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[2021] ZALMPPHC 14
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S v Mabena and Others (REV06/2021) [2021] ZALMPPHC 14 (26 April 2021)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
REV06/2021
In
the matter between:
THE
STATE
And
MOLOKO
AARON MABENA AND 2 OTHERS
ACCUSED
JUDGEMENT
KGANYAGO
J
[1]
The Head of District Molemole Magistrate Court has brought this
matter on review under
section 173 of
The
Constitution of the Republic of South Africa Act
[1]
for this Court to exercise its inherent jurisdiction and supervisory
powers over magistrates’ courts.
[2]
On 5
th
August 2020, the accused allegedly robbed, raped
and attempted to kill complainants in the farming area of Mogwadi
which falls
within the area of jurisdiction of Molemole. The accused
also allegedly robbed the complainants of their family motor vehicle
which
was used to load the stolen items.
[3]
One accused was arrested in Mogwadi whilst the other accused were
cornered in Polokwane where
a shootout ensued with the police. During
the shootout one suspect was shot and killed. Two accused were
arrested in Polokwane.
The stolen vehicle was recovered together with
the firearms and ammunition stolen at the farm. When the accused were
arrested in
Polokwane, they were charged with five counts of
attempted murder, one count of murder, possession of firearms and
ammunition together
with the other accused who was arrested in
Mogwadi.
[4]
The bail application of the accused was brought in the main seat of
the magisterial district of
Molemole in Morebeng Regional Court. All
the accused were refused bail. Before the accused bail application
was heard, the State
Prosecutor did not approach the office of the
Director of Public Prosecutions and the Regional Court President to
identify an appropriate
court to entertain the bail application, or
to obtain written authority to do bail application in one identified
centralised district
court since the offences were committed in two
different magisterial districts, which are Polokwane and Molemole.
[5]
On receipt of the review, I have requested the comments from the
office of the Deputy Director
of Public Prosecutions (DDPP). They
have furnished me with a valuable opinion, of which I am indebted to
them. According to the
DDPP, this Court should find that the
proceedings were in accordance with justice, and order that a written
authority be issued
by the Director of Public Prosecutions (DPP)
directing that the matters emanating from the two magisterial
districts be centralized
in order to cure the defect. The DDPP
further submitted that in the alternative, this Court may order bail
proceedings to be in
accordance with justice in as far as charges
falling within the jurisdiction of Molemole Magistrate Court.
[6]
The question which must be determined by this Court is whether the
failure by the prosecution
to approach the office of the DPP and
Regional Court President to identify an appropriate court or to
obtain written authority
to entertain the bail application in the
Regional Court renders the whole bail proceedings to be irregular,
and should be set aside.
[7]
The accused were arrested for offences which allegedly took place in
two different magisterial
districts. Generally, bail proceedings are
held in a court within the magisterial district which the offence/s
were committed.
The accused in this matter are facing Schedule 6
offences. Section 50(6)(c) of the
Criminal
Procedure Act
[2]
(CPA)
read as follows:
“
The bail
application of a person who is charged with an offence referred to in
Schedule 6 must be considered by a magistrate’s
court: Provided
the Director of Public Prosecutions concerned, or a prosecutor
authorised thereto in writing by him or her, may,
if he or she deems
it expedient or necessary for the administration of justice in a
particular case, direct in writing that the
application must be
considered by a regional court.”
[8]
In terms of section 50(6)(c) bail proceedings of an accused who is
facing a Schedule 6 offence
must be heard in a magistrate court. Bail
proceedings for a Schedule 6 offence may only be heard in a regional
court when the DPP
or a prosecutor authorised for that purpose,
directs in writing. The subsection uses the word “
must”
,
which means that it is peremptory to obtain a written authority for
bail application of a Schedule 6 offence to be heard in the
regional
court.
[9]
The accused bail application was held in a regional court. According
to the memo of the Head of
the District Court, on both hard copy of
the record and mechanical proceedings, there is no mention that
written authority was
obtained from the DPP, chief prosecutor or
senior prosecutor for the bail application to be heard in the
regional court. The written
authorisation must be handed to the
presiding magistrate before the commencement of the bail application.
