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
(WESTERN CAPE DIVISION, CAPE TOWN)

Case no: A(B)03/2024

In the matter between:

CAROLINE SEVIER Appellant

and

THE STATE Respondent

Heard: 13 February 2025
Delivered: 25 March 2025
_______________________________________________ ____________________
JUDGMENT
____________________________________________________ _______________
ADAMS, AJ

Introduction

[1] Individuals facing extradition may apply for bail pending the outcome of their
extradition proceedings. Bail applications in extradition cases are governed by the
Extradition Act 67 of 1962 and the general principles of bail under the Criminal

Procedure Act 51 of 1977 (“the CPA”). Courts carefully evaluate each application to
balance the applicant’s rights with South Africa’s international legal obligations.

[2] This is an appeal in terms of Section 65(1) of the CPA against the magistrate’s
refusal of bail pending the finalization of extradition proceedings against the
appellant. The State opposes the appeal .

Background to the Appeal

[3] The appellant was arrested on 26 January 2024 on a warrant issued by the
Cape To wn magistrate under Section 5(1)(b) of the Extradition Act 67 of 1962. The
warrant was executed in Greenpoint by Interpol.

[4] The appellant brought an application for her release on bail on 6 March 2024.
At the hearing of the bail application, it was acc epted by the Magistrate on the
strength of an agreement between the parties that the proceedings should be dealt
with in terms of Schedule 5 of the CPA, rendering the provisions of s 60(11)
applicable to the proceedings. In terms of this section, the Appel lant was expected to
present evidence to the satisfaction of the court that the interests of justice permitted
her release. This was the basis upon which the application was determined by the
Magistrate in the court a quo.

Details of the charges in the requesting state

[5] The extradition of the appellant is sought by the UK for her to stand trial on
the following charges:

Count 1
Conspiracy to supply cocaine, a controlled drug of class A, contrary to
section 1(1) of the Crimina l Law Act 1977 . It is alleged that between 1
January 2016 and 21 March 2017 at Hastings in East Sussex the
appellant conspired together with Callum Gower, Tyler Leisch and
Danielle Lodge to supply cocaine.

Count 2
Conspiracy to supply MDMA (Methylenedioxymethamphetamine), a
controlled drug of class A, contrary to section 1(1) of the Criminal Law
Act 1977 . It is alleged that between 1 January 2016 and 21 March 2017
at Hastings in East Sussex the appellant conspired together with Callum
Gower , Tyler Leisch and Danielle Lodge to supply
Methylenedioxymethamphetamine (MDMA).

Count 3
Conspiracy to supply cannabis, a controlled drug of class B contrary to
section 1(1) of the Criminal Law Act 1977 . It is alleged that between 1
January 2016 and 21 March 2017 at Hastings in East Sussex the
appellant conspired together with Callum Gower, Tyler Leisch and
Danielle Lodge to supply cannabis.

The evidence adduced at the bail hearing

[6] The appellant and the respondent elected to present evidence at the bail
hearing by way of affidavit. The following affidavits were presented in the court a
quo:

[7] The Appellant presented affidavits deposed to by herself, a letter from SAMI,
an affidavit deposed to by Ethan De Kock and a pre -trial repor t by social worker,
Arina Smit . In addition, an affidavit as well as Charne Theunissen and other
documentation such as emails relating to her claims of being employed and articles
relating to corruption among and the arrest of home affairs officials , were also
included. The evidence presented by the appellant sets out her personal
circumstances as well as that of her family. These aspects will be dealt with later in
this judgment.

[8] The respondent presented affidavits deposed to by Captain Hendry Mahope,
an affidavit by Home Affairs official, Ivan Klaasen, affidavits by Gerrit Smit as well as
other relevant documents in support of their opposition to the release of the
appellant.

[9] The evidence presented shows the salient facts regarding the matter in the
UK and the conduct of the appellant in South Africa to be as follows:

The appellant was arrested in the United Kingdom ( UK) on 21 March 2017. She
was stopped by the police in a rental vehicle and consequent upon a search of the
vehicle they discovered a large quantity of cocaine and cannabis in the car

[10] On 22 March 2017 the appellant was released on police bail, subject to
certain conditions. In June 2017, the appellant was released under investigation and
bail conditions no longer applied.

