Terry v Botes and Another (1868/2002) [2002] ZAWCHC 22; [2002] 3 All SA 798 (C) (30 April 2002)

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[2002] ZAWCHC 22
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Terry v Botes and Another (1868/2002) [2002] ZAWCHC 22; [2002] 3 All SA 798 (C); 2003 (1) SACR 206 (C) (30 April 2002)

IN THE HIGH COURT OF SOUTH
AFRICA
[CAPE OF GOOD
HOPE PROVINCIAL DIVISION]
CASE NO : 1868/2002
In the matter between :
ANTONIO
TERRY
Applicant
and
MR
F F BOTES : ADDITIONAL REGIONAL COURT
MAGISTRATE FOR THE REGIONAL DIVISION
BELLVILLE
First
Respondent
THE
DIRECTOR OF PUBLIC PROSECUTIONS FOR
THE
WESTERN CAPE Second Respondent
_____________________________________________________________________
JUDGMENT DELIVERED THIS 30
th
DAY OF APRIL, 2002
_______________________________________________________________________
FOXCROFT, J :
This is a
review application in which Applicant moved to set aside First
Respondent’s decision of 16 November 2001. That decision,
which
was by Regional Magistrate Botes, was made on that date and is
reflected in the review papers at p.53 as follows :
“
Hof
bevind skuld aan kant van beskuldigde.
Sien bylae vir bevel
met borg. Ing art 70 Wet 51/1977 word gelas dat 'n gedeelte nl R2
500,00 van die borggeld kwytgeskeld word
wat ing art 67 verbeur is.”
Section 33 of the Constitution
proclaims in subsection (1) that
“
Everyone has the
right to administrative action that is lawful, reasonable and
procedurally fair”,
and section 35(3) provides that every
accused person has a right to a fair trial; there are a number of
specified rights in sub-sections
(a) to (o). Sub-section (o)
provides for the right of appeal to, or review by, a higher court.
Mr
Mihalik
, who appeared
together with Mr
Loots
for Applicant, submitted that the
matter was properly before us as a review, and neither Respondent
resisted this contention.
As has been recently pointed out by
CORA HOEXTER, with others, in Vol 2 of The New Constitutional and
Administrative Law, entitled
Administrative Law
at
p.91, the influence of the common law will not be confined to
certain categories.
“
As CHASKALSON P
explained in the
PHARMACEUTICAL MANUFACTURERS ASSOCIATION
decision,
2000(2)(SA) 674 CC,
the common law will continue to
inform the content of administrative law and will contribute to its
future development. The Courts
will thus rely on common-law
principles when interpreting the constitutional provisions and the
Act.”
Courts are, of course, part of the
judiciary so that their decisions are not administrative action. But
in
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA v SOUTH AFRICAN RUGBY
FOOTBALL UNION, 2000(1) SA 1 (CC) p.67, para 141,
it was said
that
“
What
matters is not so much the functionary as the function. The question
is whether the task itself is administrative or not. It
may well be,
as contemplated in
FEDSURE
, … that some acts of a
legislature may constitute “administrative action”. Similarly,
judicial officers may, from time
to time, carry out administrative
tasks. The focus of the enquiry as to whether conduct is
“administrative action” is not on
the arm of government to which
the relevant actor belongs, but on the nature of the power he or she
is exercising.”
HOEXTER suggests at p.94 that it is
in fact possible for judicial officers to exercise administrative
functions, and she gives as
an example the issuing of a warrant.
The issuing of a warrant of arrest
was where the trouble started in this case. For present purposes it
will be sufficient to go back
to July 2001 to determine the facts
which led to this review.
The Applicant was at that time
released on R5 000 bail without any further conditions being imposed.
He was warned to appear in
court on 2 November 2001, but had
appeared on two occasions between July and November. On 2 November
2001 he failed to appear
in court at the required time, but sent his
fiancé to the prosecutor to explain that because he was ill as a
result of a surgical
procedure on the previous day, he would not be
able to attend. The attitude of the prosecutor was to call for a
warrant of arrest,
which was duly issued. The Applicant
immediately telephoned an attorney, one Noorudien Hassan, who
advised him to go to court
immediately. All of this happened on the
same day. Therefore, at about 3:15 p.m. and in spite of the fact
that he was still in
pain, the Applicant arrived at the regional
court at Bellville and saw the control prosecutor immediately to
explain his situation.
