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[2022] ZAFSHC 123
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Ex Parte Reyneke: In re: S v Mokoena (2232/2022) [2022] ZAFSHC 123; 2023 (2) SACR 190 (FB) (18 May 2022)
In the HIGH COURT
OF South Africa
FREE STATE
PROVINCIAL DIVISION
Case
No: 2232/2022
Reportable: YES/NO
Of interest to other
Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the
ex parte
application between:
JOHAN
DAVID
REYNEKE
Applicant
In
re
THE
STATE
versus
THABO
HENDRIK MOKOENA
[1]
Coram:
Opperman, J
Date
of hearing:
16 May
2022
Order:
18
May 2022
Reasons
for Judgment:
The reasons for
judgment were handed down electronically by circulation to the
parties’ legal representatives by email and
release to SAFLII
on 18 May 2022 and in Court. The date and time for hand-down is
deemed to be 18 May at 15h00.
Summary:
Habeas
Corpus – legality of custody of accused following the refusal
of release after a bail application in terms of the
Criminal
Procedure Act 51 of 1977
but after discharge from hospital following
an order in terms of
section 47(6)(e)
[2]
of the Mental health Care Act 17 of 2002.
JUDGMENT
[1]
This is an urgent application “that the accused be released
immediately in terms
of the principles of
de libero homine in
exhibendo
or
habeas corpus.
[2]
It is alleged that the accused was unlawfully held in custody from 30
March 2022 to
date.
[3]
The
de libero homine in exhibendo
is an important writ in
constitutional law and must be afforded a swift remedy in all cases
of illegal restraint or confinement.
It was therefore ordered that
the Uniform Rules relating to service and process are dispensed with
and it was directed that the
motion be heard on an urgent basis in
terms of the provisions of Uniform Rule 6(12).
[4]
The facts and circumstances of the case are
sui generis
and
definitely not as straight forward as it would seem at first glance.
[5]
In
Lethoko and another v Minister of Defence and others
2021
(2) SACR 661
(FB) I ruled that:
[32] …
A healthy
democracy and the protection of the citizen in general demand that
cases of this nature be tried and concluded. The inappropriate
management of criminal cases by individuals must not cause the rule
of law to fail the country.
[6]
The matter
in casu
is an example of human errors that shamed
the administration of justice; this is true for all the parties
involved. The administration
to ensure the proper handling of the
case was not done.
[7]
The accused was arrested on 4 May 2016. After an unsuccessful
application for bail,
he remained in custody pending the finalization
of the trial.
[8]
It would appear that bail was refused due to his previous
convictions, the manner
in which he attempted to evade arrest by the
use of alias’s, his unstable family circumstances, the
seriousness of the crime
and the strength of the case.
[9]
On 3 September 2018 the court ordered a separation of trials in terms
of section 157(2)
of the Criminal Procedure Act 51 of 1977 (“CPA”)
between the accused (“Accused 1”) and his co-accused. The
accused was declared a State Patient in terms of Chapter 13 of the
CPA due to his incapacity to understand the proceedings. The
diagnosis was Psychotic Disorder Unspecified & Cannabis Use
Disorder. His abuse of harmful substances apparently caused his
condition. He was ruled to, at the time of the alleged crime, had the
ability to distinguish between right and wrong and to control
his
actions accordingly.
[10]
The order of 3 September 2018 reads as follows:
1.
Accused 1 is declared a State Patient in
terms of
Section 77(6)(i)
of the
Criminal Procedure Act 51 of 1977
,
as amended.
2.
Accused 1 is referred to the Free State
Psychiatric Complex Bloemfontein for admission and treatment and
be
kept there until an order is granted by a Judge in Chambers on
Application.
3.
The trial of Accused 1 is separated from
that of Accused 2 in terms of
section 157(2)
of the
Criminal
Procedure Act 51 of 1977
, as amended.
4.
Accused 2 is to continue to stand trial
under case number 12/2017. (Accentuation added)
[11]
The court
a quo
neglected to order the continued incarceration
of the accused after his discharge from the Free State Psychiatric
Complex. The
court
a quo
also neglected to issue a warrant to
the Free State Psychiatric Complex that makes provision for the
accused to be transferred
to a prison after discharge from the
hospital. It is an administrative action and order that would ensure
the administrative and
formal legality of the incarceration of the
accused.
[12]
The above did not affect the
ex lege
reality that the accused
was to be held in custody pending the finalisation of the trial in
terms of the CPA.
