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[2011] ZAGPJHC 74
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Majali v S (41210/2010) [2011] ZAGPJHC 74 (19 July 2011)
REPORTABLE
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE NO: 41210/2010
DATE:19/07/2011
In the
matter between:
In the matter between:
SANDI
MAJALI
..................................................................................
Applicant
and
THE
STATE
......................................................................................
Respondent
JUDGMENT
MOKGOATLHENG J
(1)
After
his bail application was postponed in the Johannesburg Commercial
Court in terms of
section
50(6)(d)
of the
Criminal Procedure Act 51 of 1977
,
the applicant launched an urgent bail application seeking his release
from custody. At the conclusion of the urgent application
I issued an
order admitting the applicant to bail. I indicated that the reasons
for the order would follow. These are the reasons
predicating the
order.
THE F
ACTUAL
MATRIX
(2) The applicant
al
leges
that on 20 October 2010 after reading an article in The Times
newspaper that he was sought by the police as a suspect in a
fraud
investigation, he instructed his attorney to verify the report. The
applicant’s attorney established that the Johannesburg
Commercial Court Prosecutor had instructed the investigating officer
Captain Nhlapo to arrest the applicant for allegedly committing
fraud.
(3)
The
Prosecutor confirmed that the applicant would be charged with fraud.
He added that he had no grounds of objecting to the applicant’s
release on bail because he was not considered a flight risk. He
stated that he was in the process of verifying whether the applicant
had pending criminal investigations, criminal charges, or warrants of
arrest issued against him.
(4) The applicant
was duly arrested. At the inception of the bail proceedings, the
Prosecutor made an application for the postponement
of the
proceedings based on the ground that he wanted to confirm whether the
applicant had any pending criminal investigations,
criminal charges,
previous convictions or any outstanding warrants of arrests issued
against him. He informed the presiding officer
that the State had
reason to believe that the applicant was facing similar fraud charges
in other centres in the Republic of South
Africa pertinently at
Sandton in Johannesburg, Durban and Cape Town, consequently, he
needed the matter to be postponement to establish
these exigencies.
(5) The
applicant’s counsel countered the States application by making
an application that the applicant be released on bail.
In his
affidavit in support of the bail application, the applicant stated
that he was a reputable businessman, had fixed residential
and
business addresses, had no previous convictions, or warrants of
arrest issued against him and was not aware of any pending
criminal
charges and undertook not to interfere with the investigation,
witnesses or prejudice the administration of justice. He
also
undertook to attend his trial.
(6
) The
applicant’s counsel opposed the application for a postponement.
He challenged the State to furnish the applicant with
the relevant
docket case numbers, and the names of the investigating officers of
these alleged fraud investigations.
(7)
The
applicant’s counsel argued that the State could not lawfully
justify the continued detention of the applicant, as it has
had ample
opportunity to have investigated these aspects, consequently, the
purported lack of sufficient information could not
be laid at the
door of the applicant if the State was negligent or remiss in its
investigation. When applicant’s counsel
made these submissions,
Captain Nhlapo was present in court. He did not volunteer any
information and was not called upon by the
Prosecutor to counter
these submissions.
(8) Despite the
fact that the Prosecutor did not adduce any evidence supporting what
he categorised as the State’s reasonable
belief that the
applicant may have previous convictions, pending criminal
investigations, criminal charges, or warrants of arrest
issued
against him, the presiding officer acceded to the application for a
postponement.
(9
) In
the urgent bail application, Captain Nhlapo confirmed that he was not
per
se
against the applicant being released on bail, however, he had
received information that the applicant was implicated in other fraud
charges
–
not related to the fraud the applicant was facing
–
which were the subject of investigation at other police stations,
namely Sandton, Cape Town and Durban, consequently, he needed
time to
investigate and verify this information.
(10
) Captain
Nhlapo stated that did not have any information regarding the nature
of the fraud, or the names of the investigating officers
in these
criminal investigations, but had received information that the fraud
charges against the applicant were investigated under
four docket
case numbers at the Sandton Police Station, and was informed that the
Financial Services Board was the complainant
in all these matters. He
was not aware if any warrants of arrest were issued pursuant to the
investigations in any of these matters.
He did not know the details
of the fraud allegedly committed by the applicant or the estimated
fraud in monetary terms allegedly
being investigated.
