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[2024] ZAECMKHC 121
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Afali v S (Bail Appeal) (CA&R180/2024) [2024] ZAECMKHC 121; 2025 (2) SACR 52 (ECMk) (1 November 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE DIVISION
MAKHANDA)
REPORTABLE
CASE NO: CA&R
180/2024
In the matter between:
MAKIDU
AFALI
Appellant
And
THE
STATE
Respondent
BAIL APPEAL JUDGMENT
MHAMBI AJ
PREAMBLE
WHEREAS
the
Republic of South Africa has acceded to the 1951 Convention relating
to status of refugees, the 1967 protocal relating to the
status of
refugees and the 1969 Organization of African Unity Convention
governing the specific aspects of refugee problems in
Africa as well
as other human rights instruments, and has so doing assumed certain
obligations to receive and treat in it’s
territory refugees in
accordance with the standards and principles established in Internal
Law
[1]
:
INTRODUCTION
1.
This is an appeal against the refusal by Magistrate in Makhanda, to
admit the
appellant to bail. The bail proceedings and the
judgment thereof, that is the subject of this appeal were heard on 24
September
2024 and the Magistrate delivered judgment,
ex temporae
on the same day.
2.
The Appellant is a Malawian National, he was charged of
contravening Section
49(1) (a) of the
Immigration Act 13 of 2002,
(the Act)
in that he entered and remained within the Republic of
South Africa, illegally. Section 49 (1) (a) of act states
that:
49.
Offences
(1)(a)
anyone who enters or remains in, or departs from the Republic in
contravention of this Act, shall be guilty of an offence
and liable
on conviction to a fine or to imprisonment not exceeding two years.
3.
In dealing with bail appeal this court has to conform with Section
65(4) of the
Criminal Procedure Act
[2]
,
the
CPA
.
The CPA in Section 65(4) provides that a Court hearing an appeal
against the bail refusal will not set aside the decision
of the
Magistrate unless such court is satisfied that the decision was wrong
either in both facts and the law .
THE APPEAL
4.
Clearly, the test for interfering with the Magistrates Judgment, is
whether
the
court
quo
misdirected
it’self in a material way in relation to facts or the law
[3]
.
5.
In
S
v Barber
[4]
,
the Court states as follows:-
“
It
is well known that the powers of this court are legally limited where
the matter comes before it on appeal and not as
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 view for that of the Magistrate because
that
would be unfair interference with the Magistrates exercise of its
discretion. I think it should be stressed out that,
no matter
what this Court’s own views are, the real question is whether
it can be said that the Magistrate who had discretion
to grant bail
but exercised that discretion wrongly”.
6.
If such misdirection is established the appeal court is at large to
consider
whether bail ought to have been granted
[5]
or refused, and in the absence of a finding that the Magistrate
misdirected himself/herself the appeal must fail.
7.
In
S
V Schieteket
[6]
,
the
Court held that:
“
The
grant or refusal of bail is a discretional decision under judicial
control, and judicial officers have the ultimate decision
as to
whether or not, in the circumstances of a particular case, bail
should be granted”.
8.
The power of the court of appeal in dealing with bail appeal has been
dealt with
in number of decisions, supporting the approach in
BARBER.
In
S v ALI,
the Court held that:-
“
In
order to interfere an appeal, it is accordingly necessary to find
that the Magistrate misdirected himself or herself in some
material
way in relation to fact or law”.
9.
In
S
v Porthern and Others
[7]
,
the Court held that:-
“
if
such misdirection is established, the appeal court is at large to
consider whether bail ought, in the particular circumstances
to have
been granted or refused. In the absence of a finding that the
Magistrate misdirected himself or herself the appeal must
fail”.
THE FACTS OF THIS CASE
10.
The appellant is a Malawian National, he was arrested on 22 August
2024, he is charged with
one count of contravening
Section 49(1)
(a) of the
Immigration Act 13 of 2002
.
During the bail
proceedings in the court a quo both the State and the defence agreed
that the offence falls under schedule
1 of the CPA.
11.
The State therefore had the onus to satisfy the court that the
interests of justice did
not permit the release of the appellant on
bail.
12.
