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[2013] ZAGPPHC 523
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Faquir v S (A73/2013) [2013] ZAGPPHC 523 (15 May 2013)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
Case
No: A73/2013
DATE:
15/5/2013
In
the matter between:
SUREIA
MOMADE SULEMANE
FAQUIR
...........................................................................
Appellant
and
THE
STATE
.............................................................................................................................
Respondent
JUDGEMENT
MAKHUBELE
AJ
INTRODUCTION
[1]
This is an appeal in terms of section 65(4) of the Criminal Procedure
Act, 51 of 1977 (the CPA) against the refusal of bail
by the
Magistrate Barberton.
[2]
The matter came before me on 14 February 2013 and after perusing
documents filed and hearing counsel for both parties, I ordered
the
release of appellant on bail under certain conditions. I was on a
three (3) weeks acting appointment stint at the time and
due to
heavy court roll, I was not able to give a written judgement. I
undertook to give reasons at a later stage.
Here
are the reasons:
[3]
The circumstances under which the alleged offences were committed,
nature of charges preferred against the accused as well the
bail
proceedings before the Magistrate appear from the transcript of
the record of proceedings placed before me and
marked Volumes 1 and
2
[1]
. It is not the best
transcription, however, I was able to get the gist of the arguments
presented before the Magistrate.
[4]
Counsel for the appellant filed heads of argument. I am indebted to
him for the submissions as well as legal precedents referred
to
therein. The State did not file heads of argument. The explanation by
its counsel was that he did not receive a directive to
file heads of
argument as is often the case before (or after) an appeal is
enrolled. Counsel who argued the matter on behalf of
the State is not
the one who handled the bail application. He appeared to be not
familiar with the intricate facts of the
case. This of course would
not have happened if the State had filed heads of argument to assist
the court, not only with the reasons
for opposing the appeal, but why
bail was opposed in the first place.
[5]
Appellant and her co-accused, one Vincent Khumalo (hereinafter
referred to as Accused 1) appeared before Magistrate P Mlotshwa
in
the Magistrate’s Court for the District of Barberton on
charges of contravening Section 13 (f) of the Drugs and
Drug
Trafficking Act 140 of 1992 (the Act) , - dealing in
dangerous dependence producing substance.
[6]
The accused were travelling to South Africa from Mozambique by
motor vehicle on 11 September 2013. They were arrested
at the
Lebombo border post. It is alleged that approximately 7,810
kilograms of a substance that was provisionally
identified as heroin
was found in their motor vehicle after what appears to have been a
routine search. It is also alleged that
they did not have any
permit or authority to possess the substance in terms of the Act.
[6]
The value of the drugs was estimated to be R2 300 000, 00.
Schedule 5 of the CPA includes amongst other offences
“
any
offence referred to in section 13(f) of the Drugs and Drug
Trafficking Act, 1992 (Act 140 of 1992), if it is alleged that-
(a) the value of
the dependence-producing substance in question is more than
R50 000,00; or
(b) the value of
the dependence-producing substance in question is more than
R10 000,00 and that the offence was committed
by a person, group
of persons, syndicate
(c)
....”
[7]
The bail application was adjudicated (correctly so) in terms of
Section 60(11) (b) of the CPA which reads as follows:
“
Notwithstanding
any provision of this Act, where an accused is charged with an
offence referred to in Schedule 5, but not in Schedule
6, the court
shall order that the accused be kept 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.”
[7.1]
The appellant therefore bore the onus to prove, on a preponderance of
probabilities that the interests of justice favour his
release on
bail.
[8]
The powers of the appeal court to interfere with the decision of the
Magistrate are prescribed by section 65(4) of the CPA which
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.”
[8.1]
I am required to approach this appeal on the basis of the assumption
that the decision of the Magistrate was correct, and
not to interfere
with it unless I am satisfied that it was wrong
[2]
.
GROUNDS
OF APPEAL
[9]
According to the Notice dated 17 January 2013, the appeal is premised
on the allegations that the Magistrate erred in one or
more of the
following grounds:
“
(i)
In not judging the application on the totality of the evidence.
(ii) Did not
consider the fact that the investigation officer’s evidence was
unreliable and based on speculation.
(iii) Did not
consider the undisputed evidence that the appellant is not a flight
risk, nor a danger to the public, legal or bail
system nor is there
any likelihood that she will interfere with the State’s case or
State’s witnesses.