[11] During 2017, the appellant ostensibly started working for B elgravia Wealth
Management in Turkey.1 In this regard it must be noted that the confirmatory email is
not evidence under oath, nor did it include any details relating to when the appellant
started working in Turkey or what the conditions of employment wer e.

[12] On or about 6 November 2017 British authorities discovered that the appellant
was no longer in the UK and since they were under the impression that she was
somewhere in Europe, evidence was presented by the British police to the UK
Crown Prosecuti on Service on 10 April 2018 to apply for a European warrant for the
appellant .

[13] The police investigations in the UK were finalised around 6 August 2018 and
the Crown Prosecution Service authorised the charges against the appellant and
applied for a European warrant.

[14] On 27 January 2019 details of the appellant were circulated internationally in
line with the European arrest warrant. On 28 August 2019 appellant travelled on
Turkish airlines from Istanbul to Cape Town. Her British passport carried no stamp
endorsement to indicate when and from where she left the United Kingdom.


1 See email from Julie Trainers on page A99 Volume 4
[15] In August 2019 appellant entered South Africa at Cape Town International
Airport (stamp 709) on a visitor’s visa which was valid until 26 November 2019. The
appellant’ s entry into South Africa was captured in the Home Affairs records. On 10
November 2019 the appellant exited South Africa (stamp 261) to Zimbabwe via Beit
Bridge but her passport had no validity date endorsement for her stay in Zimbabwe.
Home Affairs did not have a stamp issued with the number 261.

[16] On 15 November 2019 a warrant of arrest was issued for the appellant by the
Westminster Magistrate’s Court in support of the extradition process.
On 19 November 2019 the appellant applied, with the assistance of South African
Migration International ( SAMI) and employee Miriam Mushuamba , for a change in
her visitor’s Visa conditions to the South African authority to obtain a medical Visa.

[17] On 25 November 2020 the appellant appealed the decis ion in respect of her
application to change her Visa and on 21 February 2021 that application was
rejected too. In November 2020 Miriam Musuamba left SAMI on maternity leave and
never returned.

[18] The rejection of the application for a change in the app ellant’s visitor’s Visa
was served on her on 12 March 2020. It is common cause that throughout these
processes the British police regarded the appellant as released under investigation.

[19] On 2 March 2021 the appellant entered South Africa from Zimbabwe via Beit
Bridge and endorsement in her passport with stamp 656 and permit stamp 159.
Home Affairs has no record of the entry. The endorsement stamp was issued to a
person who died in December 2022.

[20] On 1 June 2021 the appellant exited South Africa vi a Beit Bridge ( Stamp 286)
to Zimbabwe. Home Affairs has no record of her movement, and the stamp belonged
to an old register not currently issued. The appellant’s passport showed no validity
date for a stay in the neighboring state.

[21] SAMI records reflect that on 1 June 2021 the appellant applied for a medical
visa in terms of section 17 of the Immigration Act, the outcome was not collected.

[22] On 16 August 2021 appellant exited Zimbabwe and entered South Africa via
Beit Bridge (stam p 286). Home Affairs has no record of entry into South Africa and
the stamp belonged to an old register not currently issued. Permit stamp 26 also
belonged to an old register and was not current.

[23] On 31 October 2021 appellant exited South Africa (stam p 486) via Oliver
Tambo Airport. Home Affairs has no record of her exiting South Africa and no record
of the appellant re -entering South Africa. The stamp belonged to an old register not
current. On the same day the appellant entered Namibia. Her passport carried no
stamp to indicate when she left Namibia.

[24] On 6 November 2021 the appellant entered South Africa (stamp 313) via
Cape Town International Airport without a Visa validity date and left on 15 November
2021 via Beit Bridge. Home Affairs has no record of the movement into and exiting
South Africa. Stamp 313 reflected in her passport was discontinued on 4 November
2011 and handed in administration. The way in which the date was set out on the
authentic stamp number 313 of Home Affairs started with a year, month and day
unlike the endorsement stamp found in the passport of the appellant.

[25] In February 2022 according to information contained in the affidavit of Ethan
De Kock, he started working for the appellant. On 15 December 2022 the appellant
entered Namibia with no departure endorsement in her passport. On 22 December
2022 the appellant entered South Africa at Vioolsdrift without a Visa validity date and
no record by Home Affairs of her movements into South Africa.

