IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

CASE NO: A283/2020     

In the bail appeal between:
 
ENHUI LIN 							                       First Appellant 

XONG XI WU 							       Second Appellant

v 
       
THE STATE 					                                                 Respondent 

JUDGMENT DELIVERED: MONDAY, 22 FEBRUARY 2021
 
Nziweni AJ:

Introduction
[1]	This is an appeal in terms of section 65 (4) of the Criminal Procedure Act, 51 of 1977(“the CPA”). The appellants seek leave to appeal against the refusal by the magistrate, Cape Town, to admit them on bail pending their trial. The charges faced by the appellants include inter alia:
1.1 Landing, Selling, Receiving, or possession of fish taken in contravention of section 44(2) of the Marine Living Resources Act, 18 of 1998 (“the MLRA”)
1.2 Transport or Possession of Abalone (23708 units valued at R7 000 000) not in a whole state, in contravention of Regulation 36 (1) (b) of the Regulations promulgated under the MLRA 
1.3 A contravention of section 49 read with certain sections of the Immigration Act 13 of 2002 (Enter remain or depart from the Republic of South Africa).

[2]	The bail application was adjudicated at the court a quo on the strength of affidavits filed by the state and both appellants. 

[3]	At the commencement of the bail application hearing both the parties were of the view that the bail application fell within the ambit of schedule 1 of the CPA. The learned magistrate then made a ruling that the bail application was an unscheduled bail application. Consequently, in respect of both appellants, the bail hearing was handled as not falling under any schedule of offences listed in the CPA. In her judgment the magistrate stated the following:
“It is common cause that the alleged offences as described in the annexure to the charge sheet are unscheduled offences... (t)herefore the Court is satisfied that the application for bail has been brought correctly in terms of Section 60 of the Criminal Procedure Act…it is trite law that in respect of unscheduled offences the burden of proof shifts to the prosecution...”
[4]	Pursuant to the magistrate delivering her judgment, the defence requested the magistrate to provide additional reasons. In amplification of her reasons the magistrate stated the following: 
“In preparation of the court’s judgment on the Application for bail by the Applicants, the Court noted that it had erred in respect of the applicable schedule in respect of applicant 1, Mr. Lin, has a previous conviction for the same offences for which he is currently charged with… Mr. Lin had previously been sentenced to direct imprisonment of which a period of imprisonment was suspended, in the result, the applicable schedule for purposes of bail is Schedule 5…Having realised the error at a point prior to delivering judgment, the court considered that it would have been prejudicial to applicant 1 to order that the application and the relevant provisions of section 60 (11) (b) of Act 51 of 1977, be applied... ” (my own underlining and emphasis)

[5]	Notwithstanding the realisation of the above mentioned error by the magistrate, even before she delivered her judgment, she continued to treat the bail application as one that does not fall under any of the listed schedules to the CPA, in respect of both appellants.  Apparently the decision of the magistrate to proceed and treat the bail application as an unscheduled bail hearing, was based on the premise that, at that particular juncture, it would be prejudicial to the first appellant for the court to regard the application as being governed by the provisions of section 60 (11) (b) of the CPA.

[6]	In these current proceedings, it was asserted on behalf of the respondent that the court a quo should have found that the offences preferred against the appellants fell within the purview of schedule 1. According to this contention, the bail application in respect of the first appellant ought to have been conducted within the ambit of schedule 5 and in respect of the second appellant ought to have been conducted as a schedule 1.	On the other hand it was contended on behalf of the first appellant that it would be highly prejudicial to the first appellant that his bail be deemed to fall under schedule 5 consequently placing a belated onus upon him.

[7]	It is trite that an Appeal Court does not have authority to interfere with the discretion of the court a quo, unless it is satisfied that the decision was wrong. To this end, section 65 (4) of the CPA provides as follows:
“The court or Judge hearing the appeal shall not set aside the decision against which appeal is brought, unless such court is satisfied that the decision was wrong, in which event the court or Judge shall give the decision which in its opinion, the lower court should have given.” 

