About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2022
>>
[2022] ZAFSHC 110
|
|
Ex Parte Reyneke: In re: S v Mokoena (2232/2022) [2022] ZAFSHC 110 (24 May 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
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:
19 May
2022
Order:
24
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 24 May 2022. The date and time for hand-down is deemed to be 24
May 2022 at 15h00.
Summary:
Application
for leave to appeal - Habeas Corpus - legality of incarceration of
accused following the refusal of release in terms
of the
Criminal
Procedure Act 51 of 1977
but after discharge from hospital following
an order in terms of
section 47(6)
[2]
of the
Mental Health Care Act 17 of 2002
.
JUDGMENT
[1]
The
matter that lies for adjudication is an application for leave to
appeal an order refusing “that the accused be released
immediately
in terms of the principles of the
interdictum
de libero homine exhibendo
or
habeas
corpus.
”
[3]
[2]
The release is demanded notwithstanding
the clear travesty of justice that caused an erroneous order for the
accused admittance
to the hospital when he was referred as a State
Patient, also when he was ordered to be discharged from hospital in
terms of the
Mental Health Care Act 17 of 2002
and the fact that he
was never ordered to be released from custody in terms of the
Criminal Procedure Act 51 of 1977
.
[3]
After an urgent application I ruled and ordered as
follows:
[25]
To summarise:
1.
The Order for Discharge in terms of the
Mental Health Care 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 Care 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: Free State and with regard to
the papers filed 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.
[4]
In
1928,
[4]
94 years ago, Curlewis,
JA supported by Solomon, CJ and Wessels, JA stated in the Supreme
Court of Appeal on page 277 that:
By the
words "just decision of the case" I understand the
Legislature to mean to do justice as between the prosecution
and the
accused.
A criminal trial is not a game
where one side is entitled to claim the benefit of any omission or
mistake made by the other side,
and a judge's position in a criminal
trial is not merely that of an umpire to see that the rules of the
game are observed by both
sides. A judge is an administrator of
justice, he is not merely a figure head,
he
has not only to direct and control the proceedings according to
recognised rules of procedure but to see that justice is done
.
I do not think that a narrow or restricted interpretation should be
put on
sec. 247.
Many provisions of Act 31 of 1917, for instance
those relating to the amendment of indictments, tend to indicate that
the Legislature
intended to do away with technicalities and
formalities and
to place criminal trials
on such a footing that an accused person shall not escape, as in the
past, merely by reason of some technicality
or mistake.
The intention of sec. 247 seems to me to give a
judge in a criminal trial wide discretion and power in the conduct of
the proceedings,
so that an innocent
person be not convicted or a guilty person get free by reason,
inter
alia
, of some omission, mistake
or technicality. (
Accentuation added)
"It
appears to me that the increasing tendency of Courts of Justice is to
get away from technicalities as much as possible
.
There is of course great danger in stretching that tendency too far,
and in many cases, it is somewhat difficult to distinguish
between a
matter of technicality and a matter of substance. But I think that
the decision turns on the wording of the section coupled
with the
facts of this particular case....
After
all a criminal trial is not a game. There was an oversight on the
part of the Crown, and it seems to me to have been a very
venial
oversight,
because there was nothing in
the conduct of the case up to that stage to indicate that the use of
the words charged in the indictment
would be contested, and in fact
the whole conduct of the case had been put on the assumption that
those words were used.
I think it would
be making a farce of the proceedings
if
I did not allow evidence to be called to clear up this point."
(At page 267) (Accentuation added)
[5]
In
Lethoko and
another v Minister of Defence and others
2021 (2) SACR 661
(FB) I reiterated 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.
(Accentuation
added)
[6]
Section 7 of the Constitution of the Republic of
South Africa, 1996 decrees that:
(1) This Bill of
Rights is a cornerstone of democracy in South Africa. It enshrines
the rights of all people in our country
and affirms the democratic
values of human dignity, equality and freedom.
(2) The state must
respect, protect, promote and fulfil the rights in the Bill of
Rights.
(3)
The rights in the Bill of Rights are subject to the
limitations contained or referred to in section 36, or elsewhere
in
the Bill.
(Accentuation added)
[7]
The right to freedom is not absolute and
unqualified.
