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[2014] ZAGPPHC 334
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Khoza v S (A124/14) [2014] ZAGPPHC 334 (10 June 2014)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION: PRETORIA)
CASE NO: A124/14
DATE: 10 JUNE 2014
KHOZA
.......................................................................................................................................
APPELLANT
and
STATE
......................................................................................................................................
RESPONDENT
JUDGMENT
KHUMALO J
[1] The Appellant
was refused bail in the Magistrate Court, for the district White
River held at Sekukuza. Before this court is
an appeal against the
refusal.
[2] He was arrested
on 17 November 2013 on charges of contravention of certain provisions
of the National Environmental Management:
Protected Areas Act, Act 57
of 2003, Regulation Gazette No 3838 as published in the Government
Gazette no 28181 of 28 October 2005
and the Criminal Procedure Act 51
of 1977 (“the Act”) for unlawfully and intentionally
hunting, catching, capturing
or killing any specimen of a listed
threatened or protected species, and of the Firearms Control Act for
unlawfully being in possession
of ammunition, to wit 5 x 375 calibre
round without being a holder of a permit to possess such ammunition.
He had also entered
the Kruger National Park without permission.
[3] It was submitted
by Mr Net, on behalf of the Appellant, that Appellant is facing
schedule 1 offence/s wherefore the onus rests
upon the state to prove
that it is not in the interest of justice to release him on bail. He
argued that the learned magistrate
in the court a quo erred in
refusing Appellant bail on the basis that he did not have a permanent
place of abode, disregarding
the undertaking by the brother that he
will be staying with him in Mozambique and will make sure that he
attends court, while the
state could not prove otherwise. Appellant
had also cooperated and indicated his intention to plead guilty to
trespassing in the
Park. He has a very strong defence, also against
the allegations on the fictitious stamps and the dates recording his
movements
into and out of the Republic. Mr Nel further argued that
the magistrate also erred when he found that Appellant may abscond
and
fail to attend trial due to his ability to leave and enter the
Republic without using the border gate. According to him the state
failed to discharge the onus as there was no evidence that the
accused may abscond or fail to stand trial.
[4] A Mozambican
national, Appellant was arrested inside the National Park nature
reserve or world heritage near the Crocodile Bridge
in White River.
His arrest followed a shooting that ensued in the Park between the
men he was with at the time and the rangers,
which resulted in a
fatal shooting of one of the men.
[5] In support of
his application in the court a quo, Appellant had alleged in the
testimony he tendered by way of an affidavit,
to have come across the
three men who were carrying rifles inside the Park. He, at the time
was walking back to the border gate
of South Africa and Mozambique.
The men were allegedly unknown to him. According to him he had
entered the Republic legally, on
15 November 2013, intending to go to
Nelspruit and when he was in Malelane he realised that he left his
wallet and decided to walk
back, taking a shortcut through the Park.
The three men spoke Portuguese which he did not understand. He
however heard that they
were there to hunt. Suddenly there were gun
shots, the men were exchanging fire with the rangers and one of the
men was fatally
wounded the other two ran away. He surrendered to the
rangers who arrested and badly assaulted him, suspecting that he was
in the
Park hunting without a permit.
[6] The Respondent,
in opposing the application, relied initially on an affidavit by one
Mr Siko Moses Majola, a senior immigration
officer at Home Affairs,
White River, whose normal course of duty according to the affidavit
is to check documents of foreign nationals
verifying if they are
valid or not, interviewing those suspected to be illegal foreigners
and determine their citizenships and
investigate their residence
permits or fraudulent South African citizenship and also responsible,
on completion of the investigation,
for their charging, apprehension
and removal back to their country of origin. The reason for opposing
bail was that on 29 November
2013, their office was visited by one
Detective Mogale from the organised Crime Unit asking them to assist
in verifying a passport
of a suspect arrested in the Park. The
passport with I D number DJ 007 685 whose holder was the Appellant
was verified from a system
of the Department called movement control
system that records movements of people entering or leaving the
country.