[8]	Both the appellants and the respondent are in agreement that this court has grounds to interfere with the decision by the magistrate. However, when it comes to the aspect of the reasons for the interference, needless to say, that the parties stand at polar opposites. On the one hand, the appellants contended that this court can interfere with the decision of the court a quo because the magistrate was wrong in her finding that the appellants are flight risk, and that the state presented a strong prima facie case. On the other hand, it was argued on behalf of the respondent that the court a quo was wrong in its approach to the applicable schedules in respect of both appellants.  
	 
 [9]	As regards to the applicable schedules, the learned Magistrate conceded that with regards to the first appellant the wrong schedule was applied. 
[10]	In the present matter, it was not seriously contested on behalf of the appellants that the magistrate was wrong in her approach to the applicable schedules during the bail hearing.  It was only contended that it would be highly prejudicial to the first appellant to deem his bail application to fall under schedule 5, thereby placing a belated onus upon the first appellant. 

[11]	In as much as the offences, for which the appellants have been charged are not specifically listed in schedule 1, it was contended on behalf of the respondent and correctly so in my view, that in respect of the first appellant, the applicable schedule should have been schedule 5 and in respect of the second appellant, the bail application should have proceeded in terms of schedule 1. This is so because schedule 1 provides amongst others:
“Any offence, except the offence of escaping from lawful custody in circumstances other than circumstances referred to immediately hereunder, the punishment wherefor may be a period of imprisonment exceeding six months without the option of a fine”.

[12]	It is significant to note that the aforesaid provisions of schedule 1 are clearly overarching, as they also include numerous other offences which are not specifically listed under schedule 1 of the CPA, including statutory offences. 

[13]	In particular, schedule 1 offence can be raised to schedule 5 offence if:
	“An offence referred to in schedule 1-
(a)	and the accused has previously been convicted of an offence referred to schedule 1.
(b)	…” (see schedule 5 of the CPA).

 [14]	It is self-evident that legislature intended to only include serious offences in schedule 1. This much is apparent from the nature of offences enumerated in schedule 1 of the CPA. Additionally, it goes without saying that, only a serious offence will attract a penalty of six months imprisonment without an option. 

[15]	Merely gleaning from the nature of some of the charges which the appellants are facing, one can see that they are serious offences. Even the prescribed statutory penalties applicable to the various charges also convey that. For instance, section 58 (4) of MLRA, provides:
“Any person who contravenes or fails to comply with any provision of these Regulations shall be guilty of an offence and liable on conviction to a fine or imprisonment for a period not exceeding two years.”

[16]	It thus not far-fetched to think that an accused person facing, for instance a contravention of Regulation 36 (1) of the Regulations promulgated under the MLRA,  the same charge the appellants are currently facing amongst others, can be sentenced to a period of imprisonment exceeding six months without the option of a fine. Even the merits of this matter bear the point through some of the sentences imposed against the first appellant previously on similar charges. 

[17]	From the onset, it was common cause in this matter that the first appellant has a similar previous conviction, relating to a contravention of the MLRA.
[18]	It is also so that the evidence of John Alfred Nicholson, the investigating officer reveals that the first appellant was convicted on 22 December 2017 on the following offences:
18.1 A contravention of section 18 (1) of the (Operating a Fish Processing Establishment without right); 
18.2 Landing, Selling, Receiving, or possession of fish taken in contravention of section 44(2) of the MLRA;
18.3 Transport or Possession of Abalone (23708 units valued at R7 000 000) not in a whole state, in contravention of Regulation 36 (1) (b) of the Regulations promulgated under the MLRA; 
18.4 A Contravention of section 49 read with certain sections of the Immigration Act 13 of 2002 (Enter remain or depart from the Republic of South Africa).

[19]	Though the first appellant only made mention of just one previous conviction in his founding affidavit, however it is significant to note that the first appellant never specifically denied the other previous convictions imputed to him in Nicholson’s affidavit. The affidavit of Nicholson fairly apprised the first appellant of the previous convictions the state was alleging he had.

