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[2018] ZAECPEHC 2
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Sulani v Mathiya and Another (246/2018) [2018] ZAECPEHC 2; 2018 (2) SACR 157 (ECP) (2 February 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION: PORT ELIZABETH)
CASE
NO:246/2018
In
the matter between:
LUSANDA
SULANI
APPLICANT
AND
MS
T. MASHIYI AND
ANO
RESPONDENTS
REASONS FOR ORDER
GRANTED
DAWOOD,
J:
1.
The
Applicant herein brought an application against the Respondent in
the following terms:
“
[1]
Declaring the application to be one of urgency as contemplated in
Rule 6(12) of the rules of the above
Honourable Court and dispensing
insofar as is necessary with the usual forms and service provided for
in the said rules.
[2]
Reviewing and setting aside the order made by the First Respondent in
Port Elizabeth’s
Court case no 27/1497/17 on 29 January 2018
declaring the Applicant’s bail provisionally cancelled and her
bail money provisionally
forfeited to the State and issuing a warrant
for the Applicant’s immediate arrest.
[3]
Re-instating the Applicant’s bail of R2000 in Port Elizabeth
Magistrate’s Court
case no. 27/1497/17.
[4]
Granting the Applicant further and/or alternative relief”.
2.
The
facts of the matter are briefly as follows:
a)
The
Applicant resides in Durban.
b)
The
Applicant was represented at the hearing on before the First
Respondent 29
th
January 2018 by Mr P Daubermann.
c)
The
Applicant was unable to attend the hearing of the matter on the 29
th
of January 2018.
d)
The
reasons furnished for her non-attendance by her legal representative
was that she had given birth by caesarean section and was
not in a
position to travel due to her medical condition.
e)
A
medical certificate by Dr Mashiloqne was produced and accepted that
she was unfit to travel on the 29
th
of January 2018 due to caesarean operation.
f)
The
prosecutor accepted the authenticity and correctness of the medical
certificate and it was handed up as an exhibit.
g)
The
Magistrate nonetheless was of the view that she was bound by four
corners of the statute and did not have a discretion to stay
execution of the warrant of arrest and provisionally estreat bail.
h)
She
accordingly made an order in the following terms insofar as it is
relevant to these proceedings :
“
A
warrant of arrest is authorised forthwith for accused no. 2 who is
absent; her bail money is provisionally [indistinct] to the
state and
for her final forfeiture of bail; it is postponed until the 13
th
of February this year.”
g)
The
Magistrate as well as the state prosecutor appear to have based their
interpretation on the provisions of section 67 of the
Criminal
Procedure Act which reads as follows:
“
67
Failure of accused on bail to appear
(1)
If an accused who is released on bail—
(a)
fails to appear at the place and on the date and at the time—
(i)
appointed for his trial; or
(ii)
to which the proceedings relating to the offence in respect of which
the accused is released on bail are adjourned; or
(b)
fails to remain in attendance at such trial or at such proceedings,
the court before which the matter is pending
shall declare the
bail provisionally cancelled and the bail money provisionally
forfeited to the State, and issue a warrant for
the arrest of the
accused
.
(2)
(a)
If the accused appears before court within fourteen days of the issue
under subsection (1) of the warrant of arrest, the court
shall
confirm the provisional cancellation of the bail and the provisional
forfeiture of the bail money, unless the accused satisfies
the court
that his failure under subsection (1) to appear or to remain in
attendance was not due to fault on his part.
(b)
If the accused satisfies the court that his failure was not due to
fault on his part, the provisional cancellation of the bail
and the
provisional forfeiture of the bail money shall lapse.
h)
The
learned Magistrate appears to have furthermore relied upon the
conclusion reached in
S
v Lerumo
[1]
for her finding, Hendricks J held
inter
alia
as follows:
“
[16]
… The presiding magistrate is correct and the matter is
therefore not reviewable.
[17]
I am of the view that the practice of issuing warrants of arrest for
accused persons and
staying the execution thereof is not in
accordance with the prescripts of section 67
of the Criminal
Procedure Act, and
should be done away with
, unless the
legislature amend the said section. Until then, this practice must be
stopped.”(my emphasis)
3.
Issue
for determination
.
3.1
The
crisp issue for determination is whether or not the provisions of
section 67 (1) of the Criminal Procedure Act compelled the
learned
Magistrate to issue a warrant for the immediate arrest of the
Applicant or whether the Magistrate was able to stay execution.
3.2
The
Respondents filed a notice to abide by the decision of this court.
3.3
Mr
Daubermann referred this court to inter alia the provisions of
section 12 (1) (a) of the constitution and Bertie’s case
in
support of his argument for the relief sought:
a)
Sub-section
12 (1) (a) of the Constitution provides as follows
:
“
12.
