Matshikwe NO v M (102/2002) [2003] ZASCA 54; [2003] 3 All SA 11 (SCA) (30 May 2003)

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[2003] ZASCA 54
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Magistrate, Stutterheim v Mashiya (102/2002) [2003] ZASCA 54; [2003] 3 All SA 11 (SCA); 2004 (5) SA 209 (SCA); 2003 (2) SACR 106 (SCA) (30 May 2003)

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THE
SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case
no: 102/2002
REPORTABLE
In the
matter between:
Robert
MATSHIKWE, Magistrate, Stutterheim
Appellant
and
M.
C. E. M.
Respondent
Before:
Howie
P, Schutz JA, Streicher JA, Cameron JA, and Mthiyane JA
Heard:
9 May 2003
Judgment:
30 May 2003
Magistrates’
Courts – Higher courts’ supervision of manner of functioning –
Order that magistrate hear argument at specified
time and give
judgment an hour later – No case made out for such order – Order
in circumstances unjustified
JUDGMENT
_______________________________________________________
CAMERON
JA
CAMERON JA:
The
question in the appeal is whether an order a High Court judge issued
directing a magistrate to hear argument in an opposed
bail
application by not later than 15h00 on the day of the order, and to
give judgment an hour later, was in the circumstances
of this case
justified.
The appellant is the district
Magistrate at Stutterheim. The respondent, a medical doctor in
private practice, is the district
surgeon of Whittlesea. On
Saturday 30 June 2001 he was arrested on a charge of raping his
17-year old stepdaughter. He was
detained for two nights at the
Stutterheim Police Station. When on the Monday he was brought
before a colleague of the appellant,
his attorney applied for bail.
The prosecution requested but was refused a seven-day postponement
of the proceedings.
1
Since the investigating officer was not before court, the matter
was postponed to the next day.
On
the Tuesday the appellant (to whom I shall refer as ‘the
magistrate’) presided. He, too, refused a seven-day postponement.

So the bail hearing commenced. The investigating officer testified
opposing bail. The prosecution closed its case. The respondent

testified in support of bail. He also closed his case. The
magistrate thereupon postponed the matter to Thursday 12 July –

nine days later – ‘for judgment’. The respondent’s
attorney, Mr Zuko Lwazi Tini, objected. The magistrate told him

that the earliest date available was Wednesday 11 July – eight
days hence. The respondent was to remain in custody.
Mr Tini sought the advice of senior
counsel. Thereafter he approached the magistrate in chambers,
requesting him to re-call the
matter. The magistrate refused.
Undaunted, Mr Tini brought an urgent application in the High Court
in Grahamstown. The order
he sought was to compel the magistrate to
hear argument and give judgment in the bail application.
The
application came before Pillay J on Thursday 5 July. He issued a
rule nisi calling on the magistrate to show cause by 12h00
the next
day why the order sought should not be granted. The order was faxed
to the magistrates’ offices, Stutterheim. There
was no response.
At about noon on Friday 6 July Pillay J granted the following order:
That
the District Magistrate Stutterheim, Mr Matshikwe, be directed to
hear the addresses [of the prosecutor and the defence attorney]
by
not later than 15h00 on 6 July 2001.
That the District Magistrate of
Stutterheim, Mr Matshikwe, be directed to give judgment [in the bail
application] by not later
than 16h00 [on 6] July 2001.
The
order was faxed to Stutterheim and at about 12h50 the matter was
called. The magistrate heard both parties’ arguments,
as the
order directed. But he declined to comply with its second part. He
stated that he was ‘not in a position to decide
and give a just
decision’:
‘
I
want to evaluate the evidence and your submissions carefully and
apply my mind to the matter. I will be able to give a
well-considered
judgment in this matter on 11/7/2001.
The accused in custody.
Court adjourns.’
By now there was (as the appellant’s
counsel put it during argument) a considerable amount of ‘needle’
in the dispute.
On Saturday Mr Tini went back to Grahamstown.
Notwithstanding the proceedings still pending before the magistrate,
he applied
to the full bench of the High Court for the respondent’s
release on bail. He also applied for the magistrate to be committed

to prison for contempt of court. The matter came before Kroon and
Leach JJ. They first directed that the Director of Public

