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2024
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[2024] ZAFSHC 227
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Loots and Another v S (A111/2023) [2024] ZAFSHC 227 (30 July 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Appeal
number: A111/2024
In
the Appeal between:
JOHAN
LOOTS
1
st
Appellant
BRIAN
ODORA
2
nd
Appellant
And
THE
STATE
Respondent
Coram:
Daniso J
Heard:
19
July 2024
Delivered:
30 July 2024.
This judgment was handed down in court and
electronically by circulation to the parties’ legal
representatives
via
email
and release to SAFLII on 30 July 2024. The date and time of hand-down
is deemed to be 15H00 on 30 July 2024
ORDER
1.
The appeal against refusal of bail is dismissed.
JUDGMENT
Daniso
J
[1]
On 25 January 2024, the appellants were
arrested and subsequently charged with fraud. There are three
accused
in this matter.
[2]
On 7 March 2024 the district court magistrate, Ladybrand refused the
appellants’ bail pending
their trial on a charge of fraud. The
third accused’s bail was successful.
[3]
The appellants are aggrieved by the magistrate’s refusal to
admit them to bail. They
appeal
to this court in terms of s
ection
65(4) of the Criminal Procedure Act (the Act)
[1]
which saddles them with the onus of
persuading
this court that the magistrate’s decision to refuse bail was
wrong. In
S
v Barber
[2]
it was pointed out by Hefer, J that:
“
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. 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 review for that of the magistrate because that would be
an unfair
interference with the magistrate’s exercise of its discretion.
I think it should be in 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 but
exercised that discretion wrongly.”
[4]
In the court
a
quo,
it
was common cause that given the nature of the offence which the
appellants are charged with, the appellants were not entitled
to be
released from custody pending trial, unless the first appellant
adduced evidence which satisfied the court that the interests
of
justice permit his release and the second appellant as he was on bail
pending his trial at the high court on a similar charge
of fraud
involving R24 million, he had to prove on a balance of probabilities
that exceptional circumstances exist which in the
interests of
justice permit his release on bail.
[3]
[5]
In opposing bail, the State relied on the testimony of the
investigating officer, Captain Adriaan
Gerhardus Marais from the
Serious Commercial Crimes Investigating Unit. He testified that the
State’s case against the appellants
was strong because, they
were captured by the Nedbank CCTV cameras and also identified by the
bank employees when they approached
the information desk and
thereafter proceeded to the bank teller where the first appellant
presented an identification document
to the teller and requested that
a limit on a bank account be increased to R950 000.00. The first
appellant explained to the
bank teller that the money was to pay the
second appellant for the purchase of a TLB construction equipment.
The verification of
both the details of the account holder and the
transaction revealed that the identification document presented by
the first appellant
was fraudulent as the photo on that
identification document did not match the photo of the account holder
in the bank’s banking
profile. The account holder also did not
respond to the OTP (the one- time password generated by the bank and
sent to the account
holder’s cell phone number to authorise the
transaction). The bank teller alerted the bank manager who in turn
contacted
the bank’s fraud division and the police. Upon
realizing that bank teller was suspicious of the transaction, the
second appellant
exited the bank followed by the first appellant.
When the appellants saw the police outside the bank, they ran away.
The first
appellant was caught a block away from the bank whilst the
second appellant was arrested inside a Pharmacy after the nurse
approached
the police and pointed out where he was hiding. The
identification document presented by the first appellant and the bank
account
he tried to transact on turned out to belong to a Mr Paulsen
who was overseas.
[6]
Captain Marais also told the court
a quo
that none of the
appellants reside in Ladybrand. Upon his arrest, the first appellant
provided the address 9[…] H[…]
Street, Summerfield,
Durban-West in Kwazulu-Natal as his address, however the
investigation revealed that the address was false,
it did not exist.
His father’s affidavit refers to a different address viz: N[…]
S[…] D[…], P[…]
Road, Summerfield.
[7]
The second appellant is a Ugandan national although he resides in
Bloemfontein. He also provided
a false name, his real name was only
discovered when the police searched him and found his driver’s
license.
