Panday v S (Appeal) (D11392/2024) [2024] ZAKZDHC 101 (7 October 2024)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: Kwazulu-Natal High Court, Durban South Africa: Kwazulu-Natal High Court, Durban You are here: SAFLII >> Databases >> South Africa: Kwazulu-Natal High Court, Durban >> 2024 >> [2024] ZAKZDHC 101 | Noteup | LawCite sino index ## Panday v S (Appeal) (D11392/2024) [2024] ZAKZDHC 101 (7 October 2024) Panday v S (Appeal) (D11392/2024) [2024] ZAKZDHC 101 (7 October 2024) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAKZDHC/Data/2024_101.html sino date 7 October 2024 SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy IN THE HIGH COURT OF SOUTH AFRICA KWAZULU-NATAL LOCAL DIVISION, DURBAN CASE NO: D11392/2024 In the matter between: THOSHAN PANDAY                                                                                      APPELLANT and THE STATE                                                                                                   RESPONDENT ORDER On appeal from: The Magistrates’ Court, Durban (sitting as court of first instance): The appeal against the order of the court a quo is dismissed. APPEAL JUDGMENT STEYN J [1]        This matter concerns an appeal against the decision of the district court magistrate on 9 September 2024, sitting at the Durban Magistrates’ Court, refusing bail to the appellant, who is described in papers before that court as a 52-year-old businessman. [2]        The appeal lies in terms of s 65 of the Criminal Procedure Act [1] (‘the Act’). Importantly, in terms of s 65(4) of the Act, this court before setting aside any decision on bail should be satisfied that the court a quo was wrong in its decision. [2] [3]        The appellant, who was arrested on 5 September 2024, applied for his release on bail on 9 September 2024. He has been arrested on charges of fraud, read with s 51(2) Part II of Schedule 2 of the Criminal Law Amendment Act, as amended. [3] There are 27 counts of fraud and in the alternative, he faces charges of contravening the Tax Administration Act, [4] and the Value-Added Tax Act. [5] In a nutshell the State alleges that the appellant had made a number of misrepresentations to SARS, which were aimed at either evading tax, and/or assisting others to evade tax, or obtain undue tax refunds from SARS. The said conduct allegedly caused prejudice or potential prejudice to SARS in the amount of R7 555 944.19. [4]        The grounds of appeal as per the notice of appeal include the following: (a)       that the magistrate’s refusal of bail on the ground that the appellant is a flight risk is wrong; (b)       that the magistrate was wrong in refusing bail on the ground that there is a likelihood that the appellant will interfere with witnesses or the investigation of the case; (c)        that the magistrate was wrong when refusing bail in terms of s 60(4) (d) of the Act on the ground that the administration of justice will be brought into disrepute; (d)       that the magistrate failed to weigh the interests of justice against the appellant’s right to his personal freedom. [5]        It is common cause that certain offences with which the appellant has been charged fall within Schedule 5 of the Act and that the bail application was governed by s 60(11) (b) of the Act that requires of the appellant to have shown on a balance of probabilities that the interests of justice permit his release on bail. [6] The Constitutional Court in S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat, [7] did not specifically refer to an onus that rests on an applicant that applies for bail, but stated: ‘ For the present it is unnecessary to resolve the question whether there is an onus in bail proceedings and, if so, its incidence. The current cases are governed by ss 11, where there is undoubtedly a burden cast upon an applicant for bail.’ [8] In Dlamini the Constitutional Court dealt with the different wording between the interim Constitution and the final Constitution, especially with the words “if” and ‘unless” and in doing so the Constitutional Court concluded that the final Constitution does not favour the liberty of an accused as much as the interim Constitution had done. [9] This court is bound to follow not only by the provisions of the Act governing bail but also to follow the approach of our Constitutional Court as set out in Dlamini. [6]        On behalf of the appellant, Mr Van Vuuren SC assisted by Mr Naidoo, appeared when the appeal was argued. It was submitted that the learned magistrate was wrong in his decisions. On behalf of the respondent Ms Louw was assisted by Mr Paver. The respondent opposed the appeal and submitted, inter alia that the evidence before the court a quo showed overwhelmingly that the appellant acted with impunity and disregard of court orders especially the conditions that were attached to his bail. Moreover, that the appellant had failed in his onus before the court a quo and that the learned magistrate was not wrong in his decision when he refused bail. [7]        Mr Van Vuuren in oral argument submitted