IN THE HIGH COURT OF SOUTH AFRICA EASTERN CAPE DIVISION, GRAHAMSTOWN 10 15/12/2010 CA & R : 306/ Date Heard: Date Delivered:21/12/10 In the matter between: RACHEL HARDEN 1 ST APPELLANT LUNGISWA TATAYI 2 ND APPELLANT NOMHLE BUDAZA 3 RD APPELLANT Versus THE STATE RESPONDENT JUDGMENT SMITH J: [1] The appellants, together with two other accused, have been charged in the East London Regional Court with 117 counts of credit card fraud and 3 further counts relating to transgressions of the Electronic Communications and Transactions Act, no 25 of 2002. The latter charges relate to the alleged possession and use of socalled "skimming" devises to gain access to credit and debit card
2 data and to unlawfully duplicate the cards. It is alleged that the appellants and the other accused acted as a syndicate and in the furtherance of a common purpose. The appellants were refused bail by the magistrate and they have now appealed against that decision. [2] Section 65(4) of the Criminal Procedure Act, no 51 of 1977 ("the CPA") provides as follows: 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. [3] The powers of a court sitting in an appeal in terms of the provisions of s. 65 of the CPA have been crystallised as follows through various authoritative pronouncements by our courts: 3.1 An appeal court shall not substitute its own decision for that of the court a quo, unless it is of the view that the magistrate has misdirected himself either in his evaluation of the facts or the application of the relevant legal principles; See S v Barber 1979 (4) SA 218 (D) 220E-H; 3.2 The appeal court will undertake its own analysis of the evidence and on the basis thereof decide whether or not the court a quo had made the correct decision regarding the discharge of the onus in terms of s. 60(11) of the CPA. See S v Porthen and Others 2004 (2) SACR 242 (C);
3 [4] It is common cause that the offences with which the appellants have been charged fall within the ambit of Schedule 5 to the CPA, the amount involved being in excess of R100 000.00 and it being alleged that they acted as a syndicate and in the furtherance of a common purpose. [5] S. 60(11)(b) of the CPA provides that an accused person charged with an offence referred to in schedule 5 shall be detained in custody unless the accused person adduces evidence which satisfies the court that the interest of justice permits his or her release. [6] In deciding whether or not the interest of justice permits the release of an accused on bail, the court must have regard to the considerations mentioned in paragraphs (a) to (e) of s. 60(4). In terms of that section the interest of justice would not permit the release of an accused person on bail if anyone of the grounds mentioned therein are established. They are: (a) (b) (c) (d) (e) Where there is the likelihood that the accused, if he or she were released on bail, will endanger the safety of the public or any particular person or will commit a schedule 1 offence; Where there is the likelihood that the accused, if he or she were released on bail, will attempt to evade his or her trial, or Where there is the likelihood that the accused, if he or she were released on bail, will attempt to influence or intimidate witnesses or conceal or destroy evidence; or Where there is the likelihood that the accused, if he or she were released on bail, will undermine or jeopardise the objectives of the proper functioning of the criminal justice system, including the bail system; Where in exceptional circumstances there is the likelihood that the release of the accused will disturb public order or undermine public
4 peace or security [7] Once the court has considered these broad considerations it must then do a final weighing up of factors for and against the granting of bail as contemplated in terms of ss. 60(9) and (10). See S v Dlamini S v Dladla and Others; S v Joubert; S v Schietekat 1999 (2) SACR 51 (CC) where Kriegler J held that these sections should be read as: requiring of a court hearing a bail application to do what courts had always had to do, namely to bring a reasoned and balanced judgment to bear in an evaluation, where the liberty of the individual and the interest of justice are given the full value according to the Constitution. [8] The appellants did not lead viva voca evidence and elected to place evidence before the court by way of affidavits. [9] The contents of these affidavits relate mainly to their places of abode, in the case of first and second appellants, that they are pregnant and contain the usual undertakings relating to interference with state witnesses and investigations and their intention to stand trial in due course. They also state that to the best of their knowledge they are not guilty of the offences with which they have been charged. [10] The state led the evidence of the investigating officer, Sandile Palaza and Robin Allan Webb who is an investigator for Nedbank. Palaza testified that he was in possession of video footage which
