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[2015] ZAKZPHC 1
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S v Hlongwane and Others (AR507/13) [2015] ZAKZPHC 1 (28 January 2015)
IN
THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC
OF SOUTH AFRICA
Case
Number: AR507/13
DATE:
28 JANUARY 2015
In
the review matter of:-
THE
STATE
Vs
MFANAFUTHI
HEZEKIA HLONGWANE
............
Accused
1
PHILLIP
LUCKY VILAKAZI
..............................
Accused
2
NTOMBIZODWA
HLONGWANE
........................
Accused
3
JUDGMENT
VAN
ZÿL, J.
:-
1.
This is a matter which was referred by the
Regional Magistrate, Ladysmith as a special review to the High Court.
It concerns the
jurisdiction of the regional court to consider and if
appropriate, to grant bail to a convicted offender after having
refused leave
to appeal and pending petition to the Judge President
for leave to appeal.
2.
The Regional Magistrate is of the view that
an appeal can only be noted in terms of s309(1)(a) of the Criminal
Procedure Act 51
of 1977 (the CPA) once leave to appeal has been
granted upon petition by the Judge President in terms of s309C. Once
leave to appeal
is granted, then only do the provisions of s307(1),
read with section 309(4)(b), permit consideration of the release of
the appellant
on bail pending adjudication of the appeal.
3.
In the opinion of the Regional Magistrate
the accused cannot note an appeal for purposes of section 309(4)(b)
before leave to appeal
is granted, as contemplated in section
309(1)(a) of the CPA. Until such time as the appeal is noted, the
only possibility for an
application for bail to be brought pending
the outcome of the petition proceedings is to apply to the High
Court, but only after
the petition has been lodged with the Registrar
of the High Court. In this regard the Regional Magistrate disagreed
with the reported
decision of S v Potgieter
2000 (1) SACR 578(W)
which, in his view, was incorrectly decided.
4.
Upon the approach contended for by the
Regional Magistrate a convicted offender therefore has no right to
apply for his release
on bail between the time when the Regional
Magistrate refuses leave to appeal and until such time as the
petition for leave is
lodged with the Registrar of the High Court.
One gathers that in the view of the Regional Magistrate, once the
petition has been
lodged, the High Court would be able to exercise
jurisdiction to consider any application for bail, whether in terms
of section
60(1)(b) of the CPA or in terms of its common law powers
more fully referred to below.
5.
When the matter first came before me as a
special review it appeared to me the jurisdiction of the magistrates’
courts to
consider bail pending petition was in issue and that the
matter was of sufficient importance for it to be argued in open
court,
as was directed by the Deputy Judge President in S v Mzatho
and Others
2007 (2) SACR 309
(T) at Para 8 of the reported judgment.
I accordingly wrote to the Deputy Judge President of this Division,
who thereupon issued
a direction in similar terms.
6.
At the outset of his address Mr Sankar, who
appeared for the State, questioned whether the matter was properly
before the Court
by way of special review. Counsel submitted in
effect the Regional Magistrate was merely seeking advice or an
opinion and that
this Court should refuse to entertain the matter on
that basis because, by considering the matter on the merits, an
unfortunate
precedent might be created. Counsel submitted that the
accused have a remedy in that they may seek to appeal the Regional
Magistrate’s
decision not to entertain his application for
bail.
7.
It seems to me that the High Courts, in
matters of review, have a wide discretion. Section 304(4) of the CPA
provides that;
“
(4)
If in any criminal case in which a magistrate's court has imposed a
sentence which is not subject to review in the ordinary
course in
terms of section 302 or in which a regional court has imposed any
sentence, it is brought to the notice of the provincial
or local
division having jurisdiction or any judge thereof that the
proceedings in which the sentence was imposed were not in accordance
with justice, such court or judge shall have the same powers in
respect of such proceedings as if the record thereof had been laid
before such court or judge in terms of section 303 or this section.
”
8.