[26] On 22 February 2023 a new warrant of arrest was issued by the Magistrate’s
Court at Sussex in the UK and on 2 March 2023 the first instance warrant was
issued by Westminster Magistrate’s Court in the UK .

[27] On 7 June 2020 SAMI issued what appears to be a general letter which the
appellant attaches to her papers. The letter indicates that:

“Applicants who se applications are still pending: long -term visa holders (Work,
Business, Study, Relative And Accompany Spouse) who form part of the
62692 visa backlog applications, be g ranted a temporary extension until 31
December 2023 of the current Visa status… “2

The appellant makes no averment indicating that she had a Visa application pending
in the period between 7 June to 31 December 2023.

[28] The appellant entered into a lease agreement on or about 20 June 2023 with
the Phoenix Trust to rent a property located at 1 […] W[…] Apartments Mouille Point,
Cape Town from 1 September 2023 to 31 August 2024. The rental amount was
R50,000 per month and a rental deposit of R100,000 was payable in terms of the
agreement. At this stage SAMI had no official instruction to act on behalf of the
appellant. The appellant entered into this agreement without the assurance that her
legal status in South Africa had been regularized for the per iod in question.

[29] In addition, on 20 June 2023 when she entered into the lease agreement, the
appellant had a bank account with First National Bank account number 6 […]. There
is no explanation from the appellant how she managed to open a bank account in
South Africa without a valid visa.

[30] On 29 October 2023 appellant exited to Zimbabwe. Home Affairs has no
recordal of her exit through a border post. On the same day the appellant entered
South Africa via Beit Bridge with a vehicle and had a valid visa until 27 January
2024. This movement was captured in the Home Affairs records.

[31] On 26 January 2024 SAMI applied for the extension of her visitor permit on
behalf of the appellant. The appellant was arrested in the extradition matter while an
application for a retirement visa was under consideration. At the time of her arrest,
she had no valid visa to be in South Africa.


2 volume 5 page A237
[32] These recordals of what is captured in the passport of the appellant were set
out in the affidavit of an offi cial of Home Affairs, Ivan Klaassen3 who also noted that
due to the warrant of arrest issued in the UK, the appellant became a prohibited
person in terms of section 29 (1)(b) of the Immigration Act 13 of 2002 (the
immigration Act) . He noted that the absence of capturing certain movements meant
the passport was not scanned at the ports of entry and the stamps were endors ed
fraudulently. He picked up the same pattern of fraudulent entry and exit
endorsements when examining the passport of the son and co -accused of the
appellant.

[33] On 6 February 2024 Home Affairs was in the process of serving the appellant
with a decl aration as an undesirable person in terms of section 30 (1)(a) of the
Immigration Act.

[34] The affidavit of detective Chloe Burgess4 state s that the appe llant and her son
travelled on suspected fraudulent documents to several countries since 2017 . She
opines that upon conviction the appellant would receive a rather lengthy sentence
due to the large quantity of drugs seized . The appellant, according to Burgess is well
versed in evading the police and she left the UK on short notice without ever
returning.

The Magistrate ’s findings

[35] On 30 April 2024, the magistrate refused bail, concluding that the appellant
failed to prove that her release was in the interests of justice. The key findings were
that:

• the interests of justice did not favour releasing the appellant.
• there is a strong case in the UK against the Appellant and that
there is a reasonable basis for her extradition.

3 Page A270 of Volume 6
4 Page A265 of Volume 6
• there is a likelihood that if the Appellant was released on bail,
because of the gravity of the charges she may evade her trial.
• the appellant’s history of international travel and questionable
passport endorsements indicate a likelihoo d of evading trial.
• No bail conditions could effectively mitigate concerns regarding
whether the appellant would evade trial.
• Considering the past conduct of the appellant , strict bail
conditions would not be effective.

[36] The Magistrate ultimately held that the appellant failed to demonstrate that
bail was justified under Section 60(11) of the CPA and refused her application to be
admitted to bail. It is this decision which the appellant seeks to assail in the
proceedings before me.

The merits on appeal

[37] In the appeal proceedings, the respondent conceded that the application does
not resort under schedule 5 and that the respondent therefore carries the onus. It
was conceded by the respondent that t here was therefore an irregularity in the
hearing in the court a quo and the appeal court is at liberty to undertake its own
analysis of the evidence to determine whether the refusal of bail was warranted.

