IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE DIVISION, CAPE TOWN)

CASE NO: CC 27 / 2018

In the matter between:

FADWAAN MURPHY Applicant

and

THE STATE Respondent

______________________________________________________________________

JUDGMENT IN APPLICATION FOR BAIL PENDING APPEAL

DELIVERED ON 5 AUGUST 2024

_____________________________________________________________________

DAVIS, AJ:

1. This is an application for bail pending an appeal. The Applicant was convicted on

12 July 2023 of various charges relating to contraventions of the Prevention of

Organised Act, 121 of 1998 (“POCA”) and the Drugs and Drug Trafficking Act,

140 of 1992 (“the Drugs Act”). More particularly, the Applicant was convicted of:
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1.1. 1 count of managing an enterprise conducted through a pattern of

racketeering activity, in contravention of s 2(1)(f) of POCA;

1.2. 1 count of conducting or participating in the conduct of an enterprise

through a pattern of racketeering activity, in contravention of s 2(1)(e) of

POCA;

1.3. 1 count of receiving or retaining property derived from or through a pattern

of racketeering activity, contravention of s 2(1)(b) of POCA;

1.4. 139 counts of attempt to deal in drugs, in contravention of s 5(b) of the

Drugs Act;

1.5. 1 count of dealing in drugs, in contravention of s 5(b) of the Drugs Act; and

1.6. 73 counts of money laundering, in contravention of s 4 of POCA.

2. The Applicant was sentenced on 19 January 2024 to an effective sentence of

eighteen (18) years’ imprisonment. He applied for leave to appeal against his

conviction and sentence, which was refused on 12 February 2024. The Applicant

then sought leave to appeal on petition to the Supreme Court of Appeal, which

recently granted leave to appeal to the Full Court of the Western Cape High

Court. He now seeks bail pending the hearing of his appeal by the Full Court.

3. Section 60 of the Criminal Procedure Act, 51 of 1977 (“the CPA”) does not deal

with bail pending an appeal. The relevant provision is s 321(1)(b) of the CPA,

which empowers the superior court from which an appeal is made to order the
 3

release of an accused on bail pending the determination the appeal. The section

confers a discretion on the court to order the release of a convicted prisoner if it

“thinks fit”. It was held in S v Hlongwane 1989 (4) SA 79 (TPA) (at 96D) that

where s 321(1)(b) and (2) of the CPA apply, this replaces the common law power

of a superior court to control its sentence and to order the temporary release of

the convicted and sentenced person pending the determination of an appeal.

4. In S v Williams 1981 (1) SA 1170 (ZAD) the Court stated (at 1172H – 1173A) that:

“Different considerations do, of course, arise in granting bail after conviction from

those relevant in the granting of bail pending trial. On the authorities that I have been

able to find it seems that it is putting it too highly to say that before bail can be granted

to an applicant on appeal against conviction there must always be a reasonable

prospect of success on appeal. On the other hand even where there is a reasonable

prospect of success on appeal bail may be refused in serious cases notwithstanding

that there is little danger of an applicant absconding. Such cases as R v Milne and

Erleigh (4) 1950 (4) SA 601 (W) and R v Mthembu 1961 (3) SA 468 (D) stress the

discretion that lies with the Judge and indicate that the proper approach should be

towards allowing liberty to persons where that can be done without any danger to the

administration of justice. In my view, to apply this test properly it is necessary to put in

the balance both the likelihood of the applicant absconding and the prospects of

success. Clearly, the two factors are inter-connected because the less likely the

prospects of success are the more inducement there is on an applicant to abscond. In

every case where bail after conviction is sought the onus is on the applicant to show

why justice requires that he should be granted bail.” [Emphasis added]

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5. In S v Hudson 1996 (1) SACR 431 (W) the Court held as follows at 433E – F:

“Considering the granting of bail involves, as is well-known, a balancing of the

interests of the interests of the administration of justice against the wishes of the

accused. But that is, of course, not accurate. Those interests are not fully in

opposition. It is also to the public good and part of public policy that a person should

enjoy freedom of movement, of occupation, of association etc. That public interest is

qualified, when appropriate, in the interests of the administration of justice. Secondly,

considering bail involves a balance between unequal considerations. Risk of harm to

the administration of justice involves unquantifiable and unproveable future

possibilities. The interests of the accuse generally turn upon extant facts and

intentions. But it remains the chances that the administration of justice may be

harmed which may justify the impact of detention despite a pending appeal.”

