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[2006] ZASCA 178
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S v Mabena and Another (373/06) [2006] ZASCA 178; [2007] 2 All SA 137 (SCA); 2007 (1) SACR 482 (SCA) (17 October 2006)
THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Reportable
CASE
NO
: 373/06
In the
matter between :
THE
STATE
Appellant
and
ABRAM
MABENA
First Respondent
(Accused
1
a quo
)
OUPA
FRANS BOFU
Second Respondent
(Accused
2
a quo
)
_______________________________________________________________________
Before: HARMS, STREICHER & NUGENT JJA
Heard: 19 SEPTEMBER 2006
Delivered:
17 OCTOBER 2006
Summary: Bail – Schedule 6 offences – bail not
competent in absence of proper enquiry being made in terms of
Criminal
Procedure Act.
Neutral citation: This judgment may be referred to as The State v
Mabena [2006] SCA 132 (RSA)
_______________________________________________________________________
REASONS FOR JUDGMENT
_______________________________________________________________________
NUGENT JA
NUGENT JA
:
[1] The respondents, who stand accused of the commission
of serious offences, were granted bail by a judge of the High Court,
Pretoria.
The prosecution appealed against the order with leave
granted by this Court. At the close of argument we upheld the
appeal, set
aside the order admitting the respondents to bail,
ordered the Registrar of the High Court to issue a warrant for the
arrest of the
respondents, and indicated that the reasons for our
decision would follow. These are the reasons.
[2] The Constitution proclaims the existence of a state
that is founded on the rule of law. Under such a regime legitimate
state
authority exists only within the confines of the law, as it is
embodied in the Constitution that created it, and the purported
exercise
of such authority other than in accordance with law is a
nullity. That is the cardinal tenet of the rule of law. It admits of
no
exception in relation to the judicial authority of the state. Far
from conferring authority to disregard the law the Constitution
is
the imperative for justice to be done in accordance with law. As in
the case of other state authority, the exercise of judicial
authority
otherwise than according to law is simply invalid.
[3] The principles relating to bail, which are partly
codified in chapter 9 of the
Criminal Procedure Act 51 of 1977
, were
extensively considered by the Constitutional Court in
S
v Dlamini; S v Dladla; S v Joubert; S v Schietekat.
1
Certain provisions of chapter 9 have been amended since that
decision but they do not alter the principles that are relevant to
the present case.
[4] The circumstances in which bail may be granted are
provided for in
s 60
of the Act. Some of the principles that are
embodied in that section differ depending upon the gravity of the
alleged offence. Generally
an accused person who is in custody is
entitled to be released on bail ‘if the court is satisfied that
the interests of justice
so permit’.
2
Five grounds are listed upon which, if established, ‘the
interests of justice do not permit the release from detention of
an
accused’.
3
Two of those grounds concern the impact that the granting of bail
might have upon the conduct of the particular case.
4
The remaining three concern the impact that the granting of bail
might have upon the administration of justice generally and upon
the
safety of the public.
5
Then follows an extensive and detailed list of what were described
in
Dlamini
as ‘the
potential factors for and against the grant of bail,
6
to which a court
must
have regard’ in considering where the interests of justice
lie.
7
That scheme for the granting or withholding of bail was held in
Dlamini
to be
generally consistent with the constitutional right of an arrested
person ‘to be released from detention if the interests
of
justice permit.’
8
[5] Graver offences (the offences listed in Schedules 5
and 6 of the Act) are subject to a more stringent regime. Only the
regime
that applies to Schedule 6 offences is relevant to this
appeal. While an arrested person is generally entitled to be released
on
bail if a court is satisfied that the interests of justice so
permit, the reverse applies where a person has been charged with a
Schedule 6 offence. In those cases a court is obliged to
‘order that the accused be detained in custody until he or she
is dealt with in accordance with law, unless the accused, having
been
given a reasonable opportunity to do so, adduces evidence which
satisfies the court that exceptional circumstances exist which
in the
interests of justice permit his or her release.’
9
That reversal of the general rule was held in
Dlamini
to limit the constitutional right to bail but the relevant provision
(s 60(11)(a))
survived a declaration of invalidity because the
limitation was held to be ‘reasonable and justifiable in terms
of s 36 of
the Constitution in our current circumstances’.