The woman to whom he spoke contacted the
clerk of the criminal court, who informed her, (and she relayed this
to the Applicant),
that a warrant of arrest had indeed been issued
for Applicant’s arrest. The clerk then further informed the
prosecutor, who in
turn informed the Applicant as follows :
“
Die klerk het verder
die
[sic]
meegedeel dat die ondersoekbeampte die lasbrief vir
my arrestasie op Maandagoggend 5 November 2001 sou afhaal.” [Record
p.12 para
26]
The control prosecutor then told
Applicant that it was already late and that he should contact the
investigating officer, a Mr Baardman,
in connection with the warrant.
Applicant thereafter again contacted his attorney and asked him to
represent him at the hearing
which would take place on Monday 5
November.
In his Affidavit instituting these
proceedings, Applicant tells how he went to court on Monday 5
November 2001, where he met Mr Hassan
(his attorney). He was told
that the only court which was available to hear this matter on short
notice was Regional Court 5.
They went to that court and were told
that the matter would be heard at the end of the Roll. This took
place at about 12 noon.
First Respondent was the presiding officer
at the hearing.
Applicant’s attorney was told by
First Respondent before the matter was heard that he would not hear
it unless Applicant was arrested.
At that stage Applicant was
outside the courtroom, and found it strange that he had to be
arrested and kept in custody since he
had come to court of his own
free will,
“
En
aangesien daar geen risiko was dat ek sou vlug nie. Ek is deur 'n
vroue polisiebeampte gearresteer en is aangehou in die hofsel
totdat
die aangeleentheid geroep was om ongeveer 12h00. Dit is my
eerbiedige mening dat ek gearresteer is en in hegtenis geplaas
is
bloot om my te verneder.”
In his Opposing Affidavit, First
Respondent maintains that while it is true that the Applicant was
arrested on 5 November, the reason
for this, which the First
Respondent provided in paragraph 11 of his Affidavit at p.94 of the
papers before me, was that
“
Dit
doen ek eerbiediglik aan die hand spruit voort uit die bepalings van
artikel 67 van die Strafproseswet 51 van 1977 (“die Wet”).”
The magistrate misunderstood the
section in the Act, which provides in subsection 1 that if an accused
who is released on bail fails
to appear at the place and on the date
and at the time appointed for his trial, the Court before which the
matter is pending
“
shall
declare the bail provisionally cancelled and the bail money
provisionally forfeited to the State, and issue a warrant for the
arrest of the accused.”
Subsection (2)(a) continues :
“
(a) If the accused appears before court within fourteen days of
the issue under subsection (1) of the warrant of arrest, the court
shall confirm the provisional cancellation of the bail and the
provisional forfeiture of the bail money, unless the accused
satisfies
the court that his failure under subsection (1) to appear
or to remain in attendance was not due to fault on his part.
(b) If the accused
satisfies the court that his failure was not due to fault on his
part, the provisional cancellation of the bail
and the provisional
forfeiture of the bail money shall lapse.”
Subsection (c) deals with an accused
person who does not appear before Court within the required fourteen
days, and subsection (3)
is to the effect that
“
The Court may
receive such evidence as it may consider necessary to satisfy itself
that the accused has under subsection (1) failed
to appear or failed
to remain in attendance, and such evidence shall be recorded.”
What is quite clear from these
provisions is that an accused person may, either himself or through
his legal representative, satisfy
the Court that his failure under
subsection 67(1) was not due to fault on his part, and also that the
Court may receive any evidence
as it considers necessary in order to
determine this question. Nowhere is it stated that a warrant of
arrest
must
be executed before an accused in these
circumstances may be heard, nor is it stated that an accused person
is obliged to give evidence
and that his attorney may not address the
Court in regard to this question.
The warrant of arrest had been
issued on the Friday, 2
nd
November, and had not been
carried out. The magistrate seems to have adopted a policy in
general that before he would be prepared
to listen to the reasons why
bail should not be forfeited through non-appearance, that the arrest
and incarceration of the accused
was a necessary precursor to any
judicial consideration of the matter. There is no legal foundation
for such a view.