The factors that the court
a quo
had to consider in
determining the interests of justice are outlined in
Section
60(4)
of the CPA. According to this section, the interests of
justice would not permit the release of the accused if one or more
of
the following grounds are,
inter alia,
shown to exist: -
d)
where there is likelihood that the accused if he or she were released
on bail,
will undermine or jeorpadise the objections or the proper
functioning of the Criminal Justice System, including the bail
system.
13.
In dealing with the above factors the court in
S
v Branco
[8]
,
Cachalia
AJ
said
the following:-
“
The
factors which the Court may take into account in determining whether
any of the grounds described in
Section 60(4)
have been established,
are set out in Section 60(8) of the Act. These factors are
merely guidelines in assisting the court
in arriving at just decision
they are not numerous clausus of the factors that a court may
consider, (See
S
v Stanfield
1997 (1) SACR 221
( C) at 226 (c- d)
.
Nor are any of the factors individually decisive, some of them may be
weightier than others, depending on the circumstances”
14.
Even though the concept “ interest of justice” is not
defined in section 60(14)
the court in
Dlamini
,
S
v Dladla and others, S v Joubert, S v Schietekot,
[9]
per
Krieger J, the concept “
interest
of justice
”
,
was defined as follows:-
“
The
interest of society is the sense in which the “interests of
Society” concept is used in sub S(4). That subsection
actually forms part of a functional unit with subsection S(9) and
(10). Between them they provide the heart of the evaluation
process in a bail application, sub – s 9 being predominant.
It is read first and “
the
interest of justice
”
beares
the same narrow meaning kin to the interest of the society” (or
the interest of justice minus the interest of
the accused) the
interpretation of the whole section falls neatly into place”.
15.
The State in it’s oppositition of bail filed an affidavit
deposed by
Khuselwa Maxhwele,
an immigration officer in the
Department of Home Affairs. She described her normal duties as being
responsible in respect of the
apprehensive and removal of the illegal
foreigners. According to her affidavit, she checked out the
relevant Movement control
systems (MCS)
and found no records of the appellant’s entry
in the Republic.
16.
She further states that at the time of appellant’s arrest, the
appellant was in possession
of fraudulent and expired Malawian
special permit, having expired on 30 December 2023.
17.
The State conceded in the court a quo that it has no proof that the
appellant’s permit
is fraudulent but the State insisted on the
fact that the permit has expired since December
2023. The
State accepted that the appellant has a valid
passport which he used to enter the Republic but the appellant has
not acted to renew
the expired permit since December 2023. The
State relied on that to say the interest of justice do not permit the
release
of the appellant on bail since, he is an illegal immigrant.
18.
The apellant in his support to be released on bail filed an
affidavit.
19.
In his affidavit, amongst other things,he stated that he has a valid
passport from Malawi
which was issued on 06 September 2022 and will
expire on 5 September 2032. According to his affidavit the
original passport
was confiscated by the immigration officers during
his arrest but copy thereof was filed as an exhibit in court.
20.
In that affidavit he disclosed his intention to apply for asylum.
This was also confirmed
by the legal practitioner who appeared on his
behalf during the bail proceedings of the court
a quo
.
According to the record the appellant sought be released out on bail
to enable him to apply for asylum and that the State
should release
his passport as he cannot be assisted without it, for asylum
application purposes.
21.
It is worthy to note that the affidavit of the appellant do not
disclose the reasons for
late applying for asylum before expiring of
his permit nor does it discloses good cause of the delay for
his asylum application.
22.
In it’s refusal to release the appellant on bail, the court a
quo considered that:
(a)
the appellant has disclosed intention to apply for asylum, that was
noted in
the appellant’s affidavit.
(b)
The appellant has valid passport, a valid special permit that expired
on 30 December 2023.
(c )
The appellant did not state any reason why from 2023, when his
special permit expired, he did
not apply for asylum.
23.
According to the record, considering the evidence that has been
tendered before the court
a quo the court was of the view that it was
not in the interest of justice that the appellant be released on
bail. The court a
quo considered the appellant as flight risk.
Therefore the
appellant’s
bail was refused.
24.
The appellant, amongst other reasons for the appeal, has argued
that:-
a)
The Magistrate rejected the appellant’s
intention to apply for asylum.
b)
The Magistrate did not consider the factors listed
in ection 60 (4) (a) – (e ) in order to determine, if it would
be in the
interest of justice for the appellant to be released out on
bail.
c)
The learned Magistrate did not consider Regulation
8 read with
Section 21
of the
Immigration Act, in
that the Magistrate
ignored the provisions that requires the appellant to present himself
personally/physically at RRO Office to
make an application for
asylum.
