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[2021] ZALMPPHC 29
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DPP Limpopo v Patel & Another (REV85/2020) [2021] ZALMPPHC 29 (30 April 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: REVSS/2020
In
the matter between:
THE
DIRECTOR OF PUBLIC
APPLICANT
PROSECUTIONS
LIMPOPO
and
RAMEEZ
PATEL
1st
RESPONDENT
ME
UNGERER, MAGISTRATE COURT,
LIMPOPO
(HELD AT POLOKWANE)
2nd
RESPONDENT
REVIEW
JUDGMENT
NAUDE
AJ:
[1]
This
is a review application
in
terms of Section 22(1
)
of the Supe
ri
or
Courts Act
,
Act 10 of 2013
,
in terms whereof the Applicant applies
for
an
order setting as
i
de
or reviewing the decision of the Second Respondent
to
admit the First Respondent to bail.
[2]
The
Applicant
contends
that
the
Magistrate
'
s
Court did not
have the requisite
jurisdiction
in
order to entertain the First
Respondent's
renewed
bail
application on new facts
,
after
the matter had been
transferred to
the
High Court for trial and after the First Respondent had already
made
several appearances in the High Court
.
[3]
In summary the facts are that the First Respondent was granted bail
by
the
Second
Respondent on
14
August
2020
,
after
the First Respondent
had
brought
several bail applications
.
The
First Respondent's last
appearance
in the High Court was on 2 March 2020
.
The High Court then postponed the matter
to 2 February 2021
,
with
the accused to remain in custody
.
The
following order was made
:
-
"
1
.
Matter postponed to 01-12/02/2021
for trial and to 16 and 17 Apri
l
for Bail Application
.
Accused in custody.
"
[4]
Several attempts by the First Respondent to be admitted to bail had
been dismissed
on several occasions by the Magistrate
'
s
Court
.
The
F
i
rst
Respondent's bail appeal was denied twice in this division of the
High Court
.
The
First Respondent was granted bail by the Second Respondent on 14
August 2020 on his third attempt after the First Respondent
had
already appeared in the High Court on several occasions
.
[5]
It
i
s
against this background that this Court is called upon to decide
whether the court a
quo
had
the necessary jurisdiction to hear the ba
il
application based on new facts or
whether the court should have invoked the provisions of
Section
60(1)(b) of the Criminal Procedure Act 51 of 1977 ("the Act")
and refused to hear the bail
application and
r
efer
the matter to the High Court where the First Respondent's matter is
pending
.
The
crisp issue therefore arising for determination in the present matter
exclusively turns
on
a proper interpretation of the meaning
of Section 60(1)(b) of the Act.
[6]
Section
60(1)
of the
Criminal Procedure
Act
51 of
1977
provides as follows:-
"
An
accused who
is
in
custody in respect of an offence shall
,
subject to the provisions of
section 50(6)
,
be
entitled to be released on bail at any stage
preceding his or her conviction in
respect of such offence
,
if
the court is satisfied that the interests of justice
so
permit
."
[7]
Section
60(1)(b) of
the
Act
provides
that:-
"
Subject
to the provisions of section 50(6)(c)
,
the court referring an accused to
any other court for trial or sentencing retains jurisdiction relating
to the powers
,
functions
and duties in respect
of
bail
in
terms
of this Act
until
the accused appears in such other
court for the first t
i
me
."
[Own emphasis]
(8]
Section
50(6)(c)
of
the
Act
states 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
that the Director
of
Public Prosecutions
concerned,
or
a
prosecutor
authorized
thereto
on
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
."
[9]
The Applicant submits that the meaning to be attributed
to
the
wording of
Section
60(1)(b)
is that, once an accused
person has appeared
in
the
High Court
(or
other
court), pursuant
to
a
transfer of such person from the
transferring
court for sentencing or trial purposes
,
such receiving court shall be vested
with exclusive jurisdiction in respect of bail proceedings.
[10
]
The
Applicant's
counsel
submitted that
it
should
be noted that
Section 60(1)(a)
simply
refers to
"the
court
"
as
the
forum empowered to
release
an
accused on bail.
It
does not expressly state which court it
may
be
in
a particular instance. It was argued by
the Applicant's counsel
that in this
,
it
differs
from
its
predecessor
-
the
section prior to being amended provided that ari accused could on his
or her
"
first
appearance
in
a
lower
court
or at any stage after such appearance
,
apply to such court or
,
if the
proceedings
against the accused are pending in a superior court
,
that
court
,
to be released on bail".
