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[2019] ZAECPEHC 88
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Wardle v Minister of Justice and Another (1485/2018) [2019] ZAECPEHC 88 (16 July 2019)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
Case No.:1485/2018
Date Heard: 27 June
2019
Date
Delivered: 16 July 2019
In
the matter between:
BRENDA
WARDLE
Applicant
and
MINISTER
OF
JUSTICE
First Respondent
DIRECTOR
GENERAL: DEPARTMENT OF JUSTICE
Second
Respondent
JUDGMENT
EKSTEEN
J:
[1]
The applicant seeks to review and set aside
the decision of the Magistrate for Gelvandale, Port Elizabeth, in
which he finally declared
the bail money of one Elvera Smith
(hereinafter referred to as “Smith”) in the sum of R2 000
forfeited to the State
in terms of section 67(2)(a) of the Criminal
Procedure Act 51 of 1977 (hereinafter referred to as “the
CPA”). She
further seeks an order pursuant to the
provisions of section 70 of the CPA that the amount of R2 000 be
refunded to the depositor
thereof, one Bulelwa Funani.
[2]
The applicant, a law graduate, acted in
person from the inception of the matter. The papers drawn by
her, sadly, are not a
model of clarity and to the extent that it can
reasonably be done, I shall make allowance therefore in seeking to
summarise the
facts which emerge from the papers. I pause to
record that at some juncture an application to join the Chief
Magistrate of
Gelvandale, the Public Prosecutor of the Gelvandale
Court and the Court Manager of that court as third, fourth and fifth
respondents,
respectively, was prepared and filed. The
application was, however, not proceeded with and there is no
indication that it
was ever delivered either to the present
respondents or the parties who were intended to be joined. I
shall accordingly not
address this matter further. Suffice it
to record that the magistrate who made the decision which is sought
to be reviewed
is not a party to the proceedings nor is there any
indication in the file that he has received notice of the
application.
[3]
I turn to the facts as they emerge from the
papers. The applicant was at all material times a remand
detainee at the Correctional
Facility in North End, Port Elizabeth.
Smith was also detained there at the time and they shared a cell with
others.
On 7 August 2017 Smith became embroiled in an
altercation with detainees in the adjoining cell. Her pleas for
assistance
to a prison warder did not elicit sympathy, on the
contrary, the warder expressed her intention to open the cells so
that the adversaries
could confront one another.
[4]
The applicant states that she was compelled
to intervene as she knew both Smith and the detainee in the adjoining
cell. Her
attempts to mediate were unsuccessful. She then
ascertained from Smith that she had been granted bail in the amount
of R2
000, which, it would appear, she was unable to pay. The
cell in which the applicant and Smith were detained remained locked
and the applicant accordingly sent a fellow detainee, one Feti, who
appears to have been in the passages at the time, to phone
her
“personal assistant” in order to request him to send R2
000. She advised Smith that she would pay her bail
and
requested her to observe her bail conditions.
[5]
The money was not forthcoming on 7 August
and the applicant again contacted her “personal assistant”
the following day.
She confirmed her instructions to him.
In consequence thereof the said Bulelwa Funani, allegedly a cousin of
the applicant,
came to the facility and paid the bail. Smith
was released. During December 2017 Smith was back in the
Correctional
Facility and had been sentenced. The applicant
learnt that Funani had been advised at the Magistrates’ Court
in Gelvandale
that Smith had breached her bail conditions and that
the bail money had finally been forfeited to the State, an allegation
which
Smith denied. The applicant accordingly corresponded with
the clerk of the court who confirmed that the bail had indeed been
finally forfeited. In these circumstances the applicant sent a
request in terms of section 70 of the CPA that the money be
remitted. This too did not have the desired result and the
court manager advised that although the magistrate concerned was
no
longer stationed at Gelvandale, it had been ascertained that the bail
had been correctly forfeited. Against this background
the
applicant launched the present application.
[6]
The applicant’s allegation that she
paid the bail money is in dispute. She annexed to her founding
affidavit a copy
of the bail receipt in the name of “Bulelwa
Funani” and alleges that the original was mislaid. She
also annexed
correspondence which she had with the clerk of the court
in which she stated that she had given the R2 000
to
Funani. This statement was not confirmed on oath.
[7]
When the State filed a notice of intention
to oppose the applicant proceeded to deliver a supplementary
affidavit. She records
therein that she had asked Smith to
write a short statement “to the effect that (she) had given
(her) cousin R2 000 to pay
her bail”. Smith did indeed
pen a single sentence which she signed, albeit not under oath, and
which the applicant
annexed to her supplementary affidavit in support
of the application. The statement by Smith, however, does not
provide any
corroboration for her averment. Smith, in response
to the specific request set out earlier, recorded only that the
applicant’s
cousin, Bulelwa Funani, paid her bail. She
made no allegation in respect of the source of the funds.