10
[6] The ‘potential factors for and against the
grant of bail’ listed in the Act are no less relevant to the
assessment
of bail in relation to Schedule 6 offences than they are
in relation to lesser offences. Before a court may grant bail to a
person
charged with such an offence it must be satisfied, upon an
evaluation of all the factors that are ordinarily relevant to the
grant
or refusal of bail, that circumstances exist that warrant an
exception being made to the general rule that the accused must remain
in custody. The effect of the subsection was described as follows in
Dlamini
(I have
separated the sentences for emphasis):
11
‘(a) The subsection says that for those awaiting trial on the
offences listed in Schedule 6, the ordinary equitable test of
the
interests of justice determined according to the exemplary list of
considerations set out in ss (4)-(9) has to be applied
differently.
Under ss (11)(a) the lawgiver makes it quite plain that a
formal
onus
rests on a detainee to ‘satisfy the court’.
Furthermore, unlike other applicants for bail, such detainees cannot
put relevant factors before the court informally, nor can
they rely
on information produced by the prosecution; they actually have to
adduce evidence.
In addition, the evaluation of such cases has the predetermined
starting point that continued detention is the norm.
Finally, and crucially, such applicants for bail have to satisfy the
court that ‘exceptional circumstances’ exist.’
And further:
12
‘[Section] 60(11)(a) does more than restate the ordinary
principles of bail. It states that where an accused is charged with
a
Schedule 6 offence, the exercise to be undertaken by the judicial
officer in determining whether bail should be granted is not
the
ordinary exercise established by ss 60(4)-(9) (and required by
s 35(1)(f) [of the Constitution]) in which the interests
of the
accused in liberty are weighed against the factors that would suggest
that bail be refused in the interests of society. Section
60(11)(a)
contemplates an exercise in which the balance between the liberty
interests of the accused and the interests of society
in denying the
accused bail will be resolved in favour of the denial of bail unless
‘exceptional circumstances’ are shown
by the accused to
exist. This exercise is one which departs from the constitutional
standard set by s 35(1)(f). Its effect is
to add weight to the
scales against the liberty interest of the accused and to render bail
more difficult to obtain than it would
have been if the ordinary
constitutional test of the ‘interests of justice’ were to
be applied.
[7] That legislative scheme for the grant of bail,
whether generally or in relation to Schedule 6 offences, necessarily
requires a
court to determine what the circumstances are in the
particular case and then to evaluate them against the standard
provided for
in the Act. The form that such an enquiry and
evaluation should take is not prescribed by the Act but a court ought
not to require
instruction on the essential form of a
judicially-conducted enquiry. It requires at least that the
interested parties – the
prosecution and the accused –
are given an adequate opportunity to be heard on the issue. For
although a bail enquiry is less
formal than a trial it remains a
formal court procedure that is essentially adversarial in nature.
13
A court is afforded greater inquisitorial powers in such an enquiry,
but those powers are afforded so as to ensure that all material
factors are brought to account, even when they are not presented by
the parties, and not to enable a court to disregard them.
14
And while a judicial officer is entitled to invite an application
for bail, and in some cases is even obliged to do so,
15
that does not make him or her a protagonist. A bail enquiry, in
other words, is an ordinary judicial process, adapted as far as
needs
be to take account of its peculiarities, that is to be conducted
impartially and judicially and in accordance with the relevant
statutory prescripts.
[8] The circumstances in which bail was granted in the
present case were unusual. It was granted in the course of an
enquiry that
was underway in relation to the mental state of Mr
Mabena before he and Mr Bofu had been called upon to plead. The delay
in completing
the enquiry featured prominently in the reasons that
were given for granting bail and it is as well to understand why the
delay occurred.
The enquiry commenced against the following
background.
[9] It is alleged in the indictment that on 19 November
2003 the respondents broke into the home of Mr and Mrs de Lange (who
were
88 years old and 64 years old respectively) after cutting the
burglar bars, overpowered the de Langes, bound them with wire and
cable,
including round their necks, stole certain property, and fled.
Mr de Lange survived the ordeal but Mrs de Lange died of
strangulation.
[10] The respondents were arrested soon after the
offences were committed and were charged with housebreaking, robbery,
attempting
to murder Mr de Lange, and murdering Ms de Lange. Robbery
and murder, if committed in the circumstances alleged in the
indictment,
are Schedule 6 offences.
