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[2014] ZAWCHC 182
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Mwaka v S (A479/14) [2014] ZAWCHC 182; 2015 (2) SACR 306 (WCC) (5 December 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
[WESTERN CAPE
DIVISION, CAPE TOWN]
CASE
NO. A479/14
DPP
REFERENCE NO: 9/2/5/1 – 61/14
LOWER
COURT CASE NO: 30/25/2011
DATE:
05 DECEMBER 2014
REPORTABLE
In the matter
between:
ASANI
MWAKA
........................................
Appellant
And
THE
STATE
...........................................
Respondent
JUDGMENT: 05
December 2014
Coram: LE GRANGE,
J
LE GRANGE,
[1] This is an
appeal against the Regional Court Magistrate’s refusal to grant
the appellant bail pending the finalization
of his trial in the Cape
Town Regional Court.
[2] The Appellant, a
Tanzanian born citizen who presently resides in South Africa, with a
co-accused is charged with committing
the following offences: first,
contravening the provisions of Section 5(b), read with Sections 1,
13, 17 to 25 and 64 of the Drugs
and Drug Trafficking Act 140 of 1992
(Read with the provisions of
Section 51(2)
of the
Criminal Law
Amendment Act 105 of 1997
), namely, dealing in dependence-producing
substances, alternatively, the unlawful possession of
dependence-producing drugs; and
secondly, contravening the provisions
of
s 3(b)
read with
s 1
,
2
,
24
,
25
,
26
(1)(a)(ii) and
26
(3) of the
Prevention and Combating of Corrupt Activities Act, 12 of 2004.
[3] It is common
cause, given that the offences the Appellant is charged with fall
within the ambit of Schedule 5, the magistrate
correctly applied s
60(11) of the Criminal Procedure Act, no 51 of 1977 (“the CPA”)
in terms of which, where an accused
person is charged with a Schedule
5 or a Schedule 6 offence, the onus rests upon the accused to satisfy
the Court that the interests
of justice permits his release.
[4] The Appellant
did not testify during his bail application in the court a quo but
submitted an affidavit. This practice has now
become a common feature
in proceedings of this nature. The Appellant’s affidavit
detailing his circumstances was received
as exhibit “A”.
His wife filed a confirmatory affidavit as exhibit “B”.
Attached thereto were annexures
A – H2. Exhibit “C”
was a letter by Firstwatch Fire Services CC stating that the
Appellant started his employment
in 2012.
[5] The nub of the
Appellant’s grounds of appeal is the Regional Magistrate’s
alleged failure to properly consider suitable
and or stringent
conditions as an alternative to the denial of bail in the present
circumstances. Moreover, the Appellant alleges
that the state’s
case against him in respect of the dealing and possession of
dependence-producing drugs is far from convincing.
[6] It is common
cause that the Appellant, with a co-accused, appeared on 25 May 2011
in the Regional Court. On that occasion the
case against both of them
was postponed until 6 of June 2011 and they were granted bail. The
Appellant and his co-accused failed
to appear in the Regional Court
and warrants for their arrests were issued in June 2011. Their bail
monies were also subsequently
forfeited to the State.
[7] According to
Constable Plaatjie, the police official who testified in the court a
quo, upon receiving the warrant of arrest
from the Regional Court he
went to search for the Appellant and his co-accused at their given
addresses. He obtained two further
warrants of arrest from the
District Court where the Appellant also failed to appear in other
matters. It further transpired that
in the beginning of June 2011,
before his appearance in the Regional Court, the Appellant was again
arrested in a sting operation
by the police for dealing in
dependence-producing drugs. Different addresses were given by the
Appellant in these matters to the
police. Plaatjie testified he could
not locate the Appellant after a diligent search at the given
addresses. In the beginning of
2012 Plaatjie caused the warrants of
arrest to be circulated throughout the Country. Plaatjie was unable
to confirm when and at
what border posts the appellant exited or
entered the country. According to Plaatjie the Appellant should have
been arrested at
the border posts on entry as the warrants for his
arrest were circulated country-wide. It needs to be mentioned that
the charges
in the other Courts also relate to the unlawful
possession and dealing in of dependence-producing drugs.
[8] According to
Plaatjie, the Appellant fortuitously showed up on 5 August 2014 at
the Woodstock police station for an unrelated
matter. It was then
that he recognized the Appellant and re-arrested him.
