REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA 
(MPUMALANGA DIVISION, MBOMBELA) 

(1)	REPORTABLE:NO
(2)	OF INTEREST TO OTHER JUDGES:NO
(3)	REVISED:  YES

				14/05/2021
……………………………….		………………………..
SIGNATURE			DATE

									CASE NO: A15/2020

In the matter between:

BINA MFANDAFUNA MASUKU						         First Appellant

and 

THE STATE									            Respondent

JUDGMENT

MASHILE J:

INTRODUCTION

[1]	This is a bail appeal following the Court a quo per Magistrate Ngcanga’s refusal to 	admit the First Appellant to bail. The apprehension and subsequent detention of 	the First Appellant emanated from the following charges as amplified by the 	explanatory notes to each count:

1.1	Count 1: Fraud – 

The accused is guilty of the crime of fraud in that during or about February to August 1994 and at or near Johannesburg she pretended to the Department of Home Affairs that she was born in Durban, South Africa and her mother is Jane Matseleng Masuku, whereas she knew and was well aware that she was not born in Durban, South Africa and her mother is not Jane Matseleng Masuku, to the actual or potential prejudice of the Department;

1.2	Count 2: Fraud –

 The accused is guilty of the crime of fraud in that during 1 August 2006 to September 2019 and at or near Pretoria and thereafter at or near Mbombela she pretended that she obtained her South African Citizenship lawfully and her application for employment with the Department of Justice was bona fide, whereas she knew and was well aware that she obtained her South African Citizenship through false misrepresentation and her application for employment with the Department of Justice was not bona fide to the prejudice or potential prejudice of the Department;

1.3	Count 3: Contravention of Section 49 (14), read with Sections 1, 49 (1) (a) and (b) and 48, of the Immigration Act, 2002 –

		In that on or about February 1994 at or near Johannesburg the accused did   		unlawfully and intentionally make false statement to the Department of Home 		Affairs for purposes of obtaining residence in the Republic of South Africa; and

1.4	Count 4: Fraud (seven individual counts) against all 3 accused –

		The accused are guilty of the crime of fraud in that during or about October      		2014 to November 2017 and at or near Mbombela the accused did unlawfully 		and intentionally and in furtherance of common purpose did give forth and,    		among others, pretend to the complainants in seven late estates mentioned in 		Schedule 1 to the charge sheet that accused 2 will carry out the responsibilities 		of an executor, furnish accused 1 and / or the office of the Master of the High 		Court in a manner stipulated by law and all assets of the estate will be             		accounted for; and the accused by means of the said misrepresentation         		induced the complainants, to their actual or potential prejudice, to consider to 		request the appointment of accused 2 as executor in the estates and accused 		2 will, among others, not carry out the responsibilities of the executor, will not 		furnish accused 1 and / or the office of the Master of the High Court  and will   	 	not account for the assets of the estates.

FACTUAL MATRIX

[2]	The background facts were tersely traversed by the Court a quo. To avoid reinventing 	the wheel, I will borrow extensively from the summary made in its Judgment. The 	Appellant and another were arrested for fraud committed at Master of the High 	Court, Mbombela. The Appellant is an employee at the Masters Office. It is alleged 	that the Appellant referred estates to her co-accused, currently on bail, and/; or his 	company to administer estates. Beneficiaries did not obtain their inheritances. The 	loss occasioned by the fraud perpetrated on the beneficiaries amounted in all to 	approximately R1 900 000.00.

[3]	In support of its case that bail to the Appellant ought to be refused, the State called 	two witnesses, the first of which was a Home Affairs employee. He testified that 	the Appellant was a subject of investigation in their department relating to her 	fraudulent attainment of South African Citizenship. The Court heard further from 	the same witness that her Citizenship status has been revoked and was due to be 	expatriated to Malawi, her alleged country of origin. The Appellant could not be 	deported solely because the South African Police Services (“SAPS”) was still 	awaiting the National Prosecuting Authority to complete the fraud case committed 	at the Masters Office in Mbombela.

[4]	The witness testified that investigations conducted by the Department of Home 	Affairs established that the person alleged to be the Appellant’s mother in her birth 	registration form did not have a child bearing the Appellant’s details. Moreover, 	she did not know the First Appellant. The alleged mother of the First Appellant 	denied ever giving birth in Durban as claimed on the birth registration form.

