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2021
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[2021] ZALMPPHC 64
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S v Seroka (REV 93/2021) [2021] ZALMPPHC 64; 2021 (2) SACR 622 (LP) (30 September 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE NO:
REV 93/2021
REPORTABLE:
NO/YES
OF
INTEREST TO OTHER JUDGES:
NO/YES
REVISED.
In
the matter between:
THE
STATE
And
EMMANUEL
SEROKA
ACCUSED
REVIEW JUDGMENT
NAUDÈ AJ:
[1]
This is a special review in terms of
Section 304(4)
of the
Criminal Procedure Act, 51 of 1977
, as amended (“the Act”).
The Acting Regional Court Magistrate, Mr. R.J Marais, has referred
this matter to this court with a request that this court,
in the
interest of justice, exercise its inherent powers to review the
decision of the District Court Magistrate not to attend
to the bail
application as was referred to him by the Regional Court Magistrate
after appearance in the Regional Court.
[2]
The Accused was arrested on 16 September 2020 on a charge of Robbery
(with aggravating circumstances)
for using a firearm and initially
appeared in the Groblersdal District Court under case number MH
174/2020 where the Accused abandoned
his bail application on 12
October 2020 while duly represented by Legal Aid South Africa.
[3]
The Accused was transferred to and appeared in the Groblersdal
Regional Court on 13 April 2021 under
case number SH77/2021 during
which appearance he terminated his Legal Aid Attorney’s mandate
and instructions. The
Accused proceeded in person and was
resolute to represent himself.
[4]
On 26 July 2021 a pre-trial was concluded and a trial date was fixed
for 8 September 2021. The
Accused however indicated that he now
wished to apply for bail.
[5]
The matter was referred back to the District Court for the hearing of
the bail application on 28 July
2021 as there is only one Regional
Court Magistrate stationed at Groblersdal who had to attend to the
trial on 8 September 2021
and was therefore precluded from attending
to the bail application which will involve the hearing of evidence on
the merits of
the case.
[6]
The Accused appeared in the District Court on 28 July 2021 as
directed by the Regional Court Magistrate,
but the District Court
Magistrate declined to attend to the bail application and relied on
the decision of this court in the matter
between
The Director of
Public Prosecutions, Limpopo v Rameez Patel & Another under case
number REV85/2020 dated 30 April 2021.
[7]
The District Court Magistrate did not immediately bring his decision
to the attention of the Regional
Court Magistrate. Only when
the Accused again appeared in the Regional Court for trial on 8
September 2021 was the Regional
Court Magistrate apprised of the
situation which gave rise to this special review.
[8]
It is against this background that this Court is called upon to
decide whether the District Court correctly
relied on the
Rameez
Patel-matter
supra
and invoked the provisions of
Section 60(1)(b) of the Criminal Procedure Act 51 of 1977 (“the
Act”)
in its refusal to hear the bail application. 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
and the
Rameez Patel –
matter
supra
.
[9]
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.”
[10]
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 time.”
[Own emphasis]
[11]
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 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.”
[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]
Further,
John Van der Berg on page 49
of Bail, A
Practitioner’s Guide
, states 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 district court)
referring the accused to another court (usually the regional court of
High Court) for 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 or 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 ‘released from 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 Constitution,
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.”
[14]
The above referred to approval stated in
Mzatho (
supra
)
was echoed and restated with approval 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 309B, as well as petitioners
for leave to appeal in terms of
section 309C.”
[15]
In
The Director of Public Prosecutions, Limpopo v Rameez Patel &
Another
supra
, 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.
[16]
The Magistrate in the
Rameez Patel matter
supra
,
in granting bail after the High Court has made an order that the
First Respondent is to remain in custody, acted irregularly and
in
effect sat as a court of appeal, although it was on new facts, which
she could not have done.
[17]
In this court’s view, the present matter should be
distinguished from the
Rameez Patel matter
supra,
in
that in the present matter the Accused was
referred back
by the Regional Court to the court of first instance for a bail
application as opposed to the situation in the
Rameez Patel matter
supra
where the High Court already refused bail and
postponed the matter without referring the matter to the Magistrate’s
Court
and the Magistrate’s Court then
mero motu
dealt
with the bail application which was already dealt with by the High
Court.
[18]
In
The Director of Public Prosecutions, Limpopo v Rameez Patel &
Antother
supra
at para 24
this court held as
follows:-
“
In
both
S 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.”
[19]
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,
unless
the receiving court refers the
matter back to the transferring court for a bail application.
In such instance, where the
matter has been referred back to the
transferring court, such transferring court shall have the necessary
jurisdiction to entertain
the bail application.
[20]
The District Court Magistrate loses sight of the fact that this court
in the matter of
Rameez Patel
supra
,
distinguished the case on the facts and did not intend to interfere
with the current practices in the lower courts where Regional
Courts
refer cases back to the District Courts for bail applications. The
keyword is
“
referred back to”
.
It is only in instances where there is an absence of a referral from
the receiving court back to the transferring
court, or in simple
terms from the High Court or Regional Court back to the District
Court, that a District Court has no jurisdiction
to entertain a bail
application once the accused has appeared before such receiving
court.
[21]
In this court’s view, the
Rameez Patel matter
is to be
distinguished on the facts. The
Mzatho and Hlongwane-matters
supra
still finds application in the interest of
justice in situations where a receiving court, and especially where a
solitary Regional
Court Magistrate is precluded from attending to
both the bail application and the trial in the same matter and
specifically refers
a matter back to the District Court for the bail
application.
[22]
In the result, the District Court Magistrate’s reliance on the
Rameez Patel matter
in the present matter is misconceived.
He incorrectly interpreted and applied the principles laid down
therein in the present
matter and in doing so acted improperly in
refusing to hear the bail application of the Accused. In the result
the application
for review must succeed.
[23]
This court therefore makes the following order:-
The
refusal by the District Court Magistrate in the District
Magistrate’s Court to hear the bail application is declared
invalid and set aside.
The
District Magistrate’s Court is ordered to hear the bail
application within 7 (seven) days from date of this order.
M. NAUDÈ
ACTING JUDGE OF
THE HIGH COURT
I AGREE:
E.M. MAKGOBA
JUDGE PRESIDENT OF
THE HIGH COURT