FACTORS TO BE TAKEN INTO ACCOUNT IN CONSIDERATION OF BAIL

S v MWAKA 2015 (2) SACR 306 (WCC)

Bail — Appeal against refusal of — Factors to be taken into account — Accused foreign national who had fled country whilst out on bail and returned without reporting to police or court — Showing flagrant disregard for law with continued dealing in drugs, despite previous conviction — Claim of foreign nationals having suffered horrific conditions in South African justice system cheap attack — Not having discharged onus of showing interests of justice permitted release.

The appellant, a foreign national who resided permanently in South Africa, was charged with dealing in dependence producing drugs and with corruption in contravention of the provisions of s 3(b) of the Prevention and Combating of Corrupt Activities Act 12 of 2004. The offences fell within the ambit of sch 5 to the CPA and the onus accordingly rested upon the appellant to satisfy the court that the interests of justice permitted his release on bail. The regional magistrate refused bail and the appellant appealed against the refusal. At the time when the offences were allegedly committed, the appellant had already been arrested a number of times for other drug offences and he was sentenced a number of times in 2011, including having received a sentence of 36 months’ imprisonment wholly suspended for a period of five years for dealing in drugs. The appellant was arrested for the present offences in June 2011 and, even before his appearance in the regional court, he was again arrested in a sting operation by the police for dealing in dependence producing drugs. According to the testimony of the police official who attempted to trace the appellant, the appellant had given four different addresses to the police. The appellant left the country in 2011 to travel to Tanzania, his home country, and returned to South Africa in 2012. He was rearrested in August 2014. He advanced two reasons for his failure to report at the court or the police on his return from Tanzania: firstly his inability to afford an attorney at the time; and his claim that, as a foreigner in South Africa, he had had some bad experiences and had heard horror stories of experiences that other people had suffered in the justice system. He contended on appeal that the regional magistrate had erred in failing to properly consider suitable and/or stringent conditions as an alternative to the denial of bail and that the state’s case against him was far from convincing.

Held, that the appellant’s reasons for not attending court were simply unconvincing. His explanation reeked of a cheap attack on our criminal justice system and he had failed to substantiate his claims of horror stories suffered in the justice system. His own circumstances demonstrated the contrary as 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 those instances by the lower courts. It was difficult to imagine how stringent bail conditions in the circumstances of the case would be effective in ensuring his attendance at court if he had previously given four different addresses that successfully caused him to evade the police. Furthermore the ease with which he crossed South Africa’s borders was also cause for concern as to whether he would indeed stand his trial, despite his present personal and family circumstances.
Held, further, that the appellant had shown a flagrant disregard for the law and unashamedly continued with the possession and trafficking of drugs for which he had already been found guilty and had been sentenced. In considering all the relevant factors, releasing the appellant in the circumstances would bring the administration of justice into disrepute. The appellant had failed to show that the regional magistrate had erred in refusing bail. Appeal dismissed.

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