[Emphasis added]

6. In S v Mabapa 2003 (2) SACR 579 (T) the Court held as follows at [8]:

“Section 12 of the Constitution guarantees everyone’s right to freedom and security of

the person which includes the right not to be deprived of freedom arbitrarily or without

just cause. But, as cautioned by Kriegler J in S v Dlamini …, the Constitution does not

create an unqualified right to personal freedom. If such a right may even be limited or

removed before conviction, the principle applies even more strongly after conviction

pending appeal. Although the opportunity for interfering with evidence is not that real

at this stage, the possibility that a convicted person may abscond when on bail

pending the appeal, is increased. Of course all the other factors mentioned in s 60 of

the Criminal Procedure Act must be considered and if the conclusion under that
 5

section remains that bail should not be granted, the matter of prospects of success,

sic rebus stantibus, should not be relevant after conviction.” [Emphasis added]

7. The discretion conferred on the court in terms of s 321(1)(b) must, of course, be

judicially exercised. And, as was pointed out in S v Mabapa (supra), all the

factors referred to in s 60 of the CPA must be considered. Not all of the factors

referred to in s 60 will remain relevant, however, having regard to the fact that

bail is sought pending an appeal, which means that there is no longer a risk of

interference with state witnesses or the investigating generally, and no risk that

the accused will not stand trial. Instead, other questions arise, such as the

question whether the Applicant will report to serve his sentence if his appeal is

dismissed, or whether he will be likely to commit a Schedule 1 offence if he is

released on bail, or whether his release would undermine or jeopardize public

confidence in the criminal justice system.

8. I consider that the provisions of s 60 of the CPA set out hereunder are germane

to this application:

8.1. Section 60(4) which reads as follows in relevant part:

“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 a 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; or

(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
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(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 jeopardize 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.”

8.2. Section 60(5), which reads as follows in relevant part:

“In considering whether the ground in subsection (4)(a) has been established, the
court may, where applicable, take into account the following factors, namely-

(e) any disposition of the accused to commit offences referred to in Schedule 1,

as is evident from his or her past conduct;

(f) the prevalence of a particular type of offence;

(h) any other factor which in the opinion of the court should be taken into
account.”

8.3. Section 60(6), which read as follows in relevant part:

“In considering whether the ground in subsection (4)(b) has been established, the
court may, where applicable, take into account the following factors, namely-

(a) the emotional, family, community or occupational ties of the accused to the
place at which he or she is to be tried;

…
 7

(c) the means, and travel documents held by the accused, which may enable him
or her to leave the country;

(f) the nature and the gravity of the charge [of which the accused has been
convicted];

(h) the nature and gravity of the punishment [should the appeal be dismissed];

(i) the binding effect and enforceability of bail conditions which may be
imposed and the ease with which such conditions could be breached; or

(j) any other factor which in the opinion of the court should be taken into
account.”

8.4. Section 60(8), which reads as follows in relevant part:

“(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”.

8.5. Section 60(8A), which requires the following factors to be taken into

account:

“(a) whether the nature of the offence or the circumstances under which the
offence was committed is likely to induce a sense of shock or outrage in
the community where the offence was committed;

(d) whether the shock or outrage of the community might lead to public
disorder if the accused is released;

(e) whether the safety of the accused might be jeopardized by his or her
release;

(d) whether the sense of peace and security among member of the public will
be undermined or jeopardized by the release of the accused;
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(e) whether the release of the accused will undermine or jeopardize the public
confidence in the criminal justice system; or

(f) any other factor which in the opinion of the court should be taken into
account.”

8.6. Section 60(9) which reads as follows in relevant part:

“In considering the question in subsection (4) the court shall decide the matter by
weighing the interests of justice against the right of the accused to his or her
personal freedom and in particular the prejudice he or she is likely to suffer if he or
she were to be detained in custody, taking into account, where applicable, the
following factors, namely-

(a) the period for which the accused has already been in custody since his or
her [conviction];

(b) the probable period of detention until the disposal or conclusion of the
[appeal] if the accused is not released on bail;

(d) any financial loss which the accused may suffer owing to his or her
detention;

(f) the state of health of the accused; or

(g) any other factor which in the opinion of the court should be taken into
account.”

8.7. Section 60(11)(b), which reads as follows:

“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
 9

reasonable opportunity to do so, adduces evidence which satisfies the

court that the interests of justice permit his or her release."

9. It is common cause that the offences with which the Applicant was convicted are

Schedule 5 offences, and not Schedule 6 offences. In the same way that an

applicant for bail pending trial bears an onus to adduce evidence to satisfy the

court that the interests of justice permit his release, a person seeking bail

pending an appeal, such as the Applicant, must also adduce sufficient evidence

to show that the interests of justice permits his release pending appeal.

THE APPLICANT’S CASE IN FOUNDING

10. The Applicant deposed to a short affidavit in support of his application for bail in

which he relies heavily on the fact that he has been granted leave to appeal on

petition, which he asserts is indicative of the fact that he has prospects of

success on appeal.

11. He states that, “given the voluminous record and multiplicity of issues which

arose during the protracted trial, as well as the mere occasional hearing of full

bench appeals in this division, the likelihood of my appeal being heard before

2026 is extremely slim.” He alleges in this regard that “Even though the court had

a running record, problems may well be encountered in the Registrar’s office in

compiling, indexing and binding such a lengthy record.” According to the

Applicant, this means that he may be incarcerated for a further two to three years
 10

before his appeal is heard, even although the SCA considers that he has

reasonable prospects of success on appeal.

12. The Applicant alleges that his record shows that there is no likely of his

endangering the safety of the public or committing Schedule 1 offences. He

points out that, inasmuch as his trial is complete, there can be no danger of his

interfering with witnesses.

