act
105 of 1997 and unlawful possession for a firearm and ammunition.
[2]
They were sentenced as follows:
On count 1 of kidnapping two (2) years
imprisonment
On count 2 of murder, life
imprisonment each.
On count 3 of unlawful possession of a
firearm five (5) years imprisonment each.
On count 4 of unlawful possession of
ammunition one (1) year imprisonment each.
It
was further ordered that the sentences imposed in counts 1, 3 and 4
would run concurrently with the sentence imposed in count
2 and the
accused were declared unfit to possess a firearm in terms of the
Firearms Control Act 60 of 2000
.
[3]
The applicants are currently serving their sentences since
their day of sentencing at Kgosi Mampuru II Correctional Centre,
Pretoria.
[4]
They were granted leave to appeal against conviction and sentence to
the full court of the Gauteng Division of the High Court
of South
Africa.
[5]
The applicants have filed affidavits in support of their application
wherein the first applicant states that he is a 34 year
old male who
prior to incacertation had been granted bail by the Regional Court,
Pretoria North. Bail was later withdrawn by the
High Court in terms
of section 68 of the Criminal Procedure Act 51 of 1977 (the Act) in
terms of which the State alleged that he
and his co accused had
intimidated State witnesses.
Personal
Circumstances
[6]
The first applicant was born on 13 April 1982 in Pakistan and grew up
in the province of Lahore. The applicant attended the
equivalent of
the South African standard 10 in terms of education. He emigrated to
South Africa during 2007 and prior to incarceration
he resided at
house number 1253 Cobham Road, Queenswood, Pretoria in rented
accommodation. He is not married and has no dependants
of his own.
Employment
[7]
Since his arrival in South Africa, his co-accused Muhammed Shabbir
took him into his employment at his various business as a
manager
where he earned R5 000.00 per month. He was also managing Crazy Store
Supermarket in Montana, Pretoria where he was arrested.
The applicant
states that he used to transmit money to his family in Pakistan who
are now destitute as he is no longer able to
do so. The applicant
states that until his conviction on 28 July 2016 he had no previous
convictions.
[8]
The applicant refers to the fact that his conviction was based on
circumstantial evidence and that this court opined during
the
application for leave to appeal that another court might come to a
different conclusion. He states that he is prepared to subject
himself to any additional bail conditions which might be imposed if
his application is successful and that he could post an amount
of R50
000.00 to R100 000.00 as bail deposit if released.
[9]
The second applicant makes similar submissions to the first applicant
and further states regarding his personal circumstances
that he was
born on 1 January 1980 in Pakistan where he also grew up in the same
province as the first applicant. Educationally
he also attained a
standard 10. He emigrated to South Africa in 2003. He is the owner of
house number 1253 Cobham Road, Queenswood,
Pretoria having purchased
the property during 2014. Prior to incarceration he was renting
townhouse number 67 Roodeberg, Equestria
at 151 Curro Avenue,
Pretoria. If released he intends relocating to his Queenswood house
where he intends residing with the first
applicant.
[10]
The first applicant married his first wife on 17 July 2003 and they
lived together at Eersterust, Pretoria. One child was born
of that
relationship before they divorced in October 2011. The second
applicant married his second wife Hina through Pakistani
customary
rites in 2012 and they have a son who was two months old when he was
arrested in May 2015.
[11]
Employment wise, the second applicant worked as a merchant selling
cellular phones in 2003 but he later expanded into clothing
and food
businesses. From the income earned he maintains himself and family
and also transmits money to his Pakistani family.
[12]
The first and second applicant have known each other since childhood
and they have continued their association when the second
applicant
took the first applicant into employment after his arrival in South
Africa.
[13]
The second applicant has one previous conviction in terms of
section
4
(1) (a) (iii) of The
Prevention and Combating of Corrupt Activities
Act 12 of 2004
where he was sentenced to direct imprisonment
suspended for five (5) years as well as a fine to the tune of R50
000.00.
