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2020
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[2020] ZAGPJHC 131
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Marsland v Director of Public Prosecutions, Johannesburg and Others (10216/2020) [2020] ZAGPJHC 131; 2020 (1) SACR 659 (GJ) (1 May 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 10216/2020
In
the matter between:
MARSLAND,
TIMOTHY
GORDON APPLICANT
AND
THE
DIRECTOR OF PUBLIC PROSECUTIONS,
JOHANNES
BURG FIRST
RESPONDENT
THE
HEAD OF MODDERBEE
CORRECTIONAL
CENTRE SECOND
RESPONDENT
THE
MINISTER OF JUSTICE AND
CORRECTIONAL
SERVICES THIRD
RESPONDENT
JUDGMENT
TWALA
J
[1]
The applicant, a 53 year old man, brought an application before this
Court on urgent basis seeking an order for his immediate
release from
the Modderbee Correctional Centre owing to, amongst others, a threat
of being infected with the Coronavirus. It is
only the first
respondent who filed its opposition to this application.
[2]
It is worth noting at this stage that the founding affidavit in this
case was deposed to by the attorney for the applicant.
The reason
advanced is that there is no access to the applicant as he is in
detention and the Regulations published in relation
to Covid-19 has
curtailed the movement of people drastically. However, the applicant
managed to depose to a confirmatory affidavit.
[3]
It is apparent from the record that the applicant was arrested and
detained in July 2019 in Benoni under the provisions of section
5 of
the Extradition Act, 67 of 1962. The applicant has on two occasions
applied to be released on bail which applications were
refused by the
Magistrate. An appeal against the decision of the Magistrate refusing
to admit the applicant to bail was launched
with this Court and His
Lordship Acting Judge van der Westhuizen dismissed the appeal. Then
the applicant approached the Full Court
of this Division seeking an
order reviewing and setting aside the decision of the Magistrate
authorising his further detention
and this application was also
dismissed by the Full Court. The applicant has however, petitioned
the Supreme Court of appeal in
this instance and the appeal is now
pending before the Supreme Court of Appeal.
[4]
The contentious issue in this matter is whether the matter is of such
a nature that it deserves to be heard in the Urgent Court.
[5]
It is contended by Advocate Harms SC and assisted by Advocate
Thompson that the applicant is bringing this application on urgent
basis as the regulations in relation to Covid-19 provide for social
distancing to avoid the infections of the virus and this is
impossible in the crowded circumstances of the Modderbee Correctional
Centre. Further, that the regulations prohibit the
hearing of
bail applications unless the applicant is appearing for first time in
the Magistrate Court. Although there is no reported
cases of any
infections at Modderbee for now, so it was argued, there is a huge
likelihood that there are cases of infection but
because of lack of
testing they have not been tracked.
[6]
It was argued further on behalf of the applicant that, because of his
age and the underlying conditions in his health, he is
most
vulnerable to contract the virus and has no alternative remedy since
his inhibitions predisposes him to death if he contracts
the virus.
What complicates things for the applicant, so it is contended, is the
riots that are simmering in Modderbee and the
applicant being a
heavily built white male, will be the target in these riots. These
are new facts which were not presented in
the two previous bail
applications. However, these facts cannot be presented before the
Magistrate now due to the regulations of
the Covid-19 prohibiting any
bail application be heard unless it is the applicant’s first
appearance in that Court.
[7]
To put matters into the correct perspective, I deem it necessary to
refer to the relevant Regulations of the
Disaster Management Act, 57
of 2002
published in the Government Gazette No. 43191 on the 31
st
of March 2020 which provides as follows:
“
Definitions:
‘
Matter’
– means an urgent or essential court application and hearing
including a bail application in case of first appearance
of an
accused person, or a matter which, if not enrolled during the state
of disaster, will lead to substantial injustice;
Regulation:
2. Restricted
access to the court, court precinct and all justice service points
:
(a)
…………………
..
(b)
Entry into the courts and court precincts may only be allowed in
respect of urgent and essential matter.”
[8]
I am unable to agree with the applicant that this matter deserves the
urgent attention of this Court because of the pending
threat of the
Coronavirus if he remains in prison. Firstly, the applicant is
detained in terms of the law of general application
– hence he
is not in unlawful detention as contended by Advocate Harms.
Secondly, much as the
order of the Full Court of this Division has
been appealed against, he is still detained in terms of the operation
of the law until
the order of the Full Court is set aside. It is
therefore disingenuous of the applicant to attempt reliance on
section 35 of the
Constitution of the Republic of South Africa, 108
of 1996
(“The
Constitution”).
[9]
Section 36 of the Constitution provides the following:
“
(1) The
rights in the Bill of Rights may be limited only in terms of law of
general application to the extent that the limitation
is reasonable
and justifiable in an open and democratic society based on human
dignity, equality and freedom, taking into account
all relevant
factors, including –
a)
The
nature of the right;
b)
The
importance of the purpose of the limitation;
c)
The
nature and extent of the limitation;
d)
The
relation between the limitation and its purpose; and
e)
Less
restrictive means to achieve the purpose.
[10]
It is apparent from the record that the applicant has, since his
arrest and detention in July 2019, on more than one occasion
failed
in his attempt to be released on bail. Now the applicant is
attempting to use the Coronavirus pandemic and the rioting in
prisons
as an emergency justifying it bringing this matter before the urgent
Court. I hold the view that there is no urgency in
this matter since
the applicant is detained in terms of the law of general application.
[11]
I agree with Advocate Schutte for the first respondent that, since
the issue of the coronavirus and the riots in prison was
never raised
in the previous two bail applications by the applicant, the applicant
may bring another bail application in the Magistrate
Court contending
that there are new facts to be considered which entitles him to be
released on bail.
[12]
I do not agree with the applicant that it has no alternative remedy
since regulation 2 only provides for accused persons who
are making
their first appearance in the Magistrate Court to apply for bail. As
indicated above, the regulation provides for a
matter which, if not
enrolled during the state of disaster, will lead to substantial
injustice. The irresistible conclusion is
therefore that it is for
the applicant to demonstrate to that Court that it will suffer
substantial injustice if the matter were
not to be heard during this
time of the lockdown.
[13]
Having regard to the foregoing, I am of the considered view that
applicant has failed to demonstrate that this matter is urgent
and
therefore falls to be struck from the roll for lack of urgency.
[14]
In the circumstances, I make the following order:
The
matter is struck from the roll for lack of urgency.
__________________
TWALA
M L
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
Date
of hearing: 29
th
April 2020
Date
of Judgment: 1
st
May 2020
For
the Applicant: Adv C Harms SC
Adv
CE Thompson
Instructed
by: De Vries Attorneys
debbie@devriesattorneys.co.za
For
the first
Respondent:
Adv P Schutte
Instructed
by: Director of Public Prosecutions,
Johannesburg
pschutte@npa.gov.za