Prosecutions in the Eastern Cape be notified. Then on the Saturday
evening they heard argument. There was no appearance for
the
magistrate. The DPP however appeared. He stated that on the basis
of the record he was unable to contend that bail should
have been
refused. The judges considered that there were grounds to exercise
the High Court’s inherent jurisdiction to intervene
in the
uncompleted proceedings below. They granted bail of R4 000, subject
to conditions – the respondent had to vacate the
family home until
the case was finalised; not contact the complainant or her mother;
and report to the police weekly.
The sole issue before us is the
order Pillay J granted on Friday 6 July. The events of the Saturday
do not show that the appeal
is pointless because the respondent was
released on bail. On the contrary, they show that the issues are
live, since in releasing
the respondent the full bench expressed the
prima facie view that the magistrate had committed contempt of court
in not complying
with the order of Pillay J. The judges therefore
issued a further rule nisi calling on the magistrate to show cause
why he should
not be committed to prison for contempt of that order,
and why he should not pay the costs of both the bail and contempt
proceedings
in the High Court from his own pocket (
de bonis
propriis
) on a punitive scale. The fate of Pillay J’s order,
leave to appeal against which was granted by this Court, has a
bearing
on the subsequent order.
The respondent himself has no
further interest in the question and was not represented before us.
In the interests of full argument,
the Court approached the
Johannesburg Bar for assistance, and its members Ms Kathree and Ms
Cassette submitted written argument
and appeared
pro amico
.
(I shall refer to the Bar, albeit somewhat loosely, as ‘the
amicus’.) We are indebted to counsel for performing this task
in
the public interest, as well as for their valuable submissions.
At the outset Mr de Bruyn for the
appellant drew our attention to the practice direction in the
Eastern Cape High Court requiring
that two judges hear appeals and
reviews from magistrates’ courts.
2
He correctly characterised the application before Pillay J as
necessarily entailing either an appeal from or a review of the

magistrate’s decision to postpone the question of bail (coupled
with an application for a mandatory order), and therefore contended

that since the judge sat alone his order was incompetent.
It would of course be unfortunate to
decide a matter of such broad importance on so narrow and
formalistic a ground. But in any
event the Supreme Court Act
provides that during court vacations one judge ‘shall be competent
to exercise all the powers,
jurisdiction and authority of a court’
of the division (except an appeal from a fellow judge).
3
Since the matter came up in vacation Pillay J was thus entitled to
deal with it.
So it is the substance of the order
and not the technicalities of its provenance that we must deal with.
Counsel for the magistrate
made a radical attack upon the order,
submitting that it was in principle invalid and irregular because it
undermined the independence,
dignity, effectiveness and functioning
of the magistracy. He also contended that the order inhibited the
right to a fair trial,
by rushing the magistrate into a decision,
and for the same reason infringed and inhibited women’s rights, in
that it could
have led to a guilty and dangerous person wrongly
being granted bail. The amicus, in full and detailed submissions,
defended
the order, contending that the High Court has the power to
grant a compulsory order (mandamus) to require a magistrate to
dispose
of a bail application urgently. Given the urgency of all
bail applications, the magistrate had a duty to dispose of it as
urgent
– and justice therefore required that Pillay J issue the
order.
That the higher courts have
supervisory power over the conduct of proceedings in the
magistrates’ courts in both civil and criminal
matters is beyond
doubt. This includes the power to intervene in unconcluded
proceedings. This Court confirmed more than four
decades ago that
the jurisdiction exists at common law.
4
It subsists under the Constitution, which creates a hierarchical
court structure
5
that distinguishes between superior and inferior courts by giving
the former but not the latter jurisdiction to rule on the
constitutionality of legislation and presidential conduct
6
as well as inherent power.
7
The Constitutional Court has emphasised the role of the higher
courts in ensuring ‘quality control’ in the magistrates’

courts, and the importance of the High Court’s judicial
supervision of the lower courts in reviewing and correcting
mistakes.
8
This entails, as Chaskalson CJ has observed, that the higher courts
can ‘supervise the manner in which’ the lower courts
discharge
their functions.
9
His general formulation echoes the provisions of the Criminal
Procedure Act, which provides that in criminal proceedings subject