The powers conferred upon the High Court in
terms of section 302(4)(c) include to confirm, alter or quash the
conviction, or to
confirm, reduce, alter or set aside the
sentence or any order of the magistrate's court, to set aside or to
correct the proceedings
of the magistrate's court and generally to
give such judgment or to impose such a sentence or make such an order
as the magistrate's
court ought to have given, imposed or made on any
matter which was before it at the trial of the case in question. It
may also
remit the case to the magistrate's court with instructions
to deal with the matter in such manner as may be directed. The High
Court may also order the suspension of any sentence against the
person convicted or the admission of such person to bail. Generally
the High Court is empowered, with regard to any matter or thing
connected with such proceedings, to make such an order as to the
court seems likely to promote the ends of justice.
9.
In my view, once the Regional Magistrate
had referred the matter to the High Court for consideration and it
had come to the knowledge
of the latter, then the jurisdictional
requirements for its consideration have been satisfied, should the
High Court consider it
in the interests of justice to do so. To
arrive at a decision in this regard it is necessary to give
consideration to the
merits.
10.
It appears that the difficulty has its
origins in the legislative amendments imposing the requirement of
leave to appeal upon the
lower courts. Previously a convicted accused
person in the magistrates’ courts could as of right forthwith
note an appeal
with the Clerk of the Court of first instance. The
position finally changed with the amending provisions of the Criminal
Amendment
Act 42 of 2003, which commenced with effect from 1 January
2004. These provisions, relevant to the requirement for leave to
appeal
a conviction or sentence from the lower courts to the High
Court, survived a constitutional challenge and was confirmed by the
Constitutional Court in
S
v Shinga (Society of Advocates (Pietermaritzburg) as Amicus Curiae) ,
S v O'Connell and Others
2007 (2) SACR 28
(CC).
11.
In the result a convicted accused person is
only able to pursue his or her appeal once leave to appeal has been
obtained, either
from the trial court in terms of section 309B or,
failing that, then upon petition from the Judge President in terms of
section
309C. Having obtained leave, the appellant is then able to
pursue the appeal and such appellant is also able to apply for bail
pending the outcome of the appeal.
12.
However, a difficulty arose where leave to
appeal was refused. In S v Hlongwane
1989 (4) SA 79
(T) it was held
that section 60 of the CPA regulates the granting of bail pending
finalisation of a trial in the High Court. In
respect of bail pending
a petition to the Supreme Court of Appeal it held that the High Court
has the common law power to release
a would-be appellant on bail
pending the outcome thereof. That approach has since been
consistently followed (See: Crossberg v
S [2007] SCA 93 at para 14; S
v Tsotsi
2004 (2) SACR 273
(E) at para 5).
13.
It is interesting to note that subsequent
to Hlongwane (supra) section 309(5) was introduced by section 13 of
Act 75 of 1995. In
terms thereof a provincial or local division of
the High Court which gives a decision on appeal to it against a
decision of the
magistrate's court and where the former decision is
then appealed against, such division of the High Court is conferred
with the
same powers in respect of the granting of bail pending such
further appeal which a magistrate's court has in terms of section 307
of the CPA.
14.
The difficulty in the present matter arises
from the fact that the conviction and sentence sought to be appealed
against is that
of the Regional Court, as opposed to the High Court.
The Regional Magistrate took the view that the provisions of section
309(4)(b),
activating as they do the provisions of section 307, only
applied once leave to appeal had been granted. In this regard he
relied
upon the wording of section 309(1)(a) which requires the
granting of leave in order to appeal the conviction and/or sentence.
15.
Counsel for the State submitted that
insofar as the introduction of the requirement of leave to appeal has
resulted in a
lacuna
in the CPA, whereby a convicted offender is deprived of the ability
to apply for bail between the time of the refusal by the Magistrate
of leave to appeal and the time by when he is able to lodge a
petition to the Judge President for leave, this was a matter for
legislative intervention.
16.
Mr Barnard, who appeared at the request of
the Court as
amicus curiae
and
to whom we are greatly indebted for his assistance, as well as for
his comprehensive written argument, submitted that it was
eminently
more practical to have the court of first instance deliberate and
decide upon the issue of bail pending petition. This
was so because
such court would be more familiar with the circumstances of the case,
including the personal circumstances of the
petitioner for leave to
appeal and it would thus be best suited to determine whether bail
pending petition should be granted or
refused.
17.