[7] It was verified
that the Appellant's passport had only one valid date stamp although
there are four entry stamps and one departure
stamp which made the
movements not to correspond. The entry stamp dated 12 November 2013
was valid and was to expire on 12 December
2013 and its number 187
was the only valid stamp. The verification indicated that the number
of entry stamps do not correspond
with the departure stamps which,
according to him, means Appellant has other means to leave the
Republic without stamping his passport
with Home Affairs officials at
the port of entry. The entry stamps dated 14, 15 and 2 November 2013
that had an invisible last
number was found to have been faked. They
all did not have stamp numbers and are not in the control movement
system and two of
the stamps have no corresponding departure stamps.
Majola therefore submitted that the Appellant has got other means of
entering
and departing the country without stamping his passport and
has access to a fake stamp as according to the movement control
system
there is no record that the Appellant entered the Republic on
14 or 15 November or 20 something. The date on date stamp is
invisible
and the only departure stamp that is visible is the stamp
dated 14 November 2013 which is also invalid.
[8] He (Majola)
accordingly submitted that the Appellant has contravened the
following sections of the Immigration Act 13 of 2000
as amended:
[8.1] s49 (1) (a)
that reads: “Anyone who enters or remains in, or depart from
the Republic in contravention of this act,
shall be guilty of an
offence and liable on conviction to a fine or imprisonment not
exceeding three months.”
[8.2] s9 (1) that
reads: “No person shall enter or depart from the RSA at a place
other than a port of entry.”
[8.3] s9 (3) (d)
that reads:
u
No person shall enter or depart RSA unless
the entry or departure is recorded by an immigration officer.”
[8.4] s9 (3) (e)
that reads: "No person shall enter or depart RSA unless examined
by an immigration officer as prescribed.”
[9] Appellant, in
his evidence that he also tendered by way of an affidavit, disputed
that the stamps in his passport are fictitious
and contended that he
did not use any other way to enter South Africa or to go back to
Mozambique other than the official border
gate. He however did not
offer any more explanation for the incomprehensible stamps, the
unaccountable extra dates of entry or
why there are no corresponding
departures for the extra entries.
[10] He proceeded to
indicate that he intends to plead guilty to trespassing and not
guilty to any other charges the state intends
bringing against him.
Also, he mentioned that he has no impending cases or previous
convictions, undertook to attend court until
the matter is finalised
and not to commit any offence, vowing to abide by the bail conditions
imposed and pointed out that he is
married with two minor children
and is the sole breadwinner. He pleaded for the court to release him
on a bail of R5 000.00, an
amount that his brother, one Sergio
Beyjani Khoza (“Sergio”) had brought to court and was
ready to pay.
[11] Sergio
confirmed under oath to be the brother mentioned and that he was
there to pay the bail, coming all the way from Makhudu,
in Mozambique
where he stays and also that on being released, Appellant will stay
with him there in ‘Mozambique and undertaking
to make sure that
he attends court until the matter is finalised.
[12] The court a quo
then invoked the proceedings of s 60 (2) (c) of the Act requiring of
the prosecutor that more evidence by Majola
be adduced, which
evidence was along the lines of the evidence in his affidavit. He
however further explained that on entering
the Republic, the passport
gets scanned and the system then records the information on the
passport and automatically give the
passport holder the number of
days he can be in the country and also allocate a number to the
entry, which numbers and information
were missing from the
Appellant’s passport. No further evidence was led.
[13] Now s 60 of the
Act, which is the relevant section applicable in these proceedings in
ss (4) (1) (a), reads that:
“
An
accused who is in custody in respect of an offence shall, subject to
the provisions of s 50 (6) be released on bail at any stage
preceding
his or her conviction in respect of such offence, if the court is
satisfied that the interests of justice so permit.”
[14]
In S
v Stanford
1997
(1) SACR 221
(c) it was held that the court a quo had lost sight of
the fact that denial of bail would be in the interest of justice only
if
one of the grounds set out in s 60 (4) was probable. The onus is
upon the Respondent/ prosecution to establish the existence of
such
grounds for the continued incarceration of the Appellant in the
interest of justice. The question therefore to be answered
on this
appeal is whether the Respondent discharged the onus. Tshiki BJ in
Botha v Minister
of Safety and Security
&
Others;
January v Minister of Safety and Security & Others
102
(10 SACR 305
(ECP) (at [33] explains how the prosecution can go about
establishing the required grounds to discharge the onus and states
that:
“
Prosecutors
also have a duty to establish facts that justify the further
incarceration of a detained person before he or she can
apply to the
court for the detainee’s further incarceration. One of the
methods expected to be used by the prosecutor is
to establish, from
the police official investigating the case, all the facts which would
justify the further detention of the arrested
person. He or she had
to protect the public interest, act with objectivity, take proper
account of the position of the suspect
and the victim, and pay
attention to all relevant circumstances, irrespective of whether they
are to the advantage or disadvantage
of a suspect.”