Grounds for Appeal

[38] The grounds for appeal r aised by the appellant are that the Magistrate erred
in reaching the following findings:

• Applying Schedule 5 to the bail application.
• Finding the appellant to be a flight risk without sufficient
evidence.
• Attributing fraudulent passport endorsements to the appellant
without proof.
• Overlooking the poor prison conditions at Pollsmoor in her bail
determination.
• Drawing adverse inferences from the appellant’s failure to
address the merits of the extradition request.
• Failing to consider reasonable bail condition s as an alternative.

Submissions in this court

[39] Submission in the heads of argument prepared on behalf of the appellant that
she left the UK lawfully could not be sustained and was , correctly in my view, not
pursued by coun sel for the appellant in argument before me .

[40] It was submitted on behalf of the appellant that this court should also find that
the magistrate in th e court a quo was wrong if one has regard to the provisions of
section 60(2 A) of the CPA . This section enjoins the court, before reaching a decision
on a bail application, to take into consideration any pre -trial services report regarding
the desirability of releasing an accused on bail, if such report is available. It was
contended that the report compile d by the social worker Arina Smit5 is a
comprehensive pretrial report that wasn't considered by the Magistrate when she
refused bail. This aspect will be discussed later in this judgment.

[41] The evidence and argument presented on behalf of the app ellant was of no
assistance in determining the issue of bail given the selective way answers to
questions germane to the determination of bail were provided to the court a quo . In
the proceedings before me a similar pattern of selective disclosure of info rmation
emerged.

[42] Concerning the evidence around the difficult conditions at Pollsmoor, the
appellant was not entirely truthful. In her affidavit she claims that medicines
delivered to the prison which was required to treat health conditions she su ffers from
were not given to her . However later in the same document it appears that t he

5 page A106 of the record
medication was given to her a short while after it was delivered by a family member .
This delay may be explained by the process followed at prisons where items brought
for detainees are checked for contraband prior to delivery to the detainee concerned .
It is accepted that the conditions in detention facilities are not ideal, but this is just
one of several relevant factor s which must be considered in determining bail
applications .6

[43] The high watermark of the argument presented by counsel for the appellant
centered around the inability of the respondent to show the likelihood of the appellant
evading her trial in the UK and the misdirection by the Magistrate in accepting the
agreement between the parties in the court a quo relating to schedule 5 being
applicable to the proceedings as sufficient cause for this court to reconsider the
application and release the appellant on bail. The latter contention was conceded by
the respondent. A misdirection has the effect that the appeal court is free to consider
within the cir cumstances presented whether bail ought to have been refused or
granted.

[44] Counsel for the appellant could not point out in relation to the reasoning of the
magistrate where the magistrate erred in finding that the appellant’s release on bail
would not be in the interest of justice. The magistrate provided a well -reasoned
judgmen t setting out fully the reasons why she refused bail.

[45] The authorities referred to on behalf of the Appellant were misquoted and on
each one the counsel had to concede that the wrong principle was placed in
argument before me. Reliance on Otubu v D irector of Public Prosecutions Western
Cape7 which counsel for the appellant contended applied to the circumstances
inherent in this matter is misplaced as it is distinguishable from the circumstances of
the appellant given that the consideration which led to the granting of bail in the
Otubu matter was that an extradition request had not yet been received by South

6 See in this regard the authority referred to by appellant’s counsel, namely S v Mpofana 1998
(1)SACR 40(Tk) and S v Van Wyk 2005(1)SACR 41 (SCA)
7 2022 (2) SACR 311 (WCC)
African authorities . None of the authorities referred to by appellant’s counsel
provides cogency for the arguments advanc ed on her behalf.

[46] Counsel for the appellant sought to imply that the fact that the appellant did
not appear in the UK court is an indication that the U K authorities have a weak case
against her . It was posited that the decision taken by the UK authorities that the
matter was‘stood down’ is t antamount to a (provisional ) withdrawal. I agree with the
submissions of the respondent that these are not inferences one can draw in
circumstances where it concerns a foreign legal system and foreign law enforcement
authorities with their own principles, proced ures and investigative methods. It would
be dangerous in the absence of any information relating to the se legal procedures
and principles to speculate on what transpired in the UK after the appellant was
arrested . What is clear from the evidence is that at all material times there has been
clear indication from the relevant law enforcement that the investigation into this
matter was ongoing and the appellant was not absolved fr om any involvement .

