1

IN THE HIGH COURT OF SOUTH AFRICA

WESTERN CAPE DIVISION, CAPE TOWN
Case No for Bail application: ……….
Related Case No: 19434 / 17, A37 / 18
On Court Roll for Hearing
Before Judges Samela and Sher
19 April 2022 (and possible 20 April 2022)

In the matter between:

LEE NIGEL TUCKER Applicant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS,

WESTERN CAPE Respondent

THE DPP’S PRINCIPAL SUBMISSIONS

IN APPLICANT’S BAIL APPLICATION

Introduction

1. The Respondent (“the DPP”) has filed a separate set of heads of argument in

respect of a special review application brought by Magistrate, Cape Town, Mr VP

Mhlanga (‘the Magistrate’) (and the counter application by the DPP) in which the

Magistrate sought to revisit and overturn his own order that the Applicant (“Tucker”)

be extradited under the Extradition Act.

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2. The Magistrate held that Tucker had been acquitted on the charges for which his

extradition was still being sought and expressed the firm view that the extradition

order needed to be revisited. See in this regard for example paragraphs [43] – [44]

of his determination. 1

3. Tucker relied on this in the first part of his affidavit as the main ground in support

of his bail application. 2

4. As recorded in the heads in the review, filed simultaneously with these heads,

shortly after receiving the Magistrate’s decision of 19 November 2021, Tucker, on

24 November 2021 gave notice of an urgent bail application which he wished to

bring before the same Magistrate on the strength of the above finding.3

5. The DPP opposed the application serving before the Magistrate, inter alia on the

grounds that the Magistrate’s Court lacked jurisdiction over the bail application and

the Magistrate was biased.

6. That issue, the Magistrate’s jurisdiction over the bail application in the

circumstances of this matter became moot when the parties agreed to the bail

application being heard by this Court.

7. Given that the bail application was integrally linked with the automatic review

application of the Magistrate (and the success of the former, at least on Tucker’s

1
Record Vol 1 p 186Q
2
Record Vol 3 p 2 para 5
3
See for example Record vol 3 p 20 para 75
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version, depended on the prospects of success in the later) this Court ruled that

the two be heard together. 4

8. These heads of argument deal further with the bail application.

The special review (and counter review)

9. Tucker’s bail application was firstly (and mainly) premised on the prospects of the

Magistrate’s review of his own decision being upheld. Tucker relied on the

determination of the Magistrate, which needed to be confirmed on automatic review

(and which for reasons submitted in the separate heads should not be granted) in

order to argue that given his “prospects of success” in having his extradition order

set aside he should be afforded bail.

10. For the reasons set out in the heads of argument filed in the review that review falls

to be dismissed (and the counter review granted).

11. On that basis already the bail application, which is premised on the Magistrate’s

review succeeding, falls to be dismissed.

12. The Magistrate has sought to revisit his initial finding and send the matter on

special review on the strength of untruthful claims by Tucker.

13. In paragraph 4 of his finding 5 the Magistrate now claims he has ‘a serious lack of

conviction’ as to whether ‘there was sufficient detail of the offences alleged against

Mr Tucker’. As will appear hereafter that is in direct conflict with his finding at the

time of ordering Tucker’s extradition.

4
Record Vol 1 p 392-393 The costs of that application stood over for determination at the
hearing of these two applications.
5
Record Vol 1 p 186B
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14. It is not clear from the judgment what led to the change in the Magistrate’s

approach. Nothing had changed save that Tucker was now alleging that he had

previously been acquitted of some of the offences. It was not open to the

Magistrate to entertain that at this stage of the proceedings.

15. As to the alleged acquittals, Applicant untruthfully claimed that he had been

acquitted on a number of the charges, when in fact these charges were, as

confirmed in the sworn statement of Moorhouse, an independent barrister in

Britain, entrusted with the task of prosecuting Tucker on the charges for which he

has been extradited, still pending and the British Crown seeks to prosecute him for

them, hence its ongoing extradition requests.

16. The fact of the matter is that the veracity of pleas of previous acquittals cannot be

decided in extradition hearings and can only ultimately be determined by a trial

court, upon evidence, before that court as to the details of the various charges.

17. If the special review of the Magistrate therefore fails, as it should, bail, it is

respectfully, in the light of that which follows too, should be denied.