[20]	Having regard to the fact that the first appellant filed his affidavit after the affidavit of Nicholson, surely he could have refuted or specifically denied or challenged the allegations pertaining to his previous convictions. It is thus my firm view that, because the first appellant did not specifically deny the allegations made about the number and nature of his previous convictions, the allegations by Nicholson are thus deemed to be admitted.  

Was the magistrate wrong in her approach to the applicable schedule?
[21]	After the realisation of the error of the wrong schedule applied, the magistrate eloquently articulated her reason as to why she opted not to subject the bail application to the correct provisions of the CPA. Even so, I must hasten to add that in her reason not to apply the correct the applicable schedules, she acted beyond the scope of her discretion, as the CPA does not give a court any discretionary powers to proceed on a wrong schedule or to by-pass its provisions.
 
[22]	Plainly the CPA does not vest, the magistrate with a freedom to impose or assign schedule or a provision of the CPA which is not applicable to a particular bail application. Thus there can be no gainsaying that a court may not mero motu  assign a wrong schedule merely because it is of the view that the horses have already bolted when it comes to the applicable schedule or it will be prejudicial to apply the right schedule at a certain stage of the proceedings. Ordinarily a magistrate, as a creature of statute, cannot willy-nilly choose or make a determination as to which schedule is applicable in a particular bail application. This is so because when it comes to the schedules, the CPA is prescriptive as to what schedule is applicable and under what circumstances. In the instant case, though the proceedings were at the stage of judgment, it remains that the learned magistrate was still seized with the matter and judgment had not yet been delivered. Nothing prevented the learned magistrate from reopening the issue of schedule with the parties at that moment and or to invite the first appellant to reopen his case if he wished to do so.  Accordingly, the approach by the learned magistrate to consciously apply a wrong schedule in the bail application, was indeed wrong, as contemplated in section 65(4) of the Act. On this basis alone this court can interfere with the decision of the magistrate. 
[23]	Binns-Ward AJ (as he then was) stated in S v Porthem and others (A736/2003) [2003] ZAWCHC 36 (21 August) 2003):
“When considering the extent of an appellate court’s power to interfere with a decision of a lower court entailing the exercise by the lower court of a discretion, it is necessary to know whether the discretion in issue is one in the narrow or wide sense of the term. The distinction between ‘wide’ and ‘narrow’ (or strict) discretion has been explained in a number of comparatively recent judgments of the Supreme Court of Appeal and the late Appellate Division…Where the lower court has exercised a discretion in the wide rather than the narrow sense the court of appeal ‘is entitled to substitute its view for that of the court which heard the matter and is not precluded from interfering unless it concludes that the lower court has not exercised a judicial discretion.”

[24]	I fully agree with Mr. Adriaanse for the respondent, that this Court cannot turn a blind eye to the wrong decision of the magistrate, in consciously applying wrong schedules during the bail application.

Consequences flowing from the application of the wrong schedule
[25]	At outset, schedule 5 fundamentally puts the burden of proof on the first appellant. This is so because, in a schedule 5 bail applications the applicant bears the onus to prove that the interests of justice permit his release. The schedule also determines the sequence of presenting evidence.

[26]	The application of the wrong schedule during the bail proceedings had the effect of changing the sequence of presenting evidence and resulted in shifting the entire burden of proof in respect of the first appellant. During the bail application hearing, though the first appellant had an onus to lay his case bare by presenting his case first, so that the state can be alerted as to what case it has to meet, the evidence was presented in contrast to the expected sequence applicable to schedule 5. Consequently, the first appellant had the advantage of being privy to the state case against him, before he could present his case.  

