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[2019] ZAECPEHC 7
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Wardle v Minister of Police and Others (3131/2017) [2019] ZAECPEHC 7 (8 March 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
NOT
REPORTABLE
Case No.: 3131/2017
Date
Heard: 7 March 2019
Date
Delivered: 8 March 2019
In
the matter between
BRENDA
WARDLE
Applicant
and
THE
MINISTER OF POLICE
First Respondent
MINISTER
OF JUSTICE
Second Respondent
HEAD,
DPCI
Third Respondent
NATION
DIRECTOR OF PUBLIC PROSECUTIONS
Fourth Respondent
EASTERN
CAPE NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS
Fifth Respondent
REGIONAL
MAGISTRATE JJ CLAASSEN
Sixth Respondent
ADV
T VAN ZYL
Seventh Respondent
LT
COL DEYSEL
Eighth Respondent
CAPTAIN
BOWER
Ninth Respondent
CAPTAIN
L H VAN BELLING
Tenth Respondent
COLONEL
A J HORAK
Eleventh
Respondent
REGIONAL
MAGISTRATE L LINDOOR
Twelfth Respondent
STATION
COMMANDER KABEGA PARK SAPS
Thirteenth
Respondent
JUDGMENT
GAJJAR
AJ:
Introduction
[1]
The present
application comes before us pursuant to the applicant’s arrest
on 29 June 2017 following the issue of a warrant
in terms of section
43 of the Criminal Procedure Act, 51 of 1977 (“CPA”)
issued on 5 July 2016.
[1]
The applicant, who appeared in person, in essence seeks her release
from detention on the basis that the warrant issued in
terms of
section 43 of the CPA was defective and thus falls to be reviewed and
set aside. She seeks further relief that all
that followed her
arrest was irregular and thus is also liable to be reviewed and set
aside. The further relief sought is,
in my view, not relevant
for present purposes.
[2]
The applicant who describes herself as a legal analyst is an awaiting
trial prisoner and is incarcerated at the Port Elizabeth Correctional
Centre. The record shows that she holds a bachelor and
master
degree in law and that she is engaged in doctoral studies. She
faces charges of fraud, alternatively theft, further
alternatively
contravention of section 83(1) and (10) of the Attorneys Act, 53 of
1979 in that she accepted fees from a member
of the public while she
was not a practising attorney. The amount involved is
R538 766,00.
Background
[3]
The background facts are largely common cause. The charges
which
the applicant faces are Schedule 5 offences as set out in the
CPA. This had a bearing on the outcome of the two bail
applications
before the Magistrates’ Court as well as the
determination of the subsequent bail appeal.
[4]
The
applicant first appeared in the Specialised Commercial Crimes Court
(“SCCC”), Port Elizabeth
[2]
on 12 May 2014. She was then released on bail of R3 000,00
and the matter stood adjourned until 20 June 2014.
The
applicant failed to appear on 20 June 2014 and consequently a warrant
for her arrest was issued. She, however, appeared
in court and
the matter was postponed to 20 April 2015 for trial. On the
trial date the applicant did not appear and a warrant
for her arrest
was issued which was stayed until 28 April 2015. On that day
the applicant appeared and presented a medical
certificate explaining
her absence. The applicant’s explanation was accepted and
the warrant was cancelled. The
matter was then postponed to 15
May 2015.
[5]
On 15 May 2015 the applicant failed to appear and a warrant was again
authorised for her arrest but the issue thereof was held over until
18 May 2015. She failed to appear on that date as well
as on 2
June 2015, 19 June 2015 and 3 July 2015, notwithstanding an agreement
having been reached to have the issue of the warrant
stayed on each
of the said dates. On 17 July 2015 the applicant remained
absent and her bail of R3 000,00 was finally
forfeited to the
State.
[6]
On 28 July 2015 the applicant, on her own accord, appeared in court.
The warrant for her arrest was cancelled and the applicant was
released on warning. The case was postponed to 28 August 2015
to enable a legal representative to be appointed. In the
intervening period the applicant was arrested in respect of two
unrelated cases in Gauteng and was released on R10 000,00 in
respect of those cases. She, however, failed to appear
in court
in respect of those matters and the R10 000,00 was forfeited to
the State.
[7]
It does not appear from the papers when the matter was postponed to
11
September 2015. On that day Adv Kriel appeared on behalf of
the applicant and the matter was postponed for trial to commence
on
29 March 2016. On that date, the applicant failed to appear.
Adv Kriel also did not appear. Accordingly, the
trial could not
commence. A bench warrant (a J165 warrant) for the applicant’s
arrest was authorised and issued on
the same day which was to be
executed to secure her attendance at court. It was not executed
because the applicant could not be
located. That warrant
lapsed through the effluxion of time. This consequently led to the
issuing of the warrant in
terms of section 43 of the CPA on 5 July
2016.