(1) Everyone has the right to freedom and security of the person,
which includes the right-
(a)
not to be deprived of freedom arbitrarily or without just cause”;
b)
In
Bertie Van Zyl (Pty) Ltd and Another v Minister for Safety and
Security and Others
[2]
the
Constitutional Court held as follows:
“
[20]
The Constitution requires courts deciding constitutional matters to
declare any law that is inconsistent with the
Constitution invalid to
the extent of its inconsistency. However, the Constitution in section
39 (2) also provides that:
“
When
interpreting
any
legislation
,
and when
developing
the common law
or customary law, every
court,
tribunal or forum must promote the spirit, purport and objects of the
Bill of Rights
.”
“
The
Constitution requires that judicial officers read legislation, where
possible, in ways which give
effect
to its fundamental values.
Consistently
with this
,
when the
constitutionality
of legislation is in issue, they are under a duty to examine the
objects
and purport of an Act and to read the provisions of the legislation,
so
far as is possib
le,
in
conformity
with the Constitution
.”
“
The
technique of paying attention to context in statutory construction is
now required by the Constitution, in particular, s 39
(2). As pointed
out above, that provision introduces a mandatory requirement to
construe every piece of legislation in a manner
that promotes the
‘spirit, purport and objects of the Bill of Rights.’”
[23]
This Court has recognised that the process of determining the
constitutionality of legislation requires
a resolution of the
following inherent tension:
On
the one hand, it is the duty of a judicial officer to interpret
legislation in conformity with the Constitution so far as this
is
reasonably possible. On the other hand, the legislature is under a
duty to pass legislation that is reasonably clear and precise,
enabling citizens and officials to understand what is expected of
them. A balance will have to be struck as to how this tension
is to
be resolved when considering the constitutionality of legislation.
There will be occasions when a judicial officer will find that the
legislation, though open to a meaning which would be
unconstitutional
, is reasonably capable of
being read ‘in
conformity with the Constitution
’. Such an interpretation
should not, however, be
unduly strained
.”(my emphasis)
3.3
Section
67 (1) (b) of the Criminal Procedure Act is silent with regard to the
execution of the warrant it merely makes provision
for the issuing of
a warrant of arrest but does not provide that it has to be executed
immediately.
3.4
The
Act gives the accused a grace period of at least 14 days to state why
the bail should not be finally estreated it is unlikely
that the
drafters did not envisage a situation where the same grace period
should not be applicable with regard to the execution
of a warrant of
arrest where applicable.
3.5
Section
67 (1) (b) is accordingly capable of being interpreted in conformity
with the Constitution.
3.6
I am
in agreement with the dicta in
Terry
v Botes and another
[3]
where the following was stated by Foxcroft J:
“
What
is quite clear from these provisions is that an accused person may,
either himself or through his legal representative, satisfy
the Court
that his failure under s 67(1) was not due to fault on his part, and
also that the Court may receive any evidence
as it considers
necessary in order to determine this question.
Nowhere
is it stated that a warrant of arrest must be executed before an
accused in these circumstances may be heard, nor is it
stated that an
accused person is obliged to give evidence and that his attorney may
not address the Court in regard to this
question. (my emphasis)
3.7
On my
reading and interpretation of the relevant portion of the Act the
section of the Act does not preclude the Magistrate from
staying the
execution of the warrant of arrest until a future date. It is in fact
silent with regard to the issue of execution.
3.8
A
Magistrate would accordingly not be acting outside the four corners
of the statute in the event that he or she orders a stay of
the
execution upon the issuing of the warrant of arrest.
3.9
The
Magistrate in my view accordingly was not compelled to order the
immediate execution of the warrant.
3.10
The
learned Magistrate had no discretion in issuing the warrant because
that is expressly provided for in the Act, however she had
to have
regard to the representations made to determine whether or not to
order the immediate execution thereof.
3.11
Section
67 does not preclude her from determining whether or not the warrant
should be executed immediately or stayed until a further
date, due to
its silence on the issue.
3.12
The
learned Magistrate failed to have regard to the facts placed before
her in order to consider whether or not to stay execution
of the
order.
3.13
The
factors set out by the Applicant’s attorney in my view were
sufficiently cogent to warrant a stay of the execution of
the warrant
in this case.
3.14
The
learned Magistrate was presented with the fact that the Applicant had
delivered a baby by caesarean section 15 (fifteen) days
prior to the
hearing. A medical certificate from a gynaecologist was provided to
court and accepted by the Magistrate and the prosecutor
as being
correct that the Applicant was unable to travel from Durban to Port
Elizabeth as a result of the caesarean section and
was accordingly
unable to attend court for a legitimate justifiable reason.
3.15
There
was no reason to gainsay what was put on her behalf nor was the
veracity of the averments challenged.
3.16
In
this case it is not just the question of the liberty of an accused
person who has just delivered a baby by caesarean section
but also
the rights of a 15 (fifteen) day old child that needed to be
considered in determining whether or not to have her arrested
immediately and brought to court two (2) weeks hence.