[27]	Equally apposite in the context of this appeal is what was stated in the Porthem case supra, albeit it was said in the context of section 60(11)(a) of the CPA, when the following was stated:
“[t]he magistrate and the prosecutor acquiesced in the request by the appellants’ legal representatives that the investigating officer, who obviously was a State witness, should testify first. I consider that it was undesirable that they should have done so. The legislative scheme of s 60(11)(a) of the CPA indicates that it is for the applicants in cases affected by the provisions to put their case forward first and for the State to answer it. An applicant for bail in a case subject to s 60(11)(a) obtains a potential and unintended advantage if the bail hearing is conducted in an order at odds with the plain legislative intention. In the present case nothing really turned on it in the end, but magistrates and prosecutors should be careful to ensure that the legislature’s intent is not subverted by allowing s 60(11)(a) bail applications to proceed in a way incongruent with the relevant provisions of the Act.”

[28]	When it comes to the second appellant bail hearing, nothing turns on the application of the wrong schedule. This is so because, notwithstanding the fact that the application in respect of the second appellant falls within the purview of schedule 1, the onus still remains with the State to prove that the interest of justice permit that the second appellant be admitted on bail. As far as the first appellant is concerned, the direct consequence of the wrong decision by the magistrate was that, though the first appellant in the bail hearing bore the onus to establish on balance of probabilities that the interests of justice permit his release on bail, the onus was arbitrarily shifted to the state.

[29]	It was strenuously contended by Adv. Liddell on behalf of the appellants that there is no cross appeal from the state. So the argument continues that the state should have appealed and should have given the magistrate notice. Consequently the issue raised by the respondent is not properly before this Court. It was further asserted on behalf of the first appellant that it will be unfair at this stage to say he bears to onus to satisfy the court that the interests of justice permit his release. The first appellant, according to the counsel on behalf of the appellants, did not have the opportunity to canvass the aspect of onus on him.

 [30]	In so far as the respondent is concerned, it was contended that due to the wrong schedules applied the interests of the state were not considered during the bail hearing. Consequently, so the argument continued that, this Court should either consider evidence afresh and hand down judgment on that afresh reconsideration or remit the matter back to the magistrate for further conduct of the matter.  

[31]	It was not really contended on behalf of the first appellant that he would have handled his application differently if he was aware during the bail hearing that he bears the onus of proof. Adv. Liddell simply stated that he does not know if the first appellant would have handled his application differently had he known that it was schedule 5.
 [32]	It is also noteworthy that, notwithstanding the fact that the first appellant was not burdened with an onus of proof, during the bail hearing he led extensive evidence.  The founding affidavit alone was very comprehensive and besides it, there were annexures and three supporting affidavits. The overriding question in my mind is whether the changing of schedules and the shifting of burden when it comes to the first appellant, to a more burdensome onus will be prejudicial to the first appellant at this stage as suggested on his behalf.
In the case of S v Nwabunwanne 2017 (2) SACR 124, where a wrong lower schedule was applied during the bail application, Erasmus AJ, remarked as follows:
“…I am satisfied that the decision was wrong and then give the decision which, in my opinion, the lower court should have given.  This does not necessarily mean that I should merely order that appellant should or should not be released on bail, but will depend on the circumstances of each case. This matter before me is not one where I, on the facts before me, should order whether or not the appellant should be released.  It cannot merely be accepted that the appellant or the respondent would have approached the bail application on the same basis, had there been clarity whether section 60(11)(b) of the CPA applied or not.  On this basis alone the appeal should succeed and the matter remitted to the Court a quo.”

[33]	I fully agree with the above observation by Erasmus AJ, in Nwabunwanne when he states that the decision whether to remit or not, depends on the merits of each case. 