[11] About a month after their arrest the respondents,
who were legally represented, applied to a magistrate for bail. They
both gave
evidence in support of the application. In the course of
their evidence they both readily admitted that they were indeed the
culprits,
but they said that they had not intended to kill Mrs de
Lange who, they said, was alive at the time they left the house.
Nothing
substantial was placed before the magistrate to support the
application for bail and it was refused.
16
[12] In about September or October 2004 an enquiry into
the mental state of Mr Mabena, who has a history of epileptic
seizures, was
directed in terms of
ss 77
and
78
of the
Criminal
Procedure Act. Those
sections, respectively, permit a court to
direct such an enquiry ‘whenever it appears to the court at any
stage that the accused
is by reason of mental illness or mental
defect not capable of understanding the proceedings so as to make a
proper defence’,
17
or if it is ‘alleged at criminal proceedings that the accused
is by reason of mental illness or mental defect . . . not criminally
responsible for the offence charged, or if it appears to the court at
criminal proceedings that the accused might for such a reason
not be
so responsible’.
18
The relevance of the enquiry in the former case is that a person may
not be tried while he or she is incapable of understanding
the
proceedings and must instead be detained in a psychiatric hospital or
a prison until otherwise directed by a judge.
19
The relevance of the enquiry in the latter case is that a person who
commits an act or omission amounting to an offence while suffering
from a mental illness or mental defect that makes him or her
incapable of appreciating the wrongfulness of the act, or acting in
accordance with such an appreciation, is not criminally responsible
for the act or omission.
20
In such a case a court must find the accused not guilty and direct
that he or she be similarly detained.
21
[13] An enquiry that is directed in accordance with
s 77
or
s 78
must be conducted and reported on by three psychiatrists.
22
If their report is unanimous, and is not contested by either the
prosecution or the accused, a court may base its decision on the
report alone.
23
Otherwise the court must decide the matter after evaluating evidence
in the ordinary course.
24
[14] The psychiatrists who examined Mr Mabena (who were
aware of his history of epilepsy) were unanimously of the opinion
that Mr
Mabena did not fall within the terms of either
s 77
or
s 78
and they reported accordingly. Their findings were not initially
placed in dispute but matters took another turn on the day that
the
trial of the respondents was due to commence.
[15] The trial of the respondents was due to commence on
7 February 2005. Mr Mabena was represented by an attorney, Mr
Pretorius,
and Mr Bofu was represented by counsel, Mr Boshielo.
Counsel for the prosecution was Ms Mogale. In his judgment refusing
leave
to appeal the judge recorded that ‘from the very outset
Mr Pretorius made application . . . for Mr Mabena] to be declared
incapable
of understanding the criminal proceedings and, therefore,
unfit to stand trial on account of mental illness’. The record
does
not reflect such an application being made. What it records
instead is the judge saying that he had been ‘informed in
chambers
that [Mr Mabena] is not well. Mr Pretorius thinks he is not
well, Mr Pretorius, you think he is not well, is it not?’, to
which Mr Pretorius replied in the affirmative. The judge then
adjourned the matter to consider the report of the psychiatrists and
a decision was made (it seems in chambers) that oral evidence should
be heard. Counsel for the prosecution, acting in the belief
that the
defence had agreed that the findings of the psychiatrists would not
be challenged, had not arranged for the psychiatrists
to be present,
and arrangements were hurriedly made to secure the attendance of two
of them.
[16] ‘Mental illness’ and ‘mental
defect’ are morbid disorders
25
that are not capable of being diagnosed by a lay court without the
guidance of expert psychiatric evidence. An enquiry into the mental
state of an accused person that is embarked upon without such
guidance is bound to be directionless and futile. The enquiry in the
present case was initiated in the absence of any proper medical
foundation for doubting the unanimous opinions of the three
psychiatrists,
and with no expertise to guide it, which accounts for
the directionless course that it has followed, and its failure to be
any closer
to a conclusion some twenty months later.