(iv) In not
finding on the totality of the evidence that the Appellant proved
that the interest of justice permits her release.
(v) By not
considering the fact that there is no likelihood that:
-
Appellant will
flee
-
Appellant will interfere with investigations, witnesses, bail system.
Legal system or criminal system.
-
Appellant will commit further crimes
-
Appellant will endanger he public order and safety
(vi)
Appellant has a family to maintain and several financial
responsibilities
(vii)
By not evaluating the evidence but only summarized it without making
any factual finding.
(viii)
By finding :
“
that
there is no evidence indicated regarding those grounds being
affected”
But
still refused bail.
(ix) That the
Learned Magistrate’s application of the interest of justice
principles is bad in law.
(x) Erred in
rejecting the principles laid down in
S V Acheson
1991 (2) SA 805
(Nm)
(xi)
By not granting bail to the Appellant.
THE
EVIDENCE OF THE APPELLANT
[10]
Appellant testified and placed the following facts before the
Magistrate:
[10.1]
She is a Mozambican national and was born on 10 April 1974.
[10.2]
She is a widow with one child, a girl, fourteen (14) years old. They
reside in Maputo in a rented flat with her younger brother.
She does
not have property in Mozambique, but owns a three vacant “stand”
which she had paid off. Other family members,
including her mother,
uncles and siblings reside elsewhere in Mozambique.
[10.3]
The value of the stands was not mentioned. Her furniture is valued at
about R42 000,00. She also owns the vehicle in
which they were
travelling.
[10.4]
She earns her living by selling clothing and “car parts”.
Her average monthly income is about 30 000 Meticas
(Mozambican
currency). This was estimated to be about R8 500,00.
[10.5]
She used to buy the clothing she sells in Brazil and South Africa.
She intended to travel to China too, but could not because
she failed
to “make a loan at the bank”.
[10.6]
Accused 1 is her friend. She has met him whilst he was still married
to his ex-wife known as Anna Maria.
[10.7]
On the day of their arrest, they left Mozambique together. They
met at Shoprite. Accused 1 took her vehicle and left
her to “go
and pick up his bags
[3]
). He
came back after a short while, picked her up and they left for South
Africa.
[10.8]
She was prepared to stay in South Africa if necessary until
finalization of her criminal trial. In this regard, she indicated
that she had a fried, Lucia Khumalo who was prepared to take her in.
[10.9]
She saw the alleged drugs for the first time when they were arrested
at the border post. The drugs were found “under
the chair or
under the foot of the driver’s side and at the back under the
driver’s seat under the carpet”
[4]
.
When she gave accused 1 the vehicles to fetch his bags there were no
drugs in it and she did not see them before their arrest.
She
intended to plead not guilty to the charges.
[10.11]
The reason for the trip was to buy “parts in Johannesburg”.
She asked him to drive the vehicle a day before
they travelled
because she “
cannot
drive on those roads or that area”.
[5]
[10.12]
She does not know who the state witnesses are. She will not interfere
with them if she were released on bail.
{10.13]
She had no objection in surrendering her passport.
[10.14]
She is responsible for her daughter’s school fees.
[10.15]
She has no record of previous convictions and there are no criminal
cases pending in any court against her.
[11]
Under cross examination, she confirmed that her friend Lucia stays in
Honeydew, Johannesburg. She denied that she had eyesight
problems or
that this was the reason she requested accused 1 to drive the
vehicle. She was going to leave accused 1 in Johannesburg
and return
to Mozambique with Lucia.
[11.1]
She confirmed that no other person, except for accuse 1 drove the
vehicle before they left Maputo.
[11.2]
The prosecutor asked her to confirm her trips by plane undertaken in
2012. She then mentioned Zanzibar, Brazil and South
Africa. He then
said to her “
Ma’m
i put to you that the reason why you visit these countries is because
you are what is known as a drug mule it is your
profession to smuggle
drugs to other countries”
[6]
.
She denied this.
[11.3]
It was also put to her that the police would have difficulties to
trace her should she be granted bail and flee South Africa
because
there was no extradition treaty between South Africa and Mozambique.
She maintained that she had close links with South
Africa because she
also consults medical specialists here and “
we depend a lot
on South Africa”.
[11.4]
She denied having knowledge of any drugs found where she was seating
in the vehicle.
[11.5]
She has a relative in Johannesburg, other than her friend, Lucia.
