S v Sewela

• Jurisdiction: South Africa
• Judge: Cloete JA, Ponnan JA and Bosielo JA
• Judgment Date: 01 December 2010
• Docket Number: 731/10
• Court: Supreme Court of Appeal
• Hearing Date: 25 November 2010
• Citation: 2010 JDR 1471 (SCA)

Bosielo JA (Cloete and Ponnan JJA concurring):

[1]

This is an appeal against a judgment of the South Gauteng High Court (Mabesele AJ), in which the court dismissed an appeal by the appellant against the refusal by the regional magistrate sitting at Wynberg to grant him bail pending his trial.

[2]

The appellant was arrested on 24 October 2009. There are three co-accused in this matter, one of whom is the customary wife of the appellant (accused 3). They are charged with five counts of fraud and the appellant will be charged with money laundering in contravention of s 5 of the Prevention of Organised Crime Act, 121 of 1998 ('POCA'). In essence, the state alleges that all the accused, acting in concert changed bank account numbers of other people or entities and created fictitious bank accounts into which they diverted large sums of money

2010 JDR 1471 p3

Bosielo JA (Cloete and Ponnan JJA concurring)

from the South African Revenue Services (SARS). The five accounts involve a total amount exceeding R77 million.

[3]

It is not in dispute that, given the nature of the charges against the appellant, his bail application falls to be dealt with in terms of s 60 (11) (b) of the Criminal Procedure Act 51 of 1977 (CPA). This section provides:

'S 60 (11) Notwithstanding any provision of this Act, where an accused is charged with an offence referred to —

(b) 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.'

This section therefore saddles the appellant with the onus to prove, on a balance of probabilities, that it is in the interests of justice that he be released on bail, failing which he must be detained in custody.

[4]

At the bail hearing before the regional magistrate, the appellant elected to present his evidence in the form of an affidavit. In opposing the bail application, the state also relied on affidavits, amongst others by the investigating officer, Mr Mahlangu and Mr Schoeman, a manager in the Anti-Corruption and Security Special: Project Unit at SARS.

[5]

The following important facts emerged from the appellant's affidavit:

5.1

the appellant was born on 23 July 1965;

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Bosielo JA (Cloete and Ponnan JJA concurring)

5.2

the appellant has been staying with his wife at his wife's home at 53 Wandel Street, Woodmead, Sandton for the past five years;

5.3

the appellant owns property at 15 Conway Street, Kelvin, Sandton, which is fully paid for. The estimated value thereof is R3,5m;

5.4

the appellant is married and has four children aged 17, 12, 9 and 6 respectively;

5.5

the appellant has movables to the value of R300,000,00;

5.6

the appellant is the registered owner of an Audi Q7 motor vehicle which is fully paid up;

5.7

the appellant has a B.SC degree;

5.8

the appellant is a shareholder in a number of companies;

5.9

the appellant is the sole member of Oxy Trading 847 CC;

5.10

the appellant has a pending case of fraud at Phokeng Magistrate Court, Rustenburg involving approximately R1,3m;

5.11

although the appellant admitted payment of R8m into Oxy Trading's account, he denied any involvement in the fraudulent activities forming part of the charges;

5.12

the appellant has no previous convictions;

5.13

the appellant undertook, should he be granted bail, to attend court at all times, comply with all bail conditions, not to communicate with or try to influence or intimidate state witnesses, not to conceal or destroy any evidence and not to undermine or prejudice the objectives or proper functioning of the criminal justice system, including the bail system.

2010 JDR 1471 p5

Bosielo JA (Cloete and Ponnan JJA concurring)

[6]

The salient features which I have gleaned from the affidavits filed on behalf of the respondent which are directly relevant to the bail proceedings are:

6.1

that the appellant is allegedly involved in a crime syndicate which has targeted SARS...