[17] Two of the psychiatrists gave evidence in support
of their findings. Each of them was questioned for almost a day on
the basis
of no more than a layman’s understanding of the
diagnosis of these conditions. The matter was then postponed to
April 2004,
when Mr Mabena’s mother gave evidence to the effect
that he had a history of aggressive behaviour for which he appeared
to
display no remorse. Mr Mabena’s brother gave evidence to
similar effect. At the conclusion of that evidence, on 19 April 2005,
Mr Pretorius informed the judge that his ‘feeling on the
subject’ was that Mr Mabena had ‘probably suffered brain
damage’ as a result of a blow to the head (that he had suffered
such a blow had emerged from the evidence of Mr Mabena’s
mother) and on that basis alone he was granted a further postponement
to consult a neurologist. Mr Bofu, meanwhile, was being carried
along with the tide. But his counsel informed the court that he had
consulted with Mr Bofu concerning the possibility of separating
the
trials, and that Mr Bofu objected to a separation and wished to ‘go
along with his co-accused.’
[18] The enquiry has not made any material progress
since then. Meanwhile it was postponed time and again, until the
matter was once
more on the court roll on Friday 23 September 2005
(the last day of the court term before the October recess). None of
the parties,
nor the judge, had any expectation that the enquiry
would resume on that day (Mr Mabena had still not been examined by a
neurologist).
The matter was on the court roll only so that it could
be postponed once again. Because that was a mere formality, which had
been
arranged amongst all concerned, the prosecution was represented
on that occasion by Ms Mahanjana, who was not familiar with the
matter.
[19] Ms Mahanjana informed the judge that it had been
arranged that the matter should be postponed to 14 March 2006 (the
earliest
date that was available on the court roll). The judge noted
the date to which the matter was to be postponed and matters then
proceeded
as follows:
‘COURT
: Yes. Mr Mabena and Mr Bofu, tell me –
just sit down, please. Do they have previous convictions?
MS MAHANJANA
: As it pleases the court, M’Lord?
COURT
: Do they have previous convictions?
MS MAHANJANA
: M’Lord, I do not have the docket with me.
COURT
: I am asking this for a different purpose. You can
trust, or not trust me, Mr Pretorius. I will tell you why I am
asking this.
I want to know, Madam, I want to know. It is too long a
time now. I want to know why they cannot be released on bail.
MS MAHANJANA
: M’Lord, I am checking ...(intervenes)
MR PRETORIUS
: M’Lord, may I just approach the accused
as to enquire from him what the situation is, maybe I can assist the
court.
COURT
: Yes, thank you.
MR BOSHIELO
: M’Lord, may I do the same?
COURT
: Yes. Let me stand down, but before I do that, let me
just speak to Ms Mahanjana. Ms Mahanjana, is that the investigating
officer?
MS MAHANJANA
: That is correct, M’Lord.
COURT
: What does he say to you?
MS MAHANJANA
: M’Lord, the investigating officer has
informed me that both accused have not got fixed addresses. That is
why they were denied
bail.
COURT
: Now, there is no such thing. We will find out. This
thing about human beings not having fixed addresses is not true,
because in
this matter I heard evidence of people who were able to
communicate with their parents. There is no such thing as some people
not
having fixed addresses. In terms of a certain kind of style, yes,
they have no fixed addresses. Do not tell me they do not know where
to go to! ...(inaudible) can be established. Now Mr Pretorius and Mr
Boshielo, would you please find out whether there is a way in
which
they can be found without difficulty, and how so, because I propose
we stand down and find out whether they can be released
on bail, and
also how much bail. They cannot forever be in prison now.
MR BOSHIELO
: Indeed, M’Lord, that is correct.
COURT
: And I would give Ms Mahanjana an opportunity to tell
me why. She has already expressed her concern, it is a valid concern
if they
are vagabond. Now I shall probably need an assurance
regarding that. Because if indeed there is a danger, then there is a
danger.
But I am always apprehensive about, it is very easy to say of
African people who do not have mansions, they do not have addresses,
and they get into some holes where they get found all the time, and
the police arrest them. They do not get arrested in the air.
MR BOSHIELO
: Correct, M’Lord.
COURT
: I am going to stand down just for ten minutes and then
come back.
MR BOSHIELO
: As the court pleases.’
When the proceedings resumed Mr Pretorius informed the
judge that Mr Mabena lived with his mother and he furnished her
address. In
reply to questions from the judge he also furnished
certain personal particulars of Mr Mabena, the whereabouts of various
family
members, and informed the judge that there were no other cases
pending against Mr Mabena. Mr Boshielo furnished similar information
concerning Mr Bofu. Both legal representatives suggested that bail
in the amount of R1 000 would be acceptable and the judge
then
turned to Ms Mahanjana:
‘COURT
: Yes, Ms Mahanjana, what is your position?