Section
35 of the Constitution: Arrested, detained and accused persons. —
(1) Everyone who is
arrested for allegedly committing an offence has the right—
(d)
to be brought before a court as soon as reasonably possible, but not
later than—
(i)
48 hours after the arrest; or
(ii)
the end of the first court day after the expiry of the 48 hours, if
the 48 hours expire outside
ordinary court hours or on a day which is
not an ordinary court day;
(e) at the
first court appearance after being arrested, to be charged or to be
informed of the reason for the detention
to continue, or to be
released; and
(f)
to be released from detention if the interests of justice permit,
subject to reasonable condition.
(Accentuation
added)
Section 36 of the
Constitution:
(1) The rights in
the Bill of Rights may be limited only in terms of law of general
application to the extent that the limitation
is reasonable and
justifiable in an open and democratic society based on human dignity,
equality and freedom, taking into account
all relevant factors,
including-
(a) the nature of
the right;
(b) the importance
of the purpose of the limitation;
(c) the nature and
extent of the limitation;
(d) the relation
between the limitation and its purpose; and
(e) less
restrictive means to achieve the purpose.
(2) Except as
provided in subsection (1) or in any other provision of the
Constitution, no law may limit any right entrenched
in the Bill of
Rights.
[8]
It is not the law of this country; and will never
be, to release a man without any judicial oversight from custody
“immediately”
into society in the following
circumstances:
1.
He has numerous and some serious previous
convictions (the investigating officer referred to him as a ‘career
criminal’
when he testified in May 2022);
2.
he was arrested for the case on which he is
in custody after release on parole;
3.
he attempted to evade arrest by the use of
alias’s;
4.
his family circumstances are unstable (to
the extent that the investigating officer referred to them as a
family that has a tendency
to commit crime and that was surprised to
learn that the youngest brother was released from prison);
5.
he stands trial on serious offences that
include the murder of an 87-year-old man that died of “intracranial
haemorrhage due
to blunt force trauma to his face” and
housebreaking with the intent to rob and robbery with aggravating
circumstances;
6.
he suffers from mental afflictions
described as: “Psychotic Disorder Unspecified & Cannabis
Use Disorder” that is
controlled by medication and therapy.
(His abuse of harmful substances apparently caused his condition);
7.
he admitted in terms of
section 220
of the
Criminal Procedure Act 51 of 1977
during the trial that is now partly
heard, that:
a.
On the morning of 27 February 2016, I was
at a Tavern called Ma-China in Sasolburg. I was in the company of
Accused 2 and we were
drinking. At the time I’ve known Accused
2 for about two months, him being a seller of facial products.
b.
Whilst drinking, we ran out of money and
Accused 2 indicated that he knows a house where we could break in to
look for money and/or
valuables. Accused 2 explained that he knows
the house as it is not far from the house he stayed at and that he
also knows that
the owner would hand bread to the needy. I agreed and
we went to the house situated at [....] J [....]1 S [....] Street
Sasolburg.
At the time I did not know that the house belonged to P
[....] J [....]2 S [....]. On the way I picked up an iron rod to
break
a door or window open to gain entrance.
c.
We arrived at the house at about 10:00 the
morning. We saw that the doors and security doors leading into the
house stood open,
thus I had no need for the iron rod. Upon entering
the house, we went to the lounge. There I took a laptop, DVD writer,
a cellphone,
portable radio and blue jacket. Accused 2 took a colour
printer machine, also from the lounge. We put all these things inside
a
duvet that we took from one of the bedrooms so to carry it in.
d.
At leaving the house, we entered the garage
too. There I took a saw and metal scissors. At about 10:30 we
departed for my parental
home at Zamdela, using a taxi that we found
near Checkers. We left the items at my parental home and went looking
for buyers. Accused
2 was present when I found a buyer for the
laptop. We returned to my parental home to fetch the laptop so to
hand it over to the
buyer, now known as Victor Mashegoane Malome. I
sold the laptop and the DVD writer for R400 and divided the money
between Accused
2 and myself so to buy beer with it. At the New Dawn
Pawnshop, I sold the metal scissors and a wood saw to Mrs.
Oberholtzer for
R30. Accused 2 was not present at the time.
e.
On Monday, 29 February 2016, I sold the
portable radio to one Mlamuli Jetros Luthuli for R70. Accused 2 was
not present at the time.
I used the stolen phone of P [....] J
[....]2 S [....] for some time, later replacing its simcard with my
own. I later sold it
to a Nigerian man for R200.
f.
After my arrest, I assisted the police in
tracing Accused 2 and handing over the items I have stolen from the
house of P [....]
J [....]2 S [....].
g.