3.17
Our
law provides that even where an accused person has been convicted the
rights of her minor children are considered where she
is the primary
care giver of minor children in determining whether or not to impose
a custodial sentence.
3.18
It
would be unfathomable that this factor would play no role in
determining whether or not to order the immediate execution of a
warrant of arrest which would mean the mother of a 17 day old child
being incarcerated for a possible 2 week period of time without
any
regard being had for the rights of this vulnerable extremely young
child that is completely dependent on her mother for her
care. These
factors were not presented but the fact that she has a 17 day old
child alone would prompt such an inquiry.
3.19
This
is an untenable situation and is clearly not what would have been
envisaged by the legislature as a possible consequence of
the
relevant provision.
3.20
The
restrictive interpretation placed on the provision of section 67 by
the learned Magistrate, if it indeed could be read to direct
the
immediate execution of the warrant execution of the warrant of arrest
in all cases irrespective of the peculiar personal circumstances
of
the individual accused person, would clearly be unconstitutional as
it will fall foul of a number of provisions of the constitution
particularly in this case.
3.21
This
clearly would amount to a grave injustice and a contravention of
numerous constitutional rights not only of the Applicant but
of her
young infant as well.
3.22
It is
evident that the Applicant’s non-appearance was not
contemptuous but based on a legitimate medical condition that
precluded
her from travelling to Port Elizabeth.
3.23
This
clearly is an exceptional case that militates against the immediate
execution of the warrant of arrest and requires that the
right of
liberty, dignity and family life come to the fore in considering the
peculiar circumstances of this case.
3.24
The
Magistrate’s failure to consider these factors and her
restrictive interpretation of the relevant provision of the Act
is
incorrect and in the circumstances of this case amounts to a gross
irregularity warranting the inference of this court
[4]
.
3.25
I have
taken cognisance of the fact that the Applicant may not be able to
attend on the 13
th
of February 2018 but that can be dealt with at that time and an
extension of the date applied for as is provided for in the Act.
3.26
The
Magistrate was not constrained to order the immediate execution of
the warrant of arrest in terms of section 67 she can with
respect in
appropriate cases stay execution. This clearly was one of the cases
that cried out for a stay of execution.
3.27
The
Magistrate’s decision with regard to the immediate execution of
the warrant is accordingly wrong and is hereby reviewed
and set aside
and replaced with an order staying the execution of the warrant of
arrest.
3.28
The
provisional cancellation and forfeiture of the bail money are
pre-emptory provisions that the Magistrate is obliged to make
due to
no-appearance and that accordingly cannot be set aside nor can the
decision to issue a warrant of arrest. The only part
of the order
that is reviewable and falls to be set aside is the ordering of the
immediate execution of the order.
3.29
As is
apparent from the aforegoing I with all due respect disagree with the
restrictive interpretation placed on the provisions
of section 67 (1)
(b) of Act 51 of 1977 in Lerumo’s case supra.
3.30
I am
of the view that the provision of section 67 (1) (b) does not
preclude a court from staying execution in appropriate cases
for the
reasons already set out above and upon a reading of the Act the
conformity with the constitution.
4.
ORDER
I
accordingly make the following order:
4.1
The
Applicant’s bail is provisionally cancelled;
4.2
The
Applicant’s bail money is provisionally forfeited to the state;
4.3
A
warrant of arrest is authorised as against Ms Lusanda Sulani, the
Applicant herein; and
4.4
The
order granted by the First Respondent that the warrant of arrest is
authorised forthwith in respect of the Applicant is set
aside and
replaced with the following order:
a)
The
execution of the warrant of arrest is to be stayed until the 13
th
of February 2018 or such further extended dates as may be agreed upon
for the finalisation of the inquiry pertaining to the provisional
cancellation of the bail and the provisional forfeiture of the bail
money.
______________________
DAWOOD
J
JUDGE
OF THE HIGH COURT
DATE
HEARD:
02 February 2018
DATE
ORDER GRANTED:
02 February 2018
DATE
REASONS GIVEN:
02 February 2018
FOR
THE APPLICANT:
Mr P Daubermann
APPLICANT’S
ATTORNEY:
PETER DAUBERMANN ATT
SUITE 701, 7
TH
FLOOR
OASIM SOUTH
PEARSON STREET, PE,
6001
FOR
THE RESPONDENT:
NO APPEARANCE
[1]
(08/2017)
[2017] ZANWHC 63
;
2018 (1) SACR 202
(NWM) (10 August 2017)
[2]
(CCT 77/08)
[2009] ZACC 11
;
2010 (2) SA 181
(CC);
2009 (10) BCLR 978
(CC) (7 May 2009) paras [20] to [23]
[3]
2003 (1) SACR 206 (C)
[4]
Section 22
of the
Superior Courts Act no 10 of 2013