13. The Applicant proclaims that he has no intention of absconding. He correctly

points out that he was granted bail on his arrest in 2016 and was not regarded by

the State as a flight risk at the time. He also points out that he dutifully attended

court during the entire duration of his trial and that never took flight, despite the

opportunity which he had to do so. The Applicant states that the thought of

absconding has never entered his mind as he has always had full confidence in

his legal team and, even although he was surprised by his conviction, he remains

unwavering in his belief that he will be acquitted on appeal. He claims that his

unwavering belief and confidence that he will be acquitted on appeal militates

against any possibility that he might take flight. His ambition in seeking his

release is merely to be reunited with his wife and young children, with whom he

enjoys a close relationship.

14. The Applicant refers to the fact that he is in poor health and has several chronic

conditions, and alleges that “I have not been consistently given my prescribed

medications in prison.”
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15. In dealing with an appropriate amount for bail, the Applicant states that all of his

assets have been effectively frozen by the State and that he has not earned an

income for the better part of a year, since his incarceration. He states “While my

wife earns variable amounts in conducting her modest home industry, such is

barely enough to cater for everyday household expenses including school,

medical and transport needs.” He states that his trial was “ruinously expensive”

and that he is “financially exhausted”, but that “with the help of members of my

wife’s family however I hope to raise an amount which may serve to ensure that I

will serve my sentence should my appeal be unsuccessful.”

THE STATE’S CASE

16. The State opposed the Applicant’s application for bail.

17. On the morning of the hearing of the application, the State handed up an

answering affidavit deposed to by Colonel Johan Smit (“Smit”).

18. I inquired of the Applicant’s counsel what his stance was to the late delivery of

the answering affidavit, to which he responded that he had strict instructions not

to postpone the application. The hearing then proceeded on that basis.

19. However, once I had seen the contents of the answering affidavit and had heard

the arguments advanced by the State, I was uncomfortable with a situation which

I perceived as prejudicial to the Applicant, and I invited the Applicant’s counsel to

consider his position and to postpone the matter in order to file a replying affidavit.

The Applicant’s counsel duly availed himself of the opportunity to do so, and the
 12

matter was postponed to allow the Applicant to file a replying affidavit, and for

further argument to be heard on 12 July 2024.

20. Smit states that he is currently the investigating officer in Grassy Park CAS

416/09/2015 (being the case number in respect of the offences with which the

Applicant was charged and convicted). He states that the matter has been

allocated to his office for further investigation as the original investigating officer

(Captain Nadine Britz) has been appointed to crime intelligence.

21. I am not surprised that the investigation in this case is ongoing, despite the fact

that the Applicant has been convicted, as there were two section 204 witnesses

who were originally charged with the same offences, namely Ms Felecia Wenn

and Ms Zuleyga Fortuin, who were not granted immunity from prosecution at the

end of the trial on account of the fact that it was found that they did not testify

frankly and honestly. There will doubtless be ongoing investigations in relation to

possible charges to be brought against them, as well as investigations into the

circumstances under which they recanted their testimony. (I deal further with this

aspect below.)

22. The State takes issue with Murphy’s assertion that his appeal will only likely be

heard in 2026, and points out that the next date for the hearing of Full Bench

appeals is January 2025. The State argues that the onus is on Murphy to

expedite the appeal proceedings, and that the pace at which the matter will

proceed will depend on the efforts of his attorney and counsel.

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23. The State takes great offence at Murphy’s complaint that he has not consistently

received his prescribed medication. Attached to Smit’s affidavit is an affidavit by

one Deidre Martin, the Operational Manager at Drakenstein Prison Maximum,

Healthcare Department. She states that the Applicant is receiving medical

treatment on a daily basis and that he receives his medication regularly. She

states that if the Applicant says otherwise, he is not telling the truth.

24. Smit disputes the Applicant’s statement that his wife barely makes ends meet. He

alleges that investigation has revealed that Mrs Murphy financed four vehicles on

23 August 2021, 9 February 2023, 14 March 2023 and 31 March 2023, with a

combined value of R3 676 299.00. Smit also mentions the fact that his

investigations have revealed that Mrs Murphy has several companies registred in

her name, namely Variety Boards, registered on 8 June 2022, Cuisine Depot,

registered on 11 May 2022, Zak Boards and Kitchens, registered on 7 February

2020, Time Share Logistics, registered on 1 February 2017 and Rudex Tours,

registered on 11 December 2017, which is inactive.

25. Smit highlights the fact that, when he was interviewed by a probation officer prior

to sentencing, the Applicant refused to disclose details of his finances to the

probation officer. It appears from the probation officer’s report annexed to Smit’s

affidavit, that Mrs Murphy disclosed that she operated a takeaway from home

selling fast food and that she made a profit of R20 000.00 per month from her

business.
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26. Smit mentions the fact that there is a case pending against the Applicant in

relation to offences under the Income Tax Act, which he omitted to mention in his

founding affidavit.