to review in the ordinary course the High Court may, amongst many
ample powers, ‘remit the case to the magistrate's court with

instructions to deal with any matter in such manner as’ it may
think fit.
10
The higher courts have however
emphasised repeatedly that the power to intervene in unconcluded
proceedings in lower courts will
be exercised only in cases of great
rarity
11
– where grave injustice threatens, and where intervention is
necessary to attain justice. The same approach has been followed

under the Constitution.
12
At the same time, although the cases in which intervention has
actually occurred are uncommon,
13
this Court has refused to define or limit the circumstances in which
intervention would be justified.
14
The categories remain open.
15
A High Court challenge to a
magistrate’s decision to postpone judgment in a bail application
is in this sense unprecedented.
But in principle it falls well
within the jurisdiction, and it cannot be doubted that the power to
intervene in a suitable case
exists. I did not understand counsel
for the magistrate to contest this. What he put in issue were the
terms of the order,
and the justification for its being issued when
it was. In doing so he alluded to various factual assertions that
were not before
us. These included that the draft order faxed to
the magistrates’ offices in Stutterheim on the Thursday did not
reach the
magistrate (hence the lack of response), and that on the
Friday the magistrate faxed his reasons for persisting in the
postponement
to the High Court (which apparently did not reach Kroon
and Leach JJ). These assertions are not on record before us. More
important,
they were not before Pillay J, and the competency of his
order must thus be determined without reference to them.
During
argument there was moreover speculation about possible reasons for
the postponement and the magistrate’s persistence
in it. These
embraced not only his personal circumstances (might he have had a
medical condition requiring hospitalisation for
a week?) but his
professional position (was there a pile of outstanding judgments he
preferred to surmount first?). It is not
necessary to dwell on
these possibilities. It is evident that finalising an application
for bail is always a matter of urgency.
Though the accused may not
be entitled to be released – since the Constitution permits bail
only if the interests of justice
permit
16
– he or she is certainly entitled at first instance to a prompt
decision one way or the other.
17
And if bail is refused, the decision can be appealed. The right to
a prompt decision is thus a procedural right
18
independent of whether the right to liberty actually entitles the
accused to bail.
Nevertheless, it is equally obvious
that conscientious determination of bail applications – applying
the ‘good judgment’
19
they require – might demand reflection: overnight, or conceivably
even longer. It is not desirable to try to lay down any
general
rule. Nor does the case require us to do so. It is not necessary
to decide whether, given the proactive duties imposed
on magistrates
during bail hearings,
20
an eight- or nine-day postponement could ever find justification,
particularly when a postponement under s 50(6)(d) of the Criminal

Procedure Act
21
has already been refused, and when evidence and argument are
complete. Nor is it necessary to decide whether in this case –

which Pillay J described as ‘straightforward’, and which the
full bench, endorsing the attitude of the DPP, disposed of as
such –
a postponement of that length could possibly have been warranted.
No
final view is necessary because I shall assume in favour of the
respondent that the circumstances at the time of Pillay J’s
order
justified and demanded a prompt hearing and decision about the
respondent’s entitlement to bail.
Even on this assumption, this
particular order should not have been granted. The short reason is
not that the order was intrinsically
incompetent, as counsel for the
magistrate contended. It is that no case was made out before Pillay
J for subjecting the magistrate
to the undignifying prescriptions as
to time that the order contained. In reaching this conclusion I
bear in mind that it is
of course no indignity for a judicial
officer to have a ruling reversed or overturned. All magistrates
are subject to review
and all judicial officers (bar those in the
highest courts) are subject to correction on appeal.
Nor
does the supervision the higher courts exercise over the manner in
which the lower courts conduct their business subject those
courts
to any intrinsic indignity. And the suggestion implicit in
counsel’s argument that an order interfering with the functioning