Conversely, so counsel submitted, the
organisational structure of the High Courts was not well suited to
accommodate the potential
volume of petitioners applying for bail at
the time of lodging their petitions for leave to appeal. Unlike the
trial magistrate
the judges dealing with the petition would not be
familiar with the background of the matter and would first need to
read and consider
the record of the trial proceedings before dealing
with the application for bail pending the outcome of the petition.
This would
unduly burden the High Court and cause unnecessary delays
in processing matters of this nature.
18.
Mr Barnard quite correctly conceded that
the Magistrates’ Courts, as creatures of statute, did not have
the same inherent
or common law powers as the High Courts and that
the CPA does not expressly appear to deal with the issue of bail
pending petition
to the Judge President.
19.
Against this backdrop counsel stressed that
the provisions of the CPA also did not prohibit the consideration of
such bail applications
by the trial magistrate. Consequently, so
counsel submitted, if the CPA did not provide for the consideration
of bail pending presentation
of a petition, then the Regional
Magistrate should have considered the wider ambit of the
constitutional protection of personal
liberty, as contained in
section 12 of the Bill of Rights.
20.
However, before embarking upon an analysis
of the constitutional imperatives relevant to the issue of bail
pending presentation
of the petition, it seems to me necessary to
consider whether the Regional Magistrate is indeed correct in his
view (as set out
in para 3 above) that the CPA, properly construed,
does not provide for the consideration of such bail by the trial
magistrate.
21.
In Nedbank Limited and Others v National
Credit Regulator and Another
2011 (3) SA 581
(SCA), Malan JA in para
38 at page 601 I – 602 C and in relation to the interpretation
of provisions of the
National Credit Act 34 of 2005
, remarked that:-
“
The
rule of interpretation is that a statutory provision should not be
interpreted so as to alter the common law more than is necessary
unless the intention to do so is clearly reflected in the enactment,
whether expressly or by necessary implication: '[I]t is a
sound rule
to construe a statute in conformity with the common-law, save where
and insofar as the statute itself evidences a plain
intention on the
part of the Legislature to alter the common-law. In the latter case
the presumption is that the Legislature did
not intend to modify the
common-law to any extent greater than is provided in express terms or
is a necessary inference from the
provisions of the enactment.' (80)
”
(Footnotes
omitted)
22.
In Natal Joint Municipal Pension Fund v
Endumeni Municipality
2012 (4) SA 593
(SCA) at para 18, Wallis JA
summarised the proper approach to statutory interpretation as
follows:-
“
The
present state of the law can be expressed as follows. Interpretation
is the process of attributing meaning to the words used
in a
document, be it legislation, some other statutory instrument, or
contract, having regard to the context provided by reading
the
particular provision or provisions in the light of the document as a
whole and the circumstances attendant upon its coming
into existence.
Whatever the nature of the document, consideration must be given to
the language used in the light of the ordinary
rules of grammar and
syntax; the context in which the provision appears; the apparent
purpose to which it is directed and the material
known to those
responsible for its production. Where more than one meaning is
possible each possibility must be weighed in the
light of all these
factors.
[1]
The
process is objective not subjective. A sensible meaning is to be
preferred to one that leads to insensible or unbusinesslike
results
or undermines the apparent purpose of the document. Judges must be
alert to, and guard against, the temptation to substitute
what they
regard as reasonable, sensible or businesslike for the words actually
used. To do so in regard to a statute or statutory
instrument is to
cross the divide between interpretation and legislation. In a
contractual context it is to make a contract for
the parties other
than the one they in fact made. The ‘inevitable point of
departure is the language of the provision itself’,
[2]
read
in context and having regard to the purpose of the provision and the
background to the preparation and production of the document.
”
(Footnotes
reflected below)
23.
Effectively, what counsel for the State
contends for amounts to the following. There exists an omission from
the CPA, as amended
by the inclusion of the requirement for leave to
appeal first to be obtained before the appeal of the petitioner can
be prosecuted.
Such omission comprises the lack of any provision for
bail to be granted, from the point where the trial court refuses
leave to
appeal and until the petitioner is able to lodge his or her
petition at the High Court. Such omission should however be tolerated
until and unless there is legislative intervention.
