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[2008] ZAWCHC 16
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Feyen v S (A60/2008) [2008] ZAWCHC 16 (5 March 2008)
IN THE HIGH COURT OF
SOUTH AFRICA
(CAPE OF GOOD HOPE
PROVINCIAL DIVISION)
Case No.
A60/2008
REPORTABLE
In the matter between:
PAUL
FEYEN
Appellant
and
THE
STATE
Respondent
JUDGMENT
WEBSTER AJ
INTRODUCTION
[1]
The Appellant in this matter, a Belgian
citizen, was arrested on 7 November 2007. He faces 53 charges
of fraud and a further
16 charges relating to contraventions of the
Value-Added Tax Act 89 of 1991 and the Income Tax Act 58 of 1962.
These offences
were allegedly committed over the period 2002 to 2005
and entail actual prejudice of R2.9 million and further potential
prejudice
of R3.2 million.
[2]
On 19 November 2007 the Appellant applied
for bail before the Magistrate at Bellville, which application was
opposed by the State.
The grounds of opposition included,
inter
alia
, concern that the Appellant was a
flight risk and the allegation that he has a propensity to commit
this type of offence.
[3]
After evidence had been led judgment was
given on 20 December 2007 in terms of which bail was refused.
[4]
The Appellant now approaches this Court on
appeal.
ISSUE
[5]
The issue for determination before the
Magistrate was whether or not the interests of justice permitted the
Appellant’s release
on bail.
ONUS
[6]
The matter was disposed of as a schedule 5
offence. Mr Roussouw, who appeared for the Appellant at the
hearing and who appears
today in the appeal, conceded that the matter
was appropriately dealt with in these terms. Mr Els, who
appears for the Respondent,
shares this view.
[7]
Section 60(11)(b)
of the
Criminal Procedure
Act 51 of 1977
provides that:
“
Notwithstanding
any provision of this Act, where an accused is charged with an
offence referred to –
(b)
in schedule 5, but not in schedule 6, the court shall order that the
accused be detained 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.
”
[8]
Accordingly, the onus had been upon the
Appellant to establish, on a balance of probabilities, that the
interests of justice permitted
his release on bail.
AFFIDAVIT EVIDENCE
[9]
The Appellant sought to discharge this onus
by introducing in evidence an affidavit deposed to by him.
[10]
It is quite permissible for an applicant in
a bail application to place evidence before the court by means of an
affidavit.
A court may not disallow such affidavit evidence.
See
S v
Piennaar
1992 (1) SACR 178
(W);
S v
Hartslief
2002 (1) SACR 7
(T); and
Jacobs
& Others v S
[2004] 4 ALL SA 538
(T).
[11]
The probative value of the affidavit
evidence will depend on the totality of the facts and the extent to
which the content is disputed.
[12]
The content of an affidavit is not subject
to being tested under cross-examination.
Viva
voce
evidence, on the other hand, is
subject to such testing. By virtue of this distinction, when
the two conflict, the
viva voce
evidence is likely to carry more weight and is likely to be preferred
over the content of the affidavit, subject to the former
having
positively endured the rigours of cross-examination.
FLIGHT RISK
[13]
A ground of opposition advanced by the
State at the bail hearing was that the Appellant was a flight risk
and would, in the event
of being released on bail, not stand his
trial.
[14]
It emerged in a communication from the
Belgian Department of Justice that, aside from other previous
convictions, the Appellant
had been convicted and sentenced in
Belgium on 15 January 2002 to 4 years imprisonment and a fine of
€12 394.68 on charges
of forgery, fraud, fraudulent
bankruptcy, common bankruptcy and the use of a false name.
[15]
It was undisputed on the evidence that on
28 May 2002 a directive had been issued by the Belgian Court of
Appeal that Appellant
should be committed to prison to commence
serving that sentence. On 4 July 2002, when the local police in
Belgium visited
his home to present him with documentation requiring
him to commence his sentence, he had already left the country and was
residing
in South Africa. He arrived here on 3 June 2002, just
days after the directive as to his committal had been issued.
[16]
It is common cause that he is presently
sought by Interpol in regard to the unserved sentence. It is further
common cause that the
Belgian authorities have initiated formal
extradition procedures to ensure his return to Belgium.
[17]
When the Appellant left Belgium for South
Africa he left behind his wife and daughter.
[18]
In his affidavit the Appellant has not been
forthcoming with certain significant and persuasive facts. He
failed to disclose
that he had not served the sentence of 4 years
imprisonment. He also failed to disclose that he was sought by
Interpol in
this regard. He had simply stated that there were
no outstanding warrants for him ‘in South Africa’.
He
also omitted to disclose that fraud charges were part of his most
recent convictions. This selective disclosure on his part
of
crucial factual material does not assist his case.
[19]
Mr Rossouw has argued that the high point
of the Appellant’s case is that once it become known to him
that the South African
Revenue Service were investigating charges
against him he had been in and out of the country on a number of
occasions. He
argues that had the Appellant wished to flee he
had had the opportunity to have done so. This, contends Mr
Rossouw, is indicative
of his intention to stand his trial. He
argues that the further incentives for the Appellant to stand his
trial are the fact
that he has a live-in relationship with a South
African and the fact that he owns a immovable property in South
Africa.