[15] So, in addition
s 60 (4) (b) provides that the interest of justice do not permit the
release from detention of an accused where
there is a likelihood that
the accused, if she or he was released on bail, will attempt to evade
his or her trial. The provisions
of s 60 (4) (b) are to be read with
the provisions of s 60 (6) that set forth the factors that are to be
considered to establish
if the accused might evade the trial, which
reads as follows that:-
‘
in
considering whether the ground in subsection (4) (b) has been
established, the court may where applicable, take into account
the
following factors, namely-
(a) the emotional,
family, community or occupational ties of the accused to the place at
which he is to be tried;
(b) the assets held
by the accused and the place where such assets are situated;
(c) the means, and
travel documents held by the accused, which may enable him or her to
leave the country;
(d) the extent, if
any, to which the accused can afford to forfeit the amount of bail
which may be set;
(e)the question
whether the extradition of the accused could readily be effected
should he or she flee across the borders of the
Republic in an
attempt to evade his or her trial;
(f) the nature and
the gravity of the charge on which the accused is to be tried;
(g) the strength of
the case against the accused and the incentive that he or she in
consequence have to attempt to evade his or
her trial;
(h)the nature and
gravity of the punishment which is likely to be imposed should the
accused be convicted of the charges against
him or her;
(i) the binding
effect and enforceability of bail conditions which may be imposed and
the ease with which such conditions could
be breached;
(j) any other factor
which in the opinion of the court should be taken into account.’
[16] The court a
quo, in refusing bail to the Appellant, correctly took into
consideration the evidence led on behalf of the parties,
specifically
that the Appellant had no residence in the Republic and that when
released on bail he was going back to Mozambique.
Also the submission
by the Respondent that there are no other means the Respondent can
make sure that he comes back to attend trial
as there is no
extradition treaty with his country of origin. The court also viewed
his ability to enter and depart from the country
through other means
besides the official port of entry or departure as exacerbating the
situation and the fact that he is charged
with serious offences
involving possession of a firearm and trespassing in the Park to find
that it is not in the interest of justice
that he be released on
bail. The Respondent’s Counsel argued that the Appellant might
be facing a long term imprisonment.
[17]
The other adverse factors to be considered in balancing the interest
of justice and the right of the Appellant to liberty that
validates
the decision of the court a quo is the absence of emotional and
family ties in the Republic because even the existence
of an
extradition treaty may not be a guarantee that the Appellant will not
evade the trial, if he is without family ties in the
country, same as
the undertaking by his brother. As noted in the
Commentary
on the
Criminal Procedure Act
by
Du Toit & Others on p9-39 with reference to 5
v
Petersen
2008
(2) SACR 355
(C) where a full bench noted at [78] that the existence
of a treaty between South Africa and Namibia provided no guarantee
that
extradition would indeed take place if the Appellant were to
relocate for purpose of evading her trial. This reality rendered
meaningless
the undertaking of the Appellant’s Namibian family
that they would not have permitted her to become a fugitive from
justice.
[18] As a result
this court has no authority to interfere with the discretion of the
court a quo unless if the court has erred or
misdirected itself. The
Act in s 65 (4) clearly stipulates 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.”
[19] I am satisfied
that there was no misdirection by the court a quo, the decision was
correct. Under the circumstances I make
the following order:
[19.1] The appeal is
dismissed.
N V KHUMALO J
JUDGE OF THE HIGH
COURT
GAUTENG DIVISION:
PRETORIA
On behalf of
Appellant: Adv Nel Instructed by: Legal Aid; Nelspruit
On behalf of
Respondent: Adv Nethononda
Instructed by:
National Director of Public Prosecutions