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[2018] ZAWCHC 24
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Tucker v S (A437/17) [2018] ZAWCHC 24; 2018 (1) SACR 616 (WCC) (21 February 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: A437/17
In
the matter between
LEE
NIGEL
TUCKER
APPELLANT
And
THE
STATE
RESPONDENT
CORAM: DOLAMO J; THULARE
AJ
DATE: 21 FEBRUARY 2018
JUDGMENT
THULARE
AJ
[1]
The Appellant has noted two appeals against the decisions of the
magistrate of Cape Town. It is the section 13(1) of the Extradition
Act 67 of 1962 (the Act) appeal against the decision of the
magistrate to issue a committal order in respect of appellant’s
surrender for extradition to the United Kingdom, as well as a section
13(3) decision to refuse his application for bail pending
the
determination of the first appeal, in terms of the Act. This judgment
is on the point raised in the context of the appeal from
the order
for the refusal of bail.
[2]
The appeal served before Binns-Ward J sitting as a single Judge
during the recess before the commencement of the first term
of the
High Court for 2018. The learned Judge held the view that appeal
proceedings in terms of the 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.
[3] The reasoning of
Binns-Ward J is that 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 offence in
respect of which the person’s surrender is sought. The
proposition is that 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 (CPA)
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. According to Binns-Ward J the position is instead
governed by the provisions of
section 14(3)
of the
Superior Courts
Act 10 of 2013
which reads:
“
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.”
The
learned Judge concluded that he did not have jurisdiction, sitting
alone, to hear or decide the matter and postponed the matter
for
arrangements to be made for its re-enrollment for hearing by two
Judges.
[4]
The issue raised is whether an appeal against the decision of a
magistrate on a bail application in extradition proceedings
is
proceedings of a civil or criminal nature. This question has an
impact in these proceedings as it is a relevant, if not a decisive
factor, as to whether the appeal was dealt with procedurally correct
in respect of time frames for its prosecution, for it helps
amongst
others to determine whether an application for condonation to comply
with timelines was necessary or not. We are not sitting
as a court of
appeal on the decision of Binns-Ward J, but as a court of first
instance following his ruling.
[5]
In
Banger v S
(195/2015)
[2015]
ZASCA 79
(28 May 2015)
(Banger)
it is said:
“
[5]
There is no doubt that the appellant has the right to appeal against
the refusal of bail. That is provided for in s 35(3)(o)
of the
Constitution. What is in issue is the procedure applicable to an
appeal against the refusal of bail …”
[6] In
Sita and
Another v Olivier NO and Another
1967(2) SA 442 (A) the court
said at 449 B-E:
"It
is in my view not the form of the procedure adopted but the subject
matter of the proceedings which determines their character
as either
a civil or criminal matter ... Nor in my view does the fact that the
relief was sought by way of a declaratory order,
interdict and
mandamus make the proceedings before the Court a quo a civil matter
originating in that Court."
[7]
In
S v Botha
2002
(1) SACR 222
(SCA)
(Botha)
at paragraph 5 the
court held that a bail application is clearly related to the arrest,
detention and prosecution of an offence
and that it is in essence
criminal in nature. The position that a bail application is in
essence criminal in nature was confirmed
recently by the SCA in
Banger, supra
[para
6]
.
[8] The preamble to the
Act reads as follows:
“
To
provide for the extradition of persons accused or convicted of
certain offences and for other incidental matters.”
The
role of a magistrate in extradition matters is related to the arrest,
detention and prosecution of persons accused or convicted
of
extraditable offences or offences included in an extradition
agreement between party States. The enquiries that magistrates
conduct are to determine whether persons accused or convicted are
liable on the basis of sufficient evidence to warrant their surrender
for prosecution. The substance of the industry of the magistrate, in
my view, makes the proceedings criminal in nature - [
Minister
of Justice v Bagattini and Others
1975
(4) SA 251
at 267G-H].
[9]
Amongst others, the judicial officer should duly and honestly apply
his or her mind to the question of the nature, scope and
content of
the available evidence, what is alleged to have happened and the
nature of and role played by the arrested person in
that which is
alleged to have happened, as the facts which inform the presence of
the arrested person before him or her.
[10]
With specific reference to an appeal against a refusal to grant bail,
the Act itself makes reference to the application of
section 66, 67,
68, 307(3), (4) and (5) of the CPA applicable. It leaves no doubt
that the proceedings are criminal in nature.
Furthermore, the Act
does not itself provide for its own process of a bail application. In
my view, it cannot be gainsaid that
an application for bail in terms
of section 13(3) of the Act is considered by a magistrate applying
the provisions regulating a
bail application of an accused in court
in terms of section 60 of the CPA, guided by section 13(4) with
regard to referencing.
It follows, in my view that section 50, 60 and
65 of the CPA cannot be said to be not applicable to bail proceedings
arising out
of extradition matters simply because they are not
expressly referred to in the Act.
[11]
It would be absurd in my view to suggest that the CPA only applies to
the Act when bail is granted as envisaged in section
13(4), but that
it does not apply when bail is refused. In my view, the reasonable
explanation as to why the Act does not refer
expressly to section 65,
is simply because section 13(1) of the Act already provides for
appeal rights against the decision of
the lower court.