[11.6] She admitted,
after being asked to comment, that Maputo is used as a drug
trafficking route between South Africa and Brazil.
She knows this
because she watches Television. She denied having knowledge of the
ingredients of drugs or that the leaves for making
drugs come from
Brazil.
[11.7]
When told that the only reason she would stay in South Africa was the
criminal trial, appellant answered that “
I
have thought of it because my daughter is still a South African
citizen in Mozambique so i have thought of maybe getting her to
come
and stay on this side”
[7]
.
[11.8]
She confirmed that she often comes to South Africa with her daughter
during holidays and the longest she had stayed was two
weeks. They
stay at Lucia’s house.
12.
Lucia Khumalo
testified on behalf of appellant. Her testimony
was that:
[12.1] She stays in
Honeydew, Johannesburg with her children. She owns the house.
Appellant is her friend and they have known each
other for about
twelve years.
[12.2] Appellant
stays with her whenever she comes to Johannesburg. She fetches her at
Park Station.
[12.3]
She is prepared to take appellant in for the duration of her trial in
Barberton. She stays clse to Honeydew polie station
and she is
prepared to assist appellant with reporting there should she be
raised on bail under such conditions.
13.
Under cross examination, she indicated that she came to South Africa
in 1987. She has family members in Maputo and she travels
there
sometimes. She and appellant met in Maputo.
[13.1] She has a
trucking business.
[13.2] Accused 1
was her husband and they still have contact with each
other.
[13.3] She confirmed
that she was prepared to take appellant in, even if the trial takes
two or more years to be finalized. She
was also prepared to provide
for appellant and her child, to the best of her ability.
[13.4] She was
prepared to take the police to her house to confirm the address.
[14]
It also emerged that she earns a net income of about R20 00,00 from
her business.
EVIDENCE
FOR THE STATE
[15]
The investigator officer,
Mduduzi
Mtubatsi
testified and confirmed the
arrest and the charges as indicated above.
[16]
When asked what steps he took to verify the correctness of the
address given by Lucia Khumalo, Mtubatsi testified
that he
telephoned the i DPCI office and spoke to a Mr Ndlela. Mr Mr
Ndlela went to Lucia’s address and gave him feedback
that “
there is a guy who was arrested who was
staying at that address and that address drugs were found. What led
to the arrest of that
guy is because of a lady who has now been
arrested in Welkom”
[17]
According to Mr Ndlela, the woman arrested in Free State gave the
residential address mentioned by Lucia. The drugs found
there are
known as TIK and weighed 26 Kilograms. Lucia’s son was
arrested.
[18]
When asked why he chose Ndlela to verify the address, Mtubatsi
indicated that the latter “
overheard
that there is a case that I am dealing with of drugs and so he phoned
me and these people who were arrested in that same
field that I am
dealing with. Actually, he wanted to come and interview one of the
suspects in that case that I am dealing with
to establish to whether
there is no linkage of this case that i am dealing with, with that
one for the people who were arrested
in the very same address just to
find a syndicate as to whether there is a linkage or what”
[8]
[18.1]
He did not know if the interview took place.
[18.2]
He is not part of the Free State case investigation team.
[18.3]
He does know the status of the investigations in the
Honeydew
and Free State cases.
[18.3]
He does not know if there is any extradition treaty between South
Africa and Mozambique. He is aware of a working agreement
between the
police.
[19]
He obtained appellant’s travel records from the Department of
Home Affairs, but did not obtain accused 1’s. He
does not know
if they ever travelled together in the same vehicle on the same dates
or through the same border post.
[20]
He testified further that the tests results for possible DNA and
fingerprints on the drugs were still outstanding.
[21]
He confirmed accused 1’s written statement, in particular where
he stated that the vehicle did not belong to him and
that he was
asked by appellant to drive it because she had an eyesight problem.
[22]
He went on to testify that it is possible that if one of the accused
evade trial, the remaining one would blame the absent
co-accused for
the crime.
[23]
He concluded his testimony by requesting the court not to grant the
appellant bail.
[23.1]
He did not state the reasons why he opposed bail..
[24]
Cross examination yielded the following:
[24.1]
When asked why he objected to appellant being granted bail, Mtubatse
testified that “
Actually
looking at the profile of the case that the accused person is facing
the amount of drugs that was found and the fact that
the accused is a
person who is always visiting the other neighbouring countries she
can be granted bail today and go for example
go and stay in Zimbabwe
who can trace this suspect that can happen and it is very difficult
to an trace the accused person and
there is no address of the accused
in the Republic the old address may be still be in Mozambique. So
those are the reasons why
i said the accused should not be granted
bail.”
