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IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case number: A77/2020

In the matter between:

JOHN OBIASOR                                                                                             First Appellant

MOSES IGBO                                                                                            Second Appellant

And

STATE                                                                                                                 Respondent

 

CORAM: CHESIWE, J

HEARD ON: 5 JUNE 2020

JUDGMENT BY: CHESIWE, J

DELIVERED ON: 18 JUNE 2020

 

[1] This is a bail appeal against the refusal by the Acting Magistrate Khetsi presiding in the Bloemfontein Magistrate Court, held on 25 May 2020 to admit the first and second appellants to bail.

[2] The Appellants were charged with contravention of Section 13 (f) of Drugs and Drug Trafficking Act 140 of 1992, whereby the value of the drugs was R50 000, and that the offence was committed by more than one person.

[3] The Appellants were both represented Mr Motaung. Mr De Vries was the Prosecutor on behalf of the State.

[4] At the trial court the state opposed bail on the grounds that it was not in the interest of justice that bail be granted to the Appellants.

[5] The Appellants noted an appeal against the refusal of their bail and stated that the trial court erred in finding that the Appellants did not adduce sufficient evidence that it was in the interest of justice that the Appellants be released on bail; and that the trial court failed to evaluate adequately and properly the evidence tendered before the presiding officer.

[6] Due to the current precautions and health regulations. I requested in terms of Section 19 (a) of the Superior Courts Act 10 of 2013, that the parties file written Heads of Argument and it was therefore not necessary for oral arguments.   The Appellants had filed Heads of Argument, but requested leave to file supplementary Heads of Argument on 8 June 2020.  The Respondent filed its Heads on 10 June 2020.

[7] Adv. Mazibuko, Counsel on behalf of the Appellants submitted in the Heads of argument that the Appellants’ bail application fell within the ambit of schedule 5 of Act 51 of 1977.  He submitted that the Magistrate refused to grant the Appellants bail and was of the view that there was a likelihood that the Appellants will evade trial.  He said the trial court erred to take into consideration that the Appellants are foreigners and are a flight risk. Adv. Mazibuko submitted that the court should impose stringent bail conditions to address the issue of possible trial evasion.

[8] Adv. Mazibuko in the supplementary Heads of Argument submitted that there was a mistaken identity of the First Appellant, as the photographs of the person the police intended to arrest was not that of the First Appellant, as well as the names on the warrant of arrest were not that of the First Appellant.  Counsel mentioned that the co-accused with the Appellants, who are also of Nigerian descent were granted bail by the Bloemfontein Magistrate Court. He submitted that the Appellants be admitted to bail in the interest of justice.

[9] Adv. Hoffman on behalf of the Respondent submitted in the Heads of Argument that the trial court considered all the relevant factors regarding bail.  He mentioned that the Investigating Officer under oath informed the court that the Appellants were arrested after the police had conducted an operation in terms of Section 252A of the Criminal Procedure Act 51 of 1977, and that there was still outstanding investigations against the Appellants. Adv. Hoffman denied that the state’s case against the Appellants is weak.  He submitted that the Appellants did not show that it is in the interest of justice that bail be granted to them and that the application be dismissed.

[10] An appeal against the refusal of bail is governed by Section 65 (5) of the Criminal Procedure Act 51 of 1977 ( “the CPA”) which provides that: 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 its or opinion the lower court shall have given.”

[11] The approach of a court hearing a bail appeal is trite.  In State v Barber 1979 (4) SA 218 (D) at 220 E-H the court said. “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 exercise 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 it 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 discretion to grant bail exercised that discretion wrongly…”

[12] Schedule 5 offences are very clear that the accused has to adduce evidence to satisfy the court that the interest of justice permit his release.   The court in this instance must conduct an enquiry before deciding to release the accused on bail. At the commencement of the bail application, the state contended that the application was within the ambit of Schedule 5.  The Appellants’ legal representative objected to this contention and addressed the court on the issue of the schedule 5 offence.