[8]
It was his testimony that the appellants’ attempts to evade
arrest and by providing false
information when they were arrested
indicate that they are a flight risk. Both the offences involve the
similar
modus operandi
in that, before the crime is committed
the second appellant befriends or establishes a relationship with the
employees of the targeted
bank. In this matter, he came all the way
from Bloemfontein and visited the bank on various occasions before
the day of the incident
buying lunch for the bank employees and also
devised a romantic relationship with one of the female employees.
[9]
On the other side, the appellants tendered oral evidence in support
of their bail application.
The facts upon which the bail was
predicated were essentially that:
9.1.
The first appellant was 36 years old with no previous convictions nor
pending cases. He was an unmarried
father of five children who are
financially dependent on him as their mother was unemployed and he
was maintaining them with his
salary of R5600.00 to R7500.00 per
month which he earned as a security guard employed by the company
Marese Investments situated
at Hillcrest in Kwa-Zulu Natal. He also
has a fixed address where he lives with his father at the rented
property number 9[…],
N[…] S[…], Summerfield,
Durban-West also in Kwa-Zulu Natal. As proof thereof he handed in an
affidavit deposed to
by his father as Exhibit “A.”
9.2.
Regarding the merits of the case, he confirmed that he was indeed at
Nedbank on that day. He explained
that he went there to find out some
information but elected to remain silent with regard to what
information he required including
why he was in Ladybrand on that
day. He also confirmed that he was arrested after fleeing, he
explained that he was not aware that
the gentleman he saw brandishing
a firearm outside the bank was a police officer.
9.3.
He denied having provided a false address. He stated that it was the
police who wrote it down incorrectly.
According to him, his father’s
affidavit, Exhibit “A” corroborates the details of his
address.
9.4.
With regard to the second appellant, he was 37 years old, married
with three dependent children. His
wife is unemployed as a result he
is the sole breadwinner. He holds a Bachelor’s degree in
Business Administration and he
is self-employed trading in Supply and
Delivery of cleaning equipment. He has no previous convictions
and at the time of
arrest, he was on R10 000.00 bail granted by
the magistrates’ court pending his trial at the high court in a
case of
fraud involving between R24 and R26 million.
9.5.
He is originally from Uganda. He attained permanent residence in the
Republic since 2005 and he lives
in a bonded house in Bloemfontein
with his family. His father and siblings are also residing in the
Republic.
9.6.
He is a hands on parent, he assists in taking his children to school
and with school work. The eldest
(aged 17) is currently in Matric and
he needs his support as he transitions to tertiary education.
9.7.
He submitted that he was not a flight risk by pointing out that
despite the amount involved in the
fraud case pending in the high
court, he has diligently attended court, he has also left the
Republic and travelled to Botswana
but informed the investigating
officer and the State Advocate about his traveling plans and this is
despite the fact that he was
not required to do so. He stated that it
was not true that he ran away when the police tried to arrest him, he
simply went to the
pharmacy to seek medical attention due to a
stomach ailment.
9.8.
It was his testimony that the State’s case against him is weak
as there is no evidence that he
presented any document to the bank or
that he wanted to perform any transactions. He stated that there is
n
othing wrong being seen with the first
appellant in the bank and there is also no evidence of the content of
their discussion.
It was his contention that taken
cumulatively with his personal circumstances, all these factors
constitute exceptional circumstances
which in the interests of
justice permit his release on bail pending trial.
[10]
The magistrate was not persuaded that the evidence rendered by the
appellants proved that it was in the interest
of justice that the
first appellant be released on bail and that it qualified as
exceptional circumstances which in the interests
of justice warrant
the second appellant’s release on bail.