[13]
There is an important and crucial distinction to be made between the
discharge
of an accused from the hospital and his
release
from custody and prison after arrest. The discharge of an accused
from the hospital is just that and not from custody in terms
of
Chapters 5, 9 or 10 of the CPA. His incarceration will continue and
perpetuate until he is released by a court in terms of the
CPA.
[14]
The Free State Psychiatric Complex acted legally sound and correct
when they apparently transferred
the accused to the Grootvlei Prison
after the Order of the Judge in Chambers on 30 March 2022 for his
conditional release in terms
of the Mental Health Act 17 of 2002.
They discharged him from hospital as they had the legal capacity to
do but, not from the custody
of the police as they had no authority
to do.
[15]
“Accused 1 is referred to the Free State Psychiatric Complex
Bloemfontein for admission
and treatment and
be kept there until
an order is granted by a Judge in Chambers on Application”
assumes a legal court order made after due cognisance of all the
relevant factors.
[16]
The Order by the Judge in Chambers on 30 March 2022 was irregular.
The Order by the Judge in
Chambers for the conditional release of the
accused from the Free State Psychiatric Complex, first of all, did it
not order the
release from custody in terms of the CPA, secondly was
the fact that the accused was in custody pending the finalisation of
the
trial not brought to the attention of the Judge in Chambers and
thirdly was the history and reason for the refusal of bail not known
to the Judge in Chambers. If that was the case, the incarceration of
the accused would have been ordered. This does not distract
from the
fact that even though the administrative “paper-work” was
apparently not available, the accused was lawfully
and
ex lege
in custody
[17]
The travesty of justice lies in the fact that a man that was
described by the investigating officer
in this case as a “career
criminal” coming from a family that is known for their criminal
activities, was released
by the Free State Psychiatric Complex on two
stints into the community even though he was in custody for murder
and robbery with
aggravating circumstances. His previous convictions
depicted on the so-called SAP 69-document were available in the
docket that
was made known to the authorities at the Free State
Psychiatric Complex and the Director of Public Prosecutions when his
conditional
release was recommended on 28 March 2022. The previous
convictions are extensive and includes violence. It had to form part
of
the application in Chambers for the release of the accused. This,
as well as the fact that bail was refused for the accused and
that he
was
ex lege
the CPA in custody. The Notice to Abide by the
Office of the Director of Public Prosecutions, filled in this
application, is of
grave concern.
[18]
Notwithstanding the release in terms of section 47 of the Mental
Health Act 17 of 2002 was the
accused in custody in terms of the CPA
and would any release after the Order of the Judge in Chambers have
been unlawful.
[19]
It is therefore not a question whether the accused is unlawfully in
custody; it is a matter of
the accused being unlawfully released on
the application that now lies before the court. Or for that matter,
by any of the other
authorities beforehand and that include the Free
State Psychiatric Complex, the Grootvlei Prison and the South African
Police Service.
[20]
His incarceration from 30 March 2022 until his first appearance in
court on 3 May 2022 was thus
lawful. The lawfulness was confirmed by
the court that remanded the matter and ordered the accused to remain
in custody on 3 May
2022. The same is true for the subsequent
appearances and remands in custody.
[21]
He stands accused of the most serious offences being: Count 1:
Robbery with aggravating circumstances
as in section 1 of the CPA and
Count 2: Murder. The law does not prevent a bail application on new
facts caused by the changed
circumstances of the accused. Hence the
bail application pending before this court. There is no prejudice to
the accused and the
justice system dealt with him correctly but
administratively awkwardly. The summary release of the accused just
because there apparently
is not and was not a warrant will bring the
administration of justice into disrepute.
[22]
The facts and questions in law of the cases on which the applicant
relies is different from this
case. In
De Klerk v Minister f
Police
2020 (1) SACR 1
(CC) the issue was:
[46] Even if Isaacs
stands for the proposition that a remand order by a magistrate
necessarily renders the subsequent detention
lawful, how does this
impact the liability of the police for unlawfully arresting and
factually causing the subsequent detention?
Put differently, assuming
that a magistrate does remand someone lawfully, would it necessarily
follow that the police cannot be
liable for the subsequent detention
factually caused by an unlawful arrest? What difference would it make
if the remand was unlawful?
In
casu
the accused was to remain in
custody after a proper and effective bail application was refused.
The discharge from a hospital does
not cause the release of the
accused ordered in terms of the
Criminal Procedure Act. The
arrest of
the accused in 2016 was lawful to begin with.
