Bail— Appeal against refusal of — In extradition proceedings — Procedure — Governed by provisions of s 65 of the Criminal Procedure Act 51 of 1977 and may be heard by a single judge.

S v TUCKER 2018 (1) SACR 616 (WCC)

Bail— Appeal against refusal of — In extradition proceedings — Procedure — Governed by provisions of s 65 of the Criminal Procedure Act 51 of 1977 and may be heard by a single judge.

 

In previous proceedings in this matter the court held that appeal proceedings in terms of the Extradition Act 67 of 1962 (the Act) — whether they were a s 13(1) appeal itself or an appeal from an order made by the magistrate in respect of bail in terms of s 13(3) of the Act — were primarily of a civil rather than a criminal nature and the position was governed by the provisions of s 14(3) of the Superior Courts Act 10 of 2013. The judge in that matter accordingly concluded he did not have jurisdiction sitting alone to hear the matter and postponed it for re-enrolment for hearing by two judges.

In the present matter the court noted that it was not sitting as a court of appeal on the previous decision, but as a court of first instance following that court’s ruling.

Held, that extradition proceedings were sui generis. Bail applications in such proceedings were in essence criminal in nature and inherently urgent in nature. Section 65 of the CPA was the applicable provision for an appeal to the High Court against a decision of the lower court and it could therefore be heard by a single judge of the High Court.

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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.

EVIDENCE ON AFFIDAVIT COUNT AS EVIDENCE AT BAIL PROCEEDINGS

S v MADLALA 2015 (2) SACR 247 (GJ)

Bail — Evidence adduced at bail proceedings — Admissibility of at subsequent trial — Compliance with provisions of section — Warning by presiding officer evidence might be used against him at subsequent trial equally applicable to evidence on affidavit as oral evidence — Criminal Procedure Act 51 of 1977, s 60(11B)(c).

 

The appellant appealed against his conviction for robbery with aggravating circumstances in a regional magistrates’ court. He contended inter alia that the magistrate had misdirected himself in admitting his bail affidavit into the record without proof of substantial compliance with s 60(11B)(c)of the CPA, which required that the applicant not only be advised by his attorney that the statements in his bail affidavit could be used against him during his trial and form part of the record, but also that the court itself had to inform him that the statement might be used against him at his trial. His counsel contended that the misdirection had resulted in an unfair trial. Counsel for the state argued that there was no requirement that the presiding officer at E the bail proceedings had to inform the accused of his rights if the accused, as in the instant case, had submitted an affidavit. He argued that s 60(11B)(c) only required the presiding officer to warn the accused if he elected to testify during the course of the bail proceedings, and an affidavit was not testifying.
Held, that both oral evidence and affidavits were evidence that could be used in the subsequent trial. As such, the requisite warning had to be issued by the court to the accused before he elected to testify orally or by way of an affidavit.
Held, further, that, even if the presiding officer did not inform the accused of his rights during the bail proceedings, such misdirection did not warrant a reversal. The admission of inadmissible evidence was material and prejudicial to the accused if it formed the basis for an adverse decision reached. In the present case the failure of the magistrate to exclude the inadmissible evidence was immaterial and non-prejudicial to the accused, as the magistrate did not emphasise the inadmissible evidence in reaching his conclusions as to the factual issues in the case. The magistrate did not hang his hat on internal consistencies between the appellant’s statements made during the bail hearing and his testimony at trial, but rather on the general demeanour of the appellant and his co-accused insofar as they presented evidence that was incredible, unreliable and riddled with external contradictions, as against the complainant who was a credible and reliable witness. Even without factoring in the internally contradictory statement made by the appellant during the bail proceedings and at trial, a finding of guilt was still supported by the magistrate’s credibility findings, based on the externally contradictory evidence of the appellant and his co-accused at trial. The appeal was dismissed.

CONSTITUTIONAL DUTY OF PUBLIC PROSECUTOR AND POLICE

LAPANE v MINISTER OF POLICE AND ANOTHER 2015 (2) SACR 138 (LT)

Arrest — Without warrant — Further detention of accused — Constitutional duty on police officers and public prosecutors handling case to ascertain reasons for further detention — Such reasons or lack thereof to be placed before court — Housebreaking implements found ‘near’ plaintiff not justifiable reason — Acted mala fide — First and second defendants liable to plaintiff.
Prosecution — Prosecutor — Powers and duties of — Prosecutor unable to assist court to assess whether prosecution and detention were justified in circumstances — Housebreaking implements found ‘near’ plaintiff not justifiable reason to refuse bail — Aware that without proof of presence of implements conduct would amount to mala fides — Prosecutors did not apply their minds, rubber-stamped requests of first defendant — Acted mala fide — First and second defendants liable to plaintiff.

The plaintiff instituted action against the first defendant, the Minister of Police, and the second defendant, the Director of Public Prosecutions, for damages arising out of an unlawful arrest, detention and prosecution. He was detained for 2 years and 13 days without being granted bail before the charges were withdrawn against him without going to trial. The plaintiff testified that he was on his way home from a nearby tavern when he was arrested. He alleged that he was denied any information as to the reason for his arrest and that he was subsequently tortured and questioned about a housebreaking and robbery. He was denied bail based on the submissions made by the investigating officer and the prosecutor that he had been found in the company of three other men and that housebreaking instruments were found near him. The other men were released on bail or on a warning but he was continually denied bail. It appeared that on the night in question an informer had tipped off the police that another robbery was to be committed that night in the area where there had recently been a spate of robberies. Despite the fact that the plaintiff had an alibi that was very easy to check, the police relied entirely on the information of an informer. The arresting officer could not say how close the alleged housebreaking instruments were to the plaintiff and his fingerprints were not found on them. The control prosecutor who took the decision to oppose bail relied entirely on the contents of the docket in this regard and to inform the decision that the plaintiff should be charged. She was unable to answer or explain why the plaintiff was treated differently — at the time of his bail application — from the others who were given bail or allowed to go on a warning.
Held, that the prosecutor’s reliance on the alleged presence of housebreaking implements near the plaintiff was not a justifiable reason to prosecute him and refuse bail. This was not simply an error of judgment. Her conduct and those of the prosecutors who took over were activated by mala fides, as they must have known that without the proof of the presence of housebreaking implements, as well as a failure to follow up on the plaintiff’s explanation about his presence at the tavern, their conduct would amount to mala fides.
Held, further, that the prosecutor and the relevant prosecutors seeking the many postponements were responsible for the unfortunate and lengthy incarceration of the plaintiff. Not one of the prosecutors had applied their minds to the case facing the plaintiff but simply rubber-stamped the request by the police. In the circumstances, the employees of the first and second defendants did not exercise their powers in a bona fide manner and the first defendant was liable to the plaintiff for the unlawful arrest and detention, while the second defendant was liable for the prosecution and continued withholding of bail.