25.
I disagree with the appellant’s argument that the decision
of
the Magistrate was wrong.
26.
The main reason for the finding by the Magistrate was that he
appellant was in the Country
illegally, at the time of his arrest, as
alleged special permit had expired. The appellant for a full
period of about seven
months did nothing to have the special permit
renewed or to apply for asylum as he sought to rely on that
intention to apply
for asylum as the sole basis for him to be
released out on bail.
27.
The Magistrate had emphasized in her Judgement that the appellant did
not place any reason
before the court why his asylum application had
not been done for seven months, according to the record and from the
Magistrate’s
judgment on bail application, the appellant was at
the time of his arrest not in possession of a document validating his
stay in
this country.
28.
In those circumstances to grant the appellant bail will allow him to
continue his illegal sojourn
in the Republic
[10]
.
29.
In
Oppressed
ACSA Minority (1) (Pty) Ltd) and Another V Government of the Republic
of South Africa and Two Others
[11]
,
it
was held that the court cannot perpetuate an illegality. The
Magistrate was correct in her finding not to be in the interests
of
Justice to release out on bail appellant under circumstances where he
had no legal documentation to be in the Republic.
30.
The appelant’s personal circumstances and his right to freedom
and liberty was
under the circumstances of this case outweighed by
the interest of Justice, it would have been a miscourage of justice,
or it would
jeopidise the administration of justice had the
Magistrate released out on bail someone with no legal documentation
to be in the
Republic.
31.
The facts of this case are distinguishable with those in
Ulder
v Minister of Home Affairs and Another (Lawyers for Human Rights
admitted as AMicus Curiae)
[12]
,
in
this case, the court emphasized that, the applicant’s status in
the Country should not be used as a bar to his release
on bail.
The main purpose of granting bail is to secure the attendance of the
bail applicant at Court pending finalization
of the trial matter.
32.
In this case, the appellant has no legal documentation to be in the
Republic, it could not
be said the Magistrate used the appellant’s
foreign status rather ealisng the appellant out on bail would defeat
the same
object of
Section 49
of the
Immigration Act, which
the
Magistrate correctly said it was not in the interest of justice to
grant bail to the appellant.
33.
Having said that,the argument by the appellant that the Magistrate
erred in not considering
his intention or expression to apply for
asylum. The magistrate considered the appellants expression to apply
for asylum, her decision
to refuse bail was based on the fact that
the interests of justice did not permit appellant to be released out
on bail, the constitutional
court has dealt with whether expression
to apply for asylum makes detention of the accused unlawful or does
that qualify his releasee
out on bail, as I will demonstrate by
authorities hereinafter. I have to consider the following question:
The Constitutional
Court on the right to apply for asylum and whether that right grants
the asylum seeker permission to be released
from detention:
34.
The circumstances of this case are distinguishable from the matters
the Constitutional court
has dealth with, in those matters, the
Constitional court dealth with applications seeking for the release
of the Applicant therein
for several reasons, the matter before me is
bail appeal, and it must be considered as such and not more than
issues that were
before the Magistrate when bail application was
sought.
35.
This matter is distinguishable with the matter of
Saidi
and Others v Minister of Home Affairs and Others
[13]
,
the Constitutional Court reasoned as follows:-
“
An
asylum seeker would be immune from prosecution while persuing an
internal appeal or review. The immunity would end as soon as
his
appeal or review is finalized. However, upon completion of the
PAJA review, with the court deciding that the applicant
ought to have
ben granted asylum, the immunity kick in again.
36.
In this matter, the evidence before the Magistrate was that the
appellant intends to apply
for asylum not that he has applied for
asylum and or intends to appeal or review a decision not
granting him asylum.
SAIDI
does not apply to
circumstances of this bail appeal.
37.
The matter of
Ashebo
v Minister of Home Affairs and Others,
[14]
the
central issue in this case was the applicant’s right to apply
for asylum in South Africa, after being in the country unlawfully
for
over a year.
38.