[11]
In refusing bail, the magistrate relied on the State’s
testimony that there was a prima facie case
against the appellants in
terms of the CCTV footage which recorded their activities in the bank
and the undisputed evidence that
the identification document which
the first appellant produced to initiate the increase of the limit in
the bank account was found
to be fraudulent as it did not belong to
him including the account he attempted to access. With regard to the
second appellant,
he was the mastermind who paved the way “lubricated
the system” for the crime to take place. The magistrate
concluded
that the appellants failed to dispel the State’s
allegations despite the fact that the State had elected to begin with
leading
evidence granting them an opportunity to be cognizant of the
case they were to meet. The magistrate found that both the
appellants’
personal circumstances were outweighed by the
likelihood that they may evade trial considering their attempt to
evade arrest and
also furnishing false information upon arrest.
[12]
In the grounds of appeal, the appellants attack the magistrate’s
decision for refusing bail essentially
on the grounds that the
magistrate failed to properly analyse the evidence before him and
unfairly placed undue weight on the aspects
favourable to the State
and had less regard to the evidence beneficial to the appellants. The
rest of the grounds of appeal are
simply a regurgitation of the
evidence and arguments presented by the respective parties at the
bail hearing for that reason, I
do not deem it necessary to repeat
them here except for those relevant parts for the purpose of this
judgment.
[13]
Taking into consideration the facts of this matter, the
magistrate’s
findings alluding to the presence of the circumstances contemplated
in section
60
(4) (a) to (d) of the Act
[4]
are
indisputable namely that;
13.1.
The appellants are a flight risk, they ran away when the police
attempted to arrest them and when they were ultimately
arrested, the
first appellant supplied the police with a false address. He holds no
occupational obligations and owns no assets
to tie him to the place
where he is to be tried. It must be borne in mind that he merely
alleged that he was employed without any
proof in that regard. In his
own version he lived with his father, he does not own any immovable
property. Furthermore, his children
also live with their mother
therefore there is a likelihood that if he is released on bail he
will attempt to evade his trial.
13.2.
There is a likelihood that the second appellant will commit further
schedule 1 offences. His propensity to commit
a schedule 1 offence is
evidenced by the fact that at the time he was arrested he was out on
bail in relation to a similar offence.
There is a likelihood that he
will attempt to evade his trial if he is released on bail because he
provided a false name during
arrest, he has a passport and family
ties outside the Republic namely, Uganda is his place of birth and he
has friends in Botswana.
Based on his prior conduct of befriending
the bank employees there is a likelihood that if he is released on
bail he will attempt
to influence or intimidate those witnesses.
13.3.
It
is trite that the weakness of the State’s case can be construed
as “exceptional circumstances” as provided
for in section
60 (11) (a) of the Act justifying the appellant’s release on
bail pending trial. The onus was on the second
appellant to adduce
evidence which proves on a preponderance of probabilities that he
will probably be acquitted at the trial
[5]
instead the second appellant merely tendered a bare denial of the
allegations proffered by the State. It is important to note that
on
the available facts, there is a CCTV footage and eye witnesses as in
the bank employees who observed the appellants in the bank
and their
activities including their surreptitious exit from the bank.
[14]
The interests of justice do not permit the release of an accused on
bail where the above-mentioned factors
prevail. Both the appellant’s
personal circumstances are outweighed
by
the possibility that they might evade trial and also interfere or
intimidate the State witnesses.
[15]
I am not persuaded that the magistrate exercised his discretion
wrongly in refusing the appellants’
bail. The appeal must
accordingly fail.
ORDER
[16]
In the premises, I make the following order:
1.
The appeal against refusal of bail is
dismissed.
N.S.
DANISO
JUDGE
OF THE HIGH COURT
On
behalf of appellants:
Adv.
J. Nkahle
Instructed
by:
Hilda
Odora and Associates
BLOEMFONTEIN
On
behalf of respondent:
Adv.
F. Pienaar
Instructed
by:
Director:
Public Prosecutions
BLOEMFONTEIN
[1]
Act
No, 51 of 1977.
[2]
1979
(4) SA 218
(
D)
at
220
E–F.
[3]
Section 60 (11) (a) and (b) of the Act.
[4]
Read with ss (5) (e) and (g); (6) (a), (b) (c) and (g); 7(a), (d) to
(8) (a).
[5]
S v
Mathebula
2010
(1) SACR 55
(SCA)
para 12.