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[2013] ZAECPEHC 63
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S v Matshoba and Others (CC45/13) [2013] ZAECPEHC 63; 2015 (1) SACR 448 (ECP) (27 March 2013)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, PORT ELIZABETH
CASE
NO: CC45/13
In
the matter between:
THE
STATE
v
CACILE
MATSHOBA
SIYABONGA
BRANDY
THEMBINKOSI
SPEELMAN
THULANI
HAAS
JUDGMENT
1.
The four accused appeared before me for an
enquiry pursuant to the provisions of section 49G of the Correctional
Supervision Act,
No. 111 of 1998 (“CSA”)
2.
Each of them were arrested on 23 June 2012
and have been “remand detainees” within the meaning
envisaged by that term
in the CSA at St Alban’s, Medium A,
Correctional Centre since 26 June 2012.
3.
The recently enacted provisions of section
49G of the CSA obliges the head of the remand detention facility or
correctional centre,
as the case may be, to refer to “the court
concerned” in the manner set out in the section all remand
detainees whose
period of detention exceeds two years from the
detainee’s initial date of admission into of the facility or
centre, in order
“to determine the further detention of such
(detainee) or (his) release under conditions appropriate to the
case”.
4.
Although the accused have not yet served
two years awaiting trial in terms of article 4.3 of the Justice,
Crime Prevention and Security
(“JCPS”) Protocol on the
procedure to be followed in applying the provisions of the section
49G of the CSA (being the
directives envisaged by section 49G(5)),
the head of the correctional centre is expected to forward to the
clerk of the court his
request for the court to consider the further
detention of awaiting trial prisoners once the period of detention
exceeds 21 months
from the initial date of admission already and it
is on this basis that the head of the Correctional Centre, St Alban’s
Medium
A, has requested this court to consider the further detention
or release of the accused as may be appropriate to the circumstances.
5.
The Protocol provides that in considering
the further detention of the remand detainee, the “normal
principles and requirements
relating to bail”, as set out in
the CPA apply, but no basis for the consideration is set out in the
enabling provision.
Subsection 5 defers to the directives
(which purpose is served by the Protocol) but only in regard to the
procedures
to be followed by the relevant role players whenever it is necessary
to bring the proposed application.
6.
In S v Sheyi, an unreported judgment of the
Bhisho High Court in case number CC4/2011, which I delivered on 6
August 2013 shortly
after the implementation date of the provisions
of section 49G, I had occasion to interpret the provisions of the
section.
I held that it was neither the object nor the effect
of the then newly proclaimed amendment that the court reconsidering
the continued
incarceration of the awaiting trial prison was required
to hold a bail hearing proper such as is envisaged by section 60 of
the
CPA. On the contrary I opined as follows:
‘
In
my view all that is required is to take note that the detained person
has passed a certain threshold, one which puts him into
a category of
persons the Department of Correctional Services should be
particularly mindful of. This no doubt acts as a
bulwark (and
as an oversight function) against the rights of an incarcerated
person being infringed without lawful cause or him
being subjected to
arbitrary detention. It ensures that upon reflection there
remains good reason for his continued incarceration.
Whilst I
have no doubt that considerations such as an inordinate delay in
prosecution, the loss or absence of vital evidence or
witnesses (or
other convincing grounds such as will evolve in practice which
threaten to condemn an incarcerated detainee to an
open ended and
unreasonably protracted incarceration) may provide a sound reason for
a court to release an accused who has hitherto
been detained pending
a trial, I am not persuaded that the amendment requires the court to
revisit the issue as if it were a bail
hearing.’
7.
Although my judgment was written before the
Protocol was agreed upon, I remain of the view that I am not required
to hold a bail
hearing. Neither in my opinion can the Protocol
bind a presiding officer in any event concerning the interpretation
referred
to therein that the reconsideration hearing should take the
form of a bail enquiry and that normal bail principles are to be
applied
in the process. Whilst there may be an overlap with the
usual factors which are required to be taken into account in bail
determinations, the enquiry in this instance is in my view sui
generis. The focus is on the lapse of time which may erode
an
accused’s person’s right to have his trial begin and
conclude without unreasonable delay as well as the prison’s
unique problem of overcrowding in prison. The enquiry is also
generally concerned with any factor which will have an impact
on the
interests of justice as this critical consideration must always be
kept in mind when weighed against the interests of a
remand detainee.
8.
Ms Coertzen on behalf of the accused
prepared affidavits for each accused which merely set out their
personal circumstances.
Whilst they each suggest a willingness
to be released on bail, none of the accused strongly contend that
there are valid reasons
why their continued incarceration pending the
trial, which is to be heard on 10 – 21 November 2014, should
not be ordered.
Each of the accused previously unsuccessfully
applied for bail in the Magistrate’s Court before and it was
not suggested
in the case of any one of them that there have been any
change of circumstances concerning them which would have entitled
them
to approach the court which declined them bail in the first
instance (no doubt because their release was considered likely to
prejudice
the ends of justice) on the basis of new facts.
9.
Ms Coertzen further conceded on behalf of
all of the accused that there had not been an unreasonable delay in
the trial, certainly
not on the basis envisaged in
section 342A
of
the
Criminal Procedure Act, No. 51 of 1977
, warranting an
investigation by this court into the circumstances or an interference
with the pace of the prosecution.
10.
It appeared to be accepted that the
postponement of the trial this week, which I might add is the first
appearance in this court,
was not due to the fault of the state.
On the contrary it is common cause that it is the result of
“unforeseen systemic
reasons” due to the fourth roll
being cancelled. Whilst I accept that neither are any of the
accused responsible for
the delay, this is not a factor which per se
operates to exclude their further incarceration pending the trial
which will be heard
in the next eight months.
11.
In advancing reasons in support of the
continued detention of the accused, Mr Canary, who appeared for the
State, correctly pointed
to the fact that the accused face serious
charges involving violence and that, if they are convicted on count
2, may face life
imprisonment. This in itself is a serious
factor militating against the release of any of them on bail pending
their trial.
12.
Whilst I have taken into account all the
considerations placed before me there does not appear to me to be any
good reason why the
accused should not remain in custody pending
their trial.
13.
In the result the matter is postponed for
trial to the agreed date : 10 – 21 November 2014, with all the
accused to remain
in custody pending the trial. Separate orders
will issue in respect of each accused in terms of section 49G of the
Correctional
Supervision Act, No. 111 of 1998 that their continued
detention is so ordered.
_________________
B
HARTLE
JUDGE
OF THE HIGH COURT
HEARD:
26 MARCH 2014
DATE
OF JUDGMENT : 27 March 2013
Appearances:
For
the state : Mr Canary, Director of Public Prosecutions, Port
Elizabeth.
For
the accused : Ms Coertzen, Legal Aid Board, Port Elizabeth
.