S v Sharma (A75/2021) [2021] ZAFSHC 236 (15 October 2021)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case number: A75/2021

In the matter between:

THE

STATE

Applicant

and

IQBAL

SHARMA

Respondent

JUDGMENT BY: MHLAMBI J,

HEARD ON: Matter disposed of without oral hearing in terms of section 19(a) of the Superior Court Act 10 of 2013.

DELIEVERED ON: This judgment was handed down electronically by circulation to the parties’ legal representatives by email and release to SAFLI. The date and time for hand-down is deemed to have been on 15 October 2021.

APPLICATION

FOR LEAVE TO APPEAL

MHLAMBI, J

[1] The applicant applies for leave to appeal against my judgment which was delivered on 14 July 2021 in which I upheld the bail appeal and set aside the magistrate’s order refusing bail. I granted bail to the appellant with certain conditions. The application for leave to appeal is based on fifteen grounds in which it is alleged that I misdirected myself and erred in fact and in law in the following respects:

“1. By failing to apply the test applicable to an appeal against the refusal of bail, as set out in section 65(4) of the Criminal Procedure Act 51 of 1977 and explained in S v Masoanganye and Another 2012 (1) SACR 292 (SCA) at para 15, namely that a court on appeal is to “defer to the exercise of the trial court’s decision unless that court failed to bring an unbiased judgment to bear on the issue, did not act for substantial reasons, exercised its discretion capriciously or upon a wrong principle”.

2. By failing to apply the provisions of section 65(2) of the Criminal Procedure Act 51 of 1977 as to the introduction of new facts on appeal.

3. In any event, by allowing counsel for the respondent to introduce new evidence from the bar.

4. By failing to apply the provisions of section 60(4)(d) of the Act, and further in this regard by failing to find that since the respondent had failed to make a full disclosure of all of his assets, in particular his off-shore assets, he had misled the court a quo;

5. By finding that the court a quo preferred the version of the state to that of the respondent; further in this regard, by implicitly criticising the court a quo for allegedly doing so, without considering whether such a preference was justified on the evidence before the court.

6. By finding that ‘nowhere in the judgment was any consideration given to the imposition of suitable conditions as an alternative to refusing bail all together’; and by finding that this is a compelling reason why interference on appeal is warranted, and that it constituted a failure by the court a quo to exercise a proper discretion.

7. By substituting the exercise of the discretion of the court a quo with his own opinion as to whether the respondent should be released on bail.

8. By finding that although the respondent was facing a seemingly strong case, the interests of justice, the respondent’s personal circumstances, and the prejudice he would suffer if bail was refused, dictated that bail ought to be granted.

9. By relying on the cases of S v A Agrizzi; A115/2020), Rohde versus The State and State versus Acheson as justifying the grating of bail to the respondent.

10. By relying on the “stringent bail conditions” proposed on behalf of the respondent, which were not placed before the court a quo, and were raised for the first time in this court, thus denying the court a quo the opportunity to exercise its discretion with due regard to that proposal.

11. This Honourable Court erred in not pronouncing upon whether or not the court a quo wrongly found that the respondent failed to discharge the onus placed on him by Schedule 5. What the Honourable Court instead did was to replace the decision of the court a quo with its own decision containing “appropriate bail conditions” to limit any risk that the respondent may not stand his trial.

12. By relying, as justification for the granting of bail, on a condition (paragraph 3 of the order) which as a matter of law in invalid or unenforceable.

13. By relying, as justification for the granting of bail, on a condition (paragraph 4) which does not state the time within which it must be complied with.

14. By relying, as justification for the granting of bail, on a condition (paragraph 5) which does not require the respondent to give the National Prosecuting Authority adequate notice of the relocation or sale of disposal of his assets, because it merely requires him to give such notice “within” 14 days prior to such relocation or sale or disposal.

15. By relying, as justification for the granting of bail, on a condition (paragraph 6.4) which prohibits the respondent from applying for any passport or travel documents until the finalisation of this matter, without also ordering the respondent to surrender to the State all current passports and travel documents which have been issued to him.”

[2]

Applications for leave to appeal are regulated by Section 17(1) of the Superior Courts Act 10 of 2013 which provides that such leave may only be given where the judge or judges concerned are of the opinion that the appeal would have a reasonable prospect of success; or there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration. In The Mont Chevaux Trust v Tina Goosen and 18 Others[1] it was stated that:

“It is clear that the threshold for granting leave to appeal against a judgment of a High Court has been raised in the new Act. The former test whether leave to appeal should be granted was a reasonable prospect that another court might come to a different conclusion… The use of the word “would” in the new statute indicates a measure of certainty that another court will differ from the court which judgment is sought to be appealed against.”