MS MAHANJANA
: M’Lord, I have inherited this matter from
Adv Mogale. M’Lord, I have been informed when I inquired from
the investigating
officer, that it was not easy for him to trace both
accused persons. He was assisted by the brother of accused 1, who
stays in town,
who phoned him and gave him ...(intervenes)
COURT
: He is still alive?
MS MAHANJANA
: The brother, M’Lord?
COURT
: Yes.
MS MAHANJANA
: The brother is still alive, M'Lord.
COURT
: So he will assist again, and I know that the police
can arrest them. But I am going to put, if I give bail, I am going to
give
conditions which they will ...(inaudible) They don’t have
passports, Madam. They may run away for six months.
MS MAHANJANA
: M'Lord, I do not have those facts. I have
inherited this matter.
COURT
: They don’t come, I do not have to ask them. They
do not have passports. Do you have a passport?
MS MAHANJANA
: I do, M'Lord.
COURT
: Well, luckily. I do not have one. I know not many
Africans have passports. But I know very few who have passports. And
it is not
typical of a person in his position to have a passport. So
...(inaudible) actually be arrested. But what more harm can it do
you?
He will be arrested eventually. The ones I have given bail to
where your office, maybe you as well, have objected, they have all
come to court, and they have, some of them, been convicted too. You
know that. Two of them have been convicted. They came every day.
Some
have been acquitted. You should know of those.’
The judge then related what had occurred in another
case, in which, so the judge said, a person had been convicted of a
serious offence,
had been granted bail pending an appeal, and had not
fled, and he then returned to the case before him:
‘… But in this case I am looking at the circumstances of
these persons, and I am asking this question. Apart from any
such as
you have, am I entitled to be concerned about the fact that these
people are going to be postponed, their case is going to
be postponed
now, in September, to a date in March. Should I be concerned as a
court?
MS MAHANJANA
: The court should be concerned, M'Lord.
COURT
: Should the state be concerned?
MS MAHANJANA
: That is correct, M'Lord.
COURT
: Should all human beings be concerned?
MS MAHANJANA
: That is correct, M'Lord.
COURT
: So we should find a way of easing their burden, isn’t
it?
MS MAHANJANA
: Correct, M'Lord.
COURT
: So the only issue is whether or not they will attend
court. And that is all.
MS MAHANJANA
: That is correct, M'Lord, and in addition to
that, hence I have already indicated to the court that I do not know
the facts of this
case. This file was given to me just to postpone. I
was going to request the court to afford me an opportunity for a
formal bail
application before this honourable court, where I have
all the facts in this matter. Today I only came for a postponement. I
was
lucky to have the [investigating officer] in court today. Hence I
am the one who requests ...(intervenes)
COURT
: I have looked into the case. If you have not done so,
if the state comes to court not bothering what is contained in the
court
and one takes over without bothering to see and just say I am
going in for a postponement, having known by now from the history of
this case, now this is September, from January, that I am averse to
people being kept in custody deliberately. That is one reason.
But be
obliged in terms of the Constitution to be concerned with people’s
concerns. Did not even think what might happen if
it is postponed to
that day. I am sorry, I have no sympathy for you. I am not talking
about you individually. For the state. If the
state is going to ask
me now to postpone this case and I must find a date some time where I
must hear the bail application, I am
sorry, I am not going to do
that. All I am going to assure to do my best, and I can never give
you a guarantee anywhere that anybody
will come to court. Nobody can
ever do that. But I look at probabilities that suggest that they
won’t come back to court, and
I see none. And Madam, I am
sorry, I am not going to postpone this case. Already I have been
indulging a lot. If I got mention in
your case that when this matter,
in an endeavour to accommodate the case, you and I arranged 1 and 2
December [apparently the date
to which it was originally intended to
postpone the matter] we are surely going to do everything in our best
to shorten evidence.
I was told in chambers that that information did
not get to counsel, or the legal representatives of the two accused
persons timeously
for them to have come to me earlier and change the
date to another date. So there are a lot of ...(indistinct) going on
on the state’s
side which I cannot overlook. So I am sorry, if
you need to go and study this case for a longer time, I am surely not
going to give
you that time.’