[34]	This is all the more so in this case, as I hold the view that the circumstances of the present case are distinguishable from the case of Nwabunwanne. It will be apparent hereunder as to why the matter should not be remitted to the magistrate.
 [35]	In the matter of S v Nel 2018 (1) SACR 576 GJ, Petersen AJ in deciding whether to remit the matter to the bail court, he considered the following:
“The circumstance of this court of the present appeal are distinguishable from those in Nwabunwanne. This court has the benefit of the evidence and submissions relevant to the attempted murder charge, both prior to the issue of ruling and at the conclusion of evidence.  This court is therefore in a position to determine the issues and to give the decision which the lower court should have given. There are further no indication that the bail application would have been conducted otherwise, when one considers the misplaced ruling of the magistrate…” (my own underlining and emphasis) 
I take full cognisance of S v Mashalane and Another, an unreported judgment by Erasmus AJ, dated 5 June 2015, under Northern Cape High Court, Kimberly case number of CA&R27/2015. However, what is stated in the case of Nel supra, certainly resonates with the facts of this case. In this matter, as it was in the case of Nel, more than sufficient evidence was put before the bail hearing by the first appellant. The evidence presented evinces that all the facts were pertinently addressed by the first appellant in his affidavit. Considering the evidence led by the first appellant during the bail application, I cannot imagine what more the first appellant could have done to handle his application differently if he knew during the bail application that the matter falls firmly within the ambit of schedule 5. It thus seems not just highly improbable, but plainly inconceivable, when regard is had to the evidence that was adduced by the first appellant during the bail application, that he would have handled his application differently.

 [36]	Significantly, the first appellant in his affidavit even addressed the aspect of whether the interests of justice permit his release. Similarly and quite coincidentally, in a schedule 5 application, an applicant must satisfy the court that the interest of justice permit his release. Interestingly, the enquiry as to whether the interests of justice permit the release of an applicant on bail is a necessary ingredient for both unscheduled and schedule 5 applications. The only difference is who bears the onus to prove that the interests of justice permit the release.
In S v Dlamini 1999 (2) SACR 51 (CC) (1999 (4) SA 623, Kriegler J, stated the following regarding the nature of the onus in schedule 5:
“It clearly places an onus upon the accused to adduce evidence. However, apart from that, the exercise to determine whether bail should be granted is no different to that provided for in ss 60(4)-(9) or required by s 35 (1)(f). It is clear that an accused on Schedule 5 offence will be granted bail if he or she can show, merely, that the interests of justice permit such grant”. (My emphasis and underlining)

[37]	Of importance in this matter, is the fact that the first appellant adduced evidence and also asserted that; if the court a quo were to consider his personal circumstances, the charges and the merits against him; the court a quo would see that it is in the interest of justice to release him. This assertion alone in the affidavit of the first applicant attests to the fact that sufficient evidence was placed before the court a quo enabling it to make a determination as to whether the interests of justice so demands. The issue of whether the interests of justice permit the first appellant’s release, was adequately litigated and decided in the court a quo, notwithstanding the fact that a wrong schedule was applied.

[38] 	Hence it is my view that on the facts that were placed before the court a quo even if the matter proceeded in terms of schedule 5 in respect of the first appellant, it would not have made any difference. Consequently upon consideration of all evidence adduced in this matter; it is my view that there is no room for remitting the matter to the court a quo for reconsideration. 

[39]	Undoubtedly endless, amplified and needless litigation is not desirable, particularly in bail matters. Finality of litigation and orderly administration of justice are of paramount importance in such matters.

 [40]	In the light of the foregoing consideration I hold the view that this court is in a position to determine the issues and to give the decision which the lower court should have given. In doing so under the circumstances of this matter the first appellant will not be prejudiced and no injustice will be occasioned. Furthermore, It is my considered view that under the circumstances of the present matter, when it comes to the question of wrong onus; the state did not need to file a cross appeal in order for the appeal court to be able to adjudicate.  Even more so, in light of the fact that the magistrate made the parties aware that a wrong schedule was applied and this Court having inherent jurisdiction.

[41]	This invariably requires that this court to consider all factors relevant in bail application in the exercise of its appellate powers.

Personal circumstances of the appellants
[42]	It is common cause that both appellants have addresses in South Africa where they can stay. The premises where the appellants can reside at are leased by a third party. Both appellants are unemployed, married and are fathers to young children. The families of the appellants are not resident in South Africa.

[43]	Both the passports of the appellants have been seized by the police. It is also common cause that the visit visa of the both appellants have expired. The first appellant indicates that he intends to apply for asylum. The second appellant indicated in his affidavit that he could not renew his visa due to lock down restrictions.