[20]
Appellant’s track record in respect
of his conduct in Belgium poses obstacles for him. It is so
that he had attended
his last trial in Belgium. However he did
not remain within that jurisdiction to serve his sentence.
After his appeal
had been dismissed he fled before he could be
committed to serve the sentence. This must weigh heavily
against him when assessing
whether he is a flight risk in the present
context.
[21]
The fact that he had had a wife and
daughter in Belgium had been insufficient incentive to keep him in
that country. Against
this background, on the probabilities,
his live-in relationship with a South African will not be incentive
enough to keep him here.
[22]
As to the two fixed properties Appellant
owns in South Africa, a house in Somerset West and a farm in
Botrivier, it is apparent
that steps had already been taken, prior to
his arrest, for Appellant to dispose of the farm. The sale of
these properties
can, in any event, readily be achieved in his
absence.
[23]
The question remains as to what incentive
there would be for Appellant to remain in South Africa were he to be
released on bail.
[24]
The Appellant faces proceedings to
extradite him to Belgium. In addition, according to the Home
Affairs officials called to
testify, the Appellant is no longer
legally in South Africa and were he to be released on bail he would
face arrest on charges
relating to his illegal presence here.
[25]
The Appellant’s incentives to remain
in South Africa are not compelling. I am unable to fault the
Magistrate in finding
that there is a real concern that the Appellant
will not stand his trial should he be released on bail. On the
evidence which
is common cause there exists a strong incentive to
flee.
[26]
I am not satisfied that the imposition of
appropriate conditions relating, for example, to reporting, can
provide effective safeguards
in this instance. In many
instances such conditions can effectively serve to allay concerns as
to flight and should not be
underestimated.
S v
Bennett
1976 (3) SA 652
(C);
S
v Branco
2002 (1) SACR (W)
[27]
I am in agreement with the Magistrate’s
finding that the evidence of the investigating officer is to be
preferred over the
affidavit evidence of the Appellant where the two
are in conflict. Especially given Appellant’s lack of
candour in
his affidavit.
PROPENSITY
[28]
In his affidavit the Appellant records his
previous convictions to be the following:
28.1
On 4 December 1990 he was convicted of forgery and uttering and
sentenced to 2 months imprisonment,
suspended for 3 years, together
with a fine of 100 Belgian francs, alternatively 1 month
imprisonment.
28.2
On 23 March 2001 he was convicted, as an accomplice, in the removal
of waste materials and the
transportation thereof. He was fined
1 000 Belgian francs or 90 days imprisonment.
28.3
On 15 January 2002 he was, according to him, convicted of forgery and
contraventions of the Belgian
Bank Act and sentenced to 4 years
imprisonment together with a fine of 5 000,00 Belgian francs or
three months imprisonment.
28.4
On 13 November 2002 the Court of Appeal in Antwerp confirmed a
sentence of receiving stolen property
and the forgery of stamps and
sentenced him to 7 months imprisonment, as well as a fine of
200 Belgian francs or 1 month imprisonment.
(If this disclosure
is correct it would amount to a further sentence the Appellant has
failed to serve in Belgium.)
[29]
Once access had been gained to the records
of the Belgian authorities it became apparent, as set out above, that
on 15 January 2002
he was in fact sentenced to 4 years imprisonment
and a fine of €12 394,68 on charges of forgery, fraud,
fraudulent bankruptcy,
common bankruptcy and the use of a false
name. It was this sentence which he had failed to serve when he
left the country.
[30]
The Appellant now faces 53 fraud charges
and 16 charges relating to tax contraventions. The combined
actual and potential
prejudice amount to some R6.1 million.
[31]
When last sentenced in Belgium the Court of
Appeal had remarked that “....
the
offences were linked with falseness, fraudulent behaviour and the use
of a false name, elements that seriously jeopardise the
public
trust. Reference can be made to the huge extent of damage that
was inflicted on the various suppliers who were not
paid.
”
[32]
In regard to the Appellant himself the
Court of Appeal had stated that “....
the
defendant Feyen has shown a reprehensible fraudulent behaviour that
does not belong in the legal business, and that makes him
unfit to
carry out economic activity for lack of elementary honesty...
”
[33]
His track record discloses that the
Appellant has a clear propensity to commit crimes of dishonesty.
[34]
The Magistrate can, therefore, not be
faulted for finding that the evidence establishes that the Appellant
has a propensity to commit
this type of offence.
APPROACH ON APPEAL
[35]
In terms of
Section 65(4)
of the
Criminal
Procedure Act 51 of 1977
this Court shall only set aside the decision
against which the appeal is brought if it is satisfied that the
decision is wrong.
CONCLUSION
[36]
Having regard to the totality of the
evidence I am of the view that the conclusion reached by the
Magistrate, that the Appellant
had failed to discharge the onus upon
him of showing, on a balance of probabilities, that the interests of
justice permitted his
release on bail, was correct. As such no
basis exists for this Court to interfere.
[37]
The appeal is accordingly dismissed and the
order of the Magistrate refusing bail is confirmed.
WEBSTER AJ
March 2008