that the magistrate was wrong when he found that the appellant posed a flight risk since the appellant returned to South Africa and appeared in court. Since this argument lost sight of the fact that there was not only one bail condition, that existed and provided for the accused to appear in court, I asked him to elaborate on the bail conditions as ordered by Balton J, on 10 October 2022. The order provided as follows: ‘ (a) That the Applicant’s passport shall be returned to him for the purposes of business travel to Istanbul, Turkey in accordance with the itinerary marked A on the granting of the order; and (b) The Applicant shall retain his passport for the purposes of applying for the necessary visas in respect of leisure travel to Europe (Italy, Germany, and France) and the United Arab Emirates in accordance with the attached itinerary marked A; and (c) That the Applicant shall return his passport to the Investigating Officer within five (5) days of his return to Sought Africa on 8 th January 2023.’ (My emphasis.) He conceded that the order stipulated the places the appellant should travel to and that he also had to deliver his passport to the investigating officer within five days of his return. He failed to do so. I shall return to the conduct of the appellant when I consider the judgment of the learned magistrate. [8]        In my view, what was expected of the court a quo in deciding on the appellant’s right to bail was to exercise a value judgment in accordance with all of the evidence before it and apply the relevant legal criteria. Section 60(4) of the Act provides for the following grounds to have been considered: ‘ (4) The interests of justice do not permit the release from detention of an accused where one or more of the following grounds are established: (a) Where there is the likelihood that the accused, if he or she were released on bail, will endanger the safety of the public, any person against whom the offence in question was allegedly committed, or any other particular person or will commit a Schedule 1 offence; (b) 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 (c) where there is the likelihood that the accused, if he or she were released on bail, will attempt to influence or intimidate witnesses or to conceal or destroy evidence; or (d) where there is the likelihood that the accused, if he or she were released on bail, will undermine or jeopardise the objectives or the proper functioning of the criminal justice system, including the bail system; or (e) where in exceptional circumstances there is the likelihood that the release of the accused will disturb the public order or undermine the public peace or security.’ The success of this appeal is dependent on whether the appellant discharged the onus in terms of s 60(11) (b) of the Act before the court a quo . [9]        The court a quo , in dealing with the evidence before it, considered the grounds listed in s 60(4) (a) to (d). I am satisfied that subsection 60(4) (e) was not applicable so the matter had to be decided on the first four subsections of s 60(4) of the Act. [10]      What was argued before the learned magistrate was that there was no indication that the appellant had interfered with the State witnesses or the investigation of the case. Moreover, that the appellant merely deviated from his intended travel plans and that he was not posing a flight risk, nor would he evade his trial. [11]      In the affidavit filed in support of his application for bail before the court a quo , the appellant stated, in relation to the breach of his bail conditions in another matter before the High Court, the following: ‘ [14]     I have established that the State is opposing bail on the ground that I allegedly deviated from the travel itinerary in terms of which my bail conditions were relaxed to permit me to travel to the United Arab Emirates (UAE) and Europe between 10 December 2022 and 4 January 2023. It is alleged that I travelled to the USA instead and used a passport which was reported lost. It is however common cause and key to this application for bail that I left South Africa on 10 December 2022 and returned on 4 January 2023. There is accordingly no scope for an allegation by the State that I intended to evade my trial.’ (My emphasis.) [12]      In support of the State’s opposition to bail, it filed an affidavit deposed to by Colonel Herbst (Exhibit “B”) and it is necessary in light of the grounds of appeal to emphasise certain facts contained in the affidavit that served before the court a quo . (a)       The State submitted that the appellant initially applied for a relaxation of his bail conditions in 2021, which was opposed by the State. It had been discovered that the appellant had been issued with two passports with numbers: M[...] and M[...]2. He surrendered only passport M[...] to the State. In a replying affidavit filed to the State’s answering affidavit, he stated under oath that Serendipity Travel Agency which had his and his ex-wife’s passport, had not returned their passports to them and that the travel