of a lower court is incompetent because it infringes the
magistrate’s independence must be rejected. An order that a
magistrate
recuse himself midway through a criminal trial intrudes
on his court in the most radical fashion imaginable by terminating
his
warrant to preside. Yet if the circumstances oblige, such an
abrogation of judicial functioning would be justified.
22
I would add that counsel’s invocation of
S
v Pitje
23
as authority for the proposition advanced is regrettable. There
Steyn CJ, writing for the Court, upheld a conviction for contempt
of
court in the case of a black practitioner who objected to a
magistrate’s ruling that required him to sit at a separate table

reserved for ‘non-Europeans’. The basis for the conviction –
that the magistrate was empowered to enforce apartheid arrangements

in his court – is not only obsolete, but the essential reasoning
employed to reach the result repugnant to the Constitution.
In
these circumstances, the decision itself can no longer stand, and it
must be overruled, and
Pitje
’s
authority in any context terminated.
Nor does the vice of the order lie
in its impeding the magistrate’s liberty ‘to hear and decide’
24
the bail application, as was contended. Pillay J pointed out, and
the amicus emphasised, that the order nowhere prescribed what

decision the magistrate had to give. It required him to give his
decision – whether by granting or refusing bail.
For the same reason I do not think
that the order by itself infringed the rights of any group,
including women, who are entitled
to protection under the Bill of
Rights. On the given assumptions, the judgment the magistrate was
ordered to deliver could as
easily have refused bail wrongly as
granted it unjustifiably. The potential violation of rights in
either case would stem not
from the order requiring that judgment be
delivered, but from a bad judgment, which postponement would not
improve.
Counsel’s radical attack upon the
order as intrinsically incompetent must therefore fail. It is not
necessary for us to decide
whether an order instructing a magistrate
to hear argument and to give judgment at times specified could ever
be justified.
What is clear, in my view, is that to prescribe so
closely the manner in which a magistrate must go about exercising
his or her
jurisdiction would require very cogent justification.
Had argument begun at 15h00 on Friday 6 July in compliance with the
order,
but took longer than expected, or raised difficulties that
the 16h00 judgment deadline could not accommodate, the unwarranted
restrictions imposed on the magistrate – and indeed on the parties
– are clear to see.
In
previous cases of intervention the courts have set aside the
magistrate’s order entirely,
25
or directed that a specific order be granted,
26
or removed the case from the jurisdiction of the magistrate
altogether.
27
The order granted in this case is unprecedented. That is not to
say that unprecedented circumstances might not have warranted
it.
But they had not been shown to exist. Alternative courses of action
were moreover open to Pillay J. All were less intrusive.
He could
simply have set aside the magistrate’s order postponing the
respondent’s bail proceedings.
28
Or he could have done this in conjunction with an order directing
the magistrate to hear argument with all expedition, and to
give
judgment as soon as practicable thereafter.
Both
courses of actions would have left the magistrate some leeway in
complying, and subjected him to less constraint upon his