[11]
The Applicant's counsel further referred to submissions made by John
Van der Berg in Bail
,
A
Practitioner's Guide
,
Third
Edition. Applicant's counsel submits that it is clear from
Section
60(1)(b) of the Act
,
that
where the accused's matter is transferred for trial or sentence to
either the Regional Court or High Court ant the accused
has not
appeared yet
,
the
transferring court (Magistrate
'
s
Court) still maintains jurisdiction on matters relating to bail.
[12]
John Van der Berg In Bail, A
Practitioner's Guide, Third Edition at page 49
stated
as follows:-
"
The
provision
is
somewhat
less
clear
than
s
60(1)
as
it
read
before the 1995 amendment
,
and which provided that
'
an
accused who
is
in
custody
in respect of any offence may at his
first appearance in
a
lower
court
or
at
any
stage after such appearance
,
apply to such court or, if the
proceedings against the accused are pending in
a
superior court
,
to that court, to be released on
bail
...'.
This
lack of express provision notwithstanding
,
however, it is submitted that
'
the
court
'
referred
to in
s60(1)(a)
will of necessity by the court
(and
,
moreover, usually
a
lower court) in which the accused
makes his first appearance or
,
subsequently
,
the trial court
(which
may be
a
lower court or
a
superior court)
."
[13]
The First Respondent
'
s
counsel argued that on the contrary
,
the
exact opposite of the above contention is argued
,
to the extent that it is submitted that
the true intention and meaning of the wording of
Section
60(1)(b)
intended by the Legislature
constitutes and brings about the existence of concurrent jurisdiction
(and no less) in relation to ba
i
l
proceedings between the transferring court
(in
casu
the Magistrate
'
s
Court) and the receiving court
(in
casu
the High Court)
,
once the First Respondent had made his
appearance in the High Court
,
as
opposed to the prior exclusive jurisdiction enjoyed by the lower
court (prior to such transfer) in respect of bail proceedings
in
terms of the said section
.
[14]
The First Respondent's counsel submitted that the very issue arising
for determination in the
present instance
,
i.e. the interpretation of
Section
60(1)(b) of the Act
,
has
been instructively discussed and ventilated by
Van
der Berg
supra
and
with full acknowledgement to the learned author quoted what was
stated by
Van der Berg on page 49 of
Bail, A Practitioner's Guide
,
as
follows
:
-
"
6.2.
1
Transfer
of accused for trial or sentencing
Subject
to the curtailment of the accused
'
s
right to be brought to court outside ordinary court hours
,
the court (usually the d
i
strict
court) referring
the
accused to another court (usually the regional court of H
i
gh
Court) fo
r
trial
or sentencing will retain jurisdiction in respect of bail until the
accused
appears
in such other court for the first time
..
Difficulties
of interpretation have arisen as
a
result of the amendment
of s50(6)
,
particularly
when it is read in conjunction with
s60(1)(b) of the Act
,
which provides that the court
[usually
a
magistrate
'
s
court]
referring
an accused
to
any
other court
for
trial or sentencing retains
jurisdiction relating to the powers
,
functions and duties
in
respect of bail in terms of this Act
until
the accused appears in such other court
for
the first time
.
[emphasis added.]
Does
this mean that the magistrate
'
s
court
,
once
it has referred an accused to the regional court of the High Court
for trial
,
is
functus officio with regard to the matter of the accused
'
s
bail
,
and
retains no further jurisdiction thereanent? Or may it be said that
the magistrate
'
s
court and the higher court in question hold concurrent jurisdiction
once the accused
has
appeared
in
the latter court? The question is one of some importance
,
as
it
fairly frequently happens that
a
higher court is for one reason or
another unable or unavailable to hear
a
bail application of an accused on
trial or awaiting for trial before
it. In such cases the accused
'
s
right to apply for bail speedily may be denied him if the referring
lower court were
deprived
of its
original
jurisdiction
.
The
question
was
considered
in
Director
of Public Prosecutions, Eastern Cape, v Louw NO: In re S v
Makinana
2004 (2) SACR 46
(E)
where it was observed [at 56g]
:
'The
words
'
subject
to the provisions of s 50(6)(c) in s 60(1)(b) must be
interpreted in conformity with
,
and in such
a
way as to promote
,
the
values
of
the
Constitution
and the
spirit
,
purport
and objects
of the Bill
of Rights
.