5 clearly shows the appellants and the other accused acting together as a syndicate in fitting and removing skimming devices to ATMs. There are also footage of the appellants comings and goings at different hotels in East London. Where they could not be identified through facial features they were identified by their clothing. He testified that the master mind of the syndicate one Radonski, a Bulgarian citizen, is still at large. He is the first appellant s boyfriend and she had informed him that she is pregnant with his child. Radosnki s entry visa had expired. He was also in possession of evidence which showed that the first appellant had transferred an amount of R30 000.00 to Bulgaria. [11] In respect of the second appellant he testified that she has no fixed address and that it would be difficult to trace her. He had found three passports in her possession. Accused no 5, one Anthony Uchena and another suspect one Tatayi who is the brother of the second appellant, had been arrested in Port Elizabeth on similar charges. He had instructed a colleague to visit the address provided by the second appellant and it transpired that she was not known at that address. There were apparently other tenants who occupied the premises and it appeared that it is a "boarding house". [12] All the accused were arrested at the same venue in Port Elizabeth. It was clear to him that they members of the same
6 syndicate. He also testified that he was in possession of cellular phone records which indicate that the appellants and the other accused, including those who had been charged in Port Elizabeth, have been communicating on a regular basis. [13] Regarding the first and second appellants' pregnancies, he testified that there were sufficient facilities to cater for inmates' pregnancies in prison and if need be they would be transferred to the Frere Hospital in the event that more intensive care is required. [14] Webb also testified that he had studied the video footage and confirmed that it clearly showed the appellants and the other accused working as a team when installing and removing the skimming devices and a camera. He testified comprehensively regarding the prevalence of these offences in the area and stated that more than 500 cards have been compromised by the skimming device. At present he had been able to determine that an amount of R166 000.00 had been defrauded from victims but it will in all probability eventually run into millions. [15] It appears from the magistrate's judgment that he had based his decision to refuse bail on the following findings: 15.1 The appellants were positively identified in video
7 footage showing them working in concert with the other accused and Radonski, who appears to be the mastermind of the syndicate, in installing and removing skimming devices at ATMs; 15.2 The state witnesses were not seriously challenged regarding their testimony on these issues and there has been "screaming silence" on the part of the appellants in this regard; 15.3 It has not been denied by the appellants that there is still equipment which has not been confiscated and which could be used to commit further crimes. 15.4 The master mind of the operation, namely Radonski, is still at large. He has a close relationship with the first appellant who is his girlfriend and is pregnant with his child. 15.5 There is also evidence to the effect that she had transferred an amount of R30 000.00 to Bulgaria, the country of his origin. 15.6 Having considered the factors mentioned in ss. 60(9) of the CPA he was, inter alia, of the view that: 15.6.1 The appellants had only been in detention since 02 September 2010 and on the available evidence it did not appear that there would be an inordinate delay in commencing and concluding the trial as the prosecutor had stated that it would be fast tracked; 15.6.2 That there were no obvious impediments for them
8 to prepare for their defence if they were to remain in custody; 15.6.3 There were adequate facilities to cater for those appellants who are pregnant and that arrangements will be made for them to be transferred to a public hospital if for any reason the prison facilities should turn out to be inadequate. [16] Having considered all these factors and in particular in the light of the fact that a high tech instrument had not been retrieved, he was of the opinion that there was a likelihood that the appellants, acting together with the other suspects, will commit Schedule 1 offences if they are released on bail. [17] Mr Koekemoer, who appeared on behalf of the appellants, submitted that there is no substance in the Magistrates finding that there is likelihood that if the appellant are released on bail they will commit further Schedule 1 offences. He referred in particular to the fact that there appeared to be evidence that notwithstanding the fact that all three appellants had been in custody for some time, offences of a similar nature for which they have been charged continue to be committed by other perpetrators. I am of the view that this submission is without any merit. Mr Koekemoer was constrained to concede that the state has been able to establish a prima facie case against the appellant. The magistrate' finding regarding the likelihood of the commission of a Schedule 1 offence if