[44]	There is no evidence that the appellants have assets in the Republic. It is also common cause that they have no emotional or family ties in South Africa. Both appellants are aggrieved by their living and health conditions in prison.

[45]	The first appellant has previous convictions most of which are similar to the present charges. The previous convictions of the first appellant reveal that he served direct imprisonment after he was convicted on them.

Strength of the state’s case
[46]	It is true, as submitted by both counsels that the appellants are entitled to bail if there is no strong prima facie case made out against the appellants by the state. It was argued on behalf of the appellants that the magistrate was wrong to find that the state established a strong prima facie case against the appellants. The constitutional right of the appellants to be presumed innocent should be jealously guarded under the circumstances of this case as the state does not even have a strong prima facie case against them, so it was argued.

[47]	It is axiomatic that the bail application court is tasked amongst others, with the responsibility of assessing the prima facie strength of the state case as opposed to a provisional finding of guilt or otherwise. Thus it is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt. The case law also bares the point that the bail court is not expected to delve intensively into the merits of the case lest it be viewed as pre judging the case. (See S v Dlamini 1999 (2) SACR 51 (CC) (1999 (4) SA 623; S v Van Wyk 2005 (1) SACR 41 SCA; S v Mpulampula 2007 (2) SACR (E)).

[48]	Surely a prima facie case is not a guarantee of a conviction and does not mean that the state has to present overwhelming evidence. In my view a prima facie case enjoins a question as to whether there is enough merit to be tried in court or is there evidence linking the accused to the offences. 

[49]	It is indeed so that the appellants are disputing some of the allegations made against them, for instance, they dispute that they have made admissions pertaining to the motor vehicle keys. The appellants also allege that their rights were not explained. First and foremost, the bail court does not treat the issue of the admissions as established. It is the trial court which will be in a position to determine if the admissions are admissible. It has been said on numerous occasions that the bail court is not equipped to determine issues of admissibility or to test sufficiency of the prima facie evidence.

[50]	Equally of force, the fact that the appellants are denying the allegations levelled against them at bail application stage does not, in my view, translate to mean that they have created holes to the state’s prima facie case. 

[51]	Furthermore, much is made on behalf of the appellants regarding the following; there is no evidence to show that the appellants were in joint possession of the three vehicles; that the lower court did not consider how much abalone was found in the third vehicle or any of the vehicles; the fact that other occupants of the house where the appellants were found were not arrested. The evidence of the state reveals that, three motor vehicles containing what the state describes as abalone, were found at the parking bay which is situated at the address where the appellants were found. The appellants were found in the same apartment where the two sets of keys which could open two of the motor vehicles found. The keys to the vehicles were found by the police around the same time of the discovery of the vehicles. The state evidence is to the effect that the two appellants made admissions that the keys were theirs.

[52]	Although the evidence of the state appears to be mainly circumstantial, against the appellants, that does not diminish from the fact that the state has made a strong prima facie case against the appellants. Whether the evidence of the state is credible and reliable that is a determination for the trial court. Whether the admissions are disputed or another set of keys to the third vehicle were not found or the video footage does not reveal who brought the vehicles to where they were found by the police, do not detract from the strong prima facie case of the state.

[53]	In S v Branco 2002 (1) SASV 531 (W) the following was stated:
“A bail application is not a trial. The prosecution is not required to close every loophole at this stage of proceedings. However a factor favouring bail is whether the Appellant has established a defence which has a reasonable prospects of success at the trial.”  

[54]	Albeit the appellants are still presumed innocent, but this court cannot turn a blind eye on the strength of the state case in the current matter. It is evident in this matter that the case against both appellants cannot be described as weak. The defences raised thus far do not reveal reasonable prospects of success at the trial.

