S v Palan

• Jurisdiction: South Africa
• Judge: Gorven J
• Judgment Date: 28 October 2013
• Docket Number: 10571/2013
• Court: KwaZulu-Natal High Court, Durban
• Hearing Date: 28 October 2013
• Citation: 2013 JDR 2435 (KZD)

Gorven J :

[1]

This is a bail appeal from the Magistrate's Court, Port Shepstone. The judgment in the application was handed down on 12 August 2013. The appellant is charged with two counts of human trafficking and alternative charges involving two different persons, Candice Benjamin and Samantha Newman. He has also been charged with keeping a brothel, procuring Candice Benjamin to have unlawful carnal intercourse and procuring Samantha Newman (the complainants) to have unlawful carnal intercourse. The state claims that the alleged crimes or took place between 19 and 21

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Gorven J

July 2013 in the vicinity of Port Shepstone. He appeared along with one other person accused of the same offences. Both of them were refused bail.

[2]

It is common cause that the bail application fell to be considered under the provisions of section 60(11)(a) of the Criminal Procedure Act 51 of 1977 (the Act). This section places an onus on an applicant to show, on a balance of probabilities, that exceptional circumstances exist which, in the interests of justice, permit his or her release on bail.

[3]

The appellant sought to discharge this onus by way of producing evidence on affidavit. The state, in response, did likewise.

[4]

The appellant claimed to reside at Lot 87, Roslin Avenue, Port Shepstone, a property which belongs to a trust "of which I am a member". He stated that he was married but separated from his wife "for personal reasons" and living with the second applicant. He has fathered two children who are dependent on him. He stated that, at the time of his arrest, he was doing odd jobs in the employ of his brother which earned him R10 000 per month. He gave no particularity as to the duration of this employment or its permanence or otherwise. He stated that the monies were used to support his girlfriend (the second applicant), his wife, his children and him. He indicated that he was previously employed as a driver until November 2012 when he resigned due to ill-health. He suffers from a

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Gorven J

heart and kidney problems and is being treated by a doctor and has constant medical checkups. He has had an operation to his heart. He then stated that he presently resides at 56 Seawood Lane, Oslo Beach, with his girlfriend and co-accused. He rents the premises and his co-accused rents them from him.

[5]

He stated that he was arrested at the police station at Port Shepstone where he went to make enquiries about the two complainants. He did so because he was informed that friends of his co-accused had been arrested. He had not known the complainants and saw them for the first time when he fetched them from the bus station at the request of his co-accused. They had apparently been arrested at a lighthouse in Margate. He denies all the charges against him. He stated that he will stand his trial and, since the two complainants have been placed in protective custody, he cannot interfere with them but also has no intention to do so. He has no travel documents and does not intend to apply for any. He has one previous conviction for theft committed in 2003.

[6]

The opposing affidavit was deposed to by the investigating officer who is a detective warrant officer in the South African Police Services attached to the Organised Crime Investigation Unit, Port Shepstone. Both complainants were living in Cape Town and during June 2013 offered employment at a hotel in Margate by the second applicant. Both were sent

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Gorven J

bus tickets and travelled to Port Shepstone, arriving on 19 July 2013. They...