[47] The respondent submits that th is court must refuse bail in the circumstances
because the appellant is a proven flight risk . The respond ent contends that South
Africa’s international extradition obligations under the European Convention on
Extradition, 1957, which South Africa acceded to in 2000 also necessitates careful
consideration of the circumstances in determining the application for bail .

[48] The respondent submit s that the appellant is proven to be a flight risk judging
by her overall conduct in the matter and the circumstances that were placed in
evidence before the magistrate as will be outlined further in this judgment. It is
contended that her conduct is a clear indicati on that she has no intentions of
returning to the UK.

The Legal Framework

[49] Determining an appeal against the refusal of bail falls within the framework
espoused in section 65(4) of the Criminal Procedure Act 51 of 1977 . The section
provides 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 it s or his opinion the lower court should
have given."

[50] The test for determining whether interfering with the Magistrate’s judgment is
justified is to consider whether there was a material misdirection by the Magistrate in
connection with the facts or the law. The sentiments expressed in S v Barber8 are
apposite:
“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
discr etion to grant bail exercised that discretion wrongly.’

[51] 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,
and in the absence of a finding that the magistrate misdirected him or herself the
appeal mu st fail.

The approach to the evidence presented

[52] In S v Smith and Another9 the Court held that:


8 1979 (4) SA 218 (D ) at page 220 E -H
9 1969(4)SA 175(N)
‘The Court will always grant bail where possible and will lean in favour of and
not against the liberty of the subject provided that it is clear that the interests
of justice will not be prejudiced thereby’.

[53] The CPA provides the procedural guidelines for bail applications and appeals
in extradition matters. Specifically, Section 60 outlines the general provisions for bail,
while Section 65 deals with appeals against bail decisions. In extradition contexts,
these sections are applied to ensure that the rights of the individual are balanced
against the interests of justice.

‘Bail proceedings are sui generis…The State is thus not obliged in its turn to
produce evidence in the true sense. It is not bound by the same formality. The
court may take into account whatever information is placed before it in order
to form what is essentially an opinion or value judgment of what an uncertain
future holds. It must prognosticate.10 (my emphasis)

Analysis of the principles applicable to the bail application and appeal

[54] When assessing bail applications in the context of extradition proceedings,
consideration is given to several factors, including :

Whether the appellant is a f light risk

[55] In determining whether the appellant poses a high risk of fleeing to avoid
extradition , the following consideration is given to factors such as:

• The seriousness of the offense in the requesting country.
• The likelihood of a severe sentence if convicted.
• Access to financial resources that could facilitate fleeing.
• The s trength of the case against the appellant , which entails assessing
the prima facie evidence supporting the extradition request.

10 S v Schietekat 1998 (2) SACR 707 (C) at 713h -713Jj
• Personal Circums tances such as the appellant’s personal and
community ties.
• The i nterests of Justice . Section 60(4) of the Criminal Procedure Act,
indicates that bail can be refused if it is not in the interests of justice .
Factors considered includes:
• The likelihood t hat the appellant will endanger public safety
• The possibility of interfering with witnesses or evidence
• The likelihood of extradition being granted
• The conduct of the appellant such as indications that the appellant has
previously taken steps to evade law enforcement, used false identities,
or such as in this matter, the fraudulent entries in the appellant’s
passport are relevant factors which was considered by the court a quo
and before me on appeal.
• Whether granting bail in the circumstances undermines t he criminal
justice system

These factors assist in the determination of whether the release of the appellant on
bail would align with the interests of justice.

[56] The magistrate in the court a quo correctly considered:

• The absence of a verifiable fixed address.
• The appellant’s previous conduct, including her movements across
jurisdictions.
• Fraudulent passport endorsements
• Her access to financial resources, which could facilitate absconding.

The Strength of the Case against the appellant

[57] The charges against the appellant involve substantial evidence, including:

• UK police reports confirming the seizure of drugs in her possession.
• Fingerprints and other documentary evidence linking the appellant to
multiple crime scenes.
• Suspicious tra vel movements post the UK arrest and release from bail.

[58] In Mathebula v S (431/2009) [2009] ZASCA 91, the Supreme Court of Appeal
held that an accused relying on a weak case must present persuasive evidence.
Affidavit evidence, which is not subject to cross -examination, is generally less
compelling.