24.
If indeed there exists such an omission,
then the courts are required, in terms of section 36(2) of the
Constitution, 1996, to develop
the common law and also to promote
the spirit, purport and objects of the Bill of
Rights. In Carmichele v Minister of Safety & Security (Centre for
Applied Legal
Studies Intervening)
[2001] ZACC 22
;
2001 (4) SA 938
(CC) at para 39
the Constitutional Court held that:-
“
It
needs to be stressed that the obligation of Courts to develop the
common law, in the context of the s 39(2) objectives, is not
purely
discretionary. On the contrary, it is implicit in s 39(2) read with s
173 that where the common law as it stands is deficient
in promoting
the s 39(2) objectives, the Courts are under a general obligation to
develop it appropriately.
”
25.
In the present matter, accepting that there
exists a
lacuna
or a
casus omissus,
as
it was put in S v Hlongwane (supra) at page 84D, in the CPA, then it
appears that the matter needs to be resolved by resort to
interpretation and failing that, then to either a declaration of
constitutional invalidity or leaving it to the legislature to
remedy.
The starting point would be to resolve, if possible, the difficulty
through appropriate interpretation, in preference to
the more drastic
alternatives referred to above.
26.
The Regional Magistrate stated that in his
view the provisions of section 309(1) should be used as the “
point
of departure
”, as opposed to the
provisions of section 309(4)(b) and on that approach his reasoning
should be sustained. However, the
Regional Magistrate’s
approach appears to be based upon his view that “
The
granting of such an application
(for
leave to appeal)
, in my opinion, is a
prerequisite and can the provisions of section 309(4)(b) not find
application until such time as the High
Court has granted an
application for leave to appeal.
”
27.
In his reasons the Regional Magistrate
refers to the passage from S v Potgieter (supra) where at page 584
C-D Cloete J observed
that:-
“
Furthermore,
s 309(4)(b) does not provide that the application must be successful
before the magistrate is empowered to grant bail
pending appeal - all
that is required is that the application for leave to appeal against
conviction and/or sentence must be 'noted',
which is a quite
different concept.
”
The
Regional Magistrate then criticises this approach as using section
309(4)(b), as opposed to section 309(1), at the point of
departure.
28.
When comparing the two subsections it
immediately becomes apparent that the Legislature referred in section
309(1) to the ability
to proceed with the appeal as being conditional
upon or subject to leave to appeal having been obtained, whether from
the trial
court in terms of section 309B, or from the Judge President
upon petition in terms of section 309C. The subsection is by no means
exhaustive because notionally, if the petition to the Judge President
were to fail, the petitioner could with the requisite leave
still
obtain leave from the Supreme Court of Appeal. What the subsection
conveys, to my mind, is that the procedure of processing
the appeal
itself cannot proceed unless and until leave has been obtained. In
principle that proposition is constitutionally unassailable
(See: S v
Shinga (supra) at para 51).
29.
If reference is had to the provisions of
section 309B(3)(b) it is apparent that the section contemplates, as
one of the possible
approaches, the making of an oral application for
leave to appeal immediately after the passing of sentence. It would
not be unusual
for such an application then to be adjourned to a
suitable future date for argument. In such an event the procedure may
conveniently
be described as the application having been noted and
then adjourned for argument. What the “noting”
establishes is
that an application for leave to appeal has commenced,
to be completed at a later stage. But the appeal itself remains
suspended
pending the requirement of leave to appeal being satisfied.
30.
Whereas section 309(1)(a) uses the words
“
appeal against …
”,
section 309(4)(b) uses the words “
When
an appeal under this section is noted, …
”.
Arguably the appeal process commences with notice that the appellant
intends to appeal. Such notice is in the form of advising
that leave
will be sought, thus initiating the appeal procedure. That procedure
may terminate prior to the appeal being heard for
a variety of
reasons, including the appellant changing his or her mind and later
deciding to abide by the conviction and/or sentence,
or the failure
of the application for leave, or the petition for leave, as the case
may be.
31.
