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[2018] ZAGPJHC 68
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Porritt v S (08389/2018) [2018] ZAGPJHC 68; 2018 (2) SACR 274 (GJ) (9 March 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO
: 08389/2018
DATE
:
2018-03-09
In
the matter between
PATRICK
GARY
PORRIT 1
ST
Applicant
V
ersus
THE
STATE Respondent
Summary
:
Criminal Procedure – Bail. The cancellation of bail is
appealable. Once leave to appeal is granted, an accused is not
entitled
to approach the civil courts for his release pending appeal.
The criminal justice system is distinct from the civil justice system
and release from custody must be dealt with under the Criminal Law
and Procedure provisions.
JUDGMENT
WEPENER,
J:
[1]
The applicant launched an urgent application in which he sought a
declaration that an order issued by Spilg J be suspended pending
the
hearing of his appeal against that order.
[2] The effect of the order will be to
allow the applicant’s bail to be reinstated prior to it being
ordered by Spilg J, that
the bail of the applicant be cancelled and
that he be held in custody, unless a court decides to grant him bail
under a fresh application.
The applicant brought such a fresh
application before Monama J, but the application was refused.
In the meantime the applicant
was granted leave, by the Supreme Court
of Appeal, to appeal the order issued by Spilg J.
[3] Counsel for the applicant
submitted that the common law rule that an appeal suspends an order,
should apply and that due to
the leave to appeal granted by the
Supreme Court of Appeal, the order of Spilg J is suspended and that
the applicant should be
placed in the same position as prior to the
order of Spilg J,
i.e
. that his bail be reinstated on the same
terms and conditions as were applicable before his bail was
cancelled.
[4] I indicated to counsel during
argument that the case had all the hallmarks of a bail matter, in
particular a bail appeal.
The application is aimed at securing
the release of the applicant on bail. Although counsel for the
applicant distanced himself
from such terminology, I remain of the
view that the matter has all the hallmarks of a bail application or
bail appeal.
[5] In this regard a reference to the
dictum of Trollip JA by Vivier AJA
in S v Botha en ‘n Ander
2002 (1) SACR 222
(SCA) at 224e, whilst referring to a bail
appeal, is apposite:
“
[I]t would
seem at the first blush that the proceedings are civil. In that
event the decision of the WLD thereon would be
appealable to the Full
Court of the Transvaal Provincial Division (“TPD”) and
not direct to this Court, unless the
parties consent thereto in
writing (see s 20(1)(a) and (3) of the Supreme Court Act). However,
the proceedings under s 97 of the
Code originate in and are closely
associated with the accused 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 purposes of the relevant sections
of the Supreme Court
Act.”
[6] The applicant seeks relief from an
order which originates in the criminal court before Spilg J. In
this regard it was
held in
Sita and Another v Olivier NO and
Another
1967 (2) SA 442
(A) at 449D as follows:
“
That leave
sought was, despite the form in which it was sought, in effect an
appeal against the regional magistrate’s decision
on a question
of law given in criminal proceedings. The subject matter in
dispute in the proceedings in the Court
a
quo
unquestionably first arose in the
regional court. I should here observe that it is highly questionable
whether relief by way of
a declarity order is appropriate in relation
to a matter in regard to which criminal proceedings have been
instituted. (See
the remarks of Ogilvie Thompson JA in the
Wahlhauss case,
supra
at pp118-9).”
[7] Also, at 448E to 449E the court
said:
“
There can be
no doubt that the appellants by their petition to the Court
a
quo
sought a correction of what they
considered was a wrong decision by the regional magistrate on the
question of law raised, namely,
whether they were entitled to demand,
in terms of section 190(1) of the Criminal Procedure Act, that their
case be tried before
the Superior Court having jurisdiction.
Notwithstanding the procedure adopted by the appellants, it was
therefore in effect nothing
but an appeal against the magistrate’s
decision on a question of law. (
Cf
Lawrance v A.R.M. of Johannesburg,
1908
T.S. 525
at p526). That being so, and having regard to the object to
the relevant provisions of sec 21(2)(a) of the Supreme Court Act,
namely:
‘
To limit the
matter of higher resort to this Court from a Superior Court in cases
becoming before the latter and which have originated
in the
magistrate courts’, it seems clear that the decision given by
the Court
a quo
on the appellant’s petition, in regard to a matter which
originated in the regional court, was a decision given “on
appeal to it” within the meaning of the expression of s
21(2)(a), and that the provisions of that section therefore apply
in
relation to the further appeal to this court.