Applicant describes in his affidavit
that when his attorney, Mr Hassan, rose to address the Court on 5
November, First Respondent
was visibly unhappy about the fact that
Mr Hassan was not wearing a jacket under his gown. After apologising
for this, he attempted
to address the Court, but was refused
permission to do so. First Respondent insisted that Applicant should
give evidence. This
is confirmed by Mr Hassan in his affidavit which
appears at p.61 of the papers, where he says :
“
Toe
ek opstaan om die Hof toe te spreek het die Eerste Respondent my
onmiddellik gevra waar my baadjie was.
Aangesien dit 'n
uiters warm dag was en aangesien ek meestal in die Wynberg howe
praktiseer waar dit, volgens my waarneming, die
gebruik is dat
indien dit onhoudbaar warm is, praktisyns verskyn sonder baadjies
onder hulle togas. Ek het dus verkeerdelik
aangeneem dat dit
deurgaans die gebruik sou wees en dat ek my toga bo-oor my hemp
kon aantrek. Ek het dit gedoen sonder om
eers die Eerste
Respondent se vergunning te vra. Ek is uiters verleë daaroor.
Ek het in antwoord
op die Eerste Respondent se vraag dit genoem en die onmiddellik
voorafgaande sub-paragraaf aan hom verduidelik,
waarop ek meegedeel
is dat ek na die hooflanddros te Wynberg moes gaan en dat ek by hom
moes uitvind waarom hy sulke dinge in
sy howe toelaat.”
Mr Hassan continues to say that he
again apologised, whereupon he was allowed to continue. Immediately
thereafter First Respondent
informed him
“
dat hy dit nie sou
toelaat nie en dat ek die Applikant moes roep om te getuig. Ek
beweer, met eerbied, dat die Eerste Respondent
my ten minste die
geleentheid moes gegun het om die grondslag van die applikant se
verweer op rekord te plaas.” (para. 23)
Applicant then did testify just for
“etlike minute”,
when his cell phone unexpectedly began
to ring. What follows is important – p.63, para. 26 :
“
Die
Eerste Respondent het onmiddellik homself vererg en gesê dat “dit
genoeg was” en “dat die applikant nou in die moeilikheid
was”.
Hy het daarop vir my en die Applikant meegedeel dat hy die
aangeleentheid uitgestel word vir sewe dae en dat die applikant
in
hegtenis moes bly. Dat die Eerste Respondent homself vererg het is
te verstane. Wat egter daarop gevolg het, beweer ek met eerbied,
was
uiters onregverdig teenoor die Applikant.”
Mr Hassan adds that he was
“
úiters verbaas oor
die Eerste Respondent se optrede en het verleë gestaan teenoor my
kliënt. Soos voormeld is geen redes verskaf
waarom die ondersoek
uitgestel moes word vir sewe dae nie. Die applikant is geen
geleentheid gegun om 'n verduideliking oor die
voorval te gee nie.”
In answer to these allegations, First
Respondent agrees that he did question why Mr Hassan was not wearing
a jacket, and then he attaches
a letter from the Law Society of the
Cape of Good Hope marked “FFB.7”, stipulating a dress code for
attorneys appearing in the
High Court. He adds :
“
Dit
is my respekvolle mening dat dieselfde van toepassing is in die
laerhowe.”
It is true that a circular was sent
to all firms by the Law Society in October 1995, dealing with rights
of appearance of attorneys
in the then Supreme Court and providing
for dark suits or at least dark jackets for men appearing in court.
This rule was laid
down after attorneys had obtained for the first
time the right to appear in the Supreme Court. There was a need to
adopt some uniformity
in dress in the Supreme Court where only
advocates had previously appeared at the Bar. Negotiations had taken
place between the
Bench, Bar and Attorneys’ Association about
the need to adopt a reasonably unified dress code. Attorneys
initially wanted to
wear advocates’ robes, and the advocates were
unhappy with this idea. The compromise which was adopted was that
attorneys should
dress in the manner prescribed. The arrangement
had nothing to do with dress in the magistrates’ courts, or any
other courts,
and as far as I understand, no such uniform rule
exists.
