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[2021] ZAGPJHC 72
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S v Molale (SS29/2021) [2021] ZAGPJHC 72 (25 June 2021)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
(1)
REPORTABLE: NO
(2)
OF INTEREST TO
OTHER JUDGES: YES
(3)
REVISED: YES
[25
June 2021]
CASE
NO: SS29/2021
DPP
REF.NO: 10/2/11/1-2021/19
In
the matter between:
STATE
APPLICANT
and
MOLALE,
MPHO
RESPONDENT
J
U D G M E N T
MUDAU,
J:
[1]
This
matter comes before me on special review.
Section 22
of the
Superior
Courts Act, 10 of 2013
, sets out the grounds for review. It is trite
that review of the Magistrates' Court proceedings can also be brought
in terms of
the common law, to see that justice is served between
litigating parties.
[1]
An
applicant may also rely on the courts’ inherent power of review
under the Constitution
[2]
.
The
relevant provision in this instance is
section 22(1)(c)
of the
Superior Courts Act which
provides that a ground for review includes
if there has been a gross irregularity in the proceedings of the
lower court. This review
was thus brought on a very narrow issue,
which is apparent from the facts as they appear below. The
requirements for a review
in terms of Uniform
rule 53
are specified
in Uniform
rule 53(2)
, which reads:
‘
The
notice of motion shall set out the decision or proceedings
sought to be reviewed and shall be supported by affidavit setting
out
the grounds and the facts and circumstances upon which applicant
relies
to
have the decision or proceedings set aside or corrected.’
[2]
None
compliance with Uniform
Rule 53
has been condoned for reasons that
are apparent below. Importantly, the respondent is not prejudiced.
[3]
On
2 June 2021, the accused, who was on bail and legally represented,
appeared on an indictment containing three charges, two counts
of
murder (read with the provisions of
section 51(2)
of Act 105 of 1997)
as well as assault with intent to do grievous bodily harm involving
close family members. The defence alleged,
based on a psychological
report privately secured, that
there
is a reasonable possibility that the accused suffers from mental
illness or disorder.
[4]
The
defence launched an application, which was not opposed by the State,
for the court to order an investigation in terms of
ss 78(2)
and
79
of the
Criminal Procedure Act 51 of 1977
. However, the question arose
whether the accused was not a danger to himself, and or members of
the public if bail was extended,
which prompted the State to bring an
application for the cancellation of the bail granted by the Regional
Magistrate, Orlando in
terms of the provisions of
section 68(1)
of
the CPA. The matter stood down until 4 June 2021, for that purpose.
[5]
On
the return day (4 June 2021),
it
appears from the record of the proceedings that bail was fixed in
favour of the accused without the requisite evidence in terms
of
section 60(11)
of the CPA. Counsel for the State and the defence were
ad
idem
that the proceedings in the court below were irregular and fall to be
set aside. However, given the common cause facts, I solicited
the
views of the Regional Court Magistrate, Mr Le Roux in writing. The
Regional Magistrate conceded that the proceedings were irregular
and
can be set aside. He explained that he was “unaware that there
was more than one count or that the state was opposed
to bail”.
The Magistrate’s concession about the invalidity of the
proceedings before him is, in my view, well founded.
The bail
proceedings before the regional magistrate were not only grossly
irregular, but a nullity.
[6]
Section
35(1)
(f)
of
the Constitution provides as follows: “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”.
However,
section 60(11) of the CPA provides that:
“
Notwithstanding
any provision of this Act, where an accused is charged with an
offence referred to—
(a)
in
Schedule 6, the court shall order that the accused be detained in
custody until he or she is dealt with in accordance with the
law,
unless the accused, having been given a reasonable opportunity to do
so, adduces evidence which satisfies the court that exceptional
circumstances exist which in the interests of justice permit his or
her release;
(b)
in
Schedule 5, but not in Schedule 6, the court shall order that the
accused be detained in custody until he or she is dealt with
in
accordance with the law, unless the accused, having been given a
reasonable opportunity to do so, adduces evidence which satisfies
the
court that the interests of justice permit his or her release.”
[7]
Accordingly,
whenever s 60(11) is applicable, there can be no question of an
inquisitorial procedure and the issue of bail has to
be decided on
the question of whether the accused has discharged the burden of
proof placed upon him by s 60(11) by presenting
the necessary
evidence.
[3]
Importantly, the “legislative scheme of s 60(11)
(a)
of the CPA indicates that it is for the applicants . . . to put their
case forward first and for the State to answer it.”
[4]
The procedure to be followed in bail applications, which falls under
schedule 5, entails that an accused is burdened with an onus
and will
commence adducing evidence, which must satisfy the court, on a
balance of probabilities, that the interests of justice
permit his
release.
[8]
The
relevant provisions of the Act are peremptory and non-compliance
therewith vitiates bail proceedings. In
S
v Porthen & Others
,
[5]
Binns-Ward
AJ (as he then was) cautioned that Magistrates and Prosecutors should
be
“
careful
to ensure that the Legislature’s intent is not subverted by
allowing s 60(11)(a) bail applications to proceed
in a way
incongruent with the relevant provisions of the Act.” I may add
that this includes s 60 (11) (b) bail applications.
This
legal position is trite and requires no further elucidation.
I
am of the view that this is an appropriate case where an order
setting aside the proceedings and order before Mr Le Roux should
be
made.
[9]
Consequently,
it is ordered that:
The
bail proceedings and order against the accused which commenced before
Regional Magistrate Le Roux on 5 October 2020 are hereby
reviewed and
set aside.
T
P MUDAU
Judge
of the High Court,
Gauteng
Local Division,
Johannesburg
I
agree
M A MAKUME
Judge
of the High Court,
Gauteng Local Division,
Johannesburg
Date of Judgment:
25 June 2021
APPEARANCES
For the
Accused:
Mr B C Sago
Instructed
by:
B C Sago Attorneys
For the
Respondent:
Adv R E Ndou
Instructed
by:
DPP – JHB
[1]
S
v Mokoena
1983 (2) SA 312
(O)
at 315D.
[2]
See
s 173 of the Constitution of the Republic of South Africa, 1996.
[3]
See
generally
S
v Mbele & Another
1996
(1) SACR 212
(W) at 237F–G.
[4]
S
v Porthen & Others
2004
(2) SACR 242
(C) at para [60].
[5]
Id.