Mr Pretorius then intervened to inform the judge that
the investigating officer had been present in court during the
adjournment,
and had been able to give counsel for the state whatever
instructions she might have needed, but had since left, and matters
proceeded:
‘COURT
: He has been away.
MR PRETORIUS
: He has now left, but ...(intervenes)
COURT
: Because he voluntarily on his own came to her. He knew
that I am going to be raising this. He knew I was going to come back
about
this. He decided to be away.
MR PRETORIUS
: That is the point, M'Lord. What I am trying to
say is that, have these people tried to escape, have they resisted
arrest. Have
they tried to run away at any stage, or have there been
any other factors, that could easily have been given to my learned
friend.
COURT
: And he knew that I wanted her to prepare, and he has
left court now. I saw that too. I forgot to mention it to Ms
Mahanjana. I
do not play games with people’s liberty. If others
think by doing so I am playing games with justice, so be it. Let them
think
that way. That is not my interpretation of the situation. He
fired two shots, just let him go anyway. I am going to put conditions
and trust that my faith in them, in human beings and them, will not
be let down. It has not been let down in the past. But one day
somebody will let me down. But it has happened before that some
eminent people who are coming from overseas after they had been away
for many years and squandered huge funds, they have come back to face
justice. People trusted them, they left. It cannot be helped.’
[20] The judge then delivered an
ex
tempore
judgment:
‘Gentlemen, I have on my own in terms of a duty that falls on
me as a judicial officer, or a judge, to see to it that justice
is
done to all, decided to raise the question of your bail application.
You will be released on bail. In some case (whose reference
I do not
have),
R v Hepworth
, many, many years ago, it is an AD case,
and long, long before any of us here came on earth, including me,
some judges or judge decided
that the court cannot sit by and watch
indifferently when people suffer, just because they are accused
persons.
After recording that if it became necessary to give a
full judgment in the matter he would set out in detail the
authorities that
he relied upon the judge continued:
To go back to this, gentlemen, because of that obligation then, I got
concerned about the fact that this case has been postponed,
and
postponed for no fault of the two of you. Significant dates in the
lives of young people, Christmas in particular, New Year,
just keep
going by and you are in prison and these delays are not your fault.
You are, on the other hand, presently standing as being
convicted of
the charges preferred against you. At a later stage I have to
determine whether or not you were properly convicted.
26
I have a sense that, in your case Mr Mabena, the conviction may well
be sustained, if I remember well what your attorney has said
from
time to time – but this may be wrong. But nothing says that a
person who has been convicted cannot be out on bail pending
finalisation of his or her case.
The judge then related what had occurred in another case
in which bail had been granted and continued:
This country, just this year alone, is full of endless examples of
highly placed human beings in this country who were involved in
serious crimes, some of which were pending and, in respect of others,
where they had already been sentenced, but who were released
on bail.
I do not have to mention any names, all of you know them. I am one of
those judges who do not believe that there is law
for the rich and
law for the poor or anything based on racial complexion or racial
belonging rather. I believe that the circumstances
of this case have
created, if I need to go via that route, have created exceptional
circumstances – for your release in terms
of section 60 (I
think it is) (11)(b) or (a). (I cannot remember but the relevant
section). In other words, the situation has changed
so drastically
that, what Kriegler, J was reluctant to define exceptional
circumstances, have arisen here.
After quoting two extracts from the judgment in
Dlamini
which dealt with arguments that had been
advanced concerning the lack of precision in the meaning of
‘exceptional circumstances’
27
the judge proceeded:
Now all I am saying here is that, the learned judge of the
Constitutional Court, Kriegler, J, said, “Do not ask me to
define
exceptional, because if I do then it means I know what it is”.
Then he said the circumstances of every case will decide what
is
exceptional and at that stage the matter will be attended to. In my
view, the circumstances in this case are – if that is
the route
– exceptional. Although, I could not attribute blame in this
case to the state or the defence, there is a way in
which this delay
could in some way be viewed in the manner that is contemplated in
section 342A [of the
Criminal Procedure Act], but
I must add that
that section talks only about unreasonable delay. You had to find
fault with some person or the other but the idea
that a court must be
concerned about a delay does not require
section 342A.
There is a
delay beyond the accused person themselves, even though it may be
explained in terms of one person or the other, it is
just not
appropriate.