[8]
Some 15 months later, on 29 June 2017, the applicant was arrested in
East
London on the strength of the warrant issued in terms of section
43 of the CPA. Following her appearance in court on 30 June
2017 she has remained in detention as an awaiting trial prisoner
following three attempts to be released on bail.
Section
43 of the CPA and the applicant’s attack on the validity
thereof
[9]
Section 43 of the CPA reads as follows:
“
43
Warrant of arrest may be issued by magistrate or justice
(1) Any
magistrate or justice may issue a warrant for the arrest of any
person upon the written application of an attorney-general,
a public
prosecutor or a commissioned officer of police-
(a)
which sets out the offence alleged to have been committed;
(b)
which alleges that such an offence was committed within the area of
jurisdiction of such
magistrate or, in the case of a justice, within
the area of jurisdiction of the magistrate within whose district or
area application
is made to the justice for such warrant, or where
such offence was not committed during such area of jurisdiction which
alleges
that the person in respect of whom the application is made,
is known or is on reasonable grounds suspected to be within such area
of jurisdiction; and
(c)
which states that from information taken upon oath there is a
reasonable suspicion
that the person in respect of whom the warrant
is applied for has committed the alleged offence.
(2)
A warrant of arrest issued under this section shall direct that the
person described in
the warrant shall be arrested by a peace officer
in respect of the offence set out in the warrant and that he be
brought before
a lower court in accordance with the provisions of
section 50.
(3)
A warrant of arrest may be issued on any day and shall remain in
force until it is cancelled
by the person who issued it or, if such
person is not available, by any person with the like authority, or
until it is executed.”
[10]
The applicant’s attack on the validity of the warrant is
narrow. She argued
that the warrant is invalid because it is
unstamped. It is nonetheless dated. The date of 5 July
2016 appears below
the signature of the issuing justice of the peace.
[11]
Based on the applicant’s attack on the warrant issued in terms
of section 43, the
question which arises is whether or not the
warrant must be stamped in order for it to be valid. Having
regard to the provisions
of section 43 it is apparent that there is
no express or implied requirement set out therein that a warrant of
arrest must be stamped
in order for it to be valid.
Accordingly, the warrant in question, on the face of it appears
regular. Significantly,
the applicant did not challenge the
exercise of the discretion of the justice of the peace who issued the
warrant.
[12]
A second bow to the applicant’s attack on the warrant issued
pursuant to section
43 of the CPA is that the issue of that warrant
emanated from the earlier bench warrant, the J165 warrant. The
applicant’s
attempt to draw a linkage between the two warrants
is misplaced. It is important to note that the applicant was
not arrested
on the authority of the J165 warrant as it had lapsed
before her arrest on 29 June 2017. Accordingly, the J165
warrant, in
my view, bears no relevance to the present proceedings.
[13]
The applicant argued that if the warrants of arrest are set aside,
the further relief which
she claims must follow. For reasons
stated neither warrant is liable to be set aside. In any event,
what is telling
is that during argument the applicant stated that
before she was brought before magistrate Lindoor, the twelfth
respondent, on
30 June 2017 she thought she was going to be released
on bail. It is common cause that formal bail proceedings were
held
before the twelfth respondent on 30 June 2017.
[14]
In my view, there is no reason to question the validity of either the
J165 warrant or the
J50 warrant. For the reasons stated, the
applicant cannot succeed in respect of the remainder of the relief
sought.
[15]
As alluded
to, as the applicant faces a Schedule 5 offence, she bore the onus in
terms of section 60(11)(b) of the CPA to produce
evidence to satisfy
the court that it is in the interests of justice to permit her
release on bail. The twelfth respondent
found that the
applicant failed to discharge the onus and ordered her detention
pending trial. Although the applicant made
it clear that she
wished to exercise her right of appeal, no appeal was lodged against
that decision. Subsequently, however,
the applicant brought a
fresh bail application on supposed “new facts”. The
second bail application suffered
the same fate. The applicant
exercised her right of appeal in respect of that decision. The
appeal was heard on 3 May
2018 by Goosen J and on 10 May 2018 he
dismissed the appeal.
[3]
[16]
In arguing the present application, the applicant sought to revisit
an issue which was
argued before Goosen J. She contended that the
initial bail application was conducted in terms of an incorrect
procedure.
The applicant’s argument was premised on
section 72 of the CPA. The applicant contended that section 72
of the CPA
provides for a summary enquiry to be conducted into the
reasons for the non-appearance of an accused person. She
contended
that the twelfth respondent was obliged to follow the
process set out in section 72 and not to conduct a bail application
as he
did. In my view, there is no merit in this submission.
Section 72(4) of the CPA indeed requires an enquiry to be conducted
in relation to the failure of an accused person to appear, the
purpose of such an enquiry is to determine whether the punitive
provisions which apply to such non-appearance are to be imposed. It
has nothing to do with bail. The applicant’s appearance
before the twelfth respondent was, after all, in consequence of the
execution of a warrant of arrest to secure her attendance at
court.