[59] In my view, t he magistrate correctly found that in the circumstances of this
case and applying the provisions of Section 60(4) of the CPA, that: The public
interest outweighs the appellant’s personal c ircumstances. It cannot be in the public
interest to allow conduct such as that attributed to the appellant relating to the
fraudulent entries in her passport which went unexplained in circumstances where it
clearly points to the appellant being aware of these entries. In the circumstances as
outlined in the evidence presented, there is in my considered view, a high probability
of extradition.

[60] As noted in S v Nichas11 and S v Van Wyk12, a strong case coupled with the
probability of a lengthy sentence may justify the denial of bail.

Discussion of the evidence presented in the court a quo

[61] It is against this background that the appeal against the refusal of bail by the
court a quo must be considered . The ground s of appeal i n brief i s that the magistrate
ought to have found that considering the personal circumstances of the appellant,
the fact that she is not a flight risk, that she has immovable property in South Africa,
that she is gainfully employed and carrying on business in South Africa while also
employing two people, that she has family who is residing in South Africa, the fact
that she has been “lawfully” residing in South Africa for a considerable period of time
and the fa ct that there is a weak case made out against her by the UK authorities

11 1977(1) SA 257 (C)
12 2005 (1) SACR 41 (SCA)
which, considered collectively , constitute circumstances that justifies a finding that it
is in the interest of justice for her to be granted bail.

Issues with the appellant’s Case

[62] The State acknowledges certain discrepancies in the affidavits setting out the
dates of certain events in the UK. However, it remains uncontested that:

• The applicant was arrested in the UK and was subjected to a legal
process.
• The applicant was released on bail but under conditions, contrary to her
assertion that she was released without conditions.
• The UK legal system operates under different principles and
procedures, and its police and investigative authorities function
independe ntly.
• While aware of the ongoing investigation, the appellant left the UK
under suspicious circumstances.
• The UK authorities reported to their South African counterparts that the
applicant departed using false documents, raising concerns about her
credibil ity and legal compliance.

[63] It stands uncontroverted that there is n o official record of the appellant’s legal
departure from the UK. Had she left lawfully, there would be immigration stamps or
other record of her exit.

[64] The State su ggests that these factors strongly support the argument that the
appellant absconded from the UK to evade prosecution, reinforcing the concern that
she remains a flight risk in South Africa.

[65] The appellant was given ample opportunity to explain why her passp ort lacks
an exit stamp from the UK and to show that she entered Turkey using a British
passport. She elected not to do so. The circumstances of her exit from the UK and
entry into Turkey therefore remain unexplained. She did not inform the authorities of
her departure despite knowing she was still under investigation. She does however
provide an explanation for her presence in Turkey.

[66] This pattern of selective disclosure is evident throughout the bail proceedings.
For instance, she failed to discl ose that her UK bail was subject to conditions but
when she was caught in a lie relating to conditions attached to the granting of bail ,
she is quick to argue that the fact that she complied with those bail conditions ought
to count in her favour. She provided no credible explanation for the fraudulent
passport stamps used to justify her extended stay in South Africa and seeks to
apportio n blame for this conduct elsewhere .

Concerns Regarding the Appellant’s Passport Stamps

[67] By 21 February 2021, the appellant was aware that her visa application to
remain in South Africa had been rejected and that all appeals had been exhausted.
Fraudu lent entry and exit stamps were discovered in her passport which, in the
absence of any explanation, can be regarded as indicating an attempt to fabricate
legal residency. The appellant offered no explanation as to why she knowingly
placed fraudulent stamp s in her passport or at the very least did not question the
stamps if she did not travel to the destinations indicated . It is not clear from her
evidence whether she in fact travelled as indicated in her passport.

[68] The following averments relating to M ushuamba and SAMI went unconfirmed.
These relate to an official of SAMI, a certain Ms Maarman, who ostensibly informe d
the appellant that Mushuamba’s work was incorrect, and that her work would be
corrected by SAMI. There is no indication of what the incorrect work entailed, and no
confirmatory affidavit or other form of confirmation was filed by the appellant. This
seem to be an attempt to direct blame for the entries in the appellant’s passport at
Ms Mushuamba.