agency had shut down after Covid lockdown and that his passport was lost. In the said affidavit, the appellant had not recorded the passport number which had been lost. The State, however had passport M[...] in its possession, so the lost passport was M[...]3. (b)       The State averred further that passport M[...]3 was not surrendered. Moreover, that the appellant reported to the Department of Home Affairs on 19 July 2022 that his valid passport M[...]3 was lost, and then made an application for a further passport which was issued: M[...]4. (c)        On 26 October 2022, the appellant applied inter alia to retain his passport as he had planned leisure travel to Europe visiting Italy, Germany, France and the United Arab Emirates. The date of departure was to be 10 December 2022 and returning 8 January 2023. The itinerary that was submitted was: 10 December 2022 Johannesburg to Dubai 11 December 2022 Dubai to Fiumicino, Rome 18 December 2022 Rome to Frankfurt 23 December 2022 Frankfurt to Paris 28 December 2022 Paris to Dubai 8 January 2023 Dubai to Johannesburg (d)       The appellant’s attorney, in a letter dated 26 September 2022, confirmed the following to the prosecution: ‘ Our client has also obtained a letter from his travel agent which sets out a draft itinerary which details both of the aforesaid travel. A final itinerary cannot be provided at this stage due to the flight booking process. Once our client pays for such flights in full will the flights be secured, and our client will incur cancellation costs if he does not travel. A copy of this letter from the travel agent is also attached. We confirm that our client will travel strictly in accordance with this itinerary’. (Emphasis in original correspondence). [13]      Upon further investigation by the State, the following facts were established by the investigation team, namely that on 11 December 2022, the appellant departed from King Shaka Airport and presented passport M[...]4 to the authorities. He entered not a destination in Europe but the United States of America (‘USA’). When he entered, he did so in San Francisco on 14 December 2022 and presented the lost passport M[...]3. He travelled to other destinations in the USA and departed from Washington Airport, USA on 28 December 2022 and presented passport M[...]4. The appellant entered South Africa on 6 January 2023 and did not surrender passport M[...]4 to the investigating officer as was ordered by Balton J. On 12 January 2023, he deposed to an affidavit wherein he claimed to have mislaid passport M[...]4. It had been discovered that he presented the “lost” passport upon entry to the USA. [14]      In its opposition to bail being granted the State averred that the appellant travelled to unauthorised destinations and in defiance of the High Court order. What is evident from the affidavit filed by the State is that over a period, investigations were conducted and the State placed all of these facts before the court a quo . In fact, it was only after the investigation team analysed the appellant’s bank cards that the payments in the USA were discovered and that the pieces of his travel puzzle fell into place. [15]      I shall now turn to what the appellant stated in his affidavit, (Exhibit “A”) in paragraph 17: ‘ It stands to reason that if the State held the view that I am a flight risk or that I cannot be trusted to observe my bail conditions, it would have applied for the cancellation of my bail in December 2023. The appropriate forum in which to deal with the alleged breach is the court which granted the relaxation of the bail.’ [16]      This statement loses sight of the fact that the State under oath stated that there were investigations that were ongoing. In his affidavit the appellant states inter alia, the following in relation to the ground that granting bail may jeopardise the objectives or the proper functioning of the criminal justice system. [10] In paragraph 43 the following was said: ‘ I have not seen an affidavit by the State in support of its opposition to my release on bail. I have done my best to predict the State’s allegations but respectfully reserve the right to file a replying affidavit if issues are raised which I have not addressed herein. I submit that it is opportunistic and abusive for the State to use s 60(4)(d) as a ground to oppose my release on bail. I submit that I have emphatically proved that my release on bail will not jeopardize (sic) the bail system or the criminal justice system. Even if the State’s evidence regarding my bail conditions is accepted, it does not create the likelihood that I will undermine or jeopardise the proper functioning of the bail system or the criminal justice system and thereby disqualify me from being released on bail in the interests of justice.’ [17]      Significant, in my view, is also the considerations as stipulated in s 60(8) of the Act that the court a quo had to take into account in making a decision on s 60(4) (d) , which reads: ‘ 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 .’ (My emphasis.) [18]      As stated before in S v Mbaleki and Another , [11] the right to be presumed innocent is a trial right and not a right to be claimed by an applicant in a bail application at pre- trial. [12] The court a quo dealt with the evidence before it and concluded that the appellant poses a flight risk. The court decided on the evidence tendered by the appellant and if the appellant wanted, he could have tendered viva voce evidence disputing the facts stated by Colonel Herbst that he had multiple passports. He could have supplemented his earlier affidavit too. Given the evidence tendered before the court by the State in opposing bail and the fact that the appellant did not explain in his affidavit how all of the passports referred to by Colonel Herbst were used, most certainly, tipped the scale in favour of him posing a flight risk. [19]      Importantly, the magistrate held in his judgment: ‘ I would say in December 2022; the applicant was in breach of the bail condition that was imposed on the 2 nd of October 2020. And the fact that the applicant has other passports which have not been disclosed to the State and subsequently applied further for travelling documents without consultation with the State or the investigating officer in this matter, it is a clear indication. In this regard I shall consider subsection (b) and subsection (d) together. It is a clear indication that the applicant is one who has means to leave the country and go anywhere where the State will not be aware where he could be found. Secondly, the accused person does have the means to leave the country financially and I am advised Ferrari’s have been bought in the past few months or years and this shows the financial strength of the applicant should he intend to leave the country. This together with the fact that he is able to conceal travelling documents, apply for further travelling documents and go to places where he was not authorised by the Court to go to these places, is a clear indication that: 1.         The applicant is a flight risk. 2.         Considering that he had supplied false information to the Court when he applied for variation of the bail conditions to travel to the United Emirates, to travel to Italy, to travel to Europe and many other countries that had been listed in the itinerary, this is a clear indication that if the applicant in this matter is released on bail, the criminal justice system shall be brought into disrepute.’ [20]      It has been submitted that the magistrate was wrong in his finding that the appellant has the means to leave the country. This submission must be measured against the following evidence that was placed before the court a quo and which could not be ignored. The State averred in Exhibit “B” the following: ‘ [40]     The investigation team has obtained evidence under subpoena from Harvey’s Travel in Laudium, Gauteng that in November 2022, tickets were issued to the applicant and others to undertake travel on Emirates Airlines from Dubai to arrive in San Francisco International Airport on 14 December 2022 and thereafter to take domestic flights to various destinations within the USA to ultimately depart from Washington Dulles Airport on 28 December 2022. [41]      The total cost was R2.1 million . The travel agency was paid in three tranches of R700 000.00 from an account linked to Tasleem Rahiman (Rahiman) . Rahiman is accused 9 in the High Court matter as a co-accused to the applicant. Rahiman was employed by the applicant as a PA and would not have the financial means to fund such a trip from her own resources. Rahiman registered a company with the CIPC on 2 April 2019, Aslihan Trading’s Bank account, the investigation team cannot see any normal business activities.’ (My emphasis.) [21]      What is clear from the aforesaid is that in November 2022, the appellant had plans in place to go to the USA and airline tickets were issued by the travel agent for this trip. The cost was R2,1 million. I fail to see how the magistrate was wrong to conclude that there are means to leave the country. It has not been explained to the court a quo how the funding was structured. The onus rested on the appellant to show that the interests of justice do not require his detention. He filed an affidavit of 19 pages but is silent on the use of various passports, the non-adherence of the bail conditions which specify that he will travel to Europe, as ordered by the court and to explain how the leisure trip was funded. In the absence of countervailing evidence, it cannot be said that the magistrate was wrong in reaching the findings he did. [22]      Whilst there is some validity in the submission that the magistrate did not refer to each and every submission that was made by counsel for the appellant in the application, it cannot be said that the mere fact that the magistrate did not canvass in his judgment every aspect of the submissions placed before him that he did not take all of it into account, or consider it. [13] In assessing the issue of flight risk the court a quo was duty bound, in my view, to