[3] It was contended on behalf of the applicant that there were reasonable prospects that another court “will find that the learned Judge misdirected himself, and/or will come to a different conclusion”.[2]

Grounds 1,3,5,6,7,8,9 and10

[4] At the outset of the judgment, the applicable test for the adjudication of the bail appeal as contained in the Criminal Procedure Act was set out.[3] The Act is clear that the court hearing the appeal shall not set aside the decision appealed against, unless such court is satisfied that the decision was wrong, in which event it shall give the decision which in its opinion the lower court should have given.[4]

[5] As stated in the judgment,[5] the court a quo’s focus was concentrated mainly on the appellant’s being a flight risk. The question is whether the court a quo did consider the provisions of section 60(8) of the Criminal Procedure Act. That section provides as follows:

“(8) In considering whether the ground in subsection (4) (d) has been established, the court may, where applicable, take into account the following factors, namely- (a) the fact that the accused, knowing it to be false, supplied false information at the time of his or her arrest or during the bail proceedings; (b) whether the accused is in custody on another charge or whether the accused is on parole; (c) any previous failure on the part of the accused to comply with bail conditions or any indication that he or she will not comply with any bail conditions; or (d) any other factor which in the opinion of the court should be taken into account.”

[6] In the judgment of the court a quo, it is stated that the state relied on section 60(4)(b) and (d)[6] in opposing the bail as “The likelihood that the accused if released:

b) Will attempt to evade his trial. That is the main reason and then the subsection;

d) Will undermine the proper functioning of the Criminal Justice System including the bail system.”

[7] Nowhere in that judgment, save for the above, was reference made to the provisions of either sub-sections 60(4)(d) or 60(8) of the Criminal Procedure Act. What is clear is that the learned magistrate considered as the “main reason” the alleged attempt to evade the trial. Nowhere in the six-page judgment were the factors in section 60(8) considered nor referred to. More than four pages or the bulk of the judgment was focused on the respondent being a flight risk. Despite the ground raised by the applicant that the respondent failed to make a full disclosure of his assets, it cannot be said that he knowingly supplied false information at the time of his arrest or during the bail application. No factors whatsoever were taken into account by the court a quo in the consideration whether the ground in subsection 4(d) had been established. If that was done, the court would have said so and pronounced itself in that regard, more especially that the respondent would undermine or jeopardise the proper functioning of the criminal justice system, including the bail system.

[8] Criticism was levelled at my finding that suitable conditions were not considered as an alternative to the refusal of bail. Section 60(6)[7] provides that the court may take into account the binding effect and enforceability of bail conditions which may be imposed and the ease with which such conditions could be breached or any other factor which in the opinion of the court should be taken into account. It is evident from the transcribed record that this was not done.

[9] It is obvious that the court a quo relied on and over-emphasised the opinion of the investigating officer as to the allegation of the respondent being a flight risk without simultaneously considering the effect of the respondent’s evidence. Save for the finding that the respondent did not satisfy her that it is in the best interests of justice for him to be released on bail, the learned magistrate did not indicate that she found fault with the respondent’s evidence. The court did not apply its mind properly to the facts and the applicable legal principles at hand and misdirected itself as indicated in the judgment being appealed against.

Grounds 2,3, 10,11.12,13,14and 15

[10] No findings were made relating to any new facts relating to Covid-19 and the effect of prison conditions on the life and health of the respondent. My finding and conclusion were based on the judgment and the reasoning of the court a quo. What was well considered were the suggestions to the conditions of bail. I find no fault with this step as the court is empowered to consider the bail afresh when it is satisfied that the decision appealed against was wrong

[11] Consequently, I am of the opinion that the appeal would not have a reasonable prospect of success and that it stands to be dismissed. I therefore make the following order:

Order:

The application for leave to appeal is dismissed.

JJ MHLAMBI, J

Counsel for the applicant: Adv. P Serunye

Instructed by: Director of Public Prosecutions

VGM Building

Westlake Drive

Weavind Park

Pretoria

Bloemfontein

Counsel for the respondent: Adv. M Witz

Instructed by:

Forbay Attorneys Incorporated

C/O MDP Attorneys

48 Louw Wepener Street

Dan Pienaar

[1] Unreported Land Claims Court NO LCC 14R/2014.

[2] Applicant’s notice of application on page 5.

[3] Para 1 of the judgment; Section 65(4).

[4] Wilkinson v S 2014 ZASCA 192 para 6.

[5] Para 4.

[6] Act 51/1977.

[7] Act 51/1977.