He then authorised the release of the respondents on
bail, which was set in the sum of R1 000, on condition that they
reported to
a nominated police station once a week, and did not talk
to ‘the witnesses . . . or their relatives and friends’.
[21] I find it necessary, for reasons that will become
apparent, to deal briefly with certain subsequent events. The
following week,
during the court recess, the prosecution applied for
leave to appeal against the order, and for the suspension of the
order pending
the outcome of the intended appeal. In the absence of
the judge who granted the order the matter came before the Judge
President
who postponed the application for leave to appeal to the
next court term to enable it to be heard by the judge who had granted
the
order, and meanwhile suspended the order. The application for
leave to appeal was heard in the new term.
[22] It is the right of every litigant against whom an
appealable order has been made to seek leave to appeal against the
order.
Such an application should not be approached as if it is an
impertinent challenge to the judge concerned to justify his or her
decision.
A court from which leave to appeal is sought is called
upon merely to reflect dispassionately upon its decision, after
hearing argument,
and decide whether there is a reasonable prospect
that a higher court may disagree. The record of what occurred in the
present case
is disturbing. Once more the prosecution, represented by
Ms Mahanjana, was given no proper opportunity to be heard. Instead
she
was subjected by the judge to a relentless barrage of hectoring
questions and assertions, to which she was expected to do little
more
than acquiesce, designed to demonstrate to those present, and in
particular the press, that the judge’s decision was justified.
In the course of this hectoring the propriety of Ms Mahanjana’s
professional conduct, and that of the Director of Public Prosecutions
in applying for leave to appeal, was called into question, and the
judgment that followed went so far as to question Ms Mahanjana’s
integrity. It needs to be said that I have found nothing in the
record to warrant any of those imputations. On the contrary, Ms
Mahanjana showed remarkable resilience and fortitude, in
circumstances which she must have found both difficult and
humiliating.
Some of the incorrect concessions that she made in the
course of the proceedings, which are apparent from the extracts that
I have
referred to, and which were latched upon by the judge to
bolster his reasons for granting the order, are understandable in the
circumstances
in which she found herself. The record in relation to
this aspect of the proceedings, taken together with the
dismissiveness with
which the prosecution was dealt with earlier,
creates a distinct and disconcerting impression of hostility to and
partiality against
the prosecution that is out of keeping with the
dispassionate impartiality with which judicial proceedings ought to
be conducted.
[23] Earlier I drew attention to the remark in the
ex
tempore
judgment that it would be expanded upon if it became
necessary to do so. The lengthy judgment dismissing the application
for leave
to appeal adds nothing material to the reasons that were
given at the time for granting bail. The judge dealt in some detail
with
each of the alleged procedural irregularities that founded the
application for leave to appeal, which were persisted in during
argument
before us, and I refer to those irregularities below.
[24] It is indeed disturbing, as the judge has
repeatedly observed, that at the time bail was granted seven months
had passed since
the respondents were due to be tried. It is even
more disturbing that at the time the appeal was heard a further
thirteen months
had passed and the interlocutory enquiry was still
far from being concluded. Indeed, it is poised, in effect, to
commence all over
again, because on 7 September 2006 it was ordered
that the three psychiatrists must examine Mr Mabena again, and
interview his mother
and his brother, and that Mr Mabena must be
examined by a neurologist at state expense.
[25] But we are not called upon in this appeal to
consider what weight the delay deserved in an evaluation of whether
bail was warranted.
For until all the factors that are relevant to
bail are brought to account, which has yet to occur, it is not
possible to assess
what weight is due to the various factors relative
to one another. Nor are we called upon to consider each of the
various alleged
irregularities that were relied upon by the
prosecution in advancing its argument before us. They are merely
symptomatic of a failure
that was more profound.
[26] I pointed out earlier in this judgment that what
the law requires before bail is granted in relation to Schedule 6
offences is
a proper judicial enquiry to determine whether the
provisions of the Act have been met. What occurred in the present
case did not
constitute such an enquiry, not least of all because the
prosecution was afforded no proper opportunity to be heard. Had the
prosecution
been afforded that opportunity the various matters that
gave rise to the specific alleged irregularities that were relied
upon in
argument before us would no doubt have been properly aired
and dealt with.