take into account the appellant’s  compliance with legal processes, which include previous court orders and his adherence to it. The appellant seems to ignore the fact that legislation cast a burden on him to satisfy the court that his detention is not required. He claims in his affidavit as follows: ‘ I have been cautioned whatever I say during this bail application can be used against me in criminal proceedings. This means that any explanation I provide in relation to my international travel between 10 December 2022 and 4 January 2023 can be used in future application in terms of section 66, 67A, 68 or in any related criminal proceedings. In circumstances where it is clear that I always intended to return to South Africa on 4 January 2023 (and did so) and have honoured my bail since then, there is no onus on me in this matter to provide an explanation and expose myself to possible incrimination.’ The Constitutional Court in Dlamini dealt with the hard choices that should be made in applying for bail. The position of the appellant is no different. If he wanted the court a quo to have considered his explanations for not adhering to his earlier bail conditions in another matter, he should have done so. In fact, the Constitutional Court considered these hard choices albeit in relation to save s 60(11) (a) of the Act as being constitutional. The reasoning remains relevant. It held: ‘ [94]     Litigation in general, and defending a criminal charge in particular, can present a minefield of hard choices.  That is an inevitable consequence of the high degree of autonomy afforded the prosecution and the defence in our largely adversarial system of criminal justice.  An accused, ideally assisted by competent counsel, conducts the defence substantially independently and has to take many key decisions whether to speak or to keep silent: Does one volunteer a statement to the police or respond to police questions?  If one applies for bail, does one adduce oral and/or written evidence and if so by whom?  Does one for the purposes of obtaining bail disclose the defence (if any) and in what terms?  Later, at the trial, does one disclose the basis of the defence under s 115 of the CPA?  Does one adduce evidence, one’s own or that of others?  Each and every one of those choices can have decisive consequences and therefore poses difficult decisions. As was pointed out in Osman ’s case “[t]he choice remains that of the accused.  The important point is that the choice cannot be forced upon him or her.”  It goes without saying that an election cannot be a choice unless it is made with proper appreciation of what it entails.  It is particularly important in this country to remember that an uninformed choice is indeed no choice.  The responsibility resting upon judicial officers to ensure the requisite knowledge on the part of the unrepresented accused need hardly be repeated.’(Footnotes omitted.) [23]      Whilst the judgment of the court a quo is not one of the most eloquent judgments, but no ex tempore judgment ever is, I am satisfied that the learned magistrate considered all of the objective facts before him and applied the applicable legal principles pertaining to bail when he considered that the interests of justice do not permit the appellant’s release on bail under the given circumstances. [24]      In the result the following order is issued: The appeal against the order of the court a quo is dismissed. STEYN J CASE INFORMATION Date of Hearing: 3 October 2024 Date Delivered: 7 October 2024 Appearances: Counsel for the Appellant: Mr JLCJ van Vuuren SC (with Mr J Naidoo) Instructed by: Kershnie Govender Attorneys 39 Umhlanga Rocks Drive Suite 11b Docnor Centre DURBAN NORTH Ref: Tel:      031 – 564 9856 Cell: Email: kershnie@law.co.za Counsel for the Respondent: Ms L Louw (with Mr D A Paver) Instructed by: National Prosecuting Authority 88 Joe Slovo Street 4 th Floor Southern Life Building DURBAN Ref: Tel: Cell: Email: bmanyathi@npa.gov.za [1] Criminal Procedure Act 51 of 1977 . [2] Section 65(4) of the Act reads: ‘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.’ Also see S v Barber 1979 (4) SA 218 (D) at 220E-H. [3] Criminal Law Amendment Act 105 of 1997 . [4] Tax Administration Act 28 of 2011 . [5] Value-Added Tax Act 89 of 1991. [6] Section 60(11) (b) of the Act reads: ‘(11) Notwithstanding any provision of this Act, where an accused is charged with an offence- (b) referred to 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 cour t that the interests of justice permit his or her release;’ (My emphasis.) [7] S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999 (2) SACR 51 (CC). [8] Ibid para 45, footnote 74. [9] Ibid paras 37 and 38. [10] Essentially s 60(4) (d) of the Act. [11] S v Mbaleki and Another 2013 (1) SACR 165 (KZD) para 14. [12] Also see Conradie v S [2020] ZAWCHC 177 para 19. [13] See South African Post Office v De Lacy and Another 2009 (5) SA 255 (SCA) para 68; Concrete Construction (Pty) Ltd v Keidan and Co (Pty) Ltd 1955 (4) SA 315 (A) at 325A-B. sino noindex make_database footer start