[9] It is not in
dispute that the Appellant had four different matters pending against
him before his disappearance and in all these
matters he was granted
bail. It is also common cause that after his arrest the Appellant
pleaded guilty to the charges dating back
to between 2010 and 2011
and was accordingly convicted and sentenced. The two counts of
possession of drugs were taken together
for the purpose of sentencing
and the appellant was sentenced to a fine of R2000.00 or 2 months
imprisonment. In respect of the
dealing in drugs charge the
Appellant was sentenced to a fine of R6 000.00 or 18 months
imprisonment. In addition, the Appellant
was sentenced to a term of
36 months’ imprisonment which was wholly suspended for a period
of 5 years on condition that he
was not again convicted of
contravening the provisions of sections 5(b) or 4(b) of the Drugs and
Drugs Trafficking Act, 140 of
1992.
[10] The Appellant
in his affidavit advanced a number of reasons why he failed to appear
in the Courts in 2011. Briefly stated,
the Appellant avers that his
then girlfriend (now his wife) and him went to his father’s
funeral in Tanzania. There he and
his wife were involved in an
accident. The Appellant and his wife claim that their belongings and
travel documents were stolen
at the accident site. His wife
apparently became ill which caused them to only return to South
Africa, Cape Town, in January 2012.
The Appellant further states
that his wife and children do not have valid passports. According to
the Appellant once his wife
obtained the necessary travel documents
they departed Tanzania for South Africa. The Appellant also avers
that ‘as a foreigner
in South Africa he had some bad
experiences and had heard horror stories of experiences other people
have suffered in the justice
system’. Therefore according to
him he did not report to the Court upon his arrival in Cape Town in
2012 as he feared a long
period of incarceration.
[11] The Appellant’s
wife claims she wanted to apply for a passport in Tanzania but was
given temporary travel documents.
A document purporting to be a
receipt from the South African Department of International Relations
and Cooperation which reflects
an amount of 86 000 Tanzanian
Shillings was attached as annexure D to the affidavit in support of
the contention that certain temporary
travel documents were issued to
her. The date stamp on the document is illegible and it is unclear
from the affidavit when and
under what circumstances this document
was issued. It is further unclear from the Appellant’s
affidavit what documents he
used to travel to South Africa. The
evidence from both the Appellant and his wife is extremely vague as
to when in January 2012
they entered South Africa and at what border
post they entered the country. The Appellant’s wife further
avers she became
ill and contracted tuberculosis and malaria whilst
in Tanzania and a document purporting to be a hospital card was
attached as
annexure D. The language in the document appears to be
foreign and the document was not translated into one of South
Africa’s
official languages. It is also unclear from the
affidavit on what portions of the document reliance is placed. The
annexures relating
to the Appellant’s employment at Firstwatch
Fire Services CC indicates that he was in their employ since 2012 but
when in
2012 is also not clear from the documents.
[12] It is now well
established in our law that a bail applicant may not be deprived of
the right to testify in the application
and an affidavit is
admissible and in certain instances more convenient. A Court hearing
a bail application is therefore, in terms
of s 60(2)(b), (2)(c)
and (2A) of the CPA, expressly given the power to receive information
or data which is common cause and
regarding matters which are in
dispute, to receive evidence. In terms of s 60(11B)(c) of the CPA the
accused’s evidence at
a bail hearing is admissible at the
trial. It is therefore not uncommon that an accused person may be
advised to stay out of the
witness box in order to avoid being
cross-examined, given that the accused’s answers may prove
harmful and detrimental at
the trial. This however does not mean that
the affidavit(s) and supporting document(s) of a bail applicant
should be assessed differently.
The golden rule is still that it must
be assessed according to its worth in light of the other evidence and
circumstances. Moreover,
our law is replete with authority as to the
functions of affidavits in cases. In Swissborough Diamond Mines (Pty)
Ltd and Others
v Government of the RSA and Others
1999 (2) SA 279
(T)
at 324 F – G it was held that: ‘Regard being had to the
functions of affidavits, it is not open to an applicant
or a
respondent to merely annex to its affidavit documentation and to
request the Court to have regard to it. What is required
is the
identification of the portions thereof on which reliance is placed
and an indication of the case which is sought to be made
out on the
strength thereof. If this were not so the essence of our established
practice would be destroyed.’
[13] In casu, if one
has regard to some of the annexures that were attached to the
affidavits in this case they clearly fall short
of what is the
established practice and referred to in the Swissborough Diamond case
supra.
[14] Returning to
the issues at hand. The Appellant’s attorney Mr. Booth in
essence argued that the Appellant has made out
a good case to be
released on bail with appropriate conditions and his return to South
Africa is also a strong indication that
he will stand his trial. It
was also suggested by Mr. Booth that the detention of the Appellant
since 5 August 2014 is sufficient
punishment and a deterrent to
comply with his bail conditions. This in my view is an incorrect
manner to approach bail. The fundamental
principal in our law is that
respect for the freedom of a person demands that bail only be refused
where there is a real danger
that justice will not be done.