(11
) The
applicant’s counsel requested this Court to exercise its
inherent jurisdiction and release the applicant on bail as
there was
no lawful reason justifying the continued detention of the applicant
or the refusal to release him on bail.
THE
FRAUD
(12
) The
basis of the fraud charge against the applicant is that on or about
27 August 2010 at Johannesburg and or Pretoria he together
with other
accused persons acting in furtherance of a common purpose unlawfully,
falsely and with the intent to defraud, and to
the actual or
potential prejudice of Daphney Mashile Nkosi, and Brian Amos Nkosi
and Kalahari Resources (Pty) Ltd and/or the majority
shareholders put
out and presented to the Companies and Intellectual Property
Registration Office that The South African Community
Government Union
referred to as accused 6, was authorised to pass a special resolution
disqualifying Daphney Mashile Nkosi and
Brian Amos Nkosi as directors
of Kalahari Resources (Pty) Ltd and appointed the applicant together
with four other accused as directors
of Kalahari Resources (Pty) Ltd
and the only persons authorised to exercise the powers and functions
of directors over Kalahari
Resources (Pty) Ltd.
THE APPLICABLE LAW
(13
)
Section
60
which governs the principles of bail provides:
“
Bail
application of accused in court
(1)(a)An accused who
is in custody in respect of an offence shall, subject to the
provisions of
section 50(6)
, be entitled to be released on bail at
any stage preceding his or her conviction in respect of such offence,
if the court is satisfied
hat the interests of justice so permit.
(b)
Subject to the provisions of
section 50(6)(c)
, the court referring an
accused to any other court for trial or sentencing retains
jurisdiction relating to the powers, functions
and duties in respect
of bail in terms of the Act until the accused appears in such other
court for the first time.
(c)
If the question of the possible release of the accused on bail is not
raised by the accused or the prosecutor, the court shall
ascertain
from the accused whether he or she wishes that question to be
considered by the court.
(2)
In bail proceedings the court
–
(a) may postpone a any
such proceedings as contemplated in
section 50(3)
;
(b) may,
in respect of matters that are not in dispute between the accused and
the prosecutor, acquire in an informal manner the
information that is
needed for its decision or order regarding bail;
(c) may, in respect of
matters that are in dispute between the accused and the prosecutor,
require of the prosecutor or the accused,
as the case may be, that
evidence be adduced;
(d) shall,
where the prosecutor does not oppose bail in respect of matters
referred to in subsection (11)(a) and (b), require of
the prosecutor
to place on
record the reasons for not opposing the bail application.
(2A) The court must,
before reaching a decision on the bail application, take into
consideration any pre-trial services report
regarding the
desirability of releasing an accused on bail, if such a report is
available.
(3) If
the court is of the opinion that it does not have reliable or
sufficient information or evidence at its disposal or that
it lacks
certain important information to reach a decision on the bail
application, the presiding officer shall order that such
information
or evidence be placed before the court.”
(14
) A
High Court has inherent jurisdiction to intervene in uncompleted bail
proceedings commenced in a magistrate’s court, and
also has
supervisory power over the conduct of proceedings in the magistrates’
courts in both civil and criminal matters,
to ‘
supervise
the manner in which’
the courts discharge their functions in order to ensure ‘
quality
control’
.
The jurisdiction to intervene exists at common law, and also subsists
under
section
166 of the Constitution
.
The power to intervene in unconcluded bail proceedings in lower
courts is rarely exercised. It is only exercised in very special
and
peculiar cases, like the present where a grave injustice could occur
if there is no lawfully justifiable reason to detain an
arrested
person
Wahlhaus and
Others v Additional Magistrate, Johannesburg and Another
1959 (3) SA
113
(A) at 119-20.
S
v Hlogwane
1989 (4) SA 79
T;Constitution of the Republic of South
Africa Act 108 of 1996, s 166; Van Rooyen and Others v The State and
Others (General Council
of the Bar of South Africa Intervening)
[2001] ZACC 8
;
2002
(2) SACR 222
(CC)
(2002 (5) SA 246)
in paras [19]ff; Magistrate
Stutterheim v Mashiya
2003 (2) SACR 106
(SCA);
THE CONSTITUTION
(15
) The
common law inherent jurisdiction power to grant bail must be
exercised consistently with the nature and purpose of the
section
39(2) of the Constitution
,
which provides that a court
“must
promote
”
the spirit, purport and objects of the Bill of Rights and “
enjoins
courts to develop the common law in the interests of justice”
when dealing with matters involving the fundamental constitutional
issue of liberty. In this context, to “
promote
”
means to further or advance the constitutional imperative of taking
into proper account the fundamental rights encapsulated
in
sections
12(1)(a) and 35(1)(F) of the Constitution
.