[5]	Upon officials of the Department of Home Affairs seeking clarity from her on the 	discrepancy, she somersaulted and said that she was born in Tembisa, Tembisa 	Hospital, Gauteng Province to a different mother from the one she had mentioned 	on the birth registration form. Tembisa Hospital denied the allegations and 	furnished a register of all women who gave birth on the alleged date of birth. The 	woman supposed to bear the particulars of the Appellant’s mother was not on the 	register. The conclusion that the first Appellant was not born in Tembisa was 	inescapable.

[6]	The second State witness was a police officer investigating fraud in the office of 	the Master in Mbombela. He told the Court that the Appellant and her co-accused 	live in the same residence belonging to her as intimate partners. The Appellant 	referred estates to her co-accused for him to administer them. Heirs did not receive 	all proceeds of their estates. Her co-accused utilized some of the proceeds for his 	own benefit, transferred estate funds to his personal bank account and registered 	transfer of ownership of deceased estate properties to his own name. 

[7]	The Appellant and her co-perpetrator levied their testimony before Court by way 	of affidavits. The former admitted that she lived with her co-perpetrator as her 	boyfriend. They were married at some stage and had known each other from the 	Office of the Master of the High Court in Johannesburg where she started working. 	Her boyfriend was an administration clerk for a firm of attorneys.

[8]	The Appellant denied defrauding the Master’s Office in Mbombela and making 	false representations to the Department of Home Affairs. Instead, she laid the 	blame on the Department of Home Affairs officials who completed birth registration 	forms and related documents. She further denied ever referring estates to her 	boyfriend. 

ISSUES

[9]	The issue is simply whether or not the Appellant has made a case for her to be 	admitted to bail. In considering that questions, the Court should determine whether 	it is in the interest of justice that the Appellant be admitted to bail as contemplated 	in Section 60(11) (b) of the Criminal Procedure, Act 51 of 1977.

ARGUMENT

[10]	The entire argument of the Appellant is premised on the characterisation of the 	charges being classified as Schedule 5 whereas they are not and should not have 	been so categorised. From that premise, the Appellant leaps to the conclusion that 	had the Court a quo appropriately classified the charges, it would have realised 	that she was, as a matter of right, supposed to have been admitted to bail. Insofar 	as her possible abscondence was concerned, she asserted that the Appellant has 	shown that she is South African notwithstanding that she did not have sufficient 	evidence to demonstrate this.

[11]	The essence of the State’s contention was that although the notice of motion 	identifies eight grounds on which the appeal is founded, these are in fact only three. 	These are that the Court a quo erred in finding that the State has strong case 	against the Appellant, there is a risk of Appellant absconding by returning to Malawi 	and, the finding that there were no new facts in the second bail application.

[12]	A bail application is not a trial and should not be used as dress rehearsal for trial. 	To argue about admissibility of evidence and possible contradictions of witnesses 	is not the duty of a bail Court to make a final finding. The State submitted that the 	Judgment of the Court a quo in the first bail application could not be faulted and is 	based on the evidence that was placed before that Court. In general, an appeal 	Court will decide whether the judgment appealed from is right or wrong, according 	to the facts in existence at the time it was given.

[13]	The Appellant has failed to demonstrate how the Court a quo erred in law and on 	the facts placed before it at the time when it made the decision. On the evidence 	before the Court a quo the Citizen status of the Appellant in South Africa had been 	revoked by the Department of Home Affairs. The State then submitted finally that 	the Judgments of the Court should not be set aside and that the appeal be 	dismissed.

LEGAL FRAMEWORK

[14]	To the extent that admission to bail is regulated by Section 60 of the CPA, it will 	be instructive to make reference to the Sections mentioned by the Appellant as 	being pertinent. To start with Section 65(a):

“An accused who considers himself aggrieved by the refusal by a lower court to admit him to bail or by imposition by such court of condition of bail, including a condition relating to the amount of bail money and including an amendment or supplementation of a condition of bail, may appeal such refusal or the imposition of such condition to the superior court having jurisdiction or to any judge of that court if the court is not then sitting.”

[15]	Section 65 (4) 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 his opinion the lower 	court should have given.”

[16]	Section 60 (11) (b) provides that:

	“Notwithstanding any provision of this Act, where and accused is charged with an offence 	referred to in Schedule 5, but not in Schedule 6, the court shall order that the accused be 	detained in custody until he or she is dealt with in accordance with the law, unless the 	accused, having been given a reasonable opportunity to do so, adduces evidence which 	satisfies the court that the interests of justice permit his or her release.”