independence, and to less indignity. Setting aside the postponement
would have returned the respondent’s bail application
to the
magistrate’s current roll. Had he refused to deal with it, or
postponed the matter again, the respondent could justifiably
have
approached the High Court to intervene by assuming jurisdiction
itself in his bail application. Those paths were also more
likely
to have avoided a fruitless confrontation.
This conclusion makes it unnecessary
to consider a further question, whether subjecting a magistrate to
the higher courts’ contempt
jurisdiction is a constitutionally
desirable or feasible way of enforcing an order as to the manner in
which a magistrate’s
jurisdiction is to be exercised. This
question was not argued before us, and I express no opinion on it.
To summarise: even if the
magistrate’s postponement of the bail proceedings was unjustified
and unreasonable, and the respondent
was therefore entitled to a
prompt decision on bail, no case was made out before Pillay J for
subjecting the magistrate’s conduct
of the proceedings to the time
specifications the order contained. These were in the circumstances
unwarrantably constricting
and demeaning to the magistrate, and the
order must therefore be set aside.
We were asked to order costs,
including the costs of two counsel, against the respondent.
However, as pointed out earlier, the
only issue before us is the
order of Pillay J on Friday 6 July. The magistrate was not cited
personally when that order was
obtained. The first application was
directed against the State. Though the draft faxed to Stutterheim
on the Thursday did mention
costs, the order issued the next day was
without costs. The magistrate was cited personally only on the
Saturday, in the twin
applications for bail and for his committal
for contempt. Those orders, though deriving from the order of
Pillay J, are not
before us. A costs order adverse to the
respondent regarding the latter order thus seems unjustifiable.
However, since no argument
was directed to us on this point, a
provisional order will issue, subject to any representations.
The
appeal succeeds. The order of Pillay J, academic as it has become,
is set aside. There is no order as to costs. If either
party
wishes to direct submissions to the Court about the order relating
to costs, they may do so within fourteen days from the
date of this
judgment.
E
CAMERON
JUDGE OF APPEAL
HOWIE P )
SCHUTZ JA ) CONCUR
STREICHER JA )
MTHIYANE JA )
1
Section 50(6)(d)
of the
Criminal Procedure Act
51 of 1977
permits a lower court to postpone a bail application for
up to seven days at a time if amongst other reasons it has
insufficient
information or evidence at its disposal to reach a
decision.
2
See
Rule 19(b)
of the Rules of Practice in the
Eastern Cape Division of the High Court of South Africa, issued with
effect from 1 May 2002 (in
apparently identical terms to its
predecessor), contained in H Erasmus
Superior Court Practice
D4-1 at D4-8.
3
Supreme Court Act 59 of 1959 s 13(5).
4
Wahlhaus v Additional Magistrate,
Johannesburg and Another
1959 (3) SA 113 (A) 119-120.
5
Constitution s 166;
S v Rens
1966 (1) SA 1218
(CC) para 28;
S
v Steyn
2001 (1) SA 1146
(CC) para 15;
van Rooyen and Others
v The State and Others
2002 (5) SA 246
(CC) paras 19ff.
6
Constitution sections 167-170.
7
Constitution s 173.
8
S v Steyn
2001 (1) SA 1146
(CC) paras 17, 19, 20 (Madlanga
AJ, for the Court).
9
Van Rooyen
(above)
2002 (5) SA 246
(CC) para 24, per
Chaskalson CJ for the Court.
10
Act 51 of 1977 s 304(2)(c)(v).
11
Eliovson v Magid and Another
1908 TS 558
per Innes CJ at 561: ‘The case is a very special and peculiar
one’. In
Ginsberg v Additional Magistrate of Cape Town
1933
CPD 357
at 360 Gardiner JP (Watermeyer and Jones JJ concurring)
envisaged instances where a magistrate tried a case in the absence
of
the accused, or refused to allow the accused legal assistance.
12
Levack and Others v Regional Magistrate, Wynberg and Another
2003 (1) SACR 187
(SCA) para 27.
13
In
Eliovson v Magid
(above) a magistrate ordered a ‘futile’
commission to take evidence in a foreign country that was clearly
irrelevant to the
issues he had to try. The High Court set aside
his order and remitted the matter to the magistrate ‘for
judgment’. In
R v Willie Boon
1912 TPD 1136
, a magistrate
convicted the accused on various charges, but after learning of his
previous convictions purported to convert the
trial from its
commencement into a preparatory examination into more serious
charges. An interdict was issued prohibiting him
from doing so. In
Behrman v Regional Magistrate, Southern Transvaal and Another
1956 (1) SA 318
(T), the court directed the magistrate to order that
particulars of the charge be furnished to the accused. Similar
orders were
granted in
Essop v Regional Magistrate, Western
Transvaal and Another
1963 (1) PH H16 (T) and
Weber and
Another v Regional Magistrate, Windhoek and Another
1969 (4) SA
394
(SWA).
In
S v Bailey and Others
1962 (4) SA 514
(E), the magistrate refused an application to recuse himself midway
through a criminal trial. The High Court intervened and
substituted
an order upholding the application for his recusal. In
Timol and
Another v Magistrate, Johannesburg, and Another
1972 (2) SA 281
(T) and
Raditsela v Senior Magistrate, Johannesburg and Others
1986 (4) SA 559
(W) the High Court set aside rulings given by
magistrates in the course of inquest proceedings. In the former
case, the High
Court instructed the magistrate to proceed with the
inquest ‘in the light of what has been said in this judgment’.
In the
latter it substituted its own ruling, which concerned the way
in which examination and cross-examination of witnesses was to be

