About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2012
>>
[2012] ZAGPPHC 320
|
|
McMaster v Director of Public Prosecution and Others (69021/2012) [2012] ZAGPPHC 320 (28 November 2012)
NOT
REPORTABLE
NORTH
GAUTENG HIGH COURT,
PRETORIA
REPUBLIC OF SOUTH AFRICA
Case
No: 69021/2012
Date
heard: 28/11/2012
Date
of judgment: 28/11/2012
In
the matter between:
LAWRENCE
McMaster
..........................................................................................
Applicant
And
DIRECTOR
OFPUBLIC
PROSECUTION
...........................................................
1st
Respondent
(Gauteng
Province)
MINISTER
OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
......................................................................................................
2nd
Respondent
MAGISTRATE
CHAUKE
.......................................................................................
3rd
Respondent
MINISTER
OF
POLICE
..........................................................................................
4th
Respondent
JUDGMENT
PHATUDI
J:
[1]
In this application the applicant seeks on an extreme urgent basis an
order ’authorising the magistrate at the Pretoria
Magistrate's
Court to hear the bail application of the applicant before 16:00 on
the 28 November 2012. If the aforesaid should
not be possible as soon
as possible on Thursday 29 November 2012
1
.
[2]
I enquired from counsel for the applicant as to why this matter
should be heard on this extreme urgency. He refers me to Rule
6(12)
(a) of the Uniform Rules of this honourable court.
[3]
I further enquire from him if this is an appeal or if the magistrate
postponed the bail hearing not as envisaged in terms of
section 50(6)
(d) of the
Criminal Procedure Act 51 of 1977
. Counsel confirms that
the applicant has been lawfully arrested and brought before court
within 48 hours.
[4] The matter was heard and the
magistrate postponed the hearing of the bail application as envisages
in terms of
section 50(6)(d).
[5]
I further enquired from counsel for the applicant if he has knowledge
of the judgment that has been handed down on the 16 November
2012 by
the Supreme Court of Appeal, in the matter between National
Commissioner of Police and the Minister of Safety and Security
v
Jacques Coetzee. Counsel informs me that the judgment has been
brought to his attention and has knowledge thereof.
[6]
Considering the application before me, the applicant failed to adhere
to the practice directive with regard to the procedure
of filing the
urgent application. Considering all the facts, in my view, there is
no evidence led before this court that warrants
this matter to being
heard on an extreme urgency.
[7]
On that leg alone this application stands to be struck off the roll.
I
however considered the merits. The magistrate correctly and rightly
heard the applicant’s bail application. The magistrate
postponed this matter in terms of
section 50(6)
(d). For convenience,
the section reads that ‘the lower court before which a person
is brought in terms of this subsection
may postpone any bail
proceeding or bail application to any date or court for a period not
exceeding 7 days at a time on the terms
which the court may deem
proper and which are not inconsistent with any provisions of this
Act’
[8]
I want to emphasise the principle set out in the Coetzee judgment.
The Supreme Court of Appeal held that ‘[16] courts
must guard
against and resist the temptation to impose duties on police
officials under the guise of an alleged protection of rights
guaranteed under the Bill if Rights, which existing law, in this case
the CPA, does not impose. It is well to repeat what Stegmann
J said
in S v Baleka & others
1986 (1) SA 361
(T) at 374H - 375A:
No
room remains for the exercise of the court's inherent common law
powers in that respect, save, perhaps, to the extent that such
powers
can be exercised within the framework set by the statutory
provisions. ’
[9]
Considering the provisions of
section 50(6)
(d) I am of the view that
the magistrate acted correctly in postponing the said hearing of the
bail application as prescribed in
the section.
[10]
I am reluctant to order the magistrate to hear the said application
on the 28 and/or 29 and/or any other day other than the
date upon
which the magistrate has postpone the matter to.
[11]
I am reluctant to so postpone this matter on the basis of the
principle enshrined and set out in the Coetzee matter that this
court
must
guard against the temptation to impose duties on the officers of
court especially the police and the officers of lower courts.
[12]
It is indeed trite that reviews and/or appeals from the magistrate’s
courts must be heard by two judges. This is neither
an appeal nor a
review of the magistrate’s decision. One judge may, however,
hear an appeal against the refusal of the bail
by the magistrate.
This is the only instance where a single judge can sit and hear the
matter from the magistrate, that being,
an appeal for the refusal of
the bail. This application is not an appeal against the refusal of
the bail. This is an application
to order the magistrate to hear the
application for bail. As principled in Coetzee, this court should
resist or guard against imposing
such duties. I am bound by that
decision. As a result, this application on this second leg stands to
be dismissed.
I.
in a result, make the following order:
1.
The application is dismissed.
2.
No order as to costs.
3.
The applicant will remain in custody until his bail application is
heard on the 05 December 2012.
A.M.L.
Phatudi
Judge
of the High Court
On
behalf of the applicant: Steve Bester Attorneys
1396
Topaas Street Waverly Pretoria Adv. Van As
On
Behalf of the Respondent: Director of Public Prosecutions
Gauteng
Province Church Square Pretoria Adv. Vorster
1
Notice of Motion page 2