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2024
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[2024] ZAECMKHC 21
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Cikolo v S (CA55/2023) [2024] ZAECMKHC 21 (14 February 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
NOT REPORTABLE
Case no: CA55/2023
In
the matter between:
BONGANI
CIKOLO
Appellant
and
THE
STATE
Respondent
FULL COURT JUDGMENT
Govindjee J
[1]
Does a full court have jurisdiction to hear
an appeal against the decision of a single judge to refuse a bail
appeal?
[2]
The appellant was one of three persons who
applied for bail during 2022. The presiding magistrate dismissed the
application on 12
December 2022. The appellant’s application
for bail on new facts suffered the same fate on 23 June 2023. Mjali J
considered
and dismissed an appeal against that refusal. The learned
judge granted leave to appeal to this court on 12 October 2023.
[3]
Section 171 of the Constitution provides
that all courts function in terms of national legislation, and their
rules and procedures
must be provided for in national legislation.
Section 180 adds that national legislation may provide for any matter
concerning
the administration of justice that is not dealt with in
the Constitution.
[4]
The
Superior Courts Act
[1]
(‘the
Act’) regulates various matters pertaining to the courts,
including appeals. The clear intention was to create
a regulatory
scheme in respect of all appeals from the high court.
[2]
Section 16, contained in ch 5 of the Act, provides as follows:
‘
16.
Appeals generally.
– (1) Subject
to section 15(1), the Constitution and any other law –
(a)
an appeal against any decision of a
Division as a court of first instance lies, upon leave having been
granted –
(i)
if the court consisted of a single judge,
either to the Supreme Court of Appeal or to a full court of that
Division, depending on
the direction issued in terms of section
17(6); or
(ii)
if the court consisted of more than one
judge, to the Supreme Court of Appeal;
(b)
an appeal against any decision of a
Division on appeal to it, lies to the Supreme Court of Appeal upon
special leave having been
granted by the Supreme Court of Appeal
;
…’ (Own emphasis.)
[5]
The
word ‘appeal’, as it is used in ch 5, is defined to
exclude ‘…an appeal in a matter regulated in terms
of
the
Criminal Procedure Act, 1977
…or in terms of any other
criminal procedural law’.
[3]
The SCA has confirmed that this means that, if an appeal is
‘regulated in terms of’ the Criminal Procedure Act, 1977
(‘the CPA’), the provisions of s 16(1)
(b)
of the Act requiring special leave to appeal do not apply.
[4]
[6]
This court issued a directive on 2 February
2024, drawing the parties’ attention to s 16(1)
(b)
of the Act and enquiring whether this court should be constituted in
the circumstances. The crucial question is whether an appeal
of this
nature is regulated in terms of the CPA. If not, s 16(1)
(b)
of the Act is applicable so that this court lacks the necessary
jurisdiction to hear the matter.
[7]
The
crux of the appellant’s first argument in response is that s
16(1)
(b)
of the Act is inapplicable courtesy of s 65 of the CPA. It is readily
apparent, however, that s 65 of the CPA pertains to an appeal
from a
lower court to a superior court with regard to bail. The section
heading says as much and ‘lower court’ is defined
to mean
courts established in terms of the
Magistrates’ Courts Act,
1944
.
[5]
The entire section
regulates what might be termed a ‘first level appeal’,
confirming that such appeals may be heard
by a single judge.
[6]
No part of the section pertains to what may be termed ‘further
appeal’, whether to the full court or SCA.
[7]
[8]
The
appellant’s second submission relies on
s 65A
of the CPA. That
section also does not deal with a further appeal following the
decision of a division of this court to uphold
a magistrate’s
refusal of bail. Instead, as the section heading indicates, it only
regulates appeals by the National Director
of Public Prosecutions
(‘NDPP’) in cases where a court decides to release an
accused on bail.
[8]
[9]
There
is seemingly no other provision in the CPA, or any other criminal
procedural law, providing for further appeal once the high
court has
decided a bail appeal.
[9]
Reading the various sections of the CPA referred to by the appellant
in conjunction does not alter the position: further appeals
are
simply not regulated by the CPA.
[10]
Any
possible alternative interpretations may be debunked with reference
to the decision of the SCA in
S
v Van Wyk and Another
.
[10]
That matter included consideration of whether the high court, sitting
as a court of appeal, had jurisdiction to grant leave to
appeal
against its own order dismissing an appeal on its merits.
[11]
The SCA interpreted the Act as follows:
‘
[18]
Section 1 of the Act provides that “appeal” in ch 5 does
not include an appeal in a matter
regulated in terms of the CPA, or
in terms of any other criminal procedural law. The CPA does not
contain any provision dealing
with a right of appeal to this court
from a decision of the high court taken on appeal to it from a
magistrates’ court.