Ad
Exceptional Circumstances
[14]
Similarly to the first applicant, the second applicant makes
reference to the fact that the conviction was based on circumstantial
evidence and that another court might come to a different conclusion.
He proffers this submission as constituting special circumstances
for
him to be granted bail pending appeal. He further states the need for
him to be released to cater for the needs of his wife,
his son and
his businesses.
[15]
The State has strenuously opposed this bail application and in doing
so has called the evidence of Warrant Officer Van der
Berg who is the
Investigating Officer in this case. He testified regarding an
investigation he is currently involved in, in which
both the
applicants are suspects. This concerns the murder of Mr Shah who was
accused number three in this case before he was murdered.
He stated
that the witnesses in the Shah case are afraid of both the applicants
and that he has already obtained a sworn statement
implicating the
second applicant from one of the witnesses.
[16]
This testimony of the Investigating Officer is particularly relevant
when one considers the background to this case. As confirmed
by the
applicants themselves they were granted bail after their arrest but
that bail was subsequently withdrawn in terms of section
68 of the
Act. The basis of the withdrawal was that the applicants had
intimidated State witnesses. The witnesses in the investigation
currently being investigated by Warrant Officer Van der Berg also
expressed fears for their lives and in my view they are no different
from the witnesses in the main trial and their fears are not a
figment of their imagination. It is also pertinent to note that
the
applicants appealed against the withdrawal of bail decision by this
court. Their appeal was dismissed by the Full Court of
the Gauteng
Division.
[17]
The Investigating Officer also handed in affidavits in terms of
section 212 of the Act by a Mr Kruger and a Mr Ndou who are
immigration officers at the home Affairs Department. The affidavit of
Mr Kenneth Ndou explained that the first applicant is an
illegal
immigrant in that his visitor permit expired on 6 May 2015 and that
it was not renewed.
[18]
The affidavit of Mr Nicolas Dirk Kruger further explains that the
second applicant is also an illegal immigrant despite the
fact that
he had been granted permanent residence. Permanent residence was
subsequently revoked on 21 May 2015 when it was discovered
that he
had failed to disclose a previous conviction for corruption in 2005
and 2007 when he lodged the application for permanent
residence. On
10 November 2014 he was given notice to furnish reasons why his
permanent residence should not be revoked within
30 days of that
notice. He, however failed to do so despite his acknowledgement of
receipt of the notice hence the revocation of
permanent residence by
the Department of Home Affairs.
[19]
According to the Investigating Officer the applicants are liable to
be deported if released on bail and when that happens he
would be
unable to locate them.
[20]
Sections 60 (4) and (5) of the Act provide as follows:
"(4) The interests of justice
do not permit the release from detention of an accused where one or
more of the following grounds
are established:
[Words preceding para (a)
substituted by s 9(b) of Act 62 of 2000.]
(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 or will commit a
Schedule 1 offence; or
[Para.
(a) substituted by s. 4 (c) of Act 85 of 1997.]
(b)
where there is the 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; or
(c)
where there is the likelihood that the accused, if he or she were
released on bail, will undermine or jeopardise the objectives
or the proper functioning of the criminal justice system,
including the bail system;
(d)
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; or [sic]
[Para.
(e) added by s. 4 (d) of Act 85 of 1997.]
[Sub-s.
(4) amended by s.
9
(b) of 62 of 2000.]
(4) In considering whether the
ground in subsection (4) (a) has been established, the court may,
where applicable, take into
account the following
factors, namely-
(a)
the degree of violence towards others implicit in the charge against
the accused;
(b)
any threat of violence which the accused may have made to any person;
(c)
any resentment the accused is alleged to harbour against any person;
(d)
any disposition to violence on the part of the accused, as is evident
from his or her past conduct;
(e)
any disposition of the accused to commit offences referred to in
Schedule 1, as is evident from his or her past conduct;
(f)
the prevalence of
a
particular type of offence;
(g)
any evidence that the accused previously committed an offence
referred to in Schedule 1 while released on bail; or
(h)
any other factor which in the opinion of the court should be taken
into account."