[69] The respondent submits that an irresistible inference can be drawn that the
appellant paid someone to insert fraudulent stamps in her passport to justify h er
continued stay in South Africa. This inference is supported by the fact that:

• The individual allegedly responsible for the fraudulent stamps, Mariam
Mushuamba, was on maternity leave from November 2020 and never
returned to work.
• The appellant has not explained how she contacted M ushuamba, how
much she paid her, or why she made direct payments instead of using
official channels to make payment to SAMI .
• No receipts were provided for these payments to Mushuamba ,
suggesting an illicit transaction.
• There is no evidence confirming that the appellant travelled across the
African continent, as indicated by the passport entries

[70] The appellant’s actions demonstrate:

• A history of evading law enforcement by leaving the UK undetected.
• A pattern of decept ion, including fraudulent passport endorsements
and inconsistent statements about her legal status.
• A lack of ties to South Africa, as evidenced by her attempts to
remain in the country through illegitimate means.

Appellant’s means and travel documents

[71] Seen in the context of her past conduct in leaving the UK under mysterious
circumstances while the matter is still under investigation, it cannot be as it was
suggested by Counsel for the appellant that she was ‘free and clear’ in terms of the
investig ation. If that was so, why would she not leave any trace of her exit from the
UK? In these circumstances I agree with the sentiments expressed by the Magistrate
in the court a quo that surrendering her passport as a condition of bail would be cold
comfort in circumstances where it is known that she travelled from the UK to Turkey
without the exit from and entry into the respective countries reflected in her travel
documents and where she did not disclose how this was orchestrated.

[72] The only information provided by the appellant in her affidavit is that she
departed the UK because of an employment opportunity in Cyprus. The re is no
explanation as to when she departed, how she exited the UK, why her departure was
not recorded in her passpo rt by the British authorities. This is information which fell
peculiarly within the knowledge of the appellant and was important information for
the determination of the bail application. While it is understood and I am mindful that
there’s no onus resting on the appellant, it would be reasonable to expect her to
provide this information given its importance in the determination of her application to
be released on bail and in the light of the evidence presented to the court a quo by
the respondent.

[73] The record reflects and the magistrate remarked on the fact that the appellant
was dishonest in several respects. By way of example the information relating to her
release on bail without bail condition s and regarding the date of her arrival in Cape
Town is not accurate. She also does not disclose whether she in fact travelled to
the various African countries as is reflected in her passport. The impression one gets
upon perusal of her affidavit is that she remained in Cape Town throughout. If this is
so, w hy did she not question these entries?

[74] In relation to her personal circumstances the appellant was equally not
forthcoming. She informed the court that she has no criminal convictions. This was
gainsaid by evidence provided by Interpol that she was c onvicted for theft in
Hastings, UK in 1990.

The Appellant’s Business and Residency Claims

[75] The appellant claimed that she is running a business in South Africa and
employs two people. However, there is no evidence of business registration or tax
compliance with the South African Revenue Service (SARS) attached to her papers.
The person purported ly employed by the appellant sets out in his confirmatory
affidavit that he is merely undergoing training and there is no proof of actual
employment. The appellant applied for a retirement visa, which seem to contradict
her claim that she is an active busi ness owner.

[76] The appellant provided information relating to her employment and source (s)
of income. However, the employment contracts attached to her affidavit were
unsigned. The appellant’s version in relation to her employment with PPC and Oxton
capital is also not consistent and information relating to income was contradicted by
evidence indicating that it was established by the British police that the appellant last
received payment from Belgravia in September 2023.

[77] These discrepancies in r elation to her financial position (transactions recorded
in bank records presented to the court) was discussed in the judgment of the court a
quo as a concern. It is clear that the appellant did not play open cards with
authorities or the court a quo in re lation to providing a full picture of her finances and
source(s) of income.

[78] The appellant similarly did not explain how she was able to establish a
business, open bank account and employ people if she was in South Africa on a
visitor’s Visa. Equally puzzling is the appellant’s evidence that her intention was to
establish and grow a business in Cape Town . If she intended to establish a business
and e mploy people, why she would enlist SAMI to provide assistance in obtaining a
retirement visa as opposed to business visa?

[79] In her papers, there is also no independent corroboration for her contention
that she employs two people. There are no official documents showing the
'employees' as having been registered for UIF or with other statutory bodies such as
SARS included in her papers.

[80] It is accepted that South Africa has a large percentage of unemployment. This
seems to be another instance where the facts are tailored and manipulated to
portray a picture of the appellant as a person that will be a benefit to her family a nd
South Africa if released on bail.