I do not dispute the findings, correctness
and conclusions made in the following documents:
i.The
identity of the Deceased being P [....] J [....]2 S [....];
ii.The
post mortem report done by Dr. DFH Humphris;
iii.The
photos taken at the scene and during the post mortem;
iv.An
Identification Parade, held on 6 May 2016, where I was pointed by
Mrs. Oberholtzer as the seller at the new Dawn Pawnshop.
4.
I
beg forgiveness and mercy from the Court with sentence, as I am sorry
for what I have done. I accept the consequences for my acts.
[9]
The facts and the law that brought the matter
before this court and that is now an application for leave to appeal,
is vital.
1.
On 6 May 2022 the file was allocated to me
by the Acting Judge President.
2.
Both counsel for the State and the accused
met with me in Chambers and informed that the matter is for
postponement and that they
are agreed that the accused must be
released on warning. The postponement was for the original Presiding
Officer in front of whom
the matter is partly heard, to be located
and to inquire as to his availability for the trial to continue. The
trial is at its
end according to counsel.
3.
Imperative is the fact that the Presiding
Officer was acting as a Judge at the stage of the trial and when the
accused was referred
as a State Patient. He neglected to issue a
warrant that would cause the continued incarceration from the
hospital after the discharge
of the accused from hospital. This was a
bona fide
mistake.
4.
Imperative is the fact that the accused was
in custody since his arrest and up until his referral as State
Patient. The only manner
in which he could have been so incarcerated
is if his release was refused by a Court. This is now from 2016 to
2018.
5.
The ground of appeal at 1.1 that no
evidence was led as to the refusal of bail for the accused following
his arrest is wrong. The
very same counsel that acted for the accused
during the trial is the legal practitioner that brings this
application. It is common
cause that the accused was in custody for
years before he was referred as a State Patient and the only way for
this to could have
happened was if a court so ordered. Counsel for
the accused knows well that release was refused for him and never
raised any point
to the opposite when the matter landed before me and
when we started with a bail application.
6.
The events that followed before the matter
came to me was that the Free State Psychiatric Complex did not
release the accused after
the Order of the Judge in Chambers in terms
of
section 47
of the
Mental Health Care Act. It
is not clear if he
was held at the hospital or at Grootvlei Prison before he was brought
to court on 3 May 2022.
7.
The Judge President remanded the matter on
3 May 2022 for the issue of the Presiding Officer to be clarified and
ordered the accused
to remain in custody. Counsel for the accused was
also not available. It is clear that the Free State Psychiatric
Complex realised
that the discharge from hospital does not
automatically justify the release from custody.
8.
The remand was to 6 May 2022 when the
matter first appeared before me. Notwithstanding the decision between
counsel for the State
and the accused that he be released, did I
indicate that I am not willing to release the accused before all the
factors that lead
to his incarceration is placed before me and that I
am satisfied that he may be, constitutionally so, released.
9.
Counsel indicated that the application for
release is in terms of
section 48G
(3) of Act 111 of 1998. In
principle, no person should be detained awaiting trial for longer
than two years. Section 49G (1) and
(3) of Act 111 of 1998 provides:
(1)
The period of incarceration of a remand detainee must not exceed two
years from the initial date of admission
into the remand detention
facility, without such matter having been brought to the attention of
the court concerned in the manner
set out in this section: Provided
that no remand detainee shall be brought before a court in terms of
this section if such remand
detainee had appeared before a court
three months immediately prior to the expiry of such two year period
and the court during
that appearance considered the continued
detention of such detainee.
(3)
Any remand detainee whose detention will exceed the period stipulated
in subsection (1) must be referred
to the relevant court by the Head
of the remand detention facility or correctional centre, as the case
may be, to determine the
further detention of such person or release
under conditions appropriate to the case.
10.
The court dealing with an application under
section 49G (3) must take into account:
(a)
the probable period of time the trial is
still to endure until finalization;
(b)
the reasons predicating any delay in the
prosecution and finalization of the trial;
(c)
the nature and the gravity of the charges
the applicants are facing;
(d)
the strength of the case against the
applicants and the probability that the applicants as a consequence
thereof may attempt to
flee or evade to stand their trial; and
(e)
the severity of the sentence likely to be
imposed should the applicants be convicted.
11.
The
hearing under section 49G (3) is not in the nature of a bail
hearing.
[5]
12.