It
must be interpreted
,
in other words
,
so
that
it promotes the value of, and the right to
,
freedom as well
as
the right to be
'
releasedfrom
detention
if
the
interest
of
justice
permit
,
subject to reasonable conditions'
and the right of access to court
.
More than that
,
it
must be interpreted
in such
a
way that it
gives effect to the State
'
s
obligations
,
in
terms of s 7(2) of
the
Constitutio
,
n
not only to abstain from interfering with
these rights
-
the
negative obligation to respect them
-
but also to positively facilitate
their exercise
-
the
positive obligations to protect
,
promote
and fulfil them.'
In
the course of granting a declaratory the court in Makinana held that
the magistrate
'
s
court has exclusive jurisdiction to hear a bail application in
respect of any case in which an accused person is charged
with a Schedule 6 offence (subject to a
directive in terms of section 50(6)(c)) from the first
appearance
of the accused until he appears in such higher court to
which his matter may be transferred
,
whereupon
such
other court shall enjoy jurisdiction to entertain a bail application.
The court did not declare such
higher court to be vested with exclusive jurisdiction to
consider
bail once the accused has appeared before
it.
[writer's
emphasis]
In
S v Mzatho and Others
2007 (2)
SACR 309
(T)
the
court approved of
the
concurrent jurisdiction approach by holding that in appropriate
circumstances (for instance where it would be unhealthy for
an area
'
s
sole regional magistrate to hear
a
bail
application
as
well
as
the
subsequent trial)
a
regional
magistrate could refer the matter
back to the magistrate
'
s
(district) court
,
even though the accused had
already appeared before him pursuant to
a
referral by the lower court
."
[15]
The First Respondent
'
s
counsel further
argued
that the above referred to approval
stated
in
Mzatho
(supra)
was echoed
and
restated with approval more
recently
in
the
unreported
decision
of
S v
Hlongwane &
Others (AR507/13)
[2015] ZAKZPHC
1
(28
January
2015)
where
it
was
stated
:
"
40
.
In the
result
the court issued
a
declaratory order that the regional
court,
confronted
with
a
bail
application
which
in
the opinion of the presiding regional magistrate it could not
entertain
,
had
the power
to
refer
the bail application to
a
lower
court if
such
referral
would,
in the opinion
of
the
deciding regional magistrate
,
be
in the interest of justice and serve to
protect the fundamental rights of the
applicant for bail as entrenched
in
the Constitution.
41.
In
my view similar considerations
apply
in
the
present matter
for the
protection
of
the
rights of sentenced applicants for leave
to
appeal
from
the magistrates' and the regional
courts
in
terms of section 3098
,
as
well
as petitioners for leave to
appeal
in
terms
of section 309C.
"
[16]
The First Respondent
'
s
counsel further argued that the construction advocated for to be
attributed to the meaning of
section
60(1)(b)
by the Applicant is to be
regarded as wholly misplaced and untenable
,
and constitutes one that is flowing from
a clear misconception of the ordinary and actual meaning thereof
intended by the Legislature
,
which
contended
interpretation
by
the Applicant would be contrary to the very spirit of our
Constitution which jealously guards
,
as
contemplated by
the
Bill
of Rights
,
over
the right to freedom and the
right
not
be detained unnecessary
when
circumstances
,
with due regard to the
interest
of justice
,
permit.
[17]
The Applicant's counsel further argued that the Second Respondent
should have considered and invoked
the provisions of
section
60(1)(b) of
the
Act
and the Second Respondent should
not have entertained the bail application
.
It was submitted that it
is
an unimaginable set of events that a
High Court remands an accused and it orders him
to
remain
in
custody
in
circumstances where bail has been
denied
,
and
then the accused
successfully brings an
application for bail on new facts
in
the
magistrate
'
s
court
.
[18]
In this court's view the present matter should be distinguished from
the
Makinana matter
supra
in that in the
Makinana
matter
the appellant
first
applied for bail in the Magistrate
'
s
Court. He was unsuccessful. His case was then transferred to the
Regional Court for trial. He applied again for bail
in
the Regional Court
,
alleging that new facts existed to
justify the granting of bail. The Regional Magistrate refused to hear
the bail application on
the basis that he had no jurisdiction to do
so. The Makinana matter concerned a situation where
,
in
certain
circumstances, both the district and Regional Magistrates
'
courts were holding that they did not
have jurisdiction to hear bail applications and
,
in so doing
,
effectively denying the accused the
right to apply for bail.