27. Smit makes the following allegations in regard to the alleged drug trade in the

area surrounding Turksvy in Lentegeur:

“Mrs Murphy resides at 7 Turksvy, Lentegeur. This property is directly opposite 10

Turksvy. It was undisputed that Mr Murphy’s area known as the Island, covers 7 and 10
Turksvy. Investigation has revealed that the dealing in drugs has not ceased since the
Applicant’s incarceration. This area has now been taken over by the Fancy Boys gang.
According to informers, there is an agreement between the Applicant and the leader of
the Fancy Boys. The former Dixie Boys who sold drugs on the Island have now become
Fancy Boys and continue to sell drugs. It is understood that Mr Murphy received
monetary gratification for this arrangement. According to informers, Mr Murphy’s wife
now oversees this ‘business’ while he is incarcerated.

Based on experiencing gang culture, the Fancy Boys would not give up this lucrative
drug turf and would fight to keep the territory. There is a strong likelihood that should Mr
Murphy be released this could spark off a gang war in the area as Mr Murphy would
seek to reclaim his territory. The Western Cape as a whole, but more especially,
Mitchells Plain, is notorious for gang wars and the fight for drug turf. This most often
leads to violence and, inevitably the loss of life.”

28. Smit goes on to say that there would be an outcry in the community if a convicted

drug deal were to be released on bail. He points out that the Applicant’s house

was bombed by PAGAD in 2009, and was bombed again in 2016. He refers to

two newspaper articles annexed to his affidavit, both of which refer to the

bombing of the Applicant’s home in October 2016. One of the articles states that
 15

the police suspected PAGAD of the bombing, but PAGAD denied responsibility

for it. Smit states that:

“Society as a whole, but more especially Mitchells Plain is plagued with drug related
offences and gangsterism. Since the conviction of the applicant, some faith in the
criminal justice system has been restored. Political figures and local councillors have
welcomed and commended the conviction, as is evident from media reports.”

29. Smit alleges that, in his bail application in April 2016, the Applicant failed to

disclose all his assets as he only disclosed that 7 Turksvy, Lentegeur belonged to

him, and failed to disclose that he owned properties in Worcester, Strand and

Parklands. According to Smith, it is critical for purposes of a bail application that

all information is placed before the court, and he states that the fact that the

Applicant misled the bail court at that stage is a clear demonstration of his lack of

respect for the justice system.

30. Smit alleges that the Applicant evidenced a blatant disregard for the criminal

justice system by interfering with the state witnesses during his trial. He states

that this sort of conduct demonstrates the Applicant’s inability to respect the rule

of law and the bail system, and that this makes him a “huge flight risk”. According

to Smith there are no bail conditions which could possibly deter the Applicant,

since he faces a lengthy term of imprisonment.

THE APPLICANT’S CASE IN REPLY

31. Three affidavits were filed on behalf of the Applicant in reply: one deposed to by

the Applicant, one deposed to by his wife, Ms Aneekah Marshall (“Mrs Murphy”),
 16

and one by Mr Vuyo Innocent Cunukelwa (“Cunukelwa”) who describes himself

as Ms Marshall’s “Operations Manager” of ZAK Boards and Kitchens (Pty) Ltd,

and says he handles the “administration of all Ms Marshall’s business affairs.”

32. The Applicant’s replying affidavit is replete with argument and short on fact. I

intend to refer only to the relevant factual statements.

33. In regard to the matter of his medication, the Applicant states in reply that he has

not received Ecotrin consistently, but he accepts that his several prescribed

medications may have been administered by way of generic medications. He

states, “I do not wish to imply that I have not been given my prescribed

medication at all.” To my mind the Applicant’s statement in his founding affidavit

that, “I have not been consistently given my prescribed medication in prison” did

indeed imply - and was intended to imply - that the Applicant was not receiving

his medication regularly, rather than merely to complain that he occasionally

received his medication by way of generic medications. I agree with the State

that the Applicant, roundly contradicted by Deidre Martin, has attempted to do

damage control by changing his version in reply. I am not convinced by the

Applicant’s professed ignorance of the difference between prescribed

medications and generic medications. To my mind, the Applicant’s statement in

his founding affidavit with regard to the non-receipt of his prescribed medications

was deliberately misleading.

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34. The Applicant takes great umbrage at Smit’s “incursion” into his wife’s companies

and expenditure, which he contends is “wholly irrelevant” to these proceedings. I

do not agree. The fact of the matter is that the Applicant opened the door when

he suggested in the founding affidavit that his wife would not be able to assist

him to raise bail money as she barely makes ends meet. The Applicant

complains of a violation of his wife’s right to privacy, but the details of corporate

entities registered with the CIPC are public documents intended to be accessible

to the public.

35. The Applicant attempts to explain his refusal to disclose details about his

finances to the probation officer. He complains that Smit “loses sight of the

history of this matter and the negative publicity generated by a hostile media.”