[9]
The
last and fourth reason that he gave is that “
the
accused can be given a long term of imprisonment when coming to
sentence looking at the profile of the case”
[25]
When asked why he did not object to the bail application of accused 1
who, save for citizenship of South Africa, faced the
same obstacles
(such as profile of case, long prison sentence, travelling between
countries), Mtubatse indicated that all those
do
not
“ mean anything due to the fact that accused 1 is a South
African citizen”
[10]
[26]
Mtubatse admitted that accused 1 could evade trial too. However,
according to him, he would be able to trace him at the given
address.
[27]
Mtubatse’s attention was directed to accused 1’s written
statement where he indicated that he was born in Mozambique
and his
sisters still live there. It was also put to him that it would be
easy for accused 1 to evade trial, leave South Africa
and go to
Mozambique and not return.
Another
fact put to Mtubatse is that accused 1 was paying off property
in Mozambique that was purchased in his sister’s
names.
Mtubatse
refused to answer some of the questions put to him about
the personal circumstances of accused 1 and on others
he simply
stated that “
it
is for the first time to overhear
(sic)
about
that in court today
[11]
”.
[28]
On the issue of verification of the address provided by Lucia,
Mtubatsi admitted that:
[28.1]
The address did exist, it was not fake.
[28.2]
There is no evidence that Lucia, as a matter of fact confirmed that
she knows the woman that was allegedly arrested in the
Free State or
that the said woman was staying in her house. He maintained
however that the “
guy
confirmed that he knows the lady who is arrested in Welkom”.
[12]
The
young man in question is Lucia’s son. Mtubatsi did not know
whether Lucia herself knew the said woman.
[29]
Mtubatsi refused to accept a suggestion that there is no evidence
that there was a link between the different cases, that is,
the
arrest of the woman in the Free State and the appellant. He could not
provide a link except to state that both accused gave
the same
address of Lucia.
[30]
He admitted that the evidence is equally strong against accused
number 1 and the appellant and that the both of them could
evade
trial.
[31]
Mtubatsi could not explain the working relationship between South
African police and their Mozambican counterparts he testified
about
earlier.
[32]
The state closed its case.
ACCUSED
1
[33]
Accused 1 applied for and was released on bail of R10 000, 00.
I need to sketch some relevant facts that were placed
on record
by accused 1 (in an affidavit form) that I consider relevant,
and which in my view should have been taken
into account by the
Magistrate when assessing the bail application of the appellant.
[33.1]
Accused 1 was also born in Mozambique. He came with his father to
South Africa when he was still young. He has since acquired
South
African citizenship, though he does not how his father went about it.
He also possesses a South African passport.
[33.2]
He has no Mozambican travel documents. His siblings live in
Mozambique and he travels there on a regular basis
to see them.
He cannot acquire property there because he is not a citizen,
however, he is currently paying off a stand acquired
in
his siste’s names.
[33.3]
They were arrested as he returned from Mozambique to attend to
the affairs of his deceased step mother and was on his
way back with
appellant.
[33.4]
Appellant is the owner of the motor vehicle and he was the
driver thereof from Maputo until their arrest.
[35]
Other common cause issues that came out during appellant’s
evidence are:
[35.1] Accused 1
requested to use appellant’s vehicle to fetch his bags shortly
before they left Maputo. He went alone. They
left for South Africa
when he came back from this lone excursion.
[35.2] Appellant and
accused 1 are not complete strangers. They are friends and have known
each other through his wife. It is not
clear whether the said wife is
Lucia because appellant gave the name of the former wife
as Anna Maria. Be that as it
may be, appellant is friends with Lucia
Khumalo, who is accused 1’s current estranged wife.
She (Lucia) helped
to raise bail for accused 1 and was willing to
accommodate the appellant in her house in Honeydew, Johannesburg
until finalisation
of the criminal trial.
[36]
My observation from perusal of the record is that accused 1’s
bail application was dealt with differently compared to
the hard
stance taken by the prosecutor against the appellant. The prosecutor
displayed a hostile attitude against appellant from
the start of the
cross examination. He labelled her “drug mule” simply on
the basis that she had travelled to countries
such as Brazil and had
applied for a Visa to travel to China. Her explanation that she buys
and sells women clothing was ridiculed
and no attempt was made to
investigate if it was correct. Emphasis was placed on the fact (not
proven in any event) that there
is no “extradition agreement
between South Africa and Mozambique.