Status of the appellants in the Republic of South Africa
[55]	The state presented evidence to the effect that when the first appellant was granted visitor’s visa he arrived in the Republic on the 16 October 2016.  The visa expired on the 31 October 2016.  The affidavit of Mr. Dilgee who is in the employ of the Department of Home Affairs as an immigration Operations Manager reveals that, according to the records of Home affairs, the first appellant never renewed his visa. Therefore he holds the view that the first appellant has been an illegal foreigner in the Republic since the 1st of November 2016.  Mr. Dilgee also stated that in terms of the Immigration Act, the first appellant is also an undesirable person in the Republic, because of his criminal history.
[56]	When it comes to second appellant, as already stated hereinabove, it is common cause that his visitor’s visa expired. Despite the assertions by the state, regarding the appellants’ status in the Republic, both appellants maintain that they are not illegal foreigners.  It has been contended on behalf of the appellants that, they are not illegal foreigners in the Republic as they have not yet been informed by the immigration officer, in writing, that they stay in the country illegal. So the argument continues that the decision to declare a foreigner to be illegally in South Africa must be in writing, as required by Section 8 of the Immigration Act, 13 of 2002, (“the Immigration Act”) read with section 30 of the same Act.

[57]	Based from the foresaid submissions on behalf of the appellants, it is readily apparent that the appellants assert that a contravention of the Immigration Act does lend itself to the conclusion that a person is illegal foreigner in South Africa. 

[58]	Section 1 of the Immigration Act defines an illegal foreigner as a foreigner who is in the Republic in contravention of the Act. Section 8 of the Immigration Act pertains to reviews and appeal procedures. Section 30 of same Act provides the category of persons that may be declared undesirable by the Director-General. 

[59]	Section 34 (1) of the Immigration Act is headed “Deportation and detention of illegal foreigner.” When regard is paid to the provisions of section 34, what emerges is that, the purpose of sections 34 is to stipulate the procedures to be followed when dealing with deportation of illegal foreigners. The case of Lawyers for Human Rights v Minister of Home Affairs and Others 2017 (10) BCLR 1242 (CC), where certain provisions of section 34 were declared unconstitutional, bears the point. In the matter of Lawyers for Human Rights and Other v Minister of Home Affairs and other (CCT 18/03) [2004] ZACC 12; the court opined that section 34 of the Immigration Act is concerned with the way in which illegal foreigners are to be removed from the country and are to be treated pending their removal or deportation.

[60]	It is significant to note that both the appellants currently do not have documentation to be in South Africa. The first appellant was convicted of contravening the provisions of the Immigration Act previously and notwithstanding that, he was not deported after he had served his sentence. If regard is had to the provisions of the Immigration Act, this can put the first appellant squarely within the purview of the definition of undesirable person as contemplated in the Act. Hence Mr. Dilgee cannot be faulted for stating that the first appellant is also an undesirable person in terms of the Act.

[61]	The fact that it is common cause that the two appellants do not have documents to be in South Africa can once again put them squarely within the ambit of section 1 of the Immigration Act. Under the circumstances in my view the word illegal persons is not a misnomer, if regard is had to the provision of the Immigration Act. This is so amongst others because the appellants do not possess documents which make their stay in South Africa legal.  

 Flight risk
[62]	It was submitted by the counsel on behalf of the respondent that both applicants have a propensity to evade the trial if released on bail. What emerges from the judgment is that the magistrate considered a myriad of factors that include the fact that the appellants have no emotional ties in South Africa, the fact that they are undocumented, facing serious charges with prospects of imprisonment, in her determination that they are a flight risk.

[63]	In S v Savoi 2012 (1) SACR 438 Heher JA, stated the following:
“ By contrast an increase in the number and seriousness of the charges that an accused faces, may itself be a relevant factor as exercising a new influence on a previously complainant accused. So also might be the proximity of a trial in which an accused faces a real prospects of a term of imprisonment.” 

[64]	Bail is a method to make sure that an accused person comes back to court. People post cash which they should forfeit if they flee. Definitely it’s not something unheard of that many people have failed to appear in court after paying bail, notwithstanding the fact that they stand to forfeit huge amounts of bail moneys.