According to the Applicant, he was reluctant to reveal anything about his finances

in open court as the media would seize upon it. I am not convinced by this

explanation. The Applicant’s affidavit in the asset forfeiture proceedings is no less

a public document liable to be seized on by the media than the probation officer’s

report. The important point, to my mind, is that the Applicant deliberately withheld

information about his finances which was relevant to the sentencing hearing. I

see it as indicative of a lack of respect for the legal process, and a tendency on

the part of the Applicant to play his cards close to his chest when it comes to his

finances.

36. The Applicant takes issue with Smit’s reference to the pending tax case,

contending that it is irrelevant as it did not involve fraud, and is “simply a

 18

technical failure to comply with the filing of returns.” I do not agree that the details

of the tax case are irrelevant. In my view the Applicant’s response speaks

volumes as to his lack of respect for law and authority, and his tendency to

conceal the facts from the court. Having regard to the dearth of financial

statements and Vat records for Ulterior Trading Solutions CC, which I

commented on in the main trial, I am not convinced that there is not more to it

then a mere technical failure to file returns, as opposed to a failure to declare and

pay income tax. The long and short of it is that the Applicant has chosen to keep

the court in the dark as regards the details of the tax case, when it was

incumbent on him to make full disclosure in this regard in his founding papers.

37. The Applicant objects to Smit’s allegations that the Fancy Boys having taken over

the Applicant’s drug business for remuneration, and that his wife “oversees” the

“business”. While I accept that Murphy is correct to criticize Smith for saying that

there was undisputed evidence at trial that the Applicant’s area was known as

“the Island” (the implication being that area meant his “drug turf”), for I did indeed

indicate that the so-called evidence in this regard was too flimsy to warrant

consideration, I disagree that I am not entitled to take into account what Smith

says based on information received from informants. There is no reason to

believe that Smith would lie about what he has been told, and indeed, what he

says seems entirely plausible in the light of evidence which was led at the trial in

relation to the connection between gangsterism and the drug trade (in connection
 19

with one of the search and seizure operations conducted by the police in the

Turksvy area).

38. The Applicant defends his failure to mention in his 2016 bail application that fact

that he owned property over and above No 7 Turksvy. He claims that what he

said was accurate, as the other three immovable properties were not owned by

him, but by Ulterior Trading Solutions CC. The Applicant misses the point: full

and accurate disclosure would have required disclosure of the fact that he owned

100 % of the members interest in a close corporation which owned three

properties.

39. In her affidavit, Mrs Murphy responds to the references to her in Smith’s affidavit

opposing bail.

40. She explains that one of the companies referred to by Smith as registered in her

name has never traded and has been deregistered, three of the companies are

all dormant and have never traded, but “are still referred to as ‘in business’ in the

companies register as I have been compliant with annual [return] obligations, in

the hope that they may still in time trade. However, that has not come about, and

they are being deregistered.” She alleges that only Zak Boards and Kitchens is

still active in business, although it has fallen into difficulties owing to the

breakdown of the main machine required for production.

41. Mrs Murphy goes on to say that, while she is able to provide for herself and her

children, her income is severely limited, and she has fallen on hard times, since
 20

she stopped her takeaway business which she rand from her kitchen just before

Christmas in 2023 due to an inability to provide product on a regular basis. Mrs

Murphy does not say exactly how she is able to provide for herself and the

children in the circumstances.

42. As regards the vehicle purchases referred to by Smit in his affidavit (namely,

purchases made on 23 August 2021, 9 February 2023, 14 March 2023 and 31

March 2023, with a combined value of R3 676 299.00), Mrs Murphy does not

deny the purchases. She says the following:

“I am not proud of my vehicle purchases, which I rather naively saw as a means

of investment. I however struggle to understand why my finances are relevant to
my husband’s bail application. I have the freedom to do business as I wish, and
am not interfered with or dictated to by him. I have my own estate.

The impression is created by Col Smit that I financed the purchase of several
luxury vehicles from my own resources. That is of course incorrect. I obtained
finance from various financial institutions. With the exception of an Audi vehicle
which my family helped me to purchase and which I use daily, the others have all
been dispossessed.”

43. Mrs Murphy’s explanation with regard to the vehicles raises more questions than

it answers. The statement that the vehicles were financed does not answer the

question of how Mrs Murphy would have qualified for loan finance for several

luxury vehicles without a substantial regular income. The statement that the

vehicles, financed with loan finance, were “naively” purchased as a “means of

investment” is far-fetched in the extreme, and no credence can be attached

thereto.
 21

44. As regards the separation of Mrs Murphy’s financial affairs from the applicant, it

seems to me that the lady doth protest too much. Mrs Murphy’s financial standing

is obviously relevant in an application of this nature, as it goes to the question of

whether or not the Applicant will be in a position to put up money for bail, and, if

so, how much. And again, it was the Applicant himself who mentioned his wife, in

an attempt to portray that she would not be able to assist him in raising money for

bail.

45. Furthermore, given that the Applicant was charged and convicted on multiple

counts of money laundering, some of which involved vehicle purchases, the

vehicle purchases made by Mrs Murphy, which have not satisfactorily been

explained, raise the spectre of the Applicant’s possible ongoing involvement in

money laundering offences (as all the vehicle purchases were made before the

Applicant was convicted and incarcerated).