permitted. In
Pitso v Additional Magistrate, Krugersdorp and
Another
1976 (4) SA 553
(T), the magistrate refused to permit an
accused who mistakenly pleaded guilty because of a misunderstanding
with his attorney
to change his plea. This was set aside and the
case remitted to another magistrate for trial. In
S v Memani
1994 (1) SA 515
(W), a magistrate ordered that the accused’s
advocate, whom he had found guilty of contempt of court in the
course of the trial,
no longer be permitted to act for the accused.
The High Court set aside the order, but recommended that the
advocate withdraw
from the case, and refused a mandamus requiring
the magistrate to hear him (522G-523B).
14
Wahlhaus
(above) 1959 (3) SA at 120A;
Ismail and Others v
Additional Magistrate, Wynberg and Another
1963 (1) SA 1
(A) at
5-6.
15
In
Ismail
(above) 1963 (1) SA at 6C-D Steyn CJ suggested very
broadly that a ‘denial of justice in the sense that it deprived
[accused
persons] of any right or set in train prejudicial results
which they could not avoid’ might justify intervention.
16
Constitution s 35(1)(f): Everyone arrested for
allegedly committing an offence has the right ‘to be released from
detention
if the interests of justice permit, subject to reasonable
conditions’.
17
In
S v Steyn
(above)
2001 (1) SA 1146
(CC) para 17, the
Constitutional Court observed that the structure of the court system
requires that the bulk of judicial work
be completed in the
magistrates’ courts ‘as inexpensively and expeditiously as
possible’.
18
See regarding the importance of finalising criminal proceedings in
general
Sanderson v Attorney-General, Eastern Cape
1998 (2)
SA 38
(CC) and
Wild and Another v Hoffert NO and Others
[1998] ZACC 5
;
1998
(3) SA 695
(CC) para 29 (‘… presiding officers are duty bound to
counteract all manifestations of unnecessary delay in bringing
criminal
cases to finality’) and para 31 (‘… although they may
be powerless to repair systemic faults, prosecutors and magistrates

can do a great deal to ensure that the day-to-day business of their
courts respects such a fundamental requirement of fairness’),
per
Kriegler J for the Court.
19
S v Dlamini, S v Dladla and Others, S v
Joubert, S v Schietekat
[1999] ZACC 8
;
1999 (4) SA 623
(CC) para 42, per
Kriegler J for the Court.
20
S v Dlamini
(above) paras 10 and 50.
21
See note 1 above.
22
S v Bailey and Others
1962 (4) SA 514
(E).
23
1960 (4) SA 709
(A).
24
The Queen in Right of Canada v Beauregard
(1987) 30 DLR (4
th
) 481 (SCC), adopted by a plurality of
the Court in
De Lange v Smuts NO and Others
[1998] ZACC 6
;
1998 (3) SA 785
(CC) para 70 and by the whole Court in
van Rooyen
(above)
2002 (5) SA para 19.
25
A commission to take evidence abroad in
Eliovson v Magid
1908 TS 558
; converting a criminal trial
after conviction into a preparatory examination in
R v Willie
Boon
1912 TPD 1136.
26
Directing the furnishing of particulars to the charges in
Behrman
v Regional Magistrate, Southern Transvaal and Another
1956 (1)
SA 318
(T),
Essop v Regional Magistrate, Western Transvaal and
Another
1963 (1) PH H16 (T) and
Weber and Another v Regional
Magistrate, Windhoek and Another
1969 (4) SA 394
(SWA).
27
S v Bailey and Others
1962 (4) SA 514
(E) (magistrate’s
order refusing recusal application substituted with order recusing
himself), and
Pitso v Additional Magistrate, Krugersdorp and
Another
1976 (4) SA 553
(T) (accused permitted to change
mistaken guilty plea to not guilty, and case remitted to a different
magistrate for trial).
28
Compare
S v Memani
1994 (1) SA 515
(W) 522-3, where the court
merely set aside the magistrate’s order that the accused’s
advocate no longer be permitted to
act in the trial.