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[2013] ZAKZDHC 60
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Palan v S (10571/2013) [2013] ZAKZDHC 60 (28 October 2013)
1
NOT REPORTABLE
IN HIGH COURTOF SOUTH AFRICA
KWAZULU-NATAL DIVISION,DURBAN
CASE NO:10571/2013
In the matter between:
VEERAN PALAN
................................................................................
Appellant
and
THE STATE
......................................................................................
Respondent
___________________________________________________________
JUDGMENT
___________________________________________________________
GORVEN J
This is a bail appeal from the Magistrate’s
Court, Port Shepstone. The judgment in the application was handed
down on 12
August 2013. The appellant is charged with two counts of
human trafficking and alternative charges involving two different
persons,
Candice Benjamin and Samantha Newman. He has also been
charged with keeping a brothel, procuring Candice Benjamin to have
unlawful
carnal intercourse and procuring Samantha Newman (the
complainants) to have unlawful carnal intercourse. The state claims
that
the alleged crimes or took place between 19 and 21 July 2013 in
the vicinity of Port Shepstone. He appeared along with one other
person accused of the same offences. Both of them were refused bail.
It is common cause that the bail application fell to be
considered under the provisions of section 60(11)(a)of the Criminal
Procedure
Act 51 of 1977 (the Act). This section places an onus on
an applicant to show, on a balance of probabilities, that
exceptional
circumstances exist which, in the interests of justice,
permit his or her release on bail.
The appellant sought to discharge this onus by way of
producing evidence on affidavit. The state, in response, did
likewise.
The appellant claimed to reside at Lot 87, Roslin
Avenue, Port Shepstone, a property which belongs to a trust “of
which
I am a member”. He stated that he was married but
separated from his wife “for personal reasons” and
living
with the second applicant. He has fathered two children who
are dependent on him. He stated that, at the time of his arrest, he
was doing odd jobs in the employ of his brother which earned him
R10 000 per month. He gave no particularity as to the duration
of this employment or its permanence or otherwise. He stated that
the monies were used to support his girlfriend (the second
applicant), his wife, his children and him. He indicated that he was
previously employed as a driver until November 2012 when
he resigned
due to ill-health. He suffers from a heart and kidney problems and
is being treated by a doctor and has constant
medical checkups. He
has had an operation to his heart. He then stated that he presently
resides at 56 Seawood Lane, Oslo Beach,
with his girlfriend and
co-accused. He rents the premises and his co-accused rents them from
him.
He stated that he was arrested at the police station at
Port Shepstone where he went to make enquiries about the two
complainants.
He did so because he was informed that friends of his
co-accused had been arrested. He had not known the complainants and
saw
them for the first time when he fetched them from the bus
station at the request of his co-accused. They had apparently been
arrested at a lighthouse in Margate. He denies all the charges
against him. He stated that he will stand his trial and, since the
two complainants have been placed in protective custody, he cannot
interfere with them but also has no intention to do so. He
has no
travel documents and does not intend to apply for any. He has one
previous conviction for theft committed in 2003.
The opposing affidavit was deposed to by the
investigating officer who is a detective warrant officer in the
South African Police
Services attached to the Organised Crime
Investigation Unit, Port Shepstone. Both complainants were living in
Cape Town and during
June 2013 offered employment at a hotel in
Margate by the second applicant. Both were sent bus tickets and
travelled to Port
Shepstone, arriving on 19 July 2013. They were
taken to a house at five Oslo Beach and introduced to a Chinese
female and a person
referred to as “the Boss” and also
known as “Vees”. This is the appellant. There were
forced to change
into clothing and lingerie which had been bought
for them and, on 20 July 2013, were made to stand in a line so that
clients
could choose them in order to engage in paid sexual
intercourse. Ms Newman was chosen but Ms Benjamin was not. Later
that evening
they were taken to a place called the Country Lodge to
a stag party where males chose women to engage in sexual
intercourse.
Both of the complainants were chosen by clients but did
not engage in sexual intercourse as they indicated to the clients
that
they wanted to return home. On 21 July 2013, Ms Benjamin was
chosen by a client who paid R350 to the Chinese female. When she
told this person her predicament, no sexual intercourse took place.
In the early hours of the following morning the two complainants
were asleep but were awoken on the basis that more clients had
arrived and the appellant screamed at them to get dressed as they
refused to do so. Ms Benjamin was selected by a 17-year-old male who
had paid R400 to have sexual intercourse with her. She informed
him
that she did not want to engage in this but he insisted that he had
already paid for her services. She then informed the
appellant that
she could not do this work any longer. At the same time, Ms Newman,
who was sick and crying continuously, told
the appellant that she
refused to see any further clients. The appellant shouted at her and
said that she owed him money and
that his son had booked her. Ms
Newman contacted Ms Benjamin’s uncle, one Mr Peterson, in
Mpumalanga and asked him to contact
the Port Shepstone police and to
come and fetch them at the Lighthouse pub in Margate. This is where
they were collected by the
South African Police Services and taken
to Port Shepstone police station where they were interviewed. The
appellant arrived at
the station looking for the complainants and
was identified by both of them as the person referred to as “Vees”
and
said to have been the person who had brought them from Cape
Town. He was then arrested. His co-accused later arrived at the
police
station and the women again identified her as the person
involved in the matter.