46. Mrs Marshall emphatically denies the allegation that the Applicant continues illicit

trade in drugs, and that she has taken over his role. Her denial does not carry

much weight in the circumstances, particularly given her lack of candour with

regard to her financial affairs.

47. The affidavit of Cunukelwa merely confirms that only Zak Boards and Kitchens is

actively in business. He states that three of the other entities registered in Mrs

Murphy’s name are dormant because they are not compliant with the obligation
 22

to lodge annual returns, and that it is merely a matter of time before these entities

are deregistered, like Rudex Tours.

48. Neither Mrs Murphy not Cunukelwa has seen fit to give the court any indication of

the nature of the business conducted by Zak Boards and Kitchens, although the

title suggests that the business is similar in nature to part of the business

previously conducted by Ulterior Trading Solutions CC. One notes that Zak

Boards and Kitchens was registered in 2020. Yet Mrs Murphy made no mention

to the probation officer in 2023 of her involvement in the business of Zak Boards

and Kitchens; all she disclosed was a modest profit of some R 20 000.00 per

month from selling takeaways from her home.

49. In the circumstances it seems to me no exaggeration to say that Mrs Murphy’s

financial affairs are opaque - to say the least - and that she has not been open

and honest with the court regarding the sources and extent of her income.

EVALUATION

Sections 60(4)(a), 60(5)(e) and (f)

50. In considering the likelihood that the Applicant, if released on bail, would

endanger the safety of the public or commit a Schedule 1 offence, I have to

proceed from the starting point of the evidence which was before me at the trial. I

am mindful of the fact that the Applicant has been given leave to appeal, but I do

not know the basis on which leave to appeal was given as reasons are not

furnished in such matters.

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51. To my mind, the evidence at the trial showed that the Applicant had a propensity

to deal in drugs on an ongoing basis, drug dealing being a very prevalent offence

in the Mitchells Plain area. Not only is it a Schedule One offence, but it is conduct

which endangers the safety of the public. While I accept that the Applicant has no

record of having committed any physically violent crime, to my mind dealing in tik

is a crime which clearly endangers the safety of the public by virtue of the great

potential for addiction, which wreaks havoc on the lives of those who become

addicted to it, as well as their families.

52. The evidence at the trial also showed that the Applicant had a propensity to

launder money, and that he used his close corporation, Ulterior Trading Solutions,

to create the facade of a lawful business operation to launder the proceeds of his

drug dealing.

53. Leaving aside the offences with which he was convicted at trial, and which are

the subject of the appeal, it is important to take into account that clear evidence

emerged during the trial that one Rushdien Abrahams, a close associate of the

Applicant (who attended the trial in its early stages and appeared to be in

constant cell phone communication with the Applicant), had brazenly interfered

with the two s 204 witnesses and influenced them to recant their damaging

statements against the Applicant. Chilling evidence emerged during the trial of

WhatsApp communications between the Applicant and Abrahams which showed

that the Applicant was making enquiries about the State Advocate appearing for

the prosecution. All indications are that the Applicant was behind Abrahams’
 24

efforts to subvert the testimony of Wenn and Fortuin and to procure that they

perjured themselves in order to shield the Applicant.

54. Although Smit gave no details of charges in this regard other than to mention

ongoing investigations, I have little doubt that charges will be brought against

both Abrahams and the Applicant arising out of the interference with the two state

witnesses. To my mind it matters not the the Applicant has not yet been charged

with any crime relating to the interference with the State witnesses. Based on

what emerged at the trial, it seems to me that there are strong prima facie

indications of his involvement in this offence, and I consider that this is something

which I can and should take into account.

55. Interference with witnesses amounts to defeating the ends of justice, which is a

serious crime. It also speaks volumes as to the Applicant’s brazen lack of respect

for authority, law and order and the justice system.

56. It is also relevant to note that there is a case pending against the Applicant in

relation to non-compliance with the Income Tax Act. I do not know the details, as

the Applicant did not see fit to disclose them. He trivializes this case, which in

itself betrays a disregard for law and order and authority.

57. Having regard to the manner in which the Applicant used Ulterior Trading

Solutions CC to launder money, it is a cause for concern to note that the

Applicant’s wife has registered a number of corporate entities, whereas she only

disclosed to the probation officer that she ran a small business selling food from
 25

her home. The Applicant involved his previous wife, Shafieka Murphy, in his drug

dealing operations. Smit alleges that Mrs Murphy is currently overseeing the

Applicant’s drug dealing business in its new incarnation. The opaque nature of

Mrs Murphy’s business and financial affairs - the vehicle purchases which have

not satisfactorily been explained and the plethora of entities which do not appear

to be trading - gives rise to a reasonable suspicion, in my view, that Ms Marshall

may have been co-opted by the Applicant into his drug dealing and money

laundering activities. It should also not be forgotten that the Applicant put up a

false version at trial through Mr Desmond Jacobs, his erstwhile business

manager, whose credibility was left in tatters after cross-examination.

