About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2012
>>
[2012] ZAGPPHC 15
|
|
Mahmood and Others v S (A1031/11) [2012] ZAGPPHC 15 (29 February 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN GAURENG HIGH
COURT, PRETORIA)
CASE
NO:A1031/11
MAGISTRATE'S
CASE NO: B434/2011
DATE:29/02/2012
In
the bail appeal between:
HARRIS
MAHMOOD
.............................................................................................
1st Appellant
MUHAMMAD
IFTIKAHR
........................................................................................
2nd
Appellant
MUHMMAD
TANVEERE BUTT
…........................................................................
3
rd
Appellant
And
THE
STATE
JUDGMENT
[1]
This is a bail appeal. The Appellants are appealing against the
refusal of bail by the Magistrate in the Magistrate's Court
at
Meyerton, on 3 November 2011. The Appellants' grounds of appeal are
set out in the notice of appeal which appears at pl44 and
further of
the record and which is dated 10 November 2011.
[2]
The offences regarding which the Appellants have been arrested and
stand accused of, are schedule 7 offences. In essence, the
alleged
offences amount to fraud.
[3]
The investigating officer, Captain Rossouw acted on certain
information and visited a certain address in Meyerton where a
business
by the name of Jenet Sound & Cell is housed. It is
evident from Captain Rossouw's evidence that four suspects were
arrested
at the given address of which the current Appellants are
three. The alleged offences are related to what is generally referred
to as Simcard fraud. Regarding the alleged status of the Appellants
as illegal immigrants, Captain Rossouw did not want to express
an
opinion. Regarding the alleged offences of which the Appellants stand
accused she was not prepared to connect any of the Appellants
with
any crimes but merely said that there was "something wrong''.
It
was put to her by counsel representing the Appellants that "so
you will agree with me that the only reason why these people
are
currently kept in custody is because of your suspicion that they may
not be legal in the country? - Yes, Immigration and the
212fs that
were accepted as the truth."
She
furthermore conceded that according to the contents of "the
212's" it appeared as if the Appellants were in possession
of
asylum seeker permits.
When
put to her that "/f the court set a bail condition that they are
in house arrest at that specific place, would that assist
you? - Yes
that would assist me."
Captain
Rossouw was not prepared to commit herself to an unequivocal
statement that house arrest (of the Appellants) will suffice
but her
response to a question put to her in this regard, is significant:
"Captain
I want to put it to you that all three the applicants before court
are not a flight risk and that the court may impose
a condition of
house arrest which would secure them at this specific address? - I
will leave that to the Judge to decide."
[4]
Mr Breed, an immigration officer in the employ of the Department of
Home Affairs, also testified. Despite the contents of the
three
relevant "212's", Breed seemed to have doubt regarding the
legality of the Appellants respective permits. In the
"212's"
it is explicitly stated that the First Appellant was in possession of
an asylum seeker temporary permit (p71),
that the Second Appellant
was likewise in possession of an asylum seeker temporary permit
(p91), as was the Third Appellant (pl09).
Breed attempted to cast
doubt regarding various aspects pertaining to the process allegedly
followed by the Appellants and the
legality of the steps taken by
them. He testified that no original applications could be traced
(with the exception of the Third
Appellant) that the applications may
be fraudulent and that, as there were nno applications'' no need to
verify fingerprints arose
(see for example p45 and 48 of the record).
The evidence given by Breed is, of course, relevant to the extent
that it may assist
in determining wither the Appellants are a flight
risk: It is not for this court to adjudicate on issues pertaining to
the question
whether the prescribed procedures had been followed by
the Appellants in every respect.
[5]
Mr Potgieter on behalf of the Appellants referred to the matter of
Bula & Others v Minister of Home Affairs & Others
under case
number 589/2011 (Supreme Court of Appeal) where the following was
inter alia said:
"Regulation
2(2) of the Refugee Regulations ...makes it even more clear that,
once there is an indication by an individual
that he or she intends
to apply for asylum, that individual is entitled to be issued with an
appropriate permit valid for 14 days
within which there must be an
approach to a Refugee Reception Office to complete an application for
asylum. Read with section 22
of the RA it is clear that once such an
intention is asserted the individual is entitled to be freed subject
to the further provisions
of the RA.
The
principle of legality, an incident of the rule of law, dictates that
officialdom in all its guises must act in accordance with
legal
prescripts/' (par [78] and [79] of the judgment)
“
It
follows ineluctably that once an intention to apply for asylum is
evinced the protective provisions of the Act and the associated
regulations come into play and the asylum seeker is entitled as of
right to be set free subject to the provisions of the Act."
(par
[80] of the judgment)
[6]
All three Appellants handed in affidavits in which each,
respectively, alleges that he is an asylum seeker in this country and
is in possession of a temporary permit. The First Appellant's
temporary permit allegedly expired on 11 January 2012 as does the
Second Appellant's, whilst the Third Appellant's temporary permit
will only expire on 7 March 2012. All three Appellants expressed
the
willingness to submit to house arrest, should bail be granted to
them. All three work and reside at 13A Loch Street, Meyerton.
With
regard to First and Second Appellants, Mr Breed testified that no
record of their respective asylum applications could be
traced on the
Department's files. With regard to the Third Appellant there was a
difference in names and in birth dates as allegedly
supplied by the
Third Appellant. With regard to the First and Second Appellants, Mr
Breed conceded that he verified the alleged
absence from the records
of the Departments with the Head of the latter, and only that. This
court is accordingly not in a position
to determine whether any of
the documentation relied upon by the Appellants for purposes of
seeking asylum in this country are
fraudulent, or not.
[7]
In view of all of the aforegoing facts I am of the view that the
interests of justice would best be served should the Appellants
be
granted bail to which stringent conditions apply. Not only did
Captain Rossouw not offer any convincing reasons why bail should
not
be granted but she conceded that the case against the Appellants
regarding the schedule 7 offences which the Appellants allegedly
committed, could only be proven pending some further evidence to be
obtained by the State. I am, furthermore, not convinced by
the
evidence of Mr Breed to the extent that the section 212's filed in
evidence are, prima facie, not reconcilable with the alleged
"lack
of proof" regarding the Appellant's respective applications for
asylum, as testified to by Mr Breed. In this regard
a reasonable
doubt exists as to the extent to which reliance can be placed on the
oral evidence. In this respect the approach laid
down by the Supreme
Court of Appeal in Bula supra applies. But even if the judgment in
Bula supra does not find application, there
are in my view convincing
reasons why the interests of justice would be best served should bail
be granted to the Appellants.
[8]
I make the following order:
1.
The appeal succeeds and the Magistrate's finding / refusal of bail,
is set aside.
2.
The Appellants are granted bail of RI0 000,00 each, subject to the
following conditions:
2.1
The Appellants, respectively, are placed under house arrest at the
address known as 13A Loch Street, Meyerton and they may not
leave the
said address at any time or for whatsoever reason.
2.2
The Appellants' said house arrest would be subject to and controlled
by correctional supervision performed by the Department
of
Correctional Services or another organ of state as may be authorized
by the Department of Correctional Services to perform such
functions
on its behalf.
2.3
The said house arrest applies for 24 hours per day, and 7 days per
week.
2.4
These conditions will apply until the finalization of the court
action pursuant to the charges of which the Appellants stand
accused.
It follows that the Appellants may only leave the said address for
purposes of consulting with their lawyers in connection
with the said
legal action against them and/or for attending court for the said
purposes.
3.
The contents of this order must be brought to the attention of the
Department of Correctional Services by the Appellants' attorneys
of
record, in writing, within 5 calendar days from the date of this
order.
TJ
KRUGER AJ