I ruled that since the situation is
sui
generis
in that the accused was
incarcerated as a State Patient and his case served before a Judge in
Chambers on 30 March 2022 and in
court on 3 May 2022; that a formal
bail application must serve before me and not an application in terms
of section 49G of the
Correctional Service Act. Counsel for the State
as well as the accused were in agreement that the bail application
will be in terms
of schedule 6 of the CPA.
13.
The bail application commenced and the
accused/applicant testified, his brother testified and the
investigating officer. Strangely
enough were the previous convictions
not placed before the court as is decreed in the CPA until the court
started to inquire about
it; neither counsel for the State nor the
accused adduced evidence on this. The previous convictions of the
accused turned out
to be extensive. The State did not oppose the bail
application and closed the case for the State.
14.
During an adjournment and after the court
indicated that it wanted to call the psychiatrist that attended to
the case of the accused;
counsel for the accused indicated in
Chambers that they wanted for the bail application to be suspended to
bring the application
in terms of the principles of the
interdictum
de libero homine exhibendo
or
habeas
corpus
.
15.
I indicated to counsel for the State that
she must laisse with her senior because the fact that she did not
oppose the release of
the accused was of concern.
16.
Even though the application served
ex
parte
before me the applicant saw it
fit to serve it on the Office of the Public Prosecutor: Free State.
He maintains that it was out
of courtesy; this is not correct. The
State has a real interest in the matter. Although the application for
leave to appeal state
it as an irregularity that the court granted
the State the opportunity to address it during the application, he
did not fault the
Notice to Abide by the State. The senior to the
State Advocate that filed the Notice to Abide; vehemently argued
against the release
of the accused and indicated that the accused
will be arrested immediately if released. They just did not have a
warrant ready
on the date of the application that was 16 May 2022.
17.
Even if the involvement of the State, as
was allowed by the court, is an irregularity, which it cannot be in
the circumstances of
the case; the facts and law demand the continued
incarceration of the accused until the finalisation of the bail
application.
[10]
This was my judgment on the application:
[1]
This is an urgent application “that the accused be released
immediately in terms
of the principles of the
interdictum de
libero homine exhibendo
or
habeas corpus”.
[2]
It is alleged that the accused was unlawfully held in custody from 30
March 2022 to
date.
[3]
The
interdictum de libero homine 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)(a)(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.
[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 Care 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
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, filed in this
application, is of
grave concern.
[18]
Notwithstanding the release in terms of section 47 of the Mental
Health Care 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 of
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.
[11]
The above brings me to the question as of the
appealability of the matter. This is the test:
1.
I
do not agree that the bar was raised with the promulgation of the
Superior
Courts
Act 10
of
2013
.
[6]
2.
The
right to appeal is, among others,
managed by the application for leave to appeal. It may not be abused
but the hurdle of an application
for leave to appeal may never become
an obstacle to justice in the post-constitutional era. Access to
justice is access to justice.
3.
Historically
the rule was: “In that reasonable prospect exists that another
Court, sitting as the Court of Appeal, would come
to different
findings and conclusions on the facts and the law.”
[7]
4.
The
words “would” and “only” in the current
legislation caused some to view that the bar for granting leave
to
appeal has been raised.
[8]
All it in reality articulates is that the matter must be pondered in
depth and with careful judicial introspection. There must
be a sound,
rational basis for the conclusion that there are prospects of success
on appeal and another Court would come to another
conclusion.
[9]
5.
The final word was spoken
recently in the Supreme Court of Appeal in
Ramakatsa
and others v African National Congress and another
[2021]
JOL 49993
(SCA) in March 2021:
[10]
Turning the
focus to the relevant provisions of the
Superior Courts Act (the
SC
Act), leave to appeal may only be granted where the judges concerned
are of the opinion that the appeal would have a reasonable
prospect
of success or there are compelling reasons which exist why the appeal
should be heard such as the interests of justice.
This Court in
Caratco, concerning the provisions of section 17(1)(a)(ii) of the SC
Act pointed out that if the Court is unpersuaded
that there are
prospects of success, it must still enquire into whether there is a
compelling reason to entertain the appeal. Compelling
reason would of
course include an important question of law or a discreet issue of
public importance that will have an effect on
future disputes.
However, this Court correctly added that "but here too the
merits remain vitally important and are often
decisive". I am
mindful of the decisions at High Court level debating whether the use
of the word "would" as oppose
to "could" possibly
means that the threshold for granting the appeal has been raised.