When interpreting
section
60
of the
Criminal Procedure Act 51 of 1977
,
every judicial officer is obliged to take full account of the
Constitution
in the light of the requirements of
section
39(2).
(16
)
Section
12(1)(a) 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. The
Constitution
does
not create an absolute right to personal freedom. Liberty is
qualified and circumscribed by
section
35(1)(f)
which
reads
:
“Everyone who is arrested for allegedly committing an offence
has the right….to be released from detention if the
interests
of justice permit, subject to reasonable conditions.”
(17
) It
is clear that the approach to bail by judicial officers must be
considered within the prism of the
Constitution
.
Section
35(1)(f) of the Constitution
postulates a judicial evaluation of different factors that make up
the criterion of the interests of justice. The application of
constitutional norms to the law and practice of bail obliges judicial
officers to harmonise
section
60
bail provisions with constitutional norms and imperatives. The
purpose of bail is to strike a balance between the interests of
society and the liberty of an accused person consequently, the basic
objectives traditionally ascribed to the institution of bail,
is to
maximise personal liberty in accordance with the normative precepts
of the Bill of Rights
S
v Dlamini and Others; S v Joubert; S v Schietekat
[1999] ZACC 8
;
1999 (7) BCLR 771
(CC).
(18
) A
bail application should in principle be heard as a matter of urgency
because it affects personal liberty. In
Magistrate,
Stutterheim v Mashiya
2003 (2) SACR 106
(SCA)
,
Cameron J held:
‘It
is evident that finalising an application for bail is always a matter
of urgency. ….And if bail is refused, the
decision can be
appealed. The right to prompt decision is thus a procedural right
independent of whether the right to liberty actually
entitles the
accused to bail.
’
The deprivation of a person’s liberty due to arrest pending
trial is subject to judicial supervision and control.
In exercising
such oversight in regard to bail proceedings a court is expressly
enjoined by the provisions of
section
60
not
to act as a passive bystander but to take the initiative in the bail
proceedings.
(19) The p
rosecutor
has a duty to place before Court all relevant information which the
Court needs in order to exercise its discretion with
regard to the
postponement, the granting or refusal of bail. A bail hearing is
inherently a unique urgent formal judicial process.
Although bail
application proceedings like a criminal trial, are essentially
adversarial, the inquisitorial powers of the presiding
officer are
paramount.
(20) In terms of
section
35(3) of the Constitution
every accused person has a right to a fair trial, which includes the
right to be presumed innocent. In a bail application the presumption
of innocence operates in favour of the applicant even where there is
a strong
prima
facie
case against him.
(
21) The
presiding officer has a duty to investigate all aspects regarding the
question of bail. If the parties do not of their own
accord adduce
evidence or otherwise produce information regarded by the court to be
essential to the bail proceedings, a court
in terms of
section
60(3)
must
order that such information or evidence be placed before it.
THE
INTERPRETATION OF SECTION
50(6)(d)
(22) I now turn to
consider the interpretation and applicability of
section
50(6)(d
)
having regard to the constitutional template of maximizing an
accused person’s personal liberty, in order to establish
whether the presiding officer in postponing the bail proceedings
purely on the
ipse
dixit
of the prosecutor, without the applicant who placed the information
predicating the application for a postponement in dispute,
being
accorded an opportunity to test the reliability of such information
under cross examination, whether the presiding officer’s
decision to postpone the bail proceedings was judicially justifiable
and correct.
(23
)
Section
50 (6)(d)
provides:
“
(d) the lower Court before
which a person is brought in terms of this subsection, may postpone
any bail proceedings or bail application
to any date or Court, for a
period not exceeding seven days at a time, on the terms which the
Court may deem proper and which are
not inconsistent of this Act if -
(i) the court is of the opinion
that it has insufficient information disposal to reach a decision on
the bail application;
(ii) …………………………………………..
(iii) …………………………………………..
(iv) It appears to the court that
it is necessary in the interests of justice to do so.”