In my view the Legislature advisedly in
section 309(4)(b) used the word “
noted”
to distinguish its effects from the situation postulated by the
Regional Magistrate, namely that the appeal first had to be
“
authorised
”,
“
approved
”
or “
permitted
”
by the granting of leave to appeal. The language is arguably
consistent with the intention to bring the enabling provisions
of
section 309(4)(b) into play as soon as the appeal process has been
initiated.
32.
I am of the opinion that such an approach
to the interpretation of section 309(4)(b) would avoid the
lacuna
in the CPA earlier referred to, would present a practical way
of dealing with the issue of the entitlement of a sentenced
offender
to be able forthwith to approach the trial court for the
consideration of bail pending the final outcome of the appeal
process
thus initiated, including the process of petitioning for leave.
33.
In my view such an approach would have the
further advantage that the trial court is already familiar with most
of the facts and
circumstances relevant to the determination of the
application for bail. In the process it would further satisfy a
number of constitutional
imperatives, such as not being deprived of
freedom without just cause and not being detained without trial
(section 12(1) of the
Constitution); the right of having access to a
court (section 34); the right to be to be released from detention, if
the interests
of justice permit and subject to reasonable conditions
(section 35(1)(f)) and the right of appeal to, or
review by, a higher court (Section 35(3)(o).
34.
It should also be remembered that the
Constitution provides in section 36(2) that, except as provided in
subsection 36(1) or in
any other provision of the Constitution, no
law may limit any right entrenched in the Bill of Rights and that in
section 39(2)
it provides that when interpreting any legislation and
when developing the common law or customary law every court, tribunal
or
forum must promote the spirit, purport and objects of the Bill of
Rights.
35.
It is also not without significance that
section 309(5), read with section 321 of the CPA, confer largely
similar powers upon the
High Court, in addition to its common law
powers, to control events following the noting of an appeal.
36.
A different approach, but which would
equally be consistent with the issues under consideration in the
present matter, was taken
in S v Mzatho and Others
2007 (2) SACR 309
(T). Under consideration in that matter was the ability of a Regional
Magistrate to refer an accused person to the Magistrate for
the
hearing of a bail application pending trial, but after the matter had
been transferred from the district court to the regional
court for
trial.
37.
Section 60(1)(b) of the CPA provides that:-
“
(b)
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.
”
38.
The “
predicament
”
which the court had to resolve was that if the section had the effect
of barring a higher Court (being a court above a magistrate’s
court) from referring a bail application to a lower court for
consideration, certain difficulties arose. The court in Mzatho held
in para 22 that there was no clear provision in the CPA prohibiting a
regional court from referring a bail application to a magistrate’s
court for hearing, but equally that there was no clear provision
authorising such a procedure.
39.
The Court expressed itself as follows on
the topic of the constitutional need to grant appropriate relief in
circumstances where
no clear remedy presented itself. Thus the court
in Mzatho at para 32 said that:-
“
In
Fose v Minister of Safety and Security
[1997] ZACC 6
;
1997 (3) SA 786
(CC)
(1997 (7)
BCLR 851)
the following was said about 'appropriate relief' at 799F -
H:
'Appropriate
relief will in essence be relief that is required to protect and
enforce the Constitution. Depending on the circumstances
of each
particular case the relief may be a declaration of rights, an
interdict, a mandamus or such other relief as may be required
to
ensure that the rights enshrined in the Constitution are protected
and enforced. If it is necessary to do so, the courts may
even have
to fashion new remedies to secure the protection and enforcement of
these all-important rights.'
And
at 836B - D the following is stated:
'Once
the object of the relief in s 7(4)(a)
(of
the Interim Constitution)
has been
determined, the meaning of ''appropriate relief'' follows as a matter
of course. When something is appropriate it is ''specially
fitted or
suitable''. Suitability, in this context, is measured by the extent
to which a particular form of relief vindicates the
Constitution and
acts as a deterrent against further violations of rights enshrined in
ch 3. In pursuing this enquiry one should
consider the nature of the
infringement and the probable impact of a particular remedy. One
cannot be more specific. The facts
surrounding a violation of rights
will determine what form of relief is appropriate.'
40.
In the result the court issued a
declaratory order that a 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
presiding regional magistrate, be in the interests of justice and
serve to protect the fundamental
rights of the applicant for bail as
entrenched in the Constitution. (at page 321 H).