If
a reasonable prospect of success is established, leave to appeal
should be granted. Similarly, if there are some other compelling
reasons why the appeal should be heard, leave to appeal should be
granted. The test of reasonable prospects of success postulates
a
dispassionate decision based on the facts and the law that a court of
appeal could reasonably arrive at a conclusion different
to that of
the trial court. In other words, the appellants in this matter need
to convince this Court on proper grounds that they
have prospects of
success on appeal. Those prospects of success must not be remote, but
there must exist a reasonable chance of
succeeding. A sound rational
basis for the conclusion that there are prospects of success must be
shown to exist.
(Accentuation added)
6.
The
fact remains that
the
judicial character of the task conferred upon a presiding officer in
determining whether to grant leave to appeal is that it
should be
approached on the footing of intellectual humility and integrity,
neither over-zealously endorsing the ineluctable correctness
of the
decision that has been reached, nor over-anxiously referring
decisions that are indubitably correct to an appellate Court.
[10]
[12]
There does not exist a reasonable chance to
succeed on appeal and that another court would come to another
conclusion on the
sui generis
facts of this case. Counsel for the accused must give serious
consideration for the bail application, that is partly heard, to
proceed. The finalisation of the main trial must be expedited.
[13]
ORDER
1.
The application for leave to appeal is
dismissed.
2.
No order is made as to costs.
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:
FREE STATE
[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.
[3]
Kruger,
A;
Hiemstra's
Criminal Procedure
,
Chapter 5 Arrest, Section 50 Procedure after arrest, last updated:
February 2022 - SI 15 correctly found that Section 35(2)(d)
of the
Constitution now gives detained persons the right “to
challenge the lawfulness of the detention in person before
a court
and, if the detention is unlawful, to be released”. “Even
without the purposive interpretation which is permissible
with
constitutional provisions, this provision is an unambiguous
confirmation of the
habeas
corpus
idea. It is also significant that the provision addresses both
procedural and substantive aspects.
In
actual fact C 35(2)(d) completely obviates the common-law and
statutory provisions; but it is nevertheless [Page 5–32]
useful to take note of the pre- and extra-constitutional aspects.
Furthermore, as to procedure, there are several precedents in the
previous jurisprudence.” (Accentuation added) Compare
Habeas
corpus as a remedy for deprivation of the right to personal liberty:
contemporary developments in Canada and South Africa
by Chuks Okpaluba & Anthony O. Nwafor, The International Journal
of Human Rights, 23:10, 1594-1614, DOI:
10.1080/13642987.2019.1624534
To link to this article:
https://doi.org/10.1080/13642987.2019.1624534.
[4]
Rex
(Respondent) v Hepworth (Appellant)
1928 AD 265.
[5]
S
v Ditlhakanyane and Others
2015 (1) SACR 437
(GJ) at paragraph [49] and
S
v Matshoba and Others
2015 (1) SACR 448
(ECP) at paragraph [6]. Section 49G was put into
operation by Proclamation 21 of 2013 with effect from 1 July 2013
(GG 36621
of 1 July 2013).
[6]
Moloi
and Another v Premier of the Free State Province and Others
(5556/2017)
[2021] ZAFSHC 37
(28 January 2021).
[7]
S
v Smith
2012 (1) SACR 567
(SCA) at [7].
[8]
Moloi
and Another v Premier of the Free State Province and Others
(5556/2017)
[2021] ZAFSHC 37
(28 January 2021),
Hans
Seuntjie Matoto v Free State Gambling and Liquor Authority
4629/2017[ZAFSHC]
8 June 2017,
K2011148986
(South Africa) (Pty) Ltd v State Information Technology Agency (SOC)
Ltd
2021 JDR 0273 (FB).
[9]
17.
Leave to appeal. —
(1)
Leave to appeal may only be given where the judge or judges
concerned are of the opinion
that—
(a) (i)
the appeal would have a reasonable prospect of success; or
(ii)
there is some other compelling reason why the appeal should be
heard, including
conflicting judgments on the matter under
consideration;
(b) the decision
sought on appeal does not fall within the ambit of section 16 (2)
(a); and
(c) where the
decision sought to be appealed does not dispose of all the issues in
the case, the appeal would lead to a
just and prompt resolution of
the real issues between the parties.
[10]
Shinga
v The State and another (Society of Advocates (Pietermaritzburg Bar)
intervening as Amicus Curiae); S v O'Connell and others
2007
(2) SACR 28
(CC
).