58. Based on all the aforegoing, I am of the view that the Applicant has a propensity

to lawlessness generally. He has a propensity to commit the offences of dealing

in drugs and money laundering, and he has shown himself to have no

compunction about subverting the functioning of the criminal justice system. I

consider that there is a very real likelihood that the Applicant, if he were to be

released on bail, would resume his drug dealing and money laundering activities.

Sections 60(4)(c) and (d)

59. Turning to subsections 60(4)(c) and (d), based on the fact that the Applicant was

prepared to influence Wenn and Fortuin to change their testimony, I consider that

there is a risk that the Applicant will also attempt to interfere with the ongoing

investigation into the reasons why Wenn and Fortuin recanted their testimony
 26

against the Applicant, and in this way undermine the proper functioning of the

criminal justice system.

Section 60(4)(e) as read with sections 60(8A)(a) - (f)

60. The circumstances of this particular case are exceptional by virtue of the high

levels of media attention which the case has generated. The Applicant himself

alluded to hostile media coverage in his replying affidavit, and Smit referred to

the fact that media reports indicated that political figures and local councillors

welcomed the conviction of the Applicant. Whether rightly or wrongly, the fact of

the matter is that the Applicant has been depicted in the media as a drug dealer,

and his conviction was hailed as a victory for the community.

61. Given the notoriety of this case, and the welcome with which the conviction of the

Applicant was received, I agree with Smith that the release of the Applicant on

bail would likely induce a sense of shock and outrage in the Mitchells Plain

community, and would undermine public confidence in the criminal justice system

- particularly if the Applicant were to resume his drug dealing activities.

62. Smith’s affidavit reveals that the Applicant’s home has twice previously been

bombed. Once by PAGAD, and again when PAGAD was suspected, but did not

claim responsibility for the attack.

63. In my view, one cannot discount the risk that the release of the Applicant - with a

notorious reputation as a drug dealer - would provoke a public outcry which could

lead to an attack on the Applicant which might jeopardize his safety and that of
 27

his family. Linked to the risk of an attach on the Applicant or his home, is the risk

that the peace and security among members of the public in the immediate

vicinity of the Applicant’s home will be undermined.

64. I am therefore of the view that there is indeed a likelihood that the release of the

Applicant on bail would undermine the public peace and security, and also that

the public confidence in the criminal justice system would be jeopardized.

Section 60(4)(b) as read with s 60(6)(a) - (j)

65. In the nature of things, there can be no question of the Applicant attempting to

evade his trial; the question rather is whether he will attempt to evade handing

himself in to serve the remainder of his sentence if his appeal does not succeed.

66. In this regard, I accept in favour of the Applicant that he has strong emotional and

family ties to his wife and young children, who currently reside in Lentegeur. I

also accept that he does not have travel documents, and that his distinctive

appearance could render it difficult for him to escape detection if he were to flee.

67. The assets of the Applicant have apparently all been frozen pending the outcome

of the application for a confiscation order in terms of POCA, which, in turn, awaits

the outcome of the Applicant’s appeal. The Applicant suggests that he lacks the

means to flee.

68. To my mind, however, one cannot be sure that the assets which have been

seized represent all the Applicant’s assets. One knows that a cash sum in excess
 28

of R 1 million was found concealed at 18 Reindeer Close on the day of the

search and seizure which precipitated the charges in this matter. One cannot

exclude the possibility that the Applicant has concealed cash amounts which he

has not disclosed, particularly if one considers the fact that he may still be

receiving remuneration relating to his drug business, as alluded to by Smith.

69. Although the Applicant disavowed any intention of fleeing, and professes to have

supreme confidence in the fact that he will be acquitted, one cannot ignore that

he might well feel differently if his appeal fails and he is required to turn himself in.

Given the gravity of the offences with which he was convicted, and the length of

the prison sentence imposed on him, the Applicant has every incentive to flee if

his appeal fails, rather than go back to prison. That, too, would undermine public

confidence in the criminal justice system.

70. As regards bail conditions, I did consider whether the risks associated with the

Applicant could be dealt with by way of strict bail conditions restricting his access

to a cell phone and laptop, and confining him to house arrest. I was concerned

about Murphy’s access to a cell phone in particular, given the use to which cell

phones had been put in running Murphy’s drug business. The State argued that it

would be impossible to enforce compliance with any such bail conditions unless

the Applicant were to be placed under 24 hour supervision in his house, which

the State lacks the manpower to do. Smith also opined that no bail condition

could deter the Applicant from fleeing, given the severity of his sentence.
 29

71. I am of the view that the efficacy of bail conditions depends on the willingness to

comply with them, and where there are indications that one is dealing with

someone who will not comply with the conditions, they are not a viable option to

meet the risks posed by the release of the convicted person on bail.

Section 60(8)(d)

72. In my judgment it is important to note that, when the Applicant sought bail in 2016,

he did not disclose the fact that he was the member of Ulterior Trading Solutions,

which owned three immovable properties.

73. The State criticized the Applicant for failing to disclose that he owned three

immovable properties, which prompted the somewhat sarcastic response that he

did exactly the correct thing, because if he had disclosed that he owned the three

properties, the State would have “pounced” on him and accused him of

attempting to inflate his assets.