It was no more and no less. In any event, section 60 of the CPA
provides that an accused person remanded in
custody be afforded a
reasonable opportunity to apply for bail. This is precisely
what occurred. In this regard, the
it is common cause that the
applicant had no less than three opportunities to persuade a court
that it is in the interests of justice
that she be released on bail.
On each occasion she failed.
[17]
The applicant informed the court from the Bar that she has petitioned
the Supreme Court
of Appeal in respect of the dismissal of her appeal
by Goosen J against the ruling in the second bail application.
When it
was put to the applicant that the outcome of that petition
would have a bearing on the present application, the applicant
unsuccessfully
tried to distinguish the basis of the petition and the
present application. In my view, there is no distinction.
The
ultimate purpose of that petition as well as the present
application is aimed at securing the applicant’s release from
detention.
[18]
Although not raised in the papers, the applicant sought to rely on
section 12(1)(a) of
the Constitution which entrenches the right to
freedom and security of the person not to be deprived of freedom
arbitrarily or
without just cause. As I understood the
applicant, her complaint is that there was procedural unfairness in
respect of her
arrest. She, however, (correctly) accepted that
there was just cause for her arrest. The applicant’s
freedom
has been deprived as she was not able to discharge the onus
which rested upon her as required by section 60(11)(b) of the CPA.
Thus, there is no merit in the applicant’s reliance on section
12(1)(a) of the Constitution, there being no question that
she has
been deprived of her freedom arbitrarily or without just cause.
[19]
The issuing of the warrant in terms of section 43 of the CPA was
solely motivated by ensuring
the applicant’s attendance at
court for purposes of attending trial. Section 38(1) of the CPA
provides for the methods
of securing the attendance of an adult
accused person in court for the purposes of standing trial.
They are: arrest,
summons, written notice and indictment.
Evident from the history of this matter is that the applicant has
habitually
been cavalier and recalcitrant by not making good on her
undertakings to appear in court.
[20]
It is trite
that arrest is the most drastic method whereby an accused’s
attendance at his/her trial can be ensured.
[4]
Section 39(3) of the CPA provides that the effect of an arrest is
that the person arrested shall be in lawful custody and
that he/she
shall be detained in custody until he/she is eventually discharged or
released from custody.
[21]
In general,
the object of an arrest is to bring the arrested person before a
court to be charged, tried and then either convicted
or
acquitted.
[5]
The decision
to arrest must be based on an intention to bring the arrested person
to justice and not for ulterior purposes.
[6]
In the instant matter, and given the applicant’s own conduct by
not keeping to her word, it cannot be suggested that
the applicant’s
arrest on 29 June 2017 was effected with the intention to intimidate
or inconvenience her. There is
no suggestion that the
applicant’s arrest was motivated by any malicious intent other
than to bring her before court to be
tried.
[7]
[22]
Following
the applicant’s arrest there was compliance with the provisions
of section 50 of the CPA in that she was brought
before court well
within 48 hours of her arrest. Her further and continued
detention was a consequence of the denial of bail.
A valid
lawful arrest is not a requirement for the trialability of the
arrestee. In spite of the unlawfulness of his/her
original
arrest, the arrestee can later be tried and either convicted or
acquitted.
[8]
Costs
[23]
The applicant submitted that she should be awarded her costs albeit
that she represented
herself. She submitted that she had
incurred disbursements in presenting her case. Even if the
result was otherwise,
there would have been no basis upon which to
award costs in the applicant’s favour. Counsel for the
first and second
respondents, Mr
Nobatana,
submitted that in
the event that the application is dismissed, he had no instructions
in respect of costs. I understood this
to mean that the first
and second respondents were not persisting in seeking costs against
the applicant.
Conclusion
[24]
In the result, the following order shall issue:
24.1
The application is dismissed;
24.2
There shall be no order as to costs.
G
J GAJJAR
ACTING
JUDGE OF THE HIGH COURT
I
agree.
S
M MFENYANA
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For
Applicant:
In
person
For
First and Second Respondents:
Adv Nobatana instructed by the State
Attorney, Port Elizabeth
[1]
Also known as a J50 warrant
[2]
Under case number 1/33/2014
[3]
Under case number CA&R 5/2018, Port Elizabeth
[4]
See generally Louw and Another v Minister of Safety and Security and
Others
2006 (2) SACR 178
(T)
[5]
See Kotze v Minister of Safety and Security
2012 (1) SACR 396
(GSJ)
at [28]
[6]
Minister of Safety and Security v Sekhoto and Another
2011 (1) SACR
315
(SCA) at [30]-[31]
[7]
See Sekhoto, supra at para [31]
[8]
See R v Jones
1952 (1) SA 327E