The pre -trial services report

[81] The report by Arena Smith (social worker) does not assist the appellant’s
case, as it merely outlines her personal circumstances without addressing the core
legal concerns related to her being branded a flight risk. The report cannot be
regarded as a pre -trial services report as intended in the CPA. A lot of emphasis is
placed in the report on the poor prison conditions and while aspects such as financial
means and travel documents ar e mentioned, it glosses over these pivotal issues and
only those aspects meant to advance the case of the appellant for bail is highlighted.
For example, the social worker discusses the legal status of the appellant and
mention is made of SAMI and Ms Mushu amba but none of the concerns noted in the
case of the respondent is directly addressed or discussed. There is a clear attempt
to apportion blame to Mushuamba for the fraudulent entries in the passport while the
involvement or extent of knowledge on the p art of the appellant about these pertinent
issues are not dealt with at all.

[82] All these aspects negatively impact the credibility of the appellant and more
importantly it tends to show an inclination towards running away from accepting
responsibility and accountability for her actions. This is evidenced by the fact that
she admits to running a business in South Africa without adhering to the necessary
prescripts relating to registration of a business with certain statutory bodies and other
legal and f ormal requirements to enable her to do so lawfully . She claims to employ
individuals without adhering or complying with issues such as tax, contributions to
the Unemployment Insurance Fund and other aspects relating to the proper
registration in her role as employer.

[83] The same can be said for her submissions in relation to her frail mother. She
indicates that caring for her mother is a two -person job, but she fails to indicate what
measures ha s been put in place from the time she was arreste d until the hearing of
the bail application some time later. There is nothing to indicate that her mother has,
due to inadequate care, t aken a turn for the worse. In the absence of any
explanation or information to the contrary, it must be accepted that this is no longer a
concern.

[84] Importantly she does not explain why, if her intentions were to remain in S outh
Africa permanently to contribute to the economy and to operate a business that
employs people, she would apply for a retirement visa. She al so does not explain
why she remained in SA and worked here, operated a business when she entered
SA on a visitor's visa and why in the many instances, she, extended her stay, she did
not rectify this situation and apply for a business visa .

[85] In the years she spent in South Africa since 2019 there has never been any
indication t hat the authorities were informed that she was in fact working and
carrying on business in S outh Africa. The reasons for this are not explained and as
indicated earlier while b eing mindful that there is no onus on the appellant, in relation
to her application for release on bail, these are important questions the court needs
answered to inform a determination on the issue of bail as it relates to her respect for
and obedience to legal procedures and authority such as the bail system .

[86] Again, it needs to be emphasized that there is no onus on the appellant but in
the face of evidence pointing to her being a flight risk and blatantly flouting legal
rules and regulations, mos t notably the issue of the fraudulent stamps in her
passport, it would be reasonable to expect that these issues would be cleared up in
the evidence presented in support of her application for bail. When the appellant
does include some form of corroboratio n regarding the fraudulent entries, it does not
relate to her circumstances but to that of her son.

[87] On a conspectus of the evidence before the court, there is a real and
substantial risk that the appellant will abscond if released on bail. The appellant has
no immovable property in South Africa or the UK. Her affidavit sets out that while she
claims the desire to set down root s in Cape Town, the appellant has moved around
in Cape Town and leases she enters for accommodation are not long-term leases as
the appellant claims.

[88] It appears that the manner in which the facts and circumstances were
presented to the magistrate w ere carefully engineered to present the most favorable
picture of the appellant, a picture that would support a finding that the appellant is a
suitable candidate for release on bail.

Conclusion and Order

[89] The appellant has failed to establish a material misdirection in the
magistrate’s decision to refuse bail . The findings regarding flight risk, the strength of
the case, and the interests of justice are supported by the evidence presented in the
court a quo and fortified by case law and statutory provisions. On the test espoused
in section 65(4) of the CPA, I cannot find that the decision inherent in the order of the
Magistrate refusing bail, was wrong.

[90] Accordingly, the appeal against the magistrate’s decision to refuse bail is
dismissed.


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ACTING JUDGE OF THE HIGH COURT
M F ADAMS


For Plaintiff : Adv R Liddell
Instructed by : Mathewson Gess Inc.
For Defendant : Adv. L. Badenhorst
Director of Public Prosecutions Cape Town