[21]
That the applicants are persons who are prone to interfere with
witnesses if released is a matter which was decided not only
by this
court but also a Full Court of the Gauteng Division. This is a hurdle
which in my view the applicants have failed to surmount.
[22]
The factors mentioned in subsections 4 and 5 (a), (b), (d), (e) and
(g) of section 60 quoted above are also relevant in this
case. The
applicants had not only been violent towards the deceased, they had
murdered him. Past conduct of the applicants therefore
demonstrates
that they are persons who have a propensity for violence and the
court has to take this into account when determining
the outcome of
this application.
[23]
Counsel for the applicants has sought to persuade me to consider the
emotional, family and business ties of the applicants
to South
Africa. I have considered these submissions but I have also had to
consider the gravity of the charges of which the applicants
have been
convicted and the lengthy sentences they are currently serving which
might be a good incentive for them to evade justice.
[24]
The applicants have also pleaded as a special circumstance the fact
that this court in granting them leave to appeal suggested
that
another court could come to a different conclusion regarding their
conviction. To suggest that there might be prospects of
success is
not a stand-alone factor when a court deals with serious charges for
which a lengthy sentence has been imposed. It is
but just one of the
factors that is to be considered. Moreover prospects of success do
not negate the fact that this court found
that the circumstantial
evidence presented had such a high level of credibility and cogency
that the court found that the State
had proved its case beyond a
reasonable doubt.
See
S v Shabalala
1966 (2) SA 297
(A) at 299 C and
R v Blom
1939 AD 188
at 202 - 203. Prospects of success do not
retrospectively dilute that finding. The prospects relate to a future
possibility which
may or may not arise.
[25]
The applicants testified in response to the evidence tendered by the
State. They deny that they are illegal immigrants but
tender no real
evidence to rebut the evidence by the Home Affairs Department in
terms of section 212 of the Act.
[26]
Counsel for the applicants has quoted the case of
S v Branco
2002
(1) SACR 531
(W) in support of this application. That case was
similar to the present application in that the applicant, Branco, was
also
a peregrinus.
He applied for bail pending appeal. Bail
having been denied in the lower court Branco appealed to the
Witwatersrand Local
Division. The court found that the magistrate had
misdirected himself by not having regard to the
appellant's
family and business ties to South Africa, his wife
and children being resident in the country.
[27]
In my view that case can be distinguished from the present case
because the applicants have been declared illegal immigrants
by the
Home Affairs Department who are subject to be dealt with in terms of
section 29 (1) (b) and
section 28
(a) of the
Immigration Act (Act
13
of 2002). That makes them liable to deportation if they were to be
released on bail which would defeat the whole purpose of
the sentence
they are presently serving.
[28]
Regarding the test that has to be applied in considering matters much
as the present application it was succinctly stated by
Van Oosten J
in
S v Rawat
1999 (2) SACR 398
at 401 g to h when he said the
following:
"Having considered the
authorities referred to above I
am
of the view that where it
has not been shown that
a
reasonable possibility exists that
the Court of Appeal will interfere with the appellant's sentence to
the extent that the appellant
may not go to prison, then bail should
not be granted."
[29]
As matters presently stand and having considered all the above facts
and the law, I have come to the conclusion that the applicants
have
failed to make out a case for bail to be granted pending appeal. In
the result the following order is made:
ORDER:
The
application for bail pending appeal by the two applicants is
dismissed.
_______________
S.
A. M. BAQWA
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Heard
on:
24 - 25 November 2016
Judgment
delivered on:
25 November 2016
For
the State:
Advocate D. Ngobeni
Advocate
G. Mosethla
Instructed
by:
The State Attorney
For
the First and Second Accused:
Advocate S. Sithole SC
Instructed
by:
Makhubela Attorneys