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[2011] ZAWCHC 134
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Van der Linde v S (A 17/2011) [2011] ZAWCHC 134 (9 February 2011)
Republic of South
Africa
IN THE
HIGH
COURT
OF SOUTH AFRICA
(WESTERN CAPE
HIGH
COURT,
CAPE
TOWN)
Case Number: A 17/2011
LEON VAN DER LINDE
...........................................................................................
Applicant
vs
THE STATE
.
......................................................................................................
Respondent
JUDGMENT DELIVERED:
Wednesday
9
FEBRUARY 2011
JAKUJA
AJ:
1. This is an appeal
against the refusal of the Regional court magistrate,
sitting
at
Bellville. to release the appellant on bail pending the finalization
of his trial for 22 counts of
fraud.
2. The allegations by the
state against the appellant are that between 24 March to 29 December
1995, and 05 September 1996 to 05
December 1996 he defrauded SARS by
claiming
value
added tax
using
fictitious
invoices .The appellant was involved in a number of businesses and it
is through some of the business entities that the
fraud was
committed. The amount involved is 2.6 million
rand
3. Mr Van Zyl SC appeared
for the appellant and Ms Valley-Omar for the State.
4. The appellant, as he
was entitled to. applied for bail and as the charge was a schedule 5
offence the onus rested on him to satisfy
the court that the
interests of justice permitted his release on bail. This is in terms
of section 60(11) (B) of the Criminal Procedure
Act, 51 /1977.
5. After the hearing the
Magistrate dismissed the application on the basis that the appellant
failed to show, on a balance of probabilities,
that the interests of
justice
permit
his
release on bail. The dismissal was based mainly on the following
grounds :
a) that the appellant is
a flight risk
b) the state had a strong
case against the appellant
6.
Grounds
of appeal are that the magistrate erred in finding that:
a) the offences of
which
the
appellant is charged are schedule 5 offences.
b) the appellant did not
discharge the onus that rested on him to show, on a balance of
probabilities, that the interests of justice
permit his release on
bail.
c) the appellant is a
flight risk
d)
the
state has a strong case against the accused
and failed to take
into consideration that:
a) the appellant cannot
run his business from jail
as
he does not have access to the internet.
b) the appellant, if he
remains in custody, will not be in a position to
prepare
adequately,
for his trial due to the nature of the charges he is facing.
7. Senior special
criminal investigator Swanepoel, employed by SARS gave evidence for
the state at the bail hearing. His evidence
was based on a bail
report
that he
compiled and handed into court as an exhibit It details the case
against the
appeWant
and his
personal circumstances.
8. It is not in dispute
that during the period in question the appellant had business
interests in South Africa. From about 1994/95
SARS started to probe
or audit these business entities. The appellant was aware of the
probe and was co-operating with the investigators
/auditors, his
attorneys and book keeper were also involved. A
docket
was
registered in May 1998, and the
appeWant
left
the country in the same month. He went to settle in Spain. He now has
a thriving business in Spain and has 11 people in his
employ. His
current wife has her own business interests in that country. When he
left the country he left behind two minor children
from his previous
marriage, they are now adults .He was estranged from the children.
His businesses in South Africa collapsed or
they were liquidated.
9. The investigators
became aware of his departure and applied for a warrant for his
arrest. It was granted in July 1998. It is
on that
warrant
that
the appellant was arrested on the 21 December 2010 upon his arrival
at Cape Town International, 12 years after leaving the
country. He
has been in custody since his arrest. He was going to be in the
country until 02 January 2011 He has a South African
passport valid
until 2018, a Spanish identification document or residency permit
valid until 2013 and a U K visa valid until 2020.
10. Ms Valley-Omar
submitted that there is no extradition agreement between Spain and
South Africa but both countries are signatories
to the European
Convention On Human Rights. Should he be released on bail, getting
him back to South Africa would not be easy,
if he went to Spain.
11. The appeal is brought
in terms of section 65(4) of the Criminal procedure Act, 51/77. The
section provides as follows ' the
court 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 is wrong in which
event the court or judge will give the decision which in its or his
opinion the lower court
should have given."
12. The magistrate's
analysis of the applicable law cannot be faulted. He applied his mind
to all the relevant provisions of sec
60 of the Criminal procedure
Act including subsections (4), (4)(b). (6) and (9). The interests of
justice were judiciously balanced
against the appellant's personal
circumstances.
13. I am not convinced
that the magistrate erred in coming to the conclusion that the
appellant is a flight risk. The appellant
was aware that his
businesses were being investigated but he did not deem it fit to
inform the relevant authorities that he was
thinking of leaving the
country.
14. The product that the
appellant was manufacturing and distributing through the companies,
according to Swanepoel, was sent for
forensic analyses and was found
to be water From these facts it may be inferred that the appellant,
when he left, may have been
aware that an arrest was possible.
15. His finding that
appellant has no ties with this country is supported by evidence on
record. He does not own property in this
country. He has not seen his
children and his two siblings here for 12yrs. His sister has
undertaken to make a house available
for his occupation, should he be
released on bail.
16. He has 11 employees
and a wife who can take care of his business in his absence. It is
not a business that requires his presence,
it is a business that can
be run in cyber space.
17. Based on the
evidence by Mr Swanepoel it cannot be said that the case of the
state against the appellant is weak.
18. In light of the
conclusion I have reached, it becomes unnecessary for me to consider
whether the charges that the appellant
faces fall within the purview
of Schedule 5 of the Criminal procedure Act whether the magistrate's
decision as to who bears the
onus was correct.
19. In my view on the
material that was placed before him, his decision is correct.
The Order
In the circumstances the
appeal against bail refusal is dismissed.
JAKUJA,
AJ
Office
of the Director of Public Prosecutions
Laubscher
& Hattingh Attorneys
Quattor
Building 81
Voortrekker
Road
BELLVILLE
7535
Ref
nr:
SARS/11/0023
Enquiries: Ms A Lotz
27 September 2012
For attention: B
Harmse
Gentlemen
THE
STATE VERSUS LEON VAN DER LINDE
[BELLVILLE
CAS 177/05/1998]
Your
letter referenced BH/ms/V3873 and dated 25 July 2012 refers.
After
the careful consideration of your representations and having regard
to the contents of the case docket as well as having
due
consultations with the complainant (SARS) and the witnesses
available to the State, I have decided not to proceed with the
criminal prosecution against your client.
Accordingly,
the case will be withdrawn on the next appearance.
Yours
faithfully
DIRECTOR
OF PUBLIC PROSECUTIONS: WESTERN CAPE
CAPE
TOWN
Tel:
+ 27 21 487-7000
Fax:
+27 21 487-7167
115
Buitengracht
Cape
Town
8000
Private
Bag 9003
Cape
Town
8000
South'Africa
www.npa.gov.za
Justice
in our society, so that people can live in freedom and security.