[37]
I also find that Accused 1 was relieved of the onus placed on accused
persons who seek bail in terms of section 60(11)(b) of
the CPA. The
prosecutor and ultimately the Magistrate appeared to be of the view
that a flight risk can only be a non-South African
citizen. In fact,
Mtubatsi was bold enough to state, under cross examination that the
other factors that could have weighed against
accused 1 were
overlooked because he is a South African citizen.
[38]
It is absurd to even think that the onus in section 60(11)(b) applies
to non-citizens only, and that citizens can
simply be
granted bail without an attempt to enquire as to whether the
interests of justice demand that they be released on bail.
[39]
Another issue that arises out of this is whether co-accused should be
treated differently simply because of their citizenship
status.
Section
9(1) of the Constitution of the Republic of South Africa
provides that
“
Everyone is equal
before the law and has the right to equal protection and benefit of
the law.”
FINDINGS
MADE BY THE MAGISTRATE AND REASONS FOR JUDGEMENT
[40]
It is difficult to discern findings of facts and reasons for
judgment because as counsel for the appellant submitted
in his heads
of argument, the Magistrate simply summarized the facts and shied
away from making findings on those facts.
[41]
After summarizing the evidence, the Magistrate stated that she
“confirmed”
that
appellant has no emotional family ties at the place of the trial she
has no assets held by herself in South Africa she does
have
travelling documents she has access to other countries and in between
South Afriica and Mozambique there is no extradition
treaty she is
facing a long term of direct imprisonment should she be convicted
therefore
the grounds of Section 60(4) (B) is at stake. The Court will not
comment regarding Section 60(4)(A)(B) and (D) as
there is no
evidence indicated regarding those grounds being affected.
[13]
(my
emphasis)
[42]
I do not understand why the Magistrate would refer to a restatement
of facts that were placed on record by the appellant and
the
prosecutor as having been “confirmed” by her. The
evidence of the investigating officer was not of assistance in
material respects as it appears above. He was not clear about the
existence of an extradition treaty between the two countries.
This
lack of a treaty was his view, and he did not take steps to verify.
He testified about the existence of what he referred to
as a working
agreement, but he was not certain how it works.
[42.1]
The fact that the appellant bore the onus to present facts that would
establish that the interests of justice required her
to be released
on bail does not mean that the State had to sit back and hope that
she was not going to discharge her onus. In fact,
as i have already
indicated above, the stance of the State was that appellant was a
drug mule who was going to evade trial
simply because she was a
foreigner.
[43]
I am also not certain about what the Magistrate meant by “section
Section 60(4)(B) being at stake and that there is no
evidence that
grounds in sections 60(A) (B) and (D) are affected. In the context of
the issues before the Magistrate, at
stake in my view means
that appellant had to prove that she was not going to evade trial.
However, this meaning i have just
ascribed to “at stake”
is contradicted by what the Magistrate said after holding that
section 60(4)(b) is at stake.,
namely, her finding that there
is no evidence that the grounds in sections 60(a)(b) and (d) are
affected. This in my view
means that appellant is not affected by
those grounds.
[44]
It is necessary to refer to relevant sub sectios of Section
60(4) that are referred to in this part of the judgment
in
order to illustrate the contradiction.
Section
60(4) states that
“
The
interests of justice do not permit the release from detention of an
accused where one or more of the following grounds are established.
(a)
[14]
“Where there is a likelihood that the accused, if he or she is
released on bail, will endanger the safety of the public or
any
pericular person or 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) .....
(d)
Where there is a likelihood that the accused, if he or she is
released on bail, will undermine or jeopardise the proper functioning
of the criminal justice system, including the bail system”
[45]
If I follow the logic of the statement of the Magistrate (in p185,
vol.2), it means that the appellant had to prove that she
will not
evade trial. However, the Magistrate went on to state that there is
no evidence that Section 60(4)(a)(b) and (d) are affected.
This means
that there was no evidence that she will endanger the safety of
persons or commit schedule 1 offence, she will evade
trial or that
her release would likely endanger the proper functioning of the
criminal justice system.
[45.1] Unless there
is a mistake in the inclusion of section 604)(b) in the categories
where a finding that there is no evidence,
it means that the
Magistrate did not find evidence that appellant would evade trial.