[12] Furthermore, the Act
provides that an enquiry before a lower court shall proceed in the
manner in which a preparatory examination
is to be held in the case
of a person charged with having committed an offence in the Republic
and have the same powers including
that of admitting to bail any
person detained as he has at a preparatory examination - [section
9(2) of the Act]. Where in a preparatory
examination, an accused is
arraigned for trial by another court, section 141(4)(c) of the CPA
provides as follows:
“
141
Procedure where accused arraigned for trial
4(c) If the accused is
committed for trial by another court, the court committing the
accused may direct that he be detained in
custody, whereupon the
provisions of Chapter 9 shall apply with reference to the release of
the accused on bail.”
It
is inherent in the nature of extradition matters that the person who
is the subject matter of those proceedings would be tried
by another
court other than the lower court seized with the enquiry. Sections 58
to section 71 of the CPA are within Chapter 9,
which deals with bail.
It follows in my view, that section 65 of the CPA is applicable to
bail applications in extradition proceedings.
[13] At para 10 of
Banger, supra,
the court continued:
“
[10]
Section 65
of the
Criminal Procedure Act provides
for an appeal to
the High Court against the refusal of bail or the imposition of a
condition of bail by a lower court. In terms
of
s 65A(1)
, the
Director of Public Prosecutions (DPP) may appeal to the High Court
against a decision of a lower court to release an accused
person on
bail or against the imposition of a condition of bail.”
Commenting on the
predecessor to
section 65
, the court said in
S v Mohamed
1977
(2) SA 531
(A) at 539G-540A:
“
However,
the proceedings under
sec 97
of the Code originate in and are
closely associated with the accused's arrest, detention and
prosecution for a criminal offence.
Hence, although they are civil in
form, they are criminal in substance, and must be so regarded for the
purposes of the relevant
sections of the Supreme Court Act. See
Sita's case, supra, 1967(2) SA at pp 448 in fin. to 449E, which is
directly in point."
[14]
In my view, the premise from which Binns-Ward J moved is problematic.
Bail applications throughout the Republic are generally
heard in the
district courts, including for matters triable in the Regional Courts
and the High Courts. In bail proceedings, just
like in extradition
proceedings which are also heard by the district courts, magistrates
are not concerned with the guilt or innocence
of the party whose
status is being determined, and at no stage fall to be seized of the
trial of the allegations giving rise to
the alleged offence in
respect of which the person’s freedom is sought in matters
triable in the Regional and High Courts.
I am therefore unable to
find the distinction that forms the basis to conclude that the
position is therefore distinguishable from,
and is not to be governed
by the provisions of section 65(1)(b of the CPA.
[15]
At para 14 in
Banger supra
it is said:
“
[14]
Bail appeals are inherently urgent in nature. An accused person
should not be deprived of his or her constitutional rights
to freedom
and to freedom of movement for longer than is reasonably necessary.”
The
majority of appeals against the refusal of bail by the lower courts
do not necessarily require the attention of a full bench.
The appeals
are generally noted immediately after the refusal of bail and a
single Judge of the High Court should generally dispose
of these
appeals more expeditiously and cost-effectively, as envisaged in
section 65 of the CPA. In my view, a bail application
does not become
complex to warrant the attention of two Judges simply because it
arises out of extradition proceedings.
[16]
Furthermore, this question directly impacts on case-flow management,
with specific reference to maximum allocation of minimum
human
resources, as an English man would say, the right horses for the
course. I am not inclined to understand the Act, read together
with
the Superior Courts Act and the CPA, to enjoin a Judge President to
allocate two Judges for urgent matters even where the
matters do not
necessarily require such attention. In my understanding, the appeal
from a person aggrieved by the decision of a
magistrate in relation
to bail proceedings may be heard by a single Judge.
[17]
The Supreme Court of Appeal has decided that bail application
proceedings are in essence criminal in nature [
Botha,
supra
]
,
a position which
the same court confirmed in
Banger,
supra.
In my view,
bail application proceedings in extradition proceedings are in
essence criminal in nature, as they in substance deal
with the
determination of sufficient evidence to warrant the arrest, detention
and surrender for prosecution of persons accused
or convicted of
certain offences and for incidental matters.
Banger,
supra,
further
confirms that Section 65 of the CPA is a mechanism for an appeal to
the High Court against the refusal of bail or the imposition
of a
condition of bail by a lower court and that bail appeals are
inherently urgent in nature.
[18]
It is necessary to conclude by making the observation that the duty
of a lower court in extradition proceedings includes administrative
work, for example, furnishing the Minister of Justice (the Minister)
with particulars relating to the issue of warrants which the
magistrate issued – [section 8(1)] as well as
quasi-judicial
work which includes
cancelling warrants issued, at the direction of the Minister, or
oversight of directions by the Minister for
the immediate discharge
of a person arrested pursuant a warrant issued by a magistrate –
[section 8(2)] as well as furnishing
the Minister with reports on
enquiries – [section 10(4). Extradition proceedings are
sui
generis.
For
these reasons I find that:
Extradition proceedings
are
sui generis,
bail application in extradition proceedings
are in essence criminal in nature, inherently urgent in nature, that
section 65 of the
CPA is the applicable provision for an appeal to
the High Court against a decision of the lower court and therefore
may be heard
by a single Judge of the High Court.
……………………………………………………………………
..
DM
THULARE
ACTING
JUDGE OF THE HIGH COURT
I agree.
………………………………………………………………………
..
MJ
DOLAMO
JUDGE
OF THE HIGH COURT
Counsel
Appellant: Advocate L Van
Der Berg
Respondent: Advocate C
Burke
Instructing Attorneys
Appellant: Mathewson Gess
Inc. Attorneys
Respondent: Director of
Public Prosecutions
JUDGMENT READ AND DAY(S)
IN COURT: 21 February 2018