Shefer v Director of Public Prosecutions, Transvaal, and Another

• Jurisdiction: South Africa
• Court: Transvaal Provincial Division
• Judge: Patel J
• Judgment Date: 05 March 2004
• Citation: 2004 (2) SACR 92 (T)
• Hearing Date: 28 January 2004
• Docket Number: 1645/2004
• Counsel: B G Savvas for the applicant. A J Rossouw for the first respondent. No appearance for the second respondent.

Patel J:

A Introduction

[1] This application was about the regional court's refusal to amend some of the bail conditions that were set by that court. The I matter was argued before me in the urgent Court on 28 January 2004. The application was dismissed and no order of costs was made in favour of the first respondent. The applicant now seeks reasons for the order. These are set out in this judgment. J

Patel J

B The applicant

[2] A The applicant is a 52-year-old businessman. He was born in Equador and has been residing in South Africa since 1979. He is married and there are six children born of the marriage. Before coming to South Africa he went to Israel as a returning immigrant and is regarded by the State of Israel as a citizen. His wife is not Jewish. Neither she nor the children qualify for Israeli citizenship. The family has B resided in South Africa for 25 years. But the applicant has dual citizenship both in the Republic of South Africa as well as in Israel.

[3] In 1989 the applicant was arrested in Switzerland at the request of the South African authorities and extradited to the C Republic. He was convicted and sentenced for fraud involving foreign exchange. He was released from prison in 1996 after having served a term of imprisonment.

[4] The applicant claims, without tendering any proof, that he is the acting chief executive officer of Cobalt Metal Company Ltd, an entity registered in St Vincent and Grenadines. D

C Applicant's present predicament

[5] The applicant was arrested on 12 November 2003. The warrant of arrest was authorised in respect of fraud, theft and contravention of s 1(1)(a) of the Corruption Act 94 of 1992. These are offences under Schedule 6 of the Criminal Procedure Act 51 of 1977. He was then brought before a lower court on 13 E November 2003 when the State sought a seven-day postponement in terms of s 50(6)(d) of the Criminal Procedure Act. The application was dismissed and an order was made to immediately hear the applicant's bail application. The bail application proceedings commenced on that day. The next day the application was postponed to F 20 November 2003 for further cross-examination of the applicant.

[6] During the interim it emerged from the documents seized, during the search and seizure on 12 November 2003, that additional crimes may have been committed by the applicant. Under the G circumstances, the investigation would take much longer than anticipated. Consequently he would be incarcerated for a much longer period than was initially anticipated. Having regard to the prospect of prolonged detention, the State and the applicant's legal representatives negotiated the release of the applicant upon certain bail conditions. The agreed conditions addressed the concerns of the State. H

[7] The applicant was released on bail on the following conditions:

'1.

The amount of R430 000 is paid by or on behalf of the accused to the clerk of the court, Pretoria, prior to release. I

2.

The accused shall issue a guarantee (form J162) for an additional amount of R2 570 000 and:

2.1

a surety (form J133) is to be issued by the appropriate persons, ie the accused and his wife and the appropriate trustees over the properties situated at 7th Avenue, Melville, Johannesburg, known as erven 755/000, 755/001, 755/002 and 996/000, Melville, in favour of the clerk of the court, prior to release, and J

Patel J

2.2

the accused shall cause within eight days hereof at his expense an application to be brought at the appropriate forum for the A registration of a caveat/interdict against the alienation of further encumbrance in respect of the properties situated at 7th Ave, Melville, Johannesburg, known as erven 755/000, 755/001, 755/002 and 966/000, Melville, and

2.3

the aforementioned application is to be finalised on or before 9 December 2003 and is to be in favour of the Director of Public B Prosecutions, Transvaal, and is not to be uplifted without the written authorisation the Director of Public Prosecutions, Transvaal,

2.4

proof of the foregoing is to be furnished to Superintendent T A Marais.

3.

The accused must appear in the regional court No 2 at Pretoria at the hour of 08h30 on the 1st day of March 2004 and at all such times and places to which the case may be postponed. C

4.

All passports and/or travel documents in respect of the accused, his wife Tania Shefer and their four minor children are to be handed to Captain B McCabe prior to release of the accused on bail.

5.

The accused, his wife Tania Shefer and their four minor children may not apply for passports and/or travel documents.

6.

The accused is to report at the Rosebank SAPS client service centre between 07h00 and 10h00 daily. D

7.

The accused is not allowed to leave the province of Gauteng without prior consent of Superintendent T A Marais and in his absence the consent of Director J G J Nortje.

8.

The accused is not allowed to enter any port or entry to and exit from South Africa - the aforementioned includes but is not limited to all international airports, international ports and border posts. E

9.

The accused is not allowed to leave the borders of South Africa.

10.

The accused is not allowed to contact persons listed in schedule A hereto as supplemented or amended in writing from time to time, either directly or indirectly without prior consent of Superintendent T A Marais and in his absence the consent of Director J G J Nortje. F

11.

The accused is not allowed to interfere with any police investigations whatsoever either directly or indirectly. The aforementioned includes but is not limited to the tracking of the movement of case dockets and the gathering of any intelligence on witnesses in any witness protection program.

12.

The accused shall furnish the following particulars to the investigating officer within 14 days hereof: G

12.1

The nature, location and value of assets held by him, his wife and any corporate entities or trusts controlled by either of them;

12.2

and, within ten days, any further particulars with regard to the above as might be requested from time to time by the investigating officer.'

[8] Subsequently, on 22 January 2004 an application was brought before the regional court, in terms of s 63 of the Criminal H Procedure Act, for the amendment of some of the bail conditions agreed upon.

[9] In the application in the court below, the applicant deposed to an affidavit in support of his application for the amendment of the bail conditions. The basis for seeking the amendment was, first, I concerned with the passports...