That did not happen in
the case at hand and it therefore amount to
gross irregularity.
[10]
Section 90(8) of the
Magistrate’s
Courts Act
[3]
read as follows:
“
Where an accused
is alleged to have committed various offences within different
districts within the area of jurisdiction of any
attorney-general,
the attorney general concerned may in writing direct that criminal
proceedings in respect of such various offences
be commenced in the
court of any particular districts within his area of jurisdiction,
whereupon such court shall have jurisdiction
to act with regard to
any such offence as if such offence had been committed within the
area of jurisdiction of that court, and
the court of the regional
division within whose area of jurisdiction the court of such district
is situated, shall likewise have
jurisdiction in respect of any such
offence if such offence is an offence which may be tried by the court
of a regional division.”
[11]
The attorney-general referred to in section 90(8) of the Magistrates’
Court Act will refer to
the DPP. It is not in dispute that the
offences which the accused are facing have allegedly been committed
in two different magisterial
districts. The prosecution was obliged
to have approached the office of the DPP to obtain written authority
which identifies the
magistrate court where the accused bail
application was supposed to be heard. The prosecution has failed to
do so. A magistrate
court is a creature of statute, and has no
inherent powers like a High Court. A magistrate court is therefore
not empowered to
do something that the empowering legislature does
not authorize it to do. The regional court held in Morebeng did not
have jurisdiction
to hear the bail application for offences allegedly
committed in the magisterial districts of Polokwane. Therefore,
failure by
the prosecution to obtain written authority from the
office of the DPP identifying the magistrate court where the accused
bail
application should have been held, amounts to gross
irregularity.
[12]
In
Johannes
Windvogel v The State
[4]
at para 8 Mhlanga JA said:
“
Subsequent to the
hearing of the appeal, it became apparent that the court a quo did
not have jurisdiction to hear an application
for leave to appeal to
this court as s16(1)(b) of the Superior Courts Act 10 of 2013 (the
Act), which came into operation on 23
August 2013, provided that
leave to appeal against any decision of a division on appeal to it
lies to the Supreme Court of Appeal
upon special leave being granted
by this court. Consequently, the jurisdictional basis for an appeal
to this court was absent.
In the result, the court a quo did not have
the power to grant the appellant leave to appeal to this court, and
the proceedings
of 1 March were a nullity.”
[13]
Even though Windvogel case relates to the interpretation of
s16(1)(b)
of the
Superior Courts Act, the
principle of establishing the
jurisdictional basis before a court could hear the matter remains the
same. Without the prosecution
having obtained written authorisation
from the office of the DPP for the bail application of the accused to
be heard in the regional
court, and also having failed to obtain
written authorisation from the office of the DPP which identified the
court within a particular
area of jurisdiction to hear the bail
application, it follows that the bail application heard by Morebeng
regional court is a nullity
in its entirety. The proceedings of the
said bail application of the accused were not in accordance with
justice, and stand to
be reviewed and set aside.
[14]
In the result I make the following order:
14.1.The proceedings of
the bail application for the accused held at Morebeng regional court
are reviewed and set aside in its entirety.
14.2. The matter is
remitted back to the magistrate court for a fresh bail application
before another magistrate, and also for the
prosecution to obtain the
necessary written authority from the office of the DPP should the
accused wish to proceed with a fresh
bail application.
MF.
KGANYAGO J
JUDGE
OF THE HIGH COURT OF SOUTH
AFRICA,
LIMPOPO DIVISION, POLOKWANE
I AGREE
MV
SEMENYA
JUDGE
OF THE HIGH COURT OF SOUTH
AFRICA,
LIMPOPO DIVISION, POLOKWANE
Date delivered: 26
th
April 2021
[1]
108 0f 1996
[2]
51 of 1977
[3]
32 of 1944
[4]
[2015] ZASCA 63
(8 March 2015)