[15] Ms Thaiteng on
behalf of the State contended that there was no misdirection on the
part of the court a quo. Moreover, all the
factors and surrounding
circumstances were properly considered and bail was correctly denied
by the Regional Magistrate.
[16] In terms of s
60(4) of the CPA the basic principle in our law is that bail ought to
be granted for an Applicant unless it is
not in the interests of
justice. In casu, the onus is on the Appellant to convince the court
on a balance of probabilities that
the interests of justice do not
require his further detention. In this regard see S v Swanepoel
1999(1) SACR 311(O).
[17] It is common
cause that the Appellant absconded from court proceedings since 6
June 2011 and was only re-arrested on 5 August
2014. On his own
version he left South Africa for Tanzania and returned in 2012. The
Appellant essentially advanced two reasons
for his failure to report
at the Court or the police, on his return from Tanzania. The first is
his inability to afford an attorney
at the time. The second is the
claim that as a foreigner in South Africa he had some bad experiences
and heard some horror stories
of experiences other people had
suffered in the justice system. Therefore according to him he did not
report to the Court upon
his arrival in Cape Town in 2012 as he
feared a long period of incarceration.
[18] On the
undisputed facts, the Appellant was arrested for the first time on 1
November 2010 for possession of 15 units of heroin.
Five days later,
Appellant was arrested for the second time for possession of 250
units of heroin. A month later Appellant was
arrested for the third
time for dealing in drugs in an undercover operation. Five months
later, the Appellant was arrested for
the fourth time for a similar
offence (which is the current case pending in the Regional Court).
The Appellant faces a further
charge of corruption where the
allegation is he tried to bribe police officers not to arrest him. It
needs to be mentioned that
the Appellant was granted bail in each of
these matters.
[19] The Appellant’s
reasons for not attending court are simply unconvincing. Even if it
is accepted that he was in Tanzania
for a period of time, the
Appellant’s explanation for his failure to report at Court or
at the police at the first reasonable
opportunity to explain his
absence reeks of a cheap attack on our criminal justice system. There
is no allegation being made by
the Appellant that as an accused
person his s 35 Constitutional Rights were not adequately explained
to him. Furthermore, the Appellant
failed to substantiate his claims
of ‘horror stories other people suffered in the justice
system’. In fact the Appellant’s
own circumstances
demonstrate the contrary. He was arrested in rather quick succession
on four different occasions committing similar
offences in 2010 and
2011 and was granted bail in each of these instances by the lower
courts.
[20] It is difficult
to imagine how stringent bail conditions in the circumstances of this
case would be effective in ensuring attendance
at court, if the
Appellant previously has given four different addresses that
successfully caused him to evade the police. Furthermore,
the ease
with which the Appellant, who is a foreign citizen, crossed South
Africa’s borders is also cause for concern as
to whether indeed
he will stand his trial despite his present personal and family
circumstances.
[21] In S v Petersen
& Another 1992(2) SACR 52 (C) at 55 d – f, the following
was held:
‘It is true
that the accused have appeared in court where previously bail was
granted. But mere attendance at court does not
necessarily negative a
propensity to traffic in drugs. The purpose of granting an accused
bail is to minimise interference in his
lawful activities. But where
there is evidence from which the inference to be drawn is that the
accused has abused the grant of
bail by indulging in the same
criminal conduct, drug trafficking, society is entitled to be
protected against the risk of repetition
of drug trafficking, of the
same criminal misbehavior. Then the interests of society outweigh the
rights of the lawless individual.
Drug trafficking is detrimental to
society, and it is not in the interests of society that the
appellants, who have displayed a
blatant disregard for the law, be
granted bail and let free on society’.
[22] Even though the
above matter was decided prior to the commencement of our
constitutional era and before the amended s60 of
the CPA, I fully
agree with these sentiments as they are still very relevant today. In
the present instance the Appellant showed
a flagrant disregard for
the law and unashamedly continued with the possession and trafficking
of drugs to which he has subsequently
been found guilty and
sentenced. In my view, in considering all the relevant factors to
release the Appellant under these circumstances
on bail again will
bring the administration of justice into disrepute.
[23] On a conspectus
of all the evidence in this bail appeal I am of the view the
Appellant failed to show that the Regional Magistrate
erred in
refusing the granting of bail. On the contrary, I am of the view the
Regional Magistrate’s decision was correct.
Accordingly the
appeal cannot succeed.
[24] In the result
the following order is made.
The appeal is
dismissed.
LE GRANGE, J