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South Africa: Western Cape High Court, Cape Town
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[2018] ZAWCHC 8
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Tucker v S (A437/2017) [2018] ZAWCHC 8 (15 January 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NUMBER: A437/2017
DATE:
15 JANUARY 2018
In
the matter between:
LEE
NIGEL
TUCKER
Appellant
And
THE
STATE
Respondent
J
U D G M E N T
BINNS-WARD,
J
:
In
this matter I heard argument in an appeal by the appellant against
the refusal by the magistrate who issued a committal order
in respect
of the appellant’s surrender for extradition to the United
Kingdom if the Minister considers fit to allow him
bail.
The
appellant has noted an appeal in terms of section 13 of the
Extradition Act 67 of 1962. The magistrate was empowered,
in
terms of section 13(3) of the Extradition Act, to entertain an
application for bail by the person concerned pending the
determination
of such appeal. The magistrate refused the
appellant’s application for bail, and it was from that refusal
order that
the appeal served before me sitting during recess as a
single Judge.
It
was apparent during the argument of the matter that both Mr Burke,
representing the Director of Public Prosecutions, Western
Cape, and
Mr van der Berg, who appeared for the appellant, were proceeding on
the basis that the appeal was regulated by Magistrate’s
Court
Rule 67 which regulates appeals in criminal matters. However,
as I pointed out to them during argument, and having
considered the
matter further, subsequently confirmed in my own mind, appeal
proceedings in terms of the Extradition Act, whether
they be the
section 13(1) appeal itself or an appeal from an order made by the
magistrate in respect of bail in terms of section
13(3) of the Act,
are primarily of a civil rather than a criminal nature. Municipal
Courts in extradition proceedings are
not concerned with the guilt or
innocence of the party whose extradition has been requested, and at
no stage fall to be seized
of the trial of the allegations giving
rise to the alleged offences in respect of which the person’s
surrender is sought.
The
position is therefore distinguishable from, and not governed by the
provisions of
section 65(1)(b)
of the
Criminal Procedure Act 51 of
1977
, which, exceptionally, afford a judge of the High Court, sitting
alone, jurisdiction to entertain and determine appeals against
the
refusal of bail by a magistrate.
The
position in my view is instead governed by the provisions of
Section
14(3)
of the
Superior Courts Act 10 of 2013
which provide insofar as
relevant:
“
Except
where it is in terms of any law required or permitted to be otherwise
constituted, a court of a Division
must
be constituted before two Judges
for
the hearing of any civil or criminal appeal.”
For
those reasons, regrettably - having regard to the amount of effort
already put into this matter, I have concluded that I did
not have
jurisdiction, sitting as a single judge, to hear or decide the
matter; and that any order I might purport to give would
on that
account be a nullity.
IN
THE CIRCUMSTANCES THE APPEAL WILL HAVE TO BE POSTPONED FOR
ARRANGEMENTS TO BE MADE FOR ITS RE-ENLISTMENT FOR HEARING BY TWO
JUDGES.
(The
appellant’s counsel is granted leave to mention to the
allocating Judge my previous involvement in the matter and the
fact
that I have already prepared a judgment in draft ready for delivery
this morning.)
BINNS-WARD,
J