The deponent to the affidavit was concerned about the
appellant’s flight risk since he had only lived at the given
address
for the past 3 to 4 months in a rented house. He has no
legitimate employment in Port Shepstone. He has no fixed assets and
owns
nothing else significant material value. His wife is a Chinese
national and cannot be found and the investigating officer had been
informed that she had fled the country. He was also concerned that
the appellant was aware of the main state witnesses. He claimed
that
the appellant had already threatened the two complainants whilst
under his custody and that they had expressed fear of the
appellant
and reprisals if the appellant was released on bail. He took the
view that bail conditions prohibiting any communication
would not be
effective since they had already intimidated and threatened the two
complainants. He stated that the appellant had
not declared any
legitimate source of employment or income and that, if he remained
in prison awaiting trial it was unlikely
that he would suffer any
legitimate financial impediment. The investigation would be
completed within a period of three months.
Section 60(4) of the Act provides, in its relevant
parts, as follows:
‘
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) 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
(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
(d) 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;
(e) 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 . . . .’
Since this is an appeal, it is governed by s 65(4) of
the Act which reads as follows:
‘
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.’
In
S v Barber
1
Hefer
J said the following:
‘
It is well known that the powers of this
Court are largely limited where the matter comes before it on appeal
and not as a substantive
application for bail. This Court has to be
persuaded that the magistrate exercised the discretion which he has
wrongly. Accordingly,
although this Court may have a different view,
it should not substitute its own view for that of the magistrate
because that would
be an unfair interference with the magistrate's
exercise of his discretion. I think it should be stressed that, no
matter what
this Court's own views are, the real question is whether
it can be said that the magistrate who had the discretion to grant
bail
exercised that discretion wrongly.’
As indicated, the appellant bore an onus to prove, on a
balance of probabilities, that exceptional circumstances existed
which
in the interests of justice permitted his release.
2
This section has been held to be constitutional, even
though it places such an onus on an applicant for bail.
3
Of more difficulty, however, is the assessment of what
is meant by “exceptional circumstances”. I agree with
the formulation
of Labe J in
S v H
4
to the following effect:
‘
[E]xceptional circumstances must be
circumstances which are not found in the ordinary bail application
but pertain peculiarly…to
an accused person’s specific
application. What a court is called upon to do is to examine all the
relevant considerations…as
a whole, in deciding whether an
accused person has established something out of the ordinary or
unusual which entitles him to relief
under s 60(11)(a)’.
In considering the application, the learned magistrate
noted that only personal circumstances were placed before the court.
The
appellant did not give any indication as to the strength of his
case, satisfying himself with a bare denial. He balanced those
personal circumstances which, he indicated, “may show that in
all probability they will stand trial”, with factors
against
the appellant. He did not enumerate these factors. They are,
however, significant. It appears that the case against the
appellant
is a strong one. The two complainants are available to give evidence
and have provided statements. One of them called
the uncle of the
other who intervened and telephoned the police which gave rise to
the sequence of events leading to the appellant’s
arrest. The
appellant gave conflicting evidence as to his place of residence.
The appellant’s claim to be employed has
no content to it,
particularly when its basis is that he has been employed by his
brother to do odd jobs after he had left his
employment as a driver
in November 2012. As indicated above, he gave no details concerning
the kind of work he did, the duration
of his employment and the
likely continuation thereof. In addition, there are state witnesses
who are not under protective custody
such as the uncle of Ms
Benjamin and the clients who either procured or attempted to procure
the services of the two complainants.
These clients are likely to be
known to the appellant if the version of the complainants is correct
and he may attempt to influence
them.
Whilst he has, on a previous occasion, stood trial, he
gave no indication as to whether on that occasion he had been
released
prior to trial or was in custody awaiting trial. This is
therefore a neutral factor as to whether or not he is likely to
attend
trial. There is no indication of delay and the investigation
is said to be likely to be completed within three months. A further
factor which tends to count against the appellant is that his
girlfriend, who is sought by the police, is at large. Since the
appellant was employed in Cape Town as recently as November 2012, he
may well be a flight risk.
This is not a situation where the circumstance of the
appellant are out of the ordinary or where the appellant proved
exceptional
circumstances warranting his release in the interests of
justice. In all the circumstances, I cannot conclude that the
learned
magistrate was wrong in refusing the application. I am
therefore not entitled to interfere on appeal and, even if I were so
entitled,
would not do so in the circumstances.
In the premises the appeal is dismissed.
DATE OF HEARING: 28 October 2013
DATE OF JUDGMENT: 28 October 2013
FOR THE APPLICANT: WD Lombard instructed by NONJABULO
MOLEELE ATTORNEYS.
FOR THE RESPONDENT: V Alamchand instructed by THE
DIRECTOR OF PUBLIC PROSECUTIONS.
1
1979
(4) SA 218
(D) 220E-H
2
S
v Rudolph
2010 (1) SACR 262
(SCA) at para 9.
3
S
v Dlamini; S v Dladla& others; S v Joubert; S v Schietekat
[1999] ZACC 8
;
1999 (2) SACR 51
(CC).
4
1999
(1) SACR 72
(W) at 77e-f.