[45.2]
I am prepared to accept that this is not what the Magistrate intended
to say because her statement was preceded by reference
to factors
referred to in section 60(6) that should be taken into account to
determine whether the ground in section 60(4)(b) (likelihood
of
evading trial) has been established. In this regard she found that
indeed they were. I must mention that this finding was wrong
because
it is not based on cogent reasons.
[46]
The attempt to weigh
[15]
the
interests of the appellant against the interests of justice in terms
of section 60(9) was also not genuine because :
[46.1] It is common
cause that the investigation was not complete. The laboratory still
had to submit final results of the sample.
The DNA results on the
drugs were still outstanding.
[46.2] Although an
impression was created that the matter was ready for trial, i was
advised from the bar that it was not, three
(3) months after the
refusal of the bail (when the appeal was heard).
[46.3]
It is not correct that there was no financial loss for the appellant.
The evidence (not disputed) was that she is a business
person who
buys and sells clothes and vehicle parts.
[47]
The only reason why bail was refused appears to be founded in the
statement that “
Should
the Court grant, should the Court release the accused person
to
stay in the house where people are being arrested for drugs while the
accused is also facing a similar charge
the Court is satisfied that the accused did not succeed in adducing
evidence which satisfies the Court that the interest of justice
permit her release therefore bail is refused you are in custody until
the finalisation of the matter”
[16]
[48]
This statement was preceded by remarks in page 183, line 3 that:
“
Upon
the sudden new address given to the State the evidence that was not
disputed by applicant through her attorney and further
that the
address of Lucia does exist and in that address the police arrested a
man alleged to be a son of Lucia Khumalo for drugs
26 Kg of TIK were
found in the house.......”.
[48.1] As I have
already indicated above, it is not correct that the evidence of
Mtubatsi was not rebutted. In fact, appellant’s
representative
managed to show that it was unreliable and should not be admitted.
[48.2] It may be so
that hearsay evidence is admissible in bail proceedings, however,
this piece of evidence, prejudicial
and unreliable as it is should
not have been admitted.
[48.3] The
allegations of unlawful activities in Lucia’s house were not
put to appellant or even Lucia for them to comment
or rebut.
[48.4] The
investigation officer relied on information he obtained over the
telephone from a Mr. Ndlela, who was not able to verify
certain
material facts, such as whether Lucia was aware that a woman has been
arrested in Welkom and that her address was mentioned.
[48.5] It is not
clear what the Magistrate meant by “
sudden evidence
”.
However, what is clear is that the investigating officer was supposed
to go and verify the address, which he did not. He
left this to his
contact person at the DPCI (whatever this means). The information
relayed back to the investigating officer did
not assist the court at
all because it left many questions unanswered.
[48.6]
Despite the fact that Lucia was still in the court corridors when the
investigating officer testified,
[17]
she was not recalled to be confronted with the allegations of
unlawful activities in her house.
[48.7]
In my view, the evidence of the investigating officer in this regard
should have been rejected.
WHETHER
BEING A FOREIGNER PRECLUDED HAPPELLANT FROM BEING GRANTED BAIL.
[49]
I already made a finding that appellant was in no worse or
different position than accused 1 with regard to ;
[49.1]
Strength of state case,
[49.2]
Seriousness of charges,
[49.3]
Convenience of another foreign country ;
As
such, none of these factors should have been used against the
appellant.
[50]
Counsel for the State conceded that the only reason appellant was
denied bail is the allegation (as the Magistrate’s
remarks bear
testimony), that there were some alleged unlawful activities in
Lucia’s house.
[50.1]
He also conceded that if this piece of evidence is thrown away (for
reasons i have already dealt with above), then there
is no reason why
appellant should not be granted bail.
[51]
My understanding of the bail proceedings before the Magistrate is
that appellant was required to prove that she has an address
in South
Africa where she would stay until finalisation of her criminal trial.
This appears from a concession made by the investigating
officer that
at first she gave an address at South Thekwane. It is not clear what
happened to this address, but she later called
in Lucia to testify
and confirm her address.
[52]
It would appear from the record that the concern that appellant
would not stand trial was not based on objective facts
that
there was a likelihood that she would flee, but simply on the basis
that she was a foreigner.
