Judge Thulare grants ’fleeing Somali’ duo appeal

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Two undocumented men from Somalia have won an appeal against the decision of the Bellville Magistrate court to dismiss their bail application.

The two were charged with two counts of unlawful possession of a firearm and unlawful ammunition when a gun was found in the shop they were in.

Western Cape Acting High Court Judge Daniel Thulare last week found that the magistrate lacked information on the status of the men to reach a determination on the bail application.

Judge Thulare also ordered the State to assist the men to present themselves before a Refugee Reception Officer within five working days, after which the matter was remitted back to the Bellville Magistrate for a decision on whether or not to grant bail.

The men aged 28 and 18 alleged they had to flee Somalia because a terrorist organization had threatened to kill them. They had no previous convictions or pending cases and did not know the complainant or any state witnesses.

Police had followed up on a tip off which led them to a shop in Bellville South. A firearm was found in the shop but not on their person, court documents detail.

“An arrested person who alleged that they had fled their country of origin for fear of persecution should trigger the preamble to the Refugees Act, 1998 (Act No. 130 of 1998) (the RA) in the minds of the law enforcement officers, public prosecutors and judicial officers. The detention of such person for allegedly having committed an offence, that is, in terms of the CPA, does not absolve the state to determine that person’s status,” Judge Thulare said.

One of the factors for consideration in this application, and which from the record, appeared to have troubled the Magistrate, “was the status of the accused in the country,” Judge Thulare said.

“It would have been advisable if the Magistrate stood the matter down to allow the defence to adequately address the status of the accused. It remains unknown what the address of the Prosecutor would have been, as the Magistrate simply denied the Prosecutor an opportunity to address the court, as the State was entitled to. Had the Magistrate allowed himself to be led by amongst others the arguments of the public prosecutor, it may be that justice would have prevailed.”

“Against the background of the Covid-19 pandemic and the resultant Prescripts and Regulations issued by the State through announcements by the President, Ministers and Departments to limit movements and access to government buildings, including the Department of Home Affairs, it was incumbent upon the Magistrate to ensure that the appellants had access to the services of a Refugee Reception Officer designated by the Director-General in the Department of Home Affairs as well as related services for a proper determination. In my view the Magistrate was wrong to refuse bail,” Thulare found.

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