Certainly, First Respondent’s
advocate was unable to tell me of any such rule, nor were any other
advocates in court - some of
whom had been prosecutors - able to
shed any light on the matter. It was therefore of no assistance for
the First Respondent to
suggest that the High Court dress code
applied to the magistrates courts. While a magistrate is obviously
entitled to hold a view
as to how people should dress when appearing
before him, he should not suggest that the High Court has somehow
laid down a rule which
applies to the magistrates courts as well.
All of this should have been of
little consequence, since the attorney was obviously not intending
to annoy the magistrate, and he
apologised.
In regard to the allegation by Mr
Hassan that he was not allowed to address the Bench, the magistrate
responds in paragraph 15 of
his Affidavit (Record 95) :
“
In
terme van artikel 67 moet die beskuldigde die Hof tevrede stel dat sy
versuim om op sy verhoordatum te verskyn nie as gevolg van
skuld op
sy kant is nie. Dit is om hierdie rede dat ek getuienis vanaf die
applikant wou hoor. Dit is my respekvolle mening dat
slegs die
applikant en nie sy regsverteenwoordiger, in staat is om getuienis te
lewer.”
It is quite right that only the
Applicant could give evidence, but it is quite wrong to suggest that
the attorney could not address
the Court in order to satisfy the
Court as provided in section 67(2)(a) that the accused’s failure
was not due to fault. If
the Court should be dissatisfied with that
submission, it is of course open to the Court to receive evidence as
it may consider
necessary under section 67(3), but to say that an
attorney is not permitted to address the Court in such situations was
clearly wrong.
The magistrate then went on to deal
with the fact of the ringing of the cellular telephone, and contends
that his reasons for postponing
the case were not because of
irritation about clothing or cell phones, but the following [Record
96] :
“
17.1 Dit blyk uit die oorkonde van 2 November 2001 dat adv
Badenhorst, wie die aanklaer in die applikant se verhoor is, die Hof,
by
die versoek van 'n lasbrief en die voorlopige opheffing van borg,
meegedeel het dat hy (‘Badenhorst’) 'n mediese sertifikaat
ontvang het dat applikant die vorige dag besny is;
Dit blyk verder
uit bogenoemde oorkonde dat Badenhorst die dokter geskakel het wie
aan hom meegedeel het dat die besnydenis nie
'n noodsaaklike
operasie was nie;
Dit blyk verder
dat die dokter hom meegedeel het dat die applikant die volgende
dag in die hof moes wees sou die dokter nie
die operasie uitgevoer
het nie. Ek heg hierby aan 'n uittreksel uit die oorkonde gemerk
“FFB.8”;
Op hierdie stadium
was die applikant se getuienis strydig met die van Badenhorst se
mededelings aan die Hof op 2 November 2001.
Badenhorst se
opmerkings aan die Hof op 2 November 2001 dat dit duidelik is dat
applikant die regsproses vertraag “met sy alewige
afwesigheid op
sg. (sogenaamde) mediese gronde”;
Volgens applikant
se getuienis was ek van oordeel dat die saak nie gefinaliseer kon
word nie, omdat die mediese getuienis van
die dokter wie die
operasie uitgevoer het, dr Ebrahim, van belang was om vas te stel
of die applikant skuld het, aldan nie;
Dit ook duidelik
geblyk het dat die applikant nie gereed was nie, ten minste nie om
die dokter as 'n getuie te roep nie;
Die applikant se
aansoek nie op die Hofrol was nie en sodoende die sake wat wel vir
daardie dag neergesit is, sou onnodiglik vertraag
weens die feit
dat dit duidelik was dat dr Ebrahim se getuienis noodsaaklik is.”
In a replying affidavit, Mr Hassan
has pointed out that there were no further cases on the Roll for that
day when the cell phone rang,
and that even if Applicant’s
evidence was contrary to the
“…
. dubbele hoorsê
getuienis van advokaat Badenhorst op 2 November 2001, was dit op
sigself geen rede om summier die verrigtinge te
staak nie. Die
applikant het nog nie sy getuienis voltooi nie, was nog nie
kruis-ondervra nie en die Hof het ook nog geen verdere
vrae aan die
applikant gestel nie. Bo en behalwe die feit dat die eerste
respondent met respek die agbare Hof mislei oor die rede
vir die
uitstel, is dit ook verder aanduidend daarvan dat die eerste
respondent bereid sou wees om
viva
voce
getuienis van applikant te verwerp om deur
bloot te kyk na die oorkonde wat voor hom geplaas is, sonder dat daar
enige getuienis
oor die korrektheid van die oorkonde aan eerste
respondent gelewer is nie.”