(24) An
application for a postponement by the State in bail proceedings is
not for the asking. The State seeks an indulgence consequently,
it
must furnish cogent sustainable persuasive reasons justifying the
granting of such postponement. The presiding officer is enjoined
by
the constitutional imperatives predicating
section
35(1)(f) of the Constitution
to
have due regard to the cogency of the reasons underpinning the
State’s application for a postponement, to conduct and inquiry
utilising his or her inquisitorial powers under
section
60
(3)
to determine whether the State has placed all relevant information or
evidence before Court to enable it to properly exercise its
judicial
discretion to postpone the bail application in terms of
section
50 (6)(d)
.
(25
) Although
a bail application is less formal than a trial, it remains a formal
court process that is essentially adversarial in
nature. A court is
afforded greater inquisitorial powers in such an inquiry to ensure
that all material factors are investigated
and established. The
granting of a postponement necessarily requires a court to establish
the content and reliability of the circumstances
predicating the
application for a postponement and to evaluate these against
constitutional imperatives and traditional basic bail
objectives. The
form such an inquiry and evaluation should take is not prescribed
section
60(3),
but a court reasonably informed of its constitutional imperatives
should be aware of the essential form such a judicially inquiry
should take. If there is a dispute regarding any issue it behoves
that the prosecution and the applicant be given an adequate
opportunity to be heard on the issue.
(26
) The
presiding officer is enjoined in terms of
section
50 (6)(d)
to
evaluate
and weigh the cogency of the proffered reasons predicating the
application for a postponement, and balance these against
the liberty
of the applicant and basic objectives traditionally ascribed to the
institution of bail. The presiding officer is thereafter
required to
make a value judgment whether it would be in the interests of justice
to accede to the postponement.
(27
) In
evaluating the sufficiency of information or evidence where there is
a contentious dispute raised by the applicant challenging
the source
and essence of the reasons predicating the State’s application
for a postponement, in our adversarial criminal
law system predicated
on a person’s constitutional right to a fair trial, the
presiding officer is enjoined in accordance
with the prescripts of an
impartial inquiry, to investigate the source of the information
advanced by the State in support of the
application for postponement
in order to test the veracity and reliability of such information to
properly arrive at a considered
conclusion whether the information is
insufficient to enable the Court to reach a decision on the bail
application, and consequently,
whether it is in the interests of
justice to postpone the bail application proceedings.
(28
) In
the present matter the only information the presiding officer had at
his disposal was the
ipse
dixit
of the State prosecutor. Because the State seeks an indulgence to
investigate or establish certain aspects relating to the applicant’s
criminal record it bears an onus to show that the belief
–
that there is a possibility that the applicant has previous
convictions of a similar nature, pending criminal investigations or
charges, or warrants of arrest issued against him,
–
is reasonably held, and that these factors have a direct bearing and
consequences in relation to the charge the applicant is facing,
consequently, that his release on bail was not in the interests of
justice as it may affect or impede the administration of justice.
(29
) The
applicant in his affidavit contradicts the State’s information,
predicating its application for a postponement and places
same in
dispute. The Investigating Officer was present in Court but was not
called upon by the State prosecutor or the presiding
officer to
proffer additional information, or adduce evidence in support of the
State’s application for a postponement, despite
a direct
challenge from the applicant’s counsel attacking and disputing
the very basis and essence of the State’s invocation
of a
postponement in terms of
section
50(6) (d).
(30
) By
opposing the State’s application for a postponement the
applicant in terms of
section
60(2)(c)
was
in effect, impugning, and disputing the reliability of the State’s
information predicating its application for a postponement,
consequently, upon the applicant’s challenge, it was incumbent
on the presiding officer to invoke the provisions of
section
60(3). Section 60(3)
is peremptory, it enjoins the presiding officer to order that
reliable or sufficient information or evidence be placed before the
Court in order to enable it to reach a decision on the bail
application,
–
which
decision includes a postponement, the refusal or granting of
bail,
–
after
such information or evidence has been properly considered by the
presiding officer.
(31) The applicant
unlike the State which can place information informally at the
disposal of the Court, has an onus and is enjoined
in terms of
section
60 11(a)
to
satisfy the Court by adducing evidence that “
exceptional
circumstances exist” that
“it
is
in the interests of justice to release him on bail.
”
The applicant in his affidavit in support of the bail application
pertinently avers that such is the case in respect of
his bail
application.