[19]
In terms of
Section 50(6)(c) of the
Act
,
read
with
Section 60(1) of the Act
,
a Magistrate
'
s
Court has exclusive jurisdiction to hear a bail application in
respect of any case
in
which
an accused person
is
charged
with a Schedule 6 offence
(provided
that
the Director of Public Prosecutions does not direct otherwise in
terms of the proviso of s 50(6)(c)) from the first appearance
of the
accused
unti
l
he or she appears
in
any other court to which his or her
matter may be transferred
,
whereupon
such other court shall enjoy
jurisdiction
to entertain a bail application
.
[20]
The
Magistrate
'
s
Court is a creature of statute and therefore can do
nothing
that the empowering statute does not
authorize
it
to
do.
A
Magistrate
is only entitled to hear a matter
,
he
or she
,
in
other words, only has
jurisdiction,
if
a valid law
,
usually
a statute
,
empowers
him or her to do
so
.
[21]
It was held
in
paragraph 28 of Director of Public
Prosecutions v Louw NO
:
In
re S v Makinana
that s 50(6)(c) and
the
'
subject
to
'
clause
of s
60(1)(b),
must
be
interpreted
restrictively
(if
that
is
reasonab
l
y
possible
).
They
must be interpreted to mean no more than that bail applications
in
Schedule 6 cases must be heard initially
in
the
Magistrate
'
s
court,
unless
the Director of Public Prosecutions directs otherwise
,
but that
,
once such a
matter
is
transferred to either a regional
court or a High Court
,
that
court
,
whichever it may be
,
acquires jur
i
sdiction
,
as the court before which the matter
i
s
pending, to entertain any bail application that may be brought.
[22]
In the present matter
,
the
First Respondent was denied bail
in
the
High Court and was remanded in custody on 2 March 2020
.
The matter was postponed to 1 to 12
February 2021 for trial and to 16 and 17 April 2020 for a bail
application in the High Court
,
which
application was never brought
,
but
instead the First Respondent went back to the
Magistrate
'
s
Court to apply for bail
,
despite
already having appeared in the High Court after the matter was
transferred to the High Court for trial.
[23]
The Magistrate in granting bail after the High Court has made an
order that the First Respondent
is to remain in custody
,
acted
irregular.
The Magistrate in making the order she
did,
in
effect
sat as a court of appea
l,
although
it was on new facts
,
which
she could not have done
.
Practically
this
will have the effect that an accused can
do forum shopping when
it
comes
to bail applications. It
could
never
have been the legislature
'
s
intention
that
an accused person can
jump
backwards
and forwards
between
the
court of first
instance
and
the trial court for bail applications. In this court
'
s
view, this will create uncertainty and chaos and
hamper
the
case
flow and justice system
.
[24]
In both $
v
Mzatho
and
Others
2007
(2)
SACR
309
(T)
and
in
S
v Hlongwane
&
Others
(AR507/13)
(2015]
ZAKZPHC
1
(28
January 2015)
the
emphasis is on the Regional Court
referring
a matter back
to
the Magistrate's Court for a bail
application.
[25]
In the circumstances, considering the above case law,
it
is
this court
'
s
view that once an accused person has appeared
in
another
court
,
pursuant to a transfer of such person
from the transferring court
,
for
sentencing or trial purposes, such receiving court shall be vested to
the exclusion of the transferring court
,
with exclusive jurisdiction in respect
of bail application proceedings.
In
the
result the application for review must succeed.
[26]
This court therefore makes the following
order:-
1.
The bail granted by the Second
Respondent on the
14t
h
of August 2020
in
favour
of the applicant
is
declared invalid and set aside.
2.
The Magistrate
'
s
Court did not have jurisdiction to hear the bail application on new
facts.
NAUDE
ACTING
JUDGE OF
THE
HIGH COURT
I
AGREE:
G.C.
MULLER
JUDGE
OF THE HIGH COURT
APPEARANCES:
HEARD
ON:
23
APRIL 2021
JUDGMENT
DELIVERED ON:
30
APRIL
2021
For
the
Applicant:
Adv.
TE
Mabapa
I
nstructed
by
:
The
D
i
rector
of Public Prosecutions
:
Limpopo
Polokwane
For
the 1st
Respondent:
Adv
.
JP Morton
Instructed
by:
Rheeder
Attorneys Polokwane
For
the 2
nd
Respondent:
No
Appearance