Further grounds on which the bail application is brought

18. Tucker furthermore it appears 6 relies for his bail application on :

18.1. “facts”, which he claims to be new, but which claims he had already made

in 2017,

6
From the heads of argument filed at the time of the bail application being argued in
December 2021 before this Honourable Court. Page 17 para 44 – page 24 para 57 of those
heads.
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18.2. on alleged “proof”, which proof is disputed by the Crown in its sworn

statement.

Extradition sought in respect of charges for which Tucker was acquitted (or so he

claims)

19. Once again, the relevance of the automatic review is apparent from that which is

identified in paragraph 11.2 as the main ground in the bail application.

20. The Magistrate ignored the evidence of the Crown in respect of the charges for

which Tucker’s extradition is sought.

21. It is not necessary for this Court to decide the veracity of these charges in these

proceedings. That the British Courts will need to do.

22. It is sufficient, and permitted at this stage of the proceedings, to use as point of

departure the fact that Tucker’s extradition has been ordered, all appeals and

reviews by Tucker as far as that order is concerned have been exhausted and what

remains is the section 11 surrender proceedings before the Minister.

No new facts

23. In paragraph 34 of the heads of argument previously filed in support of the bail

applicant Tucker concedes, correctly it is submitted, that he must persuade this

Court that there are new facts before his further bail application can be heard

(decided in his favour).

24. There are no new facts.

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25. The allegations of vagueness of charges, of unfair media coverage and inherent

discrimination in the British legal system based on Applicant’s sexual orientation

had already been raised by Tucker previously and decided against him by the

Magistrate, 7 the Western Cape High Court 8 and the Constitutional Court. 9

26. In paragraph 16 of his judgment, under the heading Conclusion, the Magistrate

found on the earlier occasion 10 that the double criminality rule had been satisfied.

27. He further found that the s 10(2) certificate proved that there was sufficient

evidence to warrant the prosecution of Applicant in the UK.

28. Importantly, he dismissed the submission that the evidence in the extradition

request lacked details and found, to the contrary, that they were described in

“considerable detail”.

29. In paragraph 5 he also found that whether Applicant would receive a fair trial in the

UK was an issue for the Minister to decide in terms of s 11 of the Act.

30. In paragraph 7 of his affidavit, for consideration of the Minister, Applicant admits

that he already ‘knew’ of his supposed acquittals at the time of the extradition

hearing in November 2017 but did not mention them because he was still trying to

locate proof.

31. It is submitted that this is a spurious explanation for not raising the issue earlier.

7
Record Vol 1 p 72-78
8
Record Vol 1 p 93-129
9
Record Vol 1 p 131-186
10
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32. Tucker requested a postponement of the extradition hearing to obtain evidence on

the two issues of discrimination and unfair media coverage but notably not to find

proof of previous acquittals.

33. The mere fact that the Magistrate revisited his own decision can therefore, on its

own, not constitute new facts, especially not if the facts it was based on were not

new and that decision of the Magistrate to revisit his earlier decision falls to be

reviewed and set aside.

34. The facts upon which the Magistrate purported to send the matter on review were

similarly faulty, yet the point remains that there are no new facts upon which a bail

application may be brought.

Flight risk

35. The question further is whether Tucker should be given bail pending the outcome

of the section 11 surrender decision by the Minister. In that regard, his posing a

real flight risk is of paramount importance.

36. It is not so that Tucker does not pose a flight risk as his representatives seek to

argue.

37. Applicant is a fugitive from justice and has already been declared a flight risk by

this Court in the matter of Tucker v S (A437/17) [2018] ZAWCHC 88; [2018] 2 All

SA 566 (WCC) (7 March 2018).

38. His attempts to appeal this judgment failed both in an application for leave to

appeal, and then on petition, to the SCA.

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39. He fled the court proceedings in Britain and escaped to South Africa, hence the

need for the extradition proceedings.

40. Even when a tracking device was fitted as a condition for bail, he broke the first

device intentionally, was granted bail by Magistrate Engel on condition an

indestructible device was fitted, which devices are no longer available in South

Africa, hence (as one of the reasons) his having been refused bail thereafter.