[13] The transcribed record on page 2, the following is noted:

“Prosecutor: Unfortunately Your Worship the Act is very clear that if a dispute arise whether or not it falls under either schedule five or schedule six, neither the court nor the defence or the prosecutor can issue or get clarity regarding that.  The matter must be directed to the Director of Public Prosecution to issue a certificate under which schedule four raise our clear dispute and his, whether or not it is schedule five, I cannot elaborate on that, you can make a ruling, a certificate must be issued by the Director of Public Prosecution.  On that basis of that the state requested a remand for the certificate to be issued.”

[14] The legal representative for the Appellants continued on page 3 of the transcribed record as follows: “Mr Motaung: As the court pleases, Your Worship to proceed with the bail application with the presumption that it falls under schedule five but these accused persons had been in custody since 23 March.  It cannot be that the state does not have the requisite certificate to support its contention that this schedule, five bail application but nonetheless the evidence will show in the end whether there is justifiable reason why it should be categorised under schedule five….”

[15] When an offence referred to in terms of Schedule 5 is placed in dispute, the prosecutor is required to either produce written confirmation in terms of Section 60 (11A) of the CPA before the accused pleads, to the extent that the accused must be informed as to which schedule, whether five or six the accused is charged with.  The State at the trial court failed to produce any such written confirmation.  The legal representative instead made a submission that the objection will be withdrawn.  The magistrate being aware of this defect, proceeded with the trial and made a comment that: “… by proceeding just hoping that later it should be clarified, will also be prejudicial to your client before you start it must be clear as to which schedule, that aspect must not be jumped in case in future it will come back to haunt everyone.”  (Page 4, line 16 – 22 of the transcribed record.)

[16] The dispute on the bail schedule required of the  Magistrate to make a ruling, as the presiding officer he was in no position to do so, as the provisions of section 60 (11) specifically required that the DPP must give written confirmation of the relevant schedule.  The Appellants disclosed no previous convictions or pending cases.  This in itself could have had an impact on the bail application. Indeed, as correctly stated by the Presiding Officer, that Mr Motaung by abandoning the objection in respect of the schedule just so that the matter proceeded, was indeed prejudicial to the Appellants.  When there was doubt or dispute over the correct schedule, the Presiding Office should rule in favour of the Appellants.

[17] The rights of an applicant to apply for bail and the urgency  thereof is important, but equally important are the rights to a fair trial. To have the matter proceed with schedule five and the uncertainty thereof, with no written confirmation from the state is indeed flawed. A court should never allow the interest of justice which has fairness at its core to be trumped by issues of convenience or expediency. (See Nel and Others v S (A508/2017 [2017] ZAGPJHC 296; 2018 (1) SACR 576 (GJ) (17 October 2017).

[18] Seemingly the Appellants were denied bail based on them being a flight risk and that they can evade trial as they are Nigerian Citizens. The magistrate went further to mention that the Appellants can easily skip through the South African borders, as these borders are porous. The judgment indicated that the First Appellant could easily leave South Africa, as he has no family ties in South Africa; he has no assets that could tie him to the Republic and that any bail amount that the court will order, the First Appellant could easily forfeit the amount, as the seriousness of the offence could tempt the First Appellant to flee the country.

[19] The personal circumstance of both Appellants was placed on record and these will  therefore not  be repeated. Except that the trial court stated that, the First Appellant had no family ties in South Africa.  However, Mr Motaung in the Heads of Argument submitted that the First Appellant has a wife, a brother and uncle in South Africa. He has been in South Africa for seven (7) years as an asylum seeker.  The court in respect of the Second Appellant made mentioned that he was building a house in Nigeria, and that could make him a flight risk.   I must pause to mention that the Second Appellant in his testimony mentioned that he has a wife and children in Bloemfontein.  The children attend school in Bloemfontein.  That in itself are ties that will keep the second Appellant in the country. Indeed, the trial court took into consideration section 60(4) (a) to (e) of the CPA, which sets out the grounds that permit the release of the Appellants on bail in the interest of justice. And section 60 (5) to 60 (9) details the factors to be considered having regard to the former section.  However, the issue of the warrant of arrest with the names that are incorrect, as well as the issue of the photograph in respect of the First Appellant, to which the Investigating Officer indicated he could not comment as to who is the person on the photos.  The Appellants further raised an issue that the state’s case against them was weak.  These issues cannot be ignored by this court.