9 the appellant's were released on bail, was based on compelling evidence of close co-operation between the appellant's, the other accused and suspects ( some of whom who are still at large), acting with common purpose to commit Schedule 1 offences. [18] He submitted also that the magistrate has overemphasised the seriousness of the offences and failed to have regard to the presumption of innocence. I could find no indication in the magistrate's judgement of any such misdirection on his part. There is in my view no evidence that his findings regarding the likelihood of the commission of Schedule 1 offences was in any way influenced by undue weight having been accorded to the seriousness of the offences with which the appellants have been charged. [19] I am of the view therefore that the magistrates conclusion that there is likelihood that the appellants will commit a Schedule 1 offence if they are released on bail was based on sound reasoning and supported by the proven facts. There can be little doubt that the state was able to establish, at the very least, prima facie proof of the following: 19.1 That the appellants formed part of a syndicate that installed and removed skimming devices and cameras in ATMs with the purpose of unlawfully gaining access to credit and debit card data;
10 19.2 That the mastermind of the syndicate has not yet been arrested and that some of the equipment used by the syndicate to unlawfully duplicate credit and debit card have not yet been retrieved; 19.3 That the state was in possession of cellular phone records which indicate that the appellants and other accused, as well as other persons charged with similar offences in Port Elizabeth, have been in regular contact with one another. [20] In my view these proven facts, when considered as a whole, provided a rational basis for the magistrates finding that there was a likelihood that the appellants' release will result in the commission of a Schedule 1 offence. I cannot find any fault with the magistrate s reasoning in this regard. [21] In terms of s. 60(4) of the CPA, if any one of the grounds mentioned in that section is established, the interest of justice would not permit the release from detention of an accused. It is trite law that the onus was on the appellants to establish that their release on bail will not result in any of those consequences contemplated in s. 60(4). They have demonstrably failed to do so. Their affidavits contained the usual allegations which are invariably placed before court by bail applicants and there was no attempt to seriously challenge any of the state witnesses' testimonies. The one
11 distinguishing feature of their testimonies, namely the pregnancy of the first and second appellants, was given due consideration by the magistrate. Under these circumstances, and in the light of the compelling evidence put up by the state, the conclusion that their release will indeed compromise one or more of the considerations mentioned in s. 60(4) became ineluctable. [22] One of the grounds of appeal relied upon by the appellants was that the video footage had not been made available to their legal representatives to enable them to either admit or challenge the reliability thereof. Mr Koekemoer has made some cursory reference to this issue during the course of his argument and it was not clear whether or not the appellants still seriously relied on this ground. In so far as they do rely on it I have to state that in my view that there is also no merit in this submission. The appellants' legal representative did not request access to the video footage. Under these circumstances they can hardly claim that they have been refused access and only have themselves to blame. The facts of matter are also distinguishable from those in the case of S v Green 2006 (1) 603 SACR (SCA). In that matter the magistrate refused the application by the defence for the video footage to be shown in court. Farlam JA held that the magistrate should have realized that he did not have sufficient evidence before him to allow him to properly exercise his discretion and he should have invoked
12 s. 60(3) and ordered the state to allow the defence access to the video. The Appeal Court however made no order on the bail application. The matter was referred back the court a quo and the state was ordered to allow the defence access to the video. Apart from the fact that the defence in the instant matter did not apply for access to the video footage, there has also not been any serious challenge to the evidence adduced in this regard by Palaza and Webb. [23] In the result I am of the view that there is no basis on which I can find that the magistrates decision was wrong and the appeal must therefore fail. [24] In the result I make the following order: (a) The appeal is dismissed. J.E. SMITH JUDGE OF THE HIGH COURT Appearances Counsel for Appellants : Advocate Koekemoer Attorney for the Appellants : Whitesides Attorneys
13 High Street GRAHAMSTOWN 6140 Ref: Mr Basson Counsel for the Respondent : Advocate Sellem : DPP EAST LONDON 5200 Date Heard : 15 December 2010 Date Delivered : 21 December 2010