Further, annexed
to the supplementary affidavit is a copy of what
purports to be the applicant’s bank statement with Bidvest
Bank. It
shows various withdrawals from the account from time
to time, but none which corresponds either to the amount or the date
of the
alleged request to the applicant’s “personal
assistant”. The “personal assistant” is never
identified on the papers, however, an affidavit by one Mahlangu is
annexed to the supplementary affidavit which confirms the correctness
of the applicant’s founding affidavit where it refers to him.
During argument the applicant stated that he is in fact
the alleged
“personal assistant”. This confirmation, however,
does not advance the debate as to the source of
the money.
[8]
In the answering affidavit the State
specifically challenged the applicant’s
locus
standi
on the grounds that she had not
established that she in fact provided the money. This prompted
the applicant in reply to
annex a “confirmatory affidavit”
attested to by Bulelwa Funani on the 1
st
August 2018, prior to the delivery of the application. No
explanation was forthcoming for withholding this affidavit when
the
founding papers were delivered. Funani’s affidavit offers
no support for applicant’s contention. Funani
states
only:
“
I
paid R2 000 for Alvera Smith at Gelvandale Court last year (2017).
I do not remember the exact date”.
If
anything I consider that this affidavit, as read with the unsworn
statement attributed to Ms Smith, militates against the applicant’s
assertion.
[9]
I turn to consider the merit of the
application. In my view the application has no merit and must
fail on numerous grounds.
First, for the reasons set out
earlier, the applicant has failed to make out a case that she in fact
provided the R2 000 paid as
bail for Smith. Her bank statement
does not take the matter any further. When confronted with this
difficulty in argument
the applicant sought refuge in section 38(a)
of the Constitution. The relevant portion of the section
provides:
“
Anyone
listed in this section has the right to approach a competent court,
alleging that a right in the Bill of Rights has been
infringed or
threatened, and the court may grant appropriate relief, including a
declaration of rights. The persons who may approach
a court are-
(a)
anyone
acting in their own interest;
(b)
…”
[10]
Applicant argues that she asserts that her
right to property in terms of section 25 of the Constitution has been
infringed and that
she therefore has
Iocus
standi
to act in her own interest in
recovering same. The argument is misdirected in my view.
The difficulty is, as set out
earlier, that she has not established
that she provided the money. No other property is in dispute.
I think that the
application falls to be dismissed on this ground
alone.
[11]
Secondly, the relief which she sought
before us was that the bail money in the amount of R2 000 be refunded
to Bulelwa Funani.
She holds no mandate to act on behalf of
Funani and Funani is not party to the proceedings. The only
affidavit by Funani
is quoted earlier and provides no support for the
applicant.
[12]
Third, the applicant seeks to review and
set aside the decision of Magistrate Huisamen. In argument
before us she contended
that the review is brought in terms of Rule
53 of the Uniform Rules of Court. Rule 53(1) of the Uniform
Rules of Court provides:
“
(1)
Save where any law otherwise provides, all proceedings to bring under
review the decision or proceedings of any inferior court
and of any
tribunal, board or officer performing judicial, quasi-judicial or
administrative functions shall be by way of notice
of motion directed
and delivered by the party seeking to review such decision or
proceedings to the magistrate, presiding officer
or chairperson of
the court, tribunal or board or to the officer, as the case may be,
and to all other parties affected —
(a)
calling
upon such persons to show cause why such decision or proceedings
should not be reviewed and corrected or set aside, and
(b)
calling
upon the magistrate, presiding officer, chairperson or officer, as
the case may be, to despatch, within
fifteen days after receipt of
the notice of motion, to the registrar the record of such proceedings
sought to be corrected or set
aside, together with such reasons as he
or she is by law required or desires to give or make, and to notify
the applicant that
he or she has done so.”
[13]
This procedure has not been followed nor
has Magistrate Huisamen or the Chief Magistrate of Gelvandale been
joined as a party to
the proceedings. Magistrate Huisamen has
not been afforded the opportunity to provide such reasons as he is by
law required
or as he desires to give. The proceedings can
therefore not be entertained in terms of section 53.
[14]
Fourth, the relief which the applicant
sought before us was:
(i)
That the court review and set aside the decision on 20 November 2017
declaring
the bail amount of R2 000 finally forfeited to the State.
(ii)
That the review court, acting pursuant to the provisions of
s70
of
the
Criminal Procedure Act, 51 of 1977
, orders that the R2 000 bail
amount be refunded to the depositor, Ms Bulelwa Funani within two
weeks of the court order, in cash,
and on proof of positive
identification and a copy of the bail receipt as the original has
been misplaced and, that such amount
to be paid out from the Port
Elizabeth Magistrates’ Court.