[20] Adv. Mazizibuko in the Heads of Argument made reference to the matter of  Faquir v S (A73/2013) [2013] ZAGPHC 523 (15 May 2013).  In this matter the Appellants were Mozambican citizens faced with charges of dealing in drugs with an estimated value of R2 300 00, 00.  They had no assets in South Africa yet were granted bail. Aligning myself with what the court said in Faquir that:

“[38] It is absurd to even think that the onus in section 60 (11)(b) applied to non-citizens only, and that citizens can simply be granted bail without an attempt to enquire as to whether the interest of justice demand that they be released on bail.”

As correctly stated by Counsel, the amount in this matter does not even constitute a quarter to the value in the Faquir matter.

[21] Having regard to case authorities, the test appears to be whether there was a likelihood that the Appellants would evade trial and a likelihood of something more than a mere temptation. The strength of the State’s case and the probability of conviction, although an important consideration, does not displace the central issue which the court is required to decide, that is whether or not the interest of justice permit the release on bail of the First and Second Appellants and whether exceptional circumstances exist which in the interest of justice permit the release on bail of the Appellants.

[22] The Investigating Officer in respect of First Appellant testified that it was difficult to obtain the documents from the Department of Home Affairs that prove he was legally in the country.  However, due to the current pandemic (Cov19), the Investigating Officer stated that could not have access to the Department of Home Affairs.  It would not be in the interest of justice to keep the Appellants in custody due to a pandemic that is not of their making. Under the circumstances this can be regarded as an exceptional circumstance.

[23] This court of appeal, like the court a quo is fully cognisant that the Constitution of South Africa provides that no person ought to be deprived of his freedom arbitrarily, and if it is in the interest of justice to do so, an arrested person is entitled to be released from detention on bail. In S v Acheson 1991 (2) SA 805 (N) Mohamed J said: “An accused person cannot be kept in detention pending his trial as a form of anticipatory punishment.  The presumption of the law is that the accused person is innocent until his guilt has been established in court.

[24] I take cognizance of the fact that in exercising a judicial discretion, a court must consider the totality of the evidence and decide the matter on the probabilities.

[25] The trial court having failed to consider  whether or not the Appellants are charged under  schedule 5, is a material misdirection in itself. And taking into consideration the matter of Faquir, this court is therefore at liberty to give benefit to the Appellants that it is in the interest of justice that they be admitted to bail with the necessary stringent bail conditions.

[26] In the result the following order is made:

1. The bail appeal succeeds.

2. The order of the Magistrate to refuse bail is set aside.

3. Bail is granted to all the Appellants in the amount of R5 000, 00 each.

4. The Appellants are to report in person to their nearest police station on Monday, Wednesday and Saturday between the hours, 08H00 and 18H00.

5. The Appellants shall not directly and indirectly interfere with or contact any of the state witnesses or any member of their families either personally or by using a third party.

6. The Appellants shall not leave or travel without the knowledge and permission of the Investigating Officer.

7. The Appellants shall appear and attend court as held in the Magistrate Court, Bloemfontein Free State on such times dates and place to which the Criminal proceedings may from time to time be adjourned until the conclusion of the said proceedings.

8. The Appellants shall hand their passports to the Investigating Officer. If the appellants do not have passports, they shall not apply for passports or any travel documentation while on bail.

9. In the event that the Appellants fail to adhere to any of the bail conditions mentioned in this order, a warrant of arrest shall be authorised with immediate issue and execution and will result in forfeiture of the bail money.

10. In the event that the Appellants acquire new cell phone numbers, such information shall be given to the Investigating Officer as to the number and model of the cell phone.

11. The addresses as confirmed by the appellants during the bail application, shall remain the addresses in which they reside during the trial.

12. The Appellants are to appear at the Magistrate Court on their next appearance of 19 June 2020.

 

 

                                                                   ____________________

                                                                   S. CHESIWE, J

 

 

On behalf of 1^st & 2^nd Appellants: Adv Mazibuko

Instructed by: Motaung Attorneys

BLOEMFONTEIN

On behalf of the Respondent: Adv. Hoffman

Instructed by: Office of DPP

BLOEMFONTEIN

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