He goes on at page 135 of the Record
in paragraph 16 :
“
Eerste Respondent
voer aan dat applikant die regsproses vertraag het “met sy alewige
afwesigheid op sogenaamde mediese gronde”.
Dit was die eerste keer
dat die applikant afwesig was van hofverrigtinge. Dit was ook die
eerste keer dat die applikant weens mediese
gronde nie die hof kon
bywoon nie. Die gewig wat eerste respondent geheg het aan hierdie
wanvoorstelling is aanduidend van die feit
dat eerste respondent nie
eens die moeite gedoen het om te verseker dat hierdie stelling korrek
is, maar wel hierdie dubbele hoorsê-getuienis
(wat verkeerd is)
aanvaar het bo die van die
viva
voce
getuienis van die applikant. Eerste respondent
het nie eens applikant gevra of dit wel korrek was nie, maar bloot
die verrigtinge
uitgestel vir sewe dae.”
Clearly, First Respondent should not
have simply relied on what Badenhorst had reportedly said in court on
2 November 2001, and should
have considered the question which arose
in the circumstances, namely whether there was sufficient time to
attempt to get Dr Ebrahim
to court that afternoon before deciding
whether to continue to hold Applicant in prison or not.
Even if Dr Ebrahim’s evidence was
of
“uiterste belang”
for a finding of whether there was
any fault on the part of Applicant or not, there was no need to
incarcerate the Applicant for
a whole week before the matter resumed
on 12 November, and indeed continued until 16 November, while that
issue was resolved. Even
if Applicant’s attorney had not
specifically moved for bail after the postponement, it was, in my
view, the duty of the Court
to raise the question of bail with the
attorney, since he had insisted upon the procedure of arresting the
Applicant for purposes
of the hearing on 5 November, and not for any
other purpose.
If the arrest was only in order to
hear the matter, then the arrest should have fallen away once it was
no longer possible to hear
the matter.
First Respondent himself called Dr
Ebrahim as a witness and put certain questions to him on 16 November.
After hearing this evidence,
First Respondent found that the
Applicant had been negligent in his failure to inform the doctor
before the operation on 1 November
that he had to be in court on 2
November, and ordered that an amount of R2 500,00 of his bail be
estreated to the State and that
Applicant remain in custody. No
reasons exist on record for this finding.
I agree with the submissions of
Applicant’s Counsel that upon a reading of the Record it is
abundantly clear that First Respondent
remanded the matter for seven
days immediately after the cellular telephone rang in court. First
Respondent does not deal with the
allegation in Mr Hassan’s
affidavit that First Respondent had said,
“Nou is jy in die
moeilikheid”
when this happened. Applicant also makes this
allegation at paragraph 34 of his Affidavit (Record 14). There is
simply a bald
denial in paragraph 54 of First Respondent’s Opposing
Affidavit of the contents of paragraph 53 of Applicant’s Affidavit.
One obtains the strong impression
that the magistrate was so incensed by the behaviour of Mr Hassan,
which was aggravated by the
ringing of the cellular telephone, that
he was simply not prepared to go on with the matter. Had that been
all that had happened,
one could have excused him, but to order
that the accused be held in custody for a week in those circumstances
was conduct which,
in my view, no reasonable Court would countenance
and which was an irregularity in the proceedings of so gross a
nature that it
was fatal or, as is sometimes said, resulted in a
failure of justice. [
See
Section 24(1)(c) of the Supreme Court
Act, 59 of 1959)]. First Respondent ordered that Applicant remain
incarcerated for a week,
and no subsequent conduct on the
magistrate’s part need be gone into. Suffice it to say that I do
not agree that Dr Ebrahim in
any way contradicted what the Applicant
had said, or that any conduct on the part of the Applicant amounted
to negligence for which
he should have forfeited his bail.
There was plenty of time for the
matter to be properly dealt with after both parties in this
confrontation had cooled off, since
the Record shows that there was
ample opportunity for further evidence to be led. [See Record p65,
which deals with Mr Hassan’s
attempts to get the First Respondent
to deal with the matter at two o’clock that afternoon].