That would, in my
view, dispose of the question raised, but counsel for the appellants
contended that the matter which came before
the Court
a
quo
was a civil matter which as such
could only have originated in that Court, and not in the regional
court, and that s 21(2)(a) therefore
does not apply in relation to
the appeal to this court. I cannot agree. The mere fact that
the proceedings in the Court
a quo
were fresh proceedings instituted by way of notice of motion does not
give those proceedings the character of a civil matter. In
terms of
Rule 53 all proceedings to bring under the view the decisions or
proceedings, whether civil or criminal, of any inferior
court must be
by way of notice of motion. Such proceedings are always fresh
proceedings, but it cannot possibly contended
that ordinary
proceedings to bring under review criminal proceedings in an inferior
court after conviction and sentence, on any
of the grounds mentioned
in sec 24 of the Supreme Court Act, for example, constitute a civil
matter which originated in the court
of review.”
[8]
In
S v Absalom
1989 (3) SA 154
(SCA) the Supreme Court of Appeal held at 161I that
an application for condonation for the late filing of an appeal too,
is not
a matter of a civil nature. The court adopted the statement
that “. . . it is not the form of the procedure adopted, but
the subject-matter of the proceedings which determines their
character as either a civil or a criminal matter.” (See
Sita
a
t 449B-C). The court found that an
application for condonation is so closely related to the accused
criminal case, that it remains
a criminal matter.
[9]
I am of the view that the reinstatement of bail in a criminal case is
also too closely related to the criminal case itself that
it must be
dealt with in terms of the
Criminal Procedure Act, 51 of 1977
. This
is more so by virtue of the finding in
Rex
v McIinnis
1946 WLD 386
at p387 where
it was held that the cancellation of bail amounts to a refusal of
bail and is therefore appealable. Such a refusal
of bail is
appealable as is now the case in this matter after leave to appeal
has been granted by the Supreme Court of Appeal,
but during such
period an accused remains in custody until the court of appeal
otherwise finds that he is indeed entitled to bail.
[10] To allow an accused out on bail
prior to an appeal for that very purpose to be heard, would be to
frustrate the entire criminal
justice system. This is so by virtue of
the fact that the application before this court does not deal with
the merits of the applicant’s
entitlement to bail or
otherwise.
[11] Counsel for the applicant
criticised the McIinnis case as being ‘old’ and
pre-constitutional. However, many
principles from the
precedents of our law find their basis in older cases withouyt being
in conflict with the Constitution. It
is not the age of the
principle, but its validity that is relevant. I am of the view
that the
Criminal Procedure Act regulates
all matters relating to
criminal procedure, including bail, and that the accused persons are
to exercise their rights according
to the provisions of that Act.
[12] The invocation of civil relief to
release accused persons on bail may set a dangerous precedent for the
criminal justice system.
[13] Having come to this conclusion,
it is unnecessary to deal with the arguments of counsel for the
applicant, based on civil law
remedies.
[14] I need to add one further
matter.
Section 18
of the
Superior Courts Act, 10 of 2013
codified the common law regarding the suspension of court decisions
pending on appeal. See Erasmus,
Superior Court Practice
,
Volume 1, 2
nd
edition, page A2-64:
“
The purpose
of the rule as to the suspension of a judgment on the noting of an
appeal is to prevent irreparable damage from being
done to the
intending appellant, either by levy under a writ of execution or by
execution of the judgment in any other matter appropriate
to the
nature of the judgment appealed from.” See
Reid
and Another v Godart and Another
1938
AD 511
at 513. These considerations do not apply to criminal
cases and that is made clear by the definition of “appeal”
in the
Superior Courts Act:
“
appeal
in
Chapter 5, does not include an appeal in a matter regulated in terms
of the Criminal Procedure Act, 1977 (Act 51 of 1977) or
in terms of
any other criminal procedure law.”
[15] The liberty or otherwise of an
accused person is a matter regulated in terms of the
Criminal
Procedure Act. The
release of an accused person from custody
must, in my view, be dealt with in terms of the provisions of the
criminal law legislation.
[16] Both parties were represented by
senior counsel. I am of the view that the costs of senior counsel are
justified.
[17]
The application is dismissed with costs, such costs to include the
costs of a senior counsel for the respondent.