The Constitutional Court, in
Ashabo
, had two critical
issues to consider:-
a)
The first, is the time afforded to an illegal
foreigner to apply for asylum,
b)
The second, is whether an illegal foreigner is
entitled to be released from detention after expressing an intention
to seek asylum
while awaiting deportation until their application has
been finalized.
39.
The Constitutional Court has dealth with the first issue in two
matters, the one is
Ruto
v Minister of Home Affairs
[15]
and the other is,
Abore
v Minister of Home Affairs and Another
[16]
.
40.
In both matters, the Constitutional Court has held that once an
illegal foreigner has indicated
their intention to apply for asylum,
they must be afforded an opportunity to do so, and further that the
delay in expressing that
intention, does not bar the individual from
applying for asylum. Thus, until an applicant’s application for
asylum, has been
finally, adjudicated the principle of
non-refoulement
protects the applicant from deportation.
41.
To answer whether the Applicant’s expression of an intention to
apply for asylum entitled
him to be released from detention.
The Constitutional Court answered in the negative. The Court held
that there is no automatic
right which entitles an illegal immigrant
to be released from prison once they have declared their intention to
apply for asylum.
However, the court held that if the individual does
express such an intention while in detention, the Department of Home
Affairs
must take all reasonable steps to facilitate the process of
the application being made.
42.
In sum, the reliance by the appellant’s Counsel on the
authorities I have analysed
above, does not make the decision of the
Magistrate to refuse bail of the appelant wrong. I agree with
the respondent submission
that pending the determination by the
Immigration officer on whether the appellant has shown good cause for
his entry and continued
stay in the Republic, his detention is not
unlawful, and the magistrates decision refusing appellant bail was
correct.
CONCLUSION
43.
The finding by the Magistrate refusing the appelant’s bail
application was correct.
44.
The Respondent has a duty to take all reasonable steps, within
reasonable time, and assist
the appellant to appear before the
Refugee Reception Officer of the Department of Home Affairs, nearest
to where the appellant
is detained, in order to show good cause for
his entry or illegal stay in the Republic as required by Regulation
8(3) of the Refugees
Act, and affirmed by the constitutional court.
45.
In consideration of the interests of justice as this court has such
powers, afforded to it by
Section 173 of the Constitution,
[17]
the following order issues:-
ORDER
1.
The appellants bail appeal is dismissed.
M. MHAMBI
ACTING JUDGE OF THE
HIGH COURT
Date
Heard:
30 October 2024
Date
Delivered:
01 November 2024
APPEARANCES
Counsel for the
appellant:
Mr Solani
Instructed
by:
Legal Aid
Counsel for
respondent:
Mr Govender
Instructed
by:
National Prosecuting Authority
[1]
See
Preamble to the
Refugees Act, 130 of 1998
.
[2]
See
51 of 1977
[3]
See
Spaneyiotou V S, CA and R , 06 2015, 2015 ZAEC GHC 73 para [26]
–[27] (unreported judgment).
[4]
See
1979 (4) SA 218
(D) at 220 E-H. see also S v Branco
2002 (1) SACR
531(WLD)
at 5331
[5]
See
1999 ZACC 8
,
1999 (2) SACR 51
(CC) 88H-1, 89E and 90B-D
[6]
See
2011 (1) SACR 34
(E) at para 14 see also S V M,
2007 (2) SACR 133
(
E)
[7]
See
2004 (2) SACR 242
(C ) at para 11
[8]
See
2002 (1) SACR 531
(WLD) at pages 533
[9]
See
[1999] ZACC 8
;
1999 (4) SA 623
, (CC)
1999 (7) BCLR 771
( 3 June 1999)
[10]
Seej
Oliver Freedom Eke V The State unreported judgment by Malusi J,
Makhanda Case No: CA and R 94 2023, paras 11-15.
[11]
See
2022 JDR [767] SCA at Para 17.
[12]
See
2009 3 ALL SA 323 (SCA)
[13]
See
2018 ZACC 9
[14]
See
2023 (5) SA 382
CC,
2024 (2) BCLR 217
(CC judgment delivered on 12
June 2023
[15]
See
2017 (3) BCLR 383
(CC),
2019 (2) SA 239
(CC).
[16]
See
2022 (4) BCLR 387 (CC), 2022 (2) SA 321 (CC)
[17]
See
The Constitution of the Republic of South Africa, 1996.