[65]	Besides looking into the merits and evidence on record in determining whether prima facie case was established against the appellants, what is also of relevant consideration for this court is the seriousness and gravity of the crimes. Clearly there is no merit in the submission that the appellants are not facing imprisonment if they are convicted. The respondent cannot be faulted for contending that the appellants are facing long term imprisonment if they are convicted. Additionally it is common cause that the first appellant has previous conviction which is relevant to the present offences, where he already received direct imprisonment. Therefore there is likelihood that the applicants will receive direct imprisonment if convicted of similar offences. 

[66]	It is this court’s strong view that under the prevailing circumstances there may be a stark temptation for the appellants to evade trial. This is so because the prospects of imprisonment in my mind invariably pose a heightened risk to flee. (See S v Nichas 1977 (1) SA 257 C)
In S v Hudson 1980 (4) SA 145 D the following was stated:
“The expectation of a substantial sentence of imprisonment would undoubtedly provide an incentive to the accused to abscond and leave the country.” 

[67]	In the matter of S v Dlamini, supra, the following was stated by Kriegler J:
“It is true that the seriousness of the offence, and with it the heightened temptation to flee because of the severity of the possible penalty, have always been important factors relevant to deciding whether bail should be granted.”  

[68]	I agree with the submission on behalf of the respondent that under the circumstances of this matter, the fact that the appellants have an address is of cold comfort. Moreover, when dealing with bail conditions the magistrate also stated why she is of the view that stringent bail conditions won’t guarantee that the appellants will attend their trial. In the circumstances of this case I cannot fault that finding.

Previous conviction (Applicable to the first appellant)
[69]	Even if this court accepts that the first appellant has got just one previous conviction. It is however undeniable that a previous conviction is one of the prominent factor to be considered in applications of this nature. They play a very significant role in bail application and may play an integral role in the determination of bail. Particularly in my view if there are grave charges pending against the applicant. Hence it is my firm view that it is not fanciful that a person with a history of offending is likely to reoffend.

[70]	The previous convictions amongst others show that a pattern has developed. This also weighs heavily against the granting of bail .Under the circumstances of this case there is a reasonable ground for apprehension that if the first appellant is released there is a huge risk that he will reoffend.  

[71]	Though the freedom of a person is precious and there should always be an all-inclusive effort on the part of the court to protect such freedom but it is critical to be mindful of the fact that, this protection can be made available to the deserving individuals. It is significant for this court to look at the nature and how recent a past criminal record is. In fact, the previous conviction the first appellant admitted bears resemblance to some of the present offences in that it involved contravention of the MLRA. I have already made a finding herein above that present offences do not involve petty crimes. The past conduct of the first appellant also reveals that he is a recidivist who abuses his liberty right by committing further offences. 

Conditions in prison
[72]	It is so that every detained person has got a right to conditions of detention that are consistent with human dignity. However it is a sad reality that the correctional centres have become synonymous with financial hardship, impoverishment and a threat to human dignity, physical health, and safety. 

[73]	I do, however, agree with the sentiments expressed in S v Van Wyk, (supra) that bail in general is not a remedy to the failures of prison authorities to detain inmates in conditions consistent with human dignity.  

The use of state witness by the applicants
[74]	During argument the respondent asked this court to deal with the issue of the use of a state witness by the applicants, without the permission of the state. It is my view that the magistrate dealt appropriately with the situation, consequently, it is not necessary for this Court to traverse the matter further.   

Conclusion
[75]	It becomes apparent from the judgment of the magistrate that she considered a broader spectrum of factors which led her to come to the conclusion that the appellants were not suitable candidates to be admitted on bail. Having regard to all the factors mentioned herein above cumulatively, I accordingly find that the magistrate was not wrong in finding that the interests of justice do not permit the release of both appellants.
[76]	In the circumstances I am of the view that the interests of justice do not permit the release of both appellants on bail. In the result, I make the following order:

It is ordered that:
The appeal in respect of both appellants is dismissed.

________________________
CN NZIWENI  
ACTING JUDGE OF THE HIGH COURT