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
regional courts in terms of section 309B, as well as petitioners for
leave to appeal
in terms of section 309C.
42.
The provisions of section 309(4)(b),
insofar as they may be ambiguous, should be read so as to apply as
soon as the application
for leave to appeal and the grounds therefore
have been orally noted before the trial magistrate immediately after
the passing
of sentence (as per section 309B(3)(b) of the CPA). If
not so orally noted, then the provisions of section 309(4)(b) should
be
read as applying as soon as the grounds of appeal have been filed,
thus noting the application for leave to appeal in terms of section
309B (See: S v Potgieter (supra) at page 584C).
43.
Where the trial court refuses leave to
appeal and the petitioner formally records, or subsequently files a
notice to the effect
that he or she intends pursuing the issue of
leave to appeal by way of petition to the Judge President in terms of
section 309C,
the appeal remains pending and the provisions of
section 309(4)(b) continue to apply, at least for the time period, or
extended
time periods, contemplated in section 309C(2)(b).
44.
It follows that I respectfully disagree
with the views expressed by the Regional Magistrate and that I
consider that he should have
interpreted section 309(4)(b) of the CPA
in the light of the constitutional imperatives to which I have
referred above.
45.
In the circumstances I would propose that a
declaratory order issue as is set out here below, namely that:-
It
is declared that the provisions of section 309(4)(b) of the Criminal
Procedure Act 51 of 1977 (the Act), properly construed:-
a.
Come into operation as soon as;
i.
an application in terms of section 309B for
leave to appeal and the grounds therefore have been orally noted
before the trial magistrate
immediately after the passing of
sentence; or
ii.
if not so orally noted, then as soon as the
grounds of appeal have been filed, thus noting the application for
leave to appeal.
b.
Remain in operation;
i.
where the trial court in terms of section
309B refuses leave to appeal; and
ii.
the petitioner formally records, or
subsequently files a formal notice to the effect that he or she
intends pursuing the issue of
leave to appeal by way of petition to
the Judge President in terms of section 309C;
iii.
the appeal thus remains pending;
aa.
until the delivery of the petition within
the time period, or extended time period(s) contemplated in section
309C(2)(b); and
bb.
once delivered, until the final
determination of the petition for leave to appeal and if successful,
then the appeal itself.
c.
While the provisions of section 309(4)(b)
of the Act are in operation the Magistrate, or Regional Magistrate in
the trial court
is competent to hear and decide any application for
bail pending the final outcome of the application for leave to
appeal;
i.
by the applicant for leave to appeal in
terms of section 309B; and
ii.
the petitioner for leave to appeal in terms
of section 309C of the Act.
VAN
ZYL, J.
I
agree.
SEEGOBIN,
J.
CASE
INFORMATION
Counsel for the
State: Adv S Sankar
Instructed
by the Director of Public Prosecutions, KZN, Pietermaritzburg.
As
Amicus Curiae: Adv L Barnard
Pietermaritzburg
Bar
Pietermaritzburg.
Date
of Hearing: 11 December 2013
Date
of Judgment: 28 January 2015
[1]
Described
by Lord Neuberger MR in
Re
Sigma Finance Corp
[2008]
EWCA Civ 1303
(CA) para 98 as an iterative process. The expression
has been approved by Lord Mance SCJ in the appeal
Re
Sigma Finance Corp (in administrative receivership) Re the
Insolvency Act 1986
[2010]
1 All ER 571
(SC) para 12 and by Lord Clarke SCJ in
Rainy
Sky SA and others v Kookmin Bank
[2011]
UKSC 50
;
[2012] Lloyds Rep 34
(SC) para 28. See the article by Lord
Grabiner QC ‘The Iterative Process of Contractual
Interpretation’
(2012) 128
LQR
41
.
[2]
Per
Lord Neuberger MR in
Re
Sigma Finance Corp
[2008]
EWCA Civ 1303
(CA) para 98. The importance of the words used was
stressed by this court in
South
African Airways (Pty) Ltd v Aviation Union of South Africa &
others
2011
(3) SA 148
(SCA) paras 25 to 30.