[12]
A right of appeal from the high court sitting as an appeal court, to
this court in criminal cases, consequently falls within ch
5 of the
Act. Section 16(1)
(a)
and
(b)
,
which are relevant, provide as follows …
[19]
The jurisdiction of this court to hear appeals from the high court
whether as a court of first
instance, or an appeal court, is derived
from this section and s 19 of the Act… (Footnote included).’
[11]
The
consequence of all this for the appellant is as follows. The present,
attempted further appeal is not against the decision of
a court of
first instance, but against that of a high court sitting as a court
of appeal comprising a single judge.
[13]
Neither the CPA nor any other criminal procedural law provides
for such an appeal, so that the exclusion contained in the
definition
of ‘appeal’ in the Act does not apply.
Van
Wyk
confirms the further right of appeal from the high court sitting as
an appeal court to the SCA in criminal cases. That further
appeal,
having been left unregulated by the CPA, must fall within ch 5 of the
Act. In terms of s 16(1)
(b)
of the Act, it follows that an appeal against the decision of Mjali J
lies to the SCA upon special leave having been granted by
that court.
This court therefore lacks jurisdiction to entertain the matter.
[12]
Arrested, detained and accused persons
enjoy various constitutional rights, including the right to be
released from detention if
the interests of justice permit. Such
rights are sacrosanct, subject only to any internal limitations
contained in s 35 of the
Constitution or to general limitation in
terms of s 36 of the Constitution. While the court is alive to these
principles, the period
of time already spent in detention by the
appellant and the importance of bail for an accused person, it would
be inappropriate
for the court to exercise its appeal powers in
circumstances where it lacks the jurisdiction to do so.
[13]
The
appropriate order is to strike the matter from the roll.
[14]
A GOVINDJEE
JUDGE OF THE HIGH
COURT
I agree.
ZM NHLANGULELA
ACTING JUDGE PRESIDENT
OF THE HIGH COURT
I agree.
NW GQAMANA
JUDGE OF THE HIGH
COURT
Heard:
12
February 2024
Delivered:
14
February 2024
Appearances:
For
the Appellant:
Mvuzo
Notyesi Inc.
Durham
Street
Mthatha
Email:
mnotyesi@telkomsa.net
For
the Respondent:
Adv
T Sellem
Director
of Public Prosecutions
94
Lower Sisson Street
Fortgale
Mthatha
Email:
advtsellem@gmail.com
[1]
Act
10 of 2013.
[2]
S
v Banger
2016
(1) SACR 115
(SCA) para 9.
[3]
S
1 of the Act.
[4]
DPP
v Moloi
[2017]
ZASCA 78
para 35.
[5]
Act
32 of 1944.
[6]
S
65(1)
(b)
of the CPA. Rule 19A of the Joint Rules of Practice for this
Division (‘the Joint Rules’) provides that bail appeals
from a lower court are generally heard by one judge, although in
appropriate cases it may be determined that two judges are required.
It is so that such an appeal, namely against a lower court’s
refusal to admit the accused to bail, may be heard by a ‘local
division’ with jurisdiction: s 65(1)
(c)
of
the CPA.
[7]
S
1 of the Act defines ‘full court’, in relation to any
Division of the High Court, to mean a court consisting of
three
judges.
[8]
The
CPA refers to ‘attorney-general’. In terms of s 45 of
the National Prosecuting Authority Act, 1998 (Act 32 of
1998), that
reference is construed as a reference to the National Director of
Public Prosecutions appointed in terms of s 179(1)
(a)
of
the Constitution.
[9]
The
appellant also mistakenly relied on s 310A of the CPA, which deals
with an appeal by the NDPP against the sentence of a lower
court,
and s 316 of the CPA, dealing with applications for leave to appeal
against the conviction or sentence by the High Court,
suggesting
that these sections, perhaps read together with ss 65 and 65A of the
CPA, ‘expressly’ conferred
jurisdiction on this
court.
[10]
S
v Van Wyk and Another
2015
(1) SACR 584
(SCA) (‘
Van
Wyk
’).
[11]
The
case also considered s 309C of the CPA and cases where the high
court dismissed a petition against a magistrate’s refusal
to
grant leave to appeal:
Van
Wyk
above n 10 para 3.
[12]
‘
Sections
315 and 316 of the CPA deal with appeals to this court from the high
court sitting as the court of first instance.’
[13]
The
position is somewhat different in the case of appeals against the
refusal of bail by the high court sitting as a court of
first
instance:
S
v Banger
2016 (1) SACR 115 (SCA).
[14]
DPP
v Moloi
above
n 4 para 39.