74. This argument is specious. The fact of the matter is that the Applicant owned

100% of the member’s interest in Ulterior Trading Solutions CC, which was the

registered owner of the three immovable properties. The next asset value of the

Close Corporation was an asset in the Applicant’s estate, which should have

been disclosed. To my mind the failure to do so was likely deliberate and aimed

at conceal the existence of the assets.

 30

75. The Applicant again failed to make full disclosure of his assets when he spoke to

the probation officer prior to sentencing. To my mind he has repeatedly played

his cards close to his chest when it comes to the state of his finances.

The considerations referred to in s 60(9) of the CPA

76. I am required to weight up the interests of justice against the right of the

Applicant to his personal freedom, and the prejudice which he will suffer if he

were to be detained in custody pending his appeal.

77. As I have already mentioned, I accept in the Applicant’s favour that he has a

close knit family ties, a stable home, and a genuine desire to be reunited with his

wife and young children. The Applicant would suffer the emotional pain of

continued separation from his loved ones.

78. I am not convinced that the Applicant’s continued incarceration will preclude him

from earning an income, given the allegations in Smith’s affidavit that he has

entered into an arrangement whereby he receives money from the ongoing

conduct of the drug business formerly conducted by him by the leader of the

Fancy Boys gang - in other words, he receives a commission for the sale of

drugs on what used to be the Applicant’s “turf”.

79. The Applicant’s health is poor. He has a number of chronic health conditions,

including diabetes and high blood pressure, for which he requires medication and

treatment. However, the evidence of the prison health authority shows that the

Applicant receives daily medical treatment and receives his medication. There is
 31

no suggestion that the Applicant’s life is immediately threatened by any of his

health issues. I therefore consider his health to be a neutral factor in the equation.

80. The Applicant has been incarcerated since his conviction on 12 July 2023. In

terms of the length of time he will remain incarcerated pending the hearing of his

appeal, it is difficult to predict when his appeal will be heard. One knows that Full

Bench Appeals are heard in January / February and July / August every year, but

whether or not the Applicant’s appeal will be heard in 2025 depends on when the

appeal record is prepared.

81. In the latter regard, I am not persuaded by the Applicant’s prophesies of gloom.

While problems may be experienced by the Registrar in compiling appeal records,

the position is usually different where an accused has an attorney and counsel on

brief, who are able to assist in the preparation of the record.

82. The Applicant has consistently been represented by an attorney and senior

counsel. That remains the position. A running record was typed in the matter, so

the record does not have to be transcribed from scratch. Counsel for the defence

and for the State should be able to eliminate large swathes of irrelevant parts of

the record, such as the evidence of handwriting experts, which ultimately has no

bearing given that the witness statement, the authenticity of which was in

question, was in any event ruled inadmissible. The exhibits from the trial remain

in my personal safekeeping, and are ready to be handed over to the Registrar for

preparation of the record.

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83. All in all, I see no reason for the preparation of the record to be delayed, if the

Applicant retains the services of his legal team. With the proper assistance of the

Applicant’s attorney and counsel, I see no reason why the appeal record cannot

be finalized in time for the appeal to be heard in July/August 2025.

84. On the other hand, I am concerned that, were the Applicant to be released on

bail, he would no longer be motivated to retain his legal representatives to

expedite the preparation of the record, and the preparation of the record could

then well be delayed, along with the appeal. Such a situation would not be

conducive to the proper administration of justice and public confidence in the

criminal justice system.

85. Therefore, if bail were to be refused, the Applicant likely faces a further 12

months of incarceration before his appeal is heard, which means that he will have

spent a total of 2 years in prison before the appeal. Again, it is difficult for me to

assess the likely result in the appeal as I do not know the grounds on which leave

to appeal has been granted. However, based on what I do know of the case, I

consider it unlikely that the Applicant will be acquitted of all the charges and that

he will not be required to serve a custodial sentence of at least 2 years, if not

more.

CONCLUSION

86. Having regard to all the aforegoing factors, in particular the likelihood that the

Applicant will in any event be facing a custodial sentence of at least two years, it
 33

seems to me that the Applicant’s continued incarceration for another twelve

months or thereabouts pending his appeal cannot be regarded as so prejudicial

to him that it serves to outweigh the interests of justice, particularly the

preservation of public confidence in the criminal justice system and the need to

prevent the Applicant from committing further offences prejudicial to public safety

and the functioning of the justice system.

87. In my judgment, the Applicant has failed to adduce evidence sufficient to show

that the interests of justice permit his release on bail, and that his right to his

personal freedom, and the prejudice which he is likely to suffer through his

continued incarceration, serves to outweigh the interests of justice.

88. In the circumstances the application for bail is dismissed.

______________________

D M DAVIS

Acting Judge of the High Court

Cape Town, 5 August 2024

Appearances:

For the Applicant: J Van der Berg SC; A Paries

Instructed by: Mr R Davis, Davies Attorneys, Mitchells Plain

For the State: A Heeramun, DPP Cape Town