It is unnecessary to determine
whether First Respondent was himself biased in this matter. He
certainly created the perception that
he attached more importance to
what had been said by the prosecutor on the previous occasion when
the matter was in court than anything
which might be said by the
Applicant or his attorney. He should also certainly not have said
that the Applicant’s attorney should
go to the Wynberg court and
ask the chief magistrate there why he was allowing people not to
wear jackets. This statement indicates
a degree of frustration,
irritation and perhaps overwork or an over-rigid approach. I am sure
that if First Respondent were to sit
calmly and consider that
statement, he would realise that it was a comment which should never
have been made.
Applicant was fully entitled to
regard what had happened to him as not being a fair trial. Mr
Hassan, in my view, is perfectly correct
to say that the Applicant
should not be punished because of the feelings that the First
Respondent might have had against him. Mr
Hassan expressed proper
regret for an offence which could in any event not be regarded as
anything more than trivial.
This whole unhappy saga reminds one
of days when members of the public and legal representatives were
treated in some cases with
great indifference, and occasional
rudeness, in superior and inferior courts. The Constitution insists
that people be treated fairly
and properly, and the attitude
displayed by First Respondent in this matter was reprehensible and
cannot be left without criticism.
Mr
De Villiers Jansen
, who
appeared for First Respondent, submitted that what the magistrate
did was in accordance with law. He could provide no reason
why the
magistrate had insisted that the Applicant be jailed for seven days
before the enquiry of 5 November could be completed other
than to
suggest that the magistrate seemed to feel that the law had to take
its course in the absence of any application for bail
by Applicant’s
attorney. He submitted that it is not the
“intention of the
legislature that an accused whose bail has been forfeited be allowed
to be on what would effectively be out of
custody on his own
recognisance
”.
While this submission might apply to
normal forfeiture of bail situations, the present case was entirely
different. The Applicant
did not want to forfeit his bail and took
steps to ensure that that did not happen. The arrest which took
place was for reasons
which the magistrate regarded as necessary for
the hearing before him as to why bail should not be forfeited and
which should,
as I have said, been reversed when the matter had to
be postponed.
It was for these reasons that my
brother and I decided to make an immediate order releasing the
Applicant from custody and restoring
the forfeited portion of his
bail. The order which we made was the following :
Dat die bevinding
van die Eerste Respondent hierin op 16 November 2001 tersyde gestel
word.
Dat die bogenoemde
Agbare Hof sy inherente jurisdiksie uitoefen deur nie die
aangeleentheid terug te verwys na die Streekhof vir
'n
de
novo
ondersoek nie, en dat 'n beslissing aangaande
die meriete van die ondersoek op die aangehegte stukke gemaak word
:
Dat die Applikant
onmiddellik vrygelaat word.
Dat die Applikant
se borg wat verbeurd verklaar is, herstel word.
3. Dat die eerste Respondent die koste van die aansoek betaal,
wat insluit die koste van een Advokaat.
POTGIETER, AJ :
I agree.
___________________________
D POTGIETER
FOXCROFT, J :
It is so
ordered.
_______________________________
J G FOXCROFT
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
[CAPE OF GOOD HOPE PROVINCIAL DIVISION]
CASE NO : 1868/2002
In the matter between :
ANTONIO
TERRY
Applicant
and
MR F F BOTES : ADDITIONAL REGIONAL COURT
MAGISTRATE
FOR THE REGIONAL DIVISION
BELLVILLE
Respondent
COUNSEL
FOR APPELLANT : Advv P F Mihalik
et
H Loots
ATTORNEYS
FOR APPELLANT : Hassan Attorneys,
LANSDOWNE.
COUNSEL
FOR FIRST RESPONDENT : Adv H Booysen
COUNSEL
FOR SECOND RESPONDENT : Adv J E A De Villiers
ATTORNEYS
FOR RESPONDENTS : State Attorney
DATE[S]
OF HEARING : 12.4.2002
DATE OF
JUDGMENT : ORDER : 26.4.2002
REASONS : 30.4.2002
ANTONIO
TERRY / THE ADDITIONAL
MAGISTRATE
AND ANOTHER
/ . . . . .