[53]
The Supreme Court of Appeal in the matter of S
v
Masoanganye and Another
2012
(1)
SACR 292
(SCA)
had the following
to say about the factors to be taken into account when considering
whether an accused person is a flight risk.
“
[18]
A further problem is that the court below intimated that it had other
reasons for refusing bail which it was prepared to disclose
if
approached. Such an approach was not made. It would appear that the
trial judge was under the impression that the application
for bail
could be renewed because she said that she was not satisfied
that the appellants could be released on bail 'at this
stage'. On a
conspectus of the judgment as a whole it seems that what the learned
judge had in mind was that the appellants could
produce further
evidence concerning their assets — the only matter that she
dealt with in her judgment. Her judgment boils
down to this: she was
not satisfied that the appellants were not a flight risk
because they did not have sufficient assets.
Ahmed, who had
sufficient assets, was held not to be a flight risk for that reason
only.
[19]
The proper route to have followed would have been to allow the matter
to stand down — as requested by counsel —
or to postpone
the bail application. However, what the court failed to consider is
that the personal circumstances of an accused
— much more than
assets — determine whether the accused is a flight risk. The
court knew that the second appellant
had three children, one of 18
months, that her husband lives and works in the country and that she
is still employed in some or
other position in a master's office.
These facts, in my view, if taken into account, would
have satisfied that she
was not a flight risk”
[54]
Of course, there is ample authority that our courts do grant bail to
foreigners. Therefore, this alone can not be a reason
for refusal to
grant bail.
In
the matter of
S V Savoi
2012 (1) SACR 438
(SCA
), Heher JA
restated the factors that should be taken into account when
considering bail of a foreigner (although the accused in
this case
was not considered a flight risk)
[21]
The appellant was and is not regarded as a flight risk. The
respondent does not say in its affidavits that he was so regarded
at
any time. The learned judge said in her judgment that so much was
common cause between the parties. That finding was attacked
in
argument on E appeal, but counsel was unable
to point to any factual allegation by Lt Col Perumal that
he had
grounds for thinking the appellant to be a flight risk, or, indeed,
any allegation that, despite the absence of grounds,
he believed that
the appellant was a flight risk. Although the appellant's
applications for consent were directed solely at business
trips, the
terms of the bail conditions did not limit the discretion to such
purposes, although counsel
were agreed that
only business travel was intended.
[22]
It may be accepted that the danger of a bailed accused avoiding
attendance at his trial can never be entirely ruled out. But
courts
must determine cases according to the facts, and whether an accused
person will or will not attend in due course is entirely
a question
of fact and inference from fact. The
facts must be relevant to the conclusion. Thus the
absence of an
extradition treaty with a given country is of itself meaningless; it
only becomes meaningful if there is reason to
believe that the
accused may take advantage of that fact. By contrast, an increase in
the number and seriousness of the charges
that an accused faces may
of itself be a relevant factor as exercising
a new influence on a previously
compliant accused. So also might the
proximity of a trial in which an accused faces a real prospect of a
term of imprisonment.
But in all these cases not only must the facts
be established, but also the reliance on them by the functionary,
since, otherwise,
it becomes merely counsel's I
speculation as to how the facts could or might have affected the
application
to the functionary. As I have pointed out, none of the
three decision-makers under the existing bail conditions made any
pretensions
to being influenced by facts relevant to the refusal of
the application”
[55]
I believe that the Magistrate would have granted bail, but her mind
was swayed by the unconfirmed reports that there were some
unlawful
activities going on in the address where appellant was going to stay.
[56]
The Magistrate should have considered imposing suitable conditions to
offset whatever concerns she may have had about a likelihood
that
appellant would evade trial. I must state that she did not made a
finding that there was such a likelihood, instead she ascended
a
moral throne and based her decision on allegations of unlawful
activities without a shred of objective evidence in that
regard.
[56.1] I have
already stated that under the circumstances, i believe that the State
or even the Magistrate should have been entitled
to hide behind
admissibility of on hearsay evidence in bail applications.
[56.2]
Appellant discharged her onus and then the onus shifted on the state
to prove that such activities indeed were taking place
and that they
were relevant considerations on the question of whether she would
evade trial or not.
[57]
The Magistrate disregarded the appellant’s evidence that she
had ties with South Africa and would not simply disappear
into thin
air.
[57.1]
In the matter of
S
v BRANCO 2002 (1) SACR 531 (W)
[18]
,
Cachalia AJ held that the Magistrate misdirected himself by failing
to take into account the ties that the accused had with South
Africa
and failing to consider imposing suitable conditions.