41. It has also been held (in paragraph 32 of Tucker v S) that:

41.1. Applicant avoided the UK “since fleeing justice” even though his parents

still live there.

41.2. When he applied for a new passport he did not use his residential address

but a different address.

41.3. When tagged with an electronic monitoring device he interfered with it.

41.4. His decision to flee the UK was a panic decision and that he had no intention

to stand his trial in the UK and will not voluntarily return there.

42. In S v Vermaas 1996 (1) SACR 528 (T) it was said that it is trite that the ‘prime

consideration’ in a bail application is the question of whether or not the accused

will stand his trial.

43. It is submitted that :

43.1. Tucker is a fugitive from justice and a flight risk as set out in section 60(4)(b)

read with sections 60(6) and 60(8)(c) of the Criminal Procedure Act (insofar

as it may apply).
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43.2. He can be expected to flee again now as he has done previously.

43.3. This is clear from a line of judgments including S v Thornhill 1998 (1) SACR

177 (C) where it was confirmed that past conduct is a proper indicator of

future conduct.11

44. Tucker previously fled and upon his own admission he has no desire to face his

charges in, or return to, the UK. Hence there being every indication that now that

he has run out of legal options and realises that his extradition is inevitable he will

flee once more.

45. Past conduct is the only reliable indicator of future conduct. Tucker’s past conduct

clearly shows him pursuing all possible legal avenues to avoid extradition and

surrender to the British authorities. Once he has run out of his legal options he will

flee.

46. In Thornhill supra the extradite also alleged that he had months before heard that

he was being sought and could have fled then already. Ngcobo, J (as he then was)

in finding that Thornhill would abscond if released on bail said at 184 that:

‘It is common cause that the applicant wants to avoid being extradited in surrender

to the United Kingdom. However, he says he now intends to restrict his efforts to

those permitted by the law. He says so under oath: 'Thus, although I fully intend to

11
See also the remarks of Jordaan AJ as he then was in S v Botha 2000 (2) SACR 201 (T)
208g-h ‘Die beoordelaar van feite in ‘n borgaansoek moet ideaal gesproke beklee wees met
profetiese gawes. Dit moet bepaal word wat in die toekoms gaan gebeur. Gaan die
beskuldigde sy verhoor staan en/of gaan hy met die ondersoek inmeng. Die feit dat hierdie
gawe die gewone sterfling ontbreek veroorsaak dat van hulpmiddele gebruik gemaak moet
word. Die voor-die-hand-liggende hulpmiddel is die optrede can ‘n beskuldigde in die verlede.
Dit mag onder bepaalde omstandighede nadelige gevolge vir ‘n beskuldigde inhou. In so ‘n
geval sal hy besef dat hy tot ‘n groot mate die outeur van sy eie omstandighede is.’
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avoid being extradited to the United Kingdom if at all possible, I intend, in the future,

to restrict my effort at avoiding extradition to the making use of the avenues

available to me in law.'

47. It can similarly not count in Tucker’s favour that he was once before released on

bail prior to him being declared liable to extradition and did not flee then.

48. He was under house arrest at the time, had been fitted with a tagging device and

was subject to constant surveillance and monitoring by the Department of

Correctional Services until the day he was found liable to extradition and

incarcerated.

49. When he broke the first tagging device he was fitted with a device known as “The

Indestructible”. He had no option but to attend Court until his incarceration.

50. These devices have not been available since about November 2017 and Tucker

was one of the last, if not the last, person to be fitted with such a device.

51. Tucker is a helicopter pilot who regularly undertook flights abroad from South Africa

and has travelled to a number of African countries since arriving in South Africa.

He managed to escape the UK. He has travelled extensively and is a sophisticated

person. It is well-known that the South African borders are porous and that it is

easy for anyone with the means to do so to obtain a false passport. He has both

the means and the ability to flee whenever it suits him. 12

12
In Novella v S (A340/16) [2016] ZAWCHC 141 the accused also proposed wearing a DCS
monitoring device and even suggested that he be guarded permanently by private security
personnel which he offered to pay for in his bid to be released on bail. Le Grange, J refused
bail and in doing so said specifically in paragraph 28 that ‘[t]he retention of the Appellant’s
travel documents is also of cold comfort as the lack of travel documents in recent times is
hardly a deterrent to persons who are serious and have the means to skip the country.
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This (and other factors) already considered in refusing bail

52. The matter of Tucker v S [2018] 2 All SA 566 (WCC) 7 March 2018, a judgment of

a full court of this Division, records in paragraphs [31] and [32] thereof the very

facts on which the risk of his fleeing were previously decided and which Tucker

now seeks to have this Court revisit in a further bail application relying on the same

facts and argument.