(32
) In
my view the State failed to place sufficient information or evidence
at the disposal of the Court, except the disputed and
challenged
ipse
dixit
of the Prosecutor. In
casu
the presiding officer had evidence on oath from the applicant and
informal information from the State at his disposal. Without
conducting a formal judicial inquiry as enjoined by
section
60(3),
and
having regard to constitutional imperatives, the presiding officer
could not rationally and properly exercise his judicial discretion
to
conclude that he had insufficient information or evidence at his
disposal to reach a decision on the bail application and
consequently,
was obliged to postpone the bail application
proceedings.
(33
) A
bail inquiry is a judicial process that has to be conducted
impartially and judicially and in accordance with relevant statutory
and constitutional prescripts. A postponement or refusal of bail
without lawful justification is an unlawful deprivation of a person’s
liberty. The discretion to postpone a bail application should not be
influenced by untested notions predicated on a premise to
investigate
an applicant’s previous convictions, pending criminal
investigations or charges where the applicant under oath
states that
he has no previous convictions and is not aware of any pending
criminal investigations or charges, or warrants of arrest
issued
against him.
(3
4) In
my view the failure by the presiding officer to order that reliable
or sufficient information be placed before the Court by
the State in
terms of
section
60(3)
and
the subsequent postponement of the bail application proceedings in
terms of
section
50 (6)(d),
was a serious misdirection which resulted in the applicant’s
infringement of his constitutional right to a fair trial which
includes a bail application. The presiding officer in postponing the
bail application proceedings on the was arbitrary the State
Prosecutor’s
ipse
dixit
had no rational basis and consequently the applicant’s
constitutional right to liberty was infringed.
(35
) The
State is not entitled to detain an accused person in custody in order
to complete an investigation.
S
v Bennett
1976 (3) SA 652
(C) at 655C;S v Du Preez (supra at 379F).
Although it was held in
Duncan
v Minister of Law and Order
1986 (2) SA 805
(A) at 819G-820A
that
section
50
contemplates further investigation after arrest, it is necessary to
weigh up the applicant’s right to apply for bail and
the
State’s right to investigate rationally having regard to
constitutional imperatives. The State is not entitled to detain
the
applicant in custody for purposes of investigation and consequently
in so doing frustrate the applicant’s constitutional
right not
to be detained without lawful and just cause.
Novick
v Minister of Law and Order and Another
1993 (1) SACR 194
(W).
(36) In irregularly
postponing the bail application or bail proceedings in terms of
section
50 (6)(d),
the presiding officer ignored the applicant’s
section
60(11)
evidence which in the absence of countervailing contrary rebuttal
evidence, sufficed as proof beyond reasonable doubt that the
applicant had proved that exceptional circumstances existed, which in
the interests of justice, justified and permitted his release
on
bail. Consequently, in applying the High Court’s inherent
common law and constitutional jurisdiction, I am satisfied that
the
applicant in his affidavit in support of the bail application has
complied with and satisfied the requirements of
section
60 (11)
and is entitled to be released on bail.
THE ORDER
(37
) I
consequently make the following order:
The applicant is
released on bail in the amount of R10 000.00 (ten thousand rands).
The applicant is to pledge his premises at
706 Adrian Street,
Sandown within seven (7) days hereof as security for such bail
amount.
The applicant is to report at Sandton
Police Station every Monday and Friday between 08:00am and 8:00pm.
The applicant is
not to leave the jurisdiction of the South Gauteng High Court
without the permission of the Investigating Officer
which permission
may not be unreasonably withheld.
Dated at
Johannesburg on the
18
th
July 2011.
________________________________
MOKGOATLHENG
J
JUDGE OF THE
HIGH
COURT
DATE OF HEARING:
23
RD
OCTOBER 2010
DATE OF JUDGMENT
:
19
TH
JULY 2011
ON BEHALF OF THE
APPLICANT: D NTSEBENZA SC
INSTRUCTED BY:
NGCEBETSHA MADANGA ATTORNEYS
TELEPHONE NUMBER:
082-335-4189
REF. NO.: MR J
NGCEBETSHA
ON BEHALF OF THE
RESPONDENT: SK ABRAHAMS
INSTRUCTED BY: THE
STATE ATTORNEY
TELEPHONE NUMBER:
(012
)
845-6000
REF. NO.: ADV. SK
ABRAHAMS