“
Finally,
a court should always consider suitable conditions as an
alternative to the denial of bail. Conversely,
where no consideration
is given to the application of suitable conditions as an alternative
to incarceration, this may lead to
a failure to exercise a proper
discretion. The appellant has stated under oath that he is prepared
to report to the police station.
This was not challenged. I was
informed by Mr Hodes that the Edenvale police station is a mere 250
metres away from the appellant's
resident. Reporting to the police
station will place the police in a position to monitor his movements.
With
respect to a suitable amount to be paid in the event of his
being released on bail, both Mr Wasserman and Mr Hodes accepted, that
if I were to uphold the appeal a minimum amount of at least R150 000
would be appropriate. I was informed by Mr
Hodes
that such an amount could be raised with the assistance of the
appellant's friends and family.
I
have given this matter anxious consideration. It seems to me that
there are important aspects of this case that the magistrate
overlooked which justify a Court on appeal to interfere with his
decision. “
CONCLUSION
[58]
I am satisfied that the decision of the Magistrate is wrong and that
I am entitled to interfere.
[59]
According i make the following order:
[60]
THAT the bail appeal be and is hereby upheld.
[61]
That the order of the Magistrate, P Mlotshwa sitting at Barberton
under case number 883/12 issued on 21 November 2012 be and
is hereby
set aside and substituted as follows:
[a] The appellant is
released on bail of R10 000.00 (ten thousand rand) subject to the
following conditions:
(i)
Appellant is released into and restricted to stay at the address
known as:
Cycad
Close, No, 12, Corner Blue Berry & Apple Streets, Honey Dew
Estate, Roodepoort, Gauteng Province. This address is indicated
in
the record of proceedings, it does not appear to be complete. The
investigating officer is ordered to deliver the appellant
to this
address and verify it and record it in his book. The appellant is
restricted to stay at this address until the finalisation
of the
proceedings against her. This condition may only be amended by a
Magistrate on application after due notice has been given
to the
investigating officer.
(ii)
The appellant will only leave this address between 06;00 am and 18:00
pm for purposes of attending a medical facility or consultations
with
her attorney. In the latter case, prior written consent should be
obtained from the investigating officer.
(b)
That the appellant should report at the Honey Dew police station ,
Roodepoort, Gauteng Province, twice a day between 06;00 am
and 20;00
pm.
(c) That the
appellant should surrender her passports and all travelling documents
to the Investigating Officer or any other designated
officer.
(d)
That the Investigating Officer and any other member of the South
african Police Service in general are ordered to put mechanisms
in
place to ensure that these bail condiions are complied with at all
times and to report to the presiding officer whenever the
appellant
appears in court.
Makhubele
AJ
Acting
Judge of the High Court
Date
heard: 15 February 2013
Judgment
delivered on: 15 May 2013.
Apperances
Appellant:
Advocate HJ Potgieter
Instructed
by: Coert Jordaan Inc. Attorneys
Nelspruit
Respondent:
Advocate Z. Mabodi
On
behalf of the Director of National Public Prosecutions, Pretoria.
[1]
Altogether
they run to 193 pages.
[2]
See:
Sv Mbele and Another 1996(1) SACR 212 (W)
[3]
The
record is indistinct, however, it is common cause that accused 1 at
some point took appellant’s vehicle and went to
fetch his bags
somewhere shortly before they left).
[4]
Vol.
1 p 67, line 20
[5]
Vol.1,
p69, line 1.
[6]
Vol.1,
p79, line25 – p80, 1-2.
[7]
Vol.1,
p85, line 10.
[8]
Vol.2,p105,
line 3-15
[9]
Vol.
2, p 118, line 20 to p119, line 1-10.
[10]
Vol.2,
p120, line 8-12
[11]
Vol.2,
p123, line 14-25.
[12]
Vol.2,
p 124 to 125.
[13]
Volume
2, page 185, 8-17.
[14]
Although
the transcribed record refers to Secction 60(4)(A)(B) and (D), i am
satisfied that it is section 60(4)(a) (b) and (d)...
in small caps.
[15]
Vol
2, p185
[16]
Vol.2,p
186, line 11-17
[17]
She
was sitting outside with accused 1.
The
prosecutor asked Mtubatsi if he knew her. See vol.2, p 102, line
20-24.
[18]
At
p537