53. There are no new facts supporting a different conclusion.

Bail in extradition matters

54. Ex parte Graham: In re USA v Graham 1987 (1) SA 368 WLD at 371E – F per

Harms J as he then was relying on R v Spilsbury [1898] 2 QB 615 and R v

Blumenthal 1924 TPD 358 (referred to with approval in Ex parte Graham supra at

371B - C ) held that the power to grant bail in extradition matters should be

exercised sparingly.

42. That with respect is near axiomatic, in particular when the extraditee has virtually

exhausted all legal avenues, as Tucker has done, in avoiding extradition. Ex parte

Graham is authority for the submission that there is at least a factual presumption

that a fugitive might flee and that he therefore must be kept in custody pending his

surrender, should this be the outcome of the further proceedings. 13

Experiences in courts have shown that these documents can readily be obtained and one may
depart the Country with ease.’
13
In S v Myers 1993 (1) SACR 383 (C) the fact that the applicant had absconded once before
was considered a “major factor” by Thring, J.
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43. With respect, if anything has changed since the last bail hearing, it is that whereas

Applicant’s prospects of avoiding being extradited and surrendered to the British

authorities were previously dim they are now even more hopeless.

44. In this regard it was said in S v Nichas 1977 (1) SA 257 (C) 263G-H that: ‘…if there

is a likelihood of heavy sentences being imposed the accused will be tempted to

abscond’.

45. In S v Masoanganye & Another 2012 (1) SACR 292 (SCA) Harms AP, said at [14]

that ‘what is of more importance is the seriousness of the crime, the risk of flight,

real prospects of success on conviction, and real-prospects that a non-custodial,

sentence might be imposed.’

46. The same principles it is submitted should be applied if there is a likelihood of his

surrender under section 11 being ordered by the Minister, now that the extradition

process has been exhausted.

Section 60 (11) of the CPA

47. To the extent that Tucker will still be relying on provisions of the Criminal Procedure

Act 61 of 1977 in his application for bail the DPP draws the above Honourable

Court’s attention to section 60(11) and Schedule 6 thereof.

48. Section 60(11) reads as follows:

(11) Notwithstanding any provision of this Act, where an accused is charged

with an offence referred to-
(a) 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
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evidence which satisfies the court that exceptional circumstances exist

which in the interests of justice permit his or her release;
(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.….

49. Schedule 6 offences include Rape or compelled rape as contemplated in section

3 or 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act,

2007, respectively –

(a) when committed –

(i) in circumstances where the victim was raped more than once, whether
by the accused or by any co-perpetrator or accomplice;
(ii) by more than one person, where such persons acted in the execution
or furtherance of a common purpose or conspiracy;
(iii) by a person who is charged with having committed two or more offences
of rape; or
(iv) by a person, knowing that he has the acquired immune deficiency
syndrome or the human immunodeficiency virus;
(b) where the victim –
(i) is a person under the age of 16 years; ……..

50. It is submitted the offences for which the Respondent (and the British Government)

seek to have Tucker extradited are offences which would have fallen under the

aforementioned parts of Schedule 6 with the result that Tucker would need to

adduce evidence which satisfies the Court that exceptional circumstances exist

which make it in the interests of justice to permit his or her release.

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51. The Magistrate’s referral of his determination on automatic review under section

304(4) in the circumstances of this case does not constitute exceptional

circumstances which make it in the interests of justice to permit his release on bail,

particularly when that decision is set aside by this Court.

Conclusion

52. The DPP asks that the bail application be dismissed.

53. For the same reasons as submitted in the heads of argument filed in respect of the

special review / counter review application it submits that this would be a matter

which would justify a costs order being granted against Tucker in similar terms, i.e

including all costs to date in those matters pertaining to the bail application which

stood over for later determination.

R G L STELZNER SC

24 March 2022