[17]	Section 60(4)(B) lists likelihood that the accused will attempt to evade his or her 	trial as a ground for refusing bail. In this regard, the Appellant has referred to John 	van der Berg: Bail - A Practitioner’s Guide 3 edition (2012) where the learned author 	writes:

	“the risk of abandonment is likely to be assessed at a relatively high level if the accused is 	a foreign national, a risk factor that is likely to be compounded by high mobility potential 	and access to foreign travel. This does not mean, of course, that such accused may never 	be granted bail, for there is always the option of imposing conditions to suit a particular 	case.

[18]	The Appellant has also referred this Court to the matter of Ulde v Minister of Home 	Affairs (320/2008) [2009] ZASCA 34; 2009 (4) SA 522 (SCA); 2009 (8) BCLR 840 	(SCA); [2009] 3 All SA 332 (SCA) (31 March 2009) where the court held that the 	arrest of an illegal foreigner under section 34 (1) of the Immigration Act, 2002 (Act 	No. 13 of 2002) is subject to the exercise of a discretion by an immigration officer. 	The discretion is to be construed in favorem libertatis. Where a Magistrate had 	granted bail to a suspected illegal foreigner, an immigration officer could not ignore 	this fact in the exercise of his discretion.

EVALUATION

[19]	One of the grounds pointed out by the Court a quo for refusing bail is fear of 	abscondence. This is apart from the Court’s discretion to lay down conditions to 	reduce the risk of evasion of trial. Conditions usually considered in these type of 	matters would be surrender of travel papers and reporting to the local police station 	once every day or every alternate day. The list is not exhaustive. The Court a quo 	was evidently alive to that possibility but it discounted it as follows:

	 “The easy possibility of leaving the country to escape facing charges against her. In 	effective policing of our borders, despite surrendering her passport can tempt her to leave 	the country.”

[20]	The learned author, John van der Berg: Bail - A Practitioner’s Guide 3rd edition 	(2012) acknowledges that where it has been demonstrated that an accused person 	is a foreign national, is mobile and has travel documents, the assessment whether 	to grant bail would be more rigorous but that does not necessarily mean that the 	accused person should be refused bail. However, due to the porous nature of our 	borders and lack of stringent measures to control movements from neighbouring 	Countries, the assessment whether or not to grant bail must be more than just 	strict. That should include, in appropriate circumstances, deprivation of liberty of 	an accused person. 

[21]	This leads me to the case of Ulde supra to which the Appellant has referred this 	Court. The Appellant would have this Court believe that it finds application in this 	case. That approach does not and cannot find favour with this Court. The Appellant 	conveniently overlooks the fact that the Court in Ulde was concerned with ‘a 	suspected foreign national’. Here we are dealing with a person who has been 	apprehended for being in this country under false pretenses, and therefore illegally, 	and whose Citizenship has been declared unlawful. The Appellant is not yet to be 	found to be an illegal immigrant but she is, and would have been extradited to 	Malawi had it not been for the charges that she is required to face.

[22]	The Court a quo and correctly so in my opinion, accepted that the classification of 	the charges as Schedule 5 is incorrect in view of the new evidence that was levied 	before Court. The concession does not and will not assist the Appellant with 	admission to bail. The reason for that is that she remains a flight risk. The disquiet 	was pointed out by the Court a quo as early as its first judgment.   

[23]	In terms of Section 65(4) of the CPA, I am not satisfied that the Court a quo 	misdirected itself in any manner whatsoever. As such, there is no room for this 	Court to set aside the judgments refusing bail to the Appellant. In the premises, I 	make the following order:

The bail appeal application is dismissed.

 	______________________________
B A MASHILE
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MBOMBELA

This judgment was handed down electronically by circulation to the parties and/or parties’ representatives by email. The date and time for hand-down is deemed to be 14 May 2021 at 10:00.

APPEARANCES:
						
Counsel for the Plaintiff:				Mr Mashego			
Instructed by:					DIMA MASHEGO ATTORNEYS

Counsel for the State:				Adv Nxumalo		 		
Instructed by:					NDPP	
		
Date of Hearing:					30 April 2021			
Date of Judgment:					14 May 2021