[23]
I align myself with the finding at paragraph [62]:
The principles emerging
from our jurisprudence can then be summarised as follows. The
deprivation of liberty, through arrest and
detention, is per se prima
facie unlawful. Every deprivation of liberty must not only be
effected in a procedurally fair manner
but must also be substantively
justified by acceptable reasons. Since Zealand, a remand order by a
magistrate does not necessarily
render subsequent detention lawful.
What matters is whether, substantively, there was just cause for
the later deprivation of liberty. In determining whether the
deprivation
of liberty pursuant to a remand order is lawful, regard
can be had to the manner in which the remand order was made.
(Accentuation added)
[24]
The facts and findings in
Minister of Police and Another v Muller
2020 (1) SACR 432
(SCA) are also different but support the finding in
this case. The continued incarceration of the accused was justified:
[36]
The magistrate, in considering whether to release Muller,
accordingly
enquired into his previous convictions. Thus, it emerged that he had
previously been convicted of rape. By virtue of
the formulation of
sch 5 to the CPA, the admitted previous conviction, in the opinion of
the magistrate, elevated the offence of
which he was charged to a sch
5 offence.
Section 60(11)(b)
of the CPA provides that, where accused
persons have been charged with an offence referred to in sch 5 (but
not in sch 6) they
shall be detained in custody until they are dealt
with in accordance with law, unless they, having been given a
reasonable opportunity
to do so, adduce evidence which satisfies the
court that the interests of justice permit their release. In the
circumstances it
placed an onus on Muller to adduce evidence to
satisfy the court, on a balance of probability, that the interests of
justice permitted
his release.
[37]
The presiding magistrate ruled that a formal bail application
would
have to be heard in the bail court in order for Muller to adduce such
evidence. Despite the best endeavours of the court
prosecutor, the
bail court was unable to determine the matter on 28 November 2013. In
these circumstances the magistrate postponed
the matter and ordered
Muller's further detention until 2 December 2013, which was the first
occasion that the bail application
could be entertained.
[38]
In summary, the decision taken to prosecute Muller was taken
by the
screen prosecutor. She had before her all the relevant information to
do so. At the first appearance the magistrate gave
judicial
consideration to Muller's release and remanded him in custody. That
she was obliged to do in terms of
s 60(11)(b)
of the CPA. Neither the
prosecutor nor the police had knowledge of Muller's previous
conviction and accordingly could not have
foreseen that he would be
remanded in custody.
[39]
In the circumstances the liability of the police for the
wrongful and
unlawful arrest and detention was truncated, upon the remand order
made at the first appearance. The appeal must therefore
succeed in
respect of the further detention.
[25]
To summarise:
1.
The Order for Discharge in terms of the Mental Health Act 17
of 2002
of 30 March 2022 was irregular due to a lack of relevant information
submitted in the application and thus illegal;
2.
The accused was in custody after lawful arrest and a proper
bail
application that refused his release and this in terms of the
Criminal Procedure Act 51 of 1977
;
3.
Discharge from hospital in terms of the Mental Health Act does
not
permit release from custody in terms of the
Criminal Procedure Act.
>
4.
The incarceration of the accused is lawful.
The release of the accused will be unlawful.
[26]
ORDER
After
judicial consideration of the facts and the applicable law, having
heard the arguments of the applicant and the representative
of the
Office of the Director of Public Prosecutions and with regard to the
papers filled the following order is made:
1.
The application is dismissed.
2.
No order is made as to costs.
3.
The record of the application as well as
the consequent bail application must be transcribed and referred to
the Director of Public
Prosecutions: Free State in order for
pro-active measures to be declared in the form of directives to all
parties to prevent a
repeat of this situation.
M
OPPERMAN, J
JD
REYNEKE
ATTORNEY
FOR THE APPLICANT
Legal
Aid SA Bloemfontein
4
th
Floor, Fedsure Building
49
Charlotte Maxeke Street
Bloemfontein
THE
DIRECTOR OF PUBLIC PROSECUTIONS
BLOEMFONTEIN
[1]
“
Mr.
Mokoena” & “the accused”.
[2]
Section
47(6)
On considering the application, the judge in chambers may
order that the State patient—
(a)
remain a state patient;
(b)
be reclassified and dealt with as a
voluntary, assisted or involuntary mental health care user in terms
of Chapter V;
(c)
be discharged unconditionally; or
(d)
be discharged conditionally.