[27] It is apparent from the record of the proceedings
that on various occasions Ms Mahanjana pointed out that she had not
prepared
herself to deal with the question of bail. The observation
by the judge to the effect that the prosecution was delinquent in not
having prepared itself to deal with the question of bail is without
merit. Ms Mahanjana was perfectly justified in not having
familiarised
herself with the matter, bearing in mind that the
purpose of the hearing, to the knowledge of all concerned, was merely
to attend
to the pre-arranged formality of postponing the matter.
Neither the prosecution, nor, indeed, the defence, had any
forewarning that
the question of bail would be raised. There were no
grounds for summarily brushing aside Ms Mahanjana’s
protestations and her
request for an adjournment to consider the
question of bail.
[28] But quite apart from the fact that the proceedings
were not conducted judicially they amounted to no enquiry at all as
contemplated
by the Act. What is called for by the Act is an enquiry
that considers and brings to account all circumstances that are
material
to bail, and in particular those that are listed in the Act
to the extent that they are relevant. Clearly there was no such
enquiry
at all. Indeed, the clear inference from the record of the
proceedings is that the judge had made up his mind, even before
raising
the question in open court, and without reference to any of
the parties, that bail should be granted, provided only that various
queries that he had were answered to his satisfaction, and he acted
accordingly.
[29] Whether or not the respondents are entitled to
bail, should they be minded to apply for it, does not fall to us to
decide. That
is a matter, should it arise again, that is capable of
being determined only after proper enquiry has been made in
accordance with
the provisions of the Act. Thus far there has been
no such enquiry: justice according to law failed completely. In the
absence
of the enquiry that is required by law
28
the judge had no legal authority to grant bail and consequently the
order was a nullity. It is for that reason that we upheld the
appeal, set aside the order, and ordered the arrest of the
respondents.
...........................................
R.W. NUGENT
JUDGE OF APPEAL
HARMS
JA )
) CONCUR
STREICHER
JA )
1
1999 (4) SA 623 (CC).
2
Section 60(1)(a).
3
Section 60(4).
At the time
Dlamini
was decided that
subsection provided that ‘[t]he refusal of bail and the
detention of an accused in custody shall be in the
interests of
justice where one or more of the following grounds are
established…’.
4
Where there is a likelihood that the accused, if released on bail,
will ‘attempt to evade his or her trial’ (para (b)),
or
will ‘attempt to influence or intimidate witnesses or to
conceal or destroy evidence’ (para (c)).
5
Where there is a likelihood that the accused, if released on bail,
will ‘endanger the safety of the public or any particular
person or will commit a Schedule 1 offence’ (para (a)) or will
‘undermine or jeopardize the objectives or the proper
functioning of the criminal justice system, including the bail
system’ (para d)), or where ‘in exceptional
circumstances
there is the likelihood that the release of the
accused will disturb the public order or undermine the public peace
or security’
(para (e)).
6
The various factors are contained in
ss 60(5)
– (9).
7
">
7
Dlamini
, para 42, underlining added.
8
Section 35(1)(f) of the Constitution. While ss 60(4)(e) and (8A) of
the Act were held to limit that right the limitation was held
to be
justifiable and reasonable and therefore valid (para 55).
9
Section 60(11)(a).
10
Dlamini
, para 77.
11
Para 61.
12
Para 64.
13
Dlamini
, above, para 11.
14
Section 60(3): ‘If the court is of the
opinion that it does not have reliable or sufficient information or
evidence at its
disposal or that it lacks certain important
information to reach a decision on the bail application, the
presiding officer shall
order that such information or evidence be
placed before the court.’
15
Section 60(1)(c).
16
Although the record of these proceedings formed
part of the trial record (s 60(11B)(c): ‘The record of the
bail proceedings
. . . shall form part of the record of the trial of
the accused following upon such bail proceedings’) and
although the judge
was aware of the proceedings, he did not refer to
them at any stage.
17
Section 77(1).
18
Section 78(2).
19
Section 77(6)(a).
20
Section 78(1).
21
Section 78(6).
22
Section 79.
23
Sections 77(2) and 78(3) respectively.
24
Sections 77(3) and 78(4) respectively.
25
Report of the Commission of Inquiry into the
Responsibility of Mentally Deranged Persons and Related Matters
(RP 69/1967) para 2.4.
26
It is not at all clear why the accused, who have yet to be tried,
were considered to have been convicted.
27
Paras 75 and the first three sentences of para 76 of the judgment in
Dlamini
.
28
See, again,
Dlamini
, para 61.