[15]
That brings me to
section 70
of the CPA.
Section 70
provides:
“
The
Minister or any officer acting under his or her authority or the
court concerned may remit the whole or any part of the bail
money
forfeited under
section 66
of 67.”
[16]
The application to remit bail money must
therefore be made to the Minister, an officer acting under his
authority or the “court
concerned”, that is to say the
Magistrates’ Court for Gelvandale. In
S
v Nkogatse
2002 (2) SACR 369
(T) at
373g-374a Webster J gave consideration to the nature of the
provision. He stated:
“
The
provisions of
s 70
are not and cannot be construed as being intended
to or capable of being interpreted as requiring a court to review its
own decision
to declare as finally forfeited bail money in
consequence of the violation of bail conditions. In my view,
and without in
any way prescribing or in any way limiting the
relevant criteria, the process must determine whether, taking all the
facts into
account, including the reason, nature and the extent and
duration of the recalcitrance of the accused, the actions taken by
the
depositor to bring to an end such recalcitrant conduct by the
accused, the source of the bail funds, it would be fair and just to
remit part or the whole of the bail money estreated. The fact
that '(t)he Minister or any officer acting under his or her
authority
. . .' may exercise an 'administrative discretion' is an indication
of the perspective from which such application should
be considered.
The exercise can never be a rehearing of the estreatment proceedings
or a review thereof. In my mind this is fairly
obvious, for neither
the Minister nor any 'officer acting under his or her authority'
may review an order of a magistrate.
The process set out in
s 70
cannot, to my mind, be either
res
judicata
or in any way be
regarded as review proceedings.”
[17]
I agree with this reasoning. What
emerges from this passage, it seems to me, is that the applicant has
misconstrued her remedy.
What is required is to make an
application to one of the authorised authorities, as set out in
section 70
, for him or it to exercise an administrative discretion.
In the event that the applicant is dissatisfied with the exercise
of
this discretion it may be subjected to review under the
Promotion of
Administrative Justice Act, 3 of 2000
, just like any other
administrative act.
Section 70
of the CPA does not, however,
authorize the review of the proceedings conducted under
section
67(2)(a)
of the CPA.
[18]
In the present matter the applicant did
make a request to the clerk of the court that the bail money be
remitted. It is unclear
from the papers whether a decision was
taken by an authorised officer before her request was denied.
If it was, it is that
decision which should be subjected to review.
If no decision was made an application should first be made to that
authority.
The present proceedings, however, are not directed
at reviewing such administrative discretion.
[19]
Fourth, even if I err in the aforegoing, by
the time the application was argued the applicant had indeed acquired
a copy of the
transcript of the proceedings before Magistrate
Huisamen. Reliant on the transcript she sought to withdraw her
earlier positive
statement that the bail money was correctly
forfeited. It was argued on the strength of
S
v Bkenlele
1983 (1) SA 515
(O) that
where a reverse onus is placed on an accused, as is the case in
section 67(2)
of the CPA, an accused must first be warned of the onus
and the effect thereof explained to him. This, it was argued,
did
not occur when Smith’s bail was forfeited. Applicant
accordingly argued that the ruling, should on this ground, be set
aside.
[20]
There are, to my mind, at least two
difficulties with this argument. Firstly, it is clearly correct
that such a warning and
explanation is essential when an
unrepresented accused comes before court. The position is
different, I think, where an accused
is legally represented, as Smith
was. It might rightly be expected of a qualified legal
representative to be acquainted with
the law when accepting an
instruction for reward from a member of the public to represent
him/her in court proceedings.
[21]
The second difficulty arises from the
transcript itself and the failure to cite Magistrate Huisamen in the
proceedings. The
transcript commences:
“
COURT:
Your witness Madam.
ALVERA SMITH: (d.s.s)
DEFENCE:
Now Madam on the 15
th
of November you were meant to attend court …”
[22]
This does not appear to me to be the start
of the proceedings. The matter would in all probability have be
called prior to
the recording commencing and the defence attorney
would ordinarily also have announced her appearance. Prima
facie, therefore,
the transcript does not reflect all that occurred.
Magistrate Huisamen may well have been able to cast light on the
events
which preceded the commencement of the transcript presented
had he been joined in the proceedings. In all the circumstances
I do not think that there is merit in this argument.
[23]
For the reasons set out above the
application falls to be dismissed.
[24]
In the result, the application is dismissed
with costs.
J W EKSTEEN
JUDGE
OF THE HIGH COURT
GOOSEN J:
I
concur.
G G GOOSEN
JUDGE
OF THE HIGH COURT
Appearances:
For
Applicant:
Ms Wardle, in person.
For
Respondents: Adv Nobatana, instructed by the State
Attorney, Port Elizabeth