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1994
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[1994] ZASCA 68
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S v Makola (220/94) [1994] ZASCA 68 (20 May 1994)
Case No 220/94
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE
DIVISION
)
In the matter between:
VUSI ZACHARIA
MAKOLA
Appellant
and
THE STATE
Respondent
Coram:
VAN HEERDEN, E M GROSSKOPF, SMALBERGER F H GROSSKOPF et
HARMS JJA
Heard:
Delivered:
20 May 1994 20 May 1994
2
REASONS FOR JUDGMENT
F H GROSSKOPF JA:
This court made the following order at the
hearing of the appeal:
"For reasons to be handed in the appeal succeeds and the order made by the
court
a quo
is set aside. The matter is remitted to that court to
reconsider the appellant's application for bail."
These
are the reasons for the order.
The material facts are common cause. The
appellant was arrested on 4 May 1993. He first appeared
in the Boksburg magistrate's court on 7 May 1993.
Thereafter the case was postponed on a number of
occasions until 1 September 1993 when the
appellant, represented by an attorney, applied to the
magistrate's court at Boksburg for bail ("the first bail
application"). It was refused, but no appeal against
such refusal was noted. The appellant was further
remanded in custody until 23 September 1993 when he
3
pleaded not guilty to charges of murder and
attempted
murder put to him in terms of
s 119
of the
Criminal
Procedure Act 51 of 1977
("the
Act"). The
magistrate thereupon stopped the
proceedings and adjourned the case pending the decision of the attorney-general.
The appellant was
advised on 23 December 1993 that the matter had been set down
for trial in the Witwatersrand Local Division on 11 April 1994. On
that day the
case stood down until the next day, and on 12 April 1994 the trial was postponed
to 25 July 1994.
Immediately after the case had been postponed the appellant's counsel
applied to the Witwatersrand Local Division for his release
on bail ("the second
bail application"). This application was heard by Stegmann J on 13 April 1994.
The State opposed the application
and contended that the Witwatersrand Local
Division had no jurisdiction to entertain a new application for bail. The State
submitted
that the appellant was required to renew his bail application before
the magistrate at
4 Boksburg in terms of
s 65(2)
of the
Act. In
support of
its submissions the State relied on the judgment of
Stegmann
J in the case of
S v Baleka & Others
1986(1) SA
361(T), at 375B-381A, where the learned judge considered
the
relevant statutory provisions of the
Act pertaining
to bail, and
dealt in particular with the construction to
be placed on
s 60(1)
of
the
Act. (The
other two judges
who sat in the
Baleka
case
came to their respective
conclusions on different grounds.)
S 60(1)
of the
Act provides
as follows:
"An accused who is in custody in respect of any offence may at his first
appearance in a lower court or at any stage after such appearance,
apply to such
court or, if the proceedings against the accused are pending in a superior
court, to that court, to be released on
bail in respect of such offence, and any
such court may, subject to the provisions of
section 61
, release the accused on
bail in respect of such offence on condition that the accused deposits with the
clerk of the court or, as
the case may be, the registrar of the court, or with a
member of the prisons service at the prison where the accused is in custody,
or
with any police official at the place where the accused is in custody, the sum
of money determined by the court in
question."
5 In the
Baleka
case Stegmann J agreed with
the
construction which the State sought to
place on
s 60(1)
,
and he held at 380H that the submissions advanced
by the
State were correct. These submissions were summarised
by
the learned trial judge at 376D-H:
"Mr
Jacobs
contends on behalf of the State that, once the applicants
had been arrested on the charges set out in the indictment, there were
two
courts which in terms of
s 60
potentially had jurisdiction to hear and determine
the bail application by the applicants. The first court potentially having such
jurisdiction was the lower court in which the applicants first appeared (the
Pretoria magistrate's court), and the second was the
Court in which the
proceedings were pending (the Transvaal Provincial Division of the Supreme
Court). Mr
Jacobs
draws attention to the fact that
s 60
entitled the
applicants to approach the Pretoria magistrate's court "or" the Supreme Court.
This is not a context in which the word
"or" can be understood to mean "and".
The applicants were obliged to make a choice. The choice they in fact made was
the Pretoria
magistrate's court. Once the applicants had made that choice, the
Supreme Court no longer had the jurisdiction to entertain an original
bail
application. If the applicants were aggrieved by the decision of the magistrate,
they were free to appeal against his decision
in terms of
s 65.
If they
considered that the magistrate had committed a reviewable irregularity, they
were free to approach the Supreme Court in the
manner provided by
Rule 53
to
review his decision. What the applicants were not free to do was simply to
ignore the magistrate's
6
decision, to treat it as if it had never been made, and to institute a new
application tor bail in the Supreme Court."
After
rejecting the arguments advanced in the
Baleka
case
on behalf
of the applicants in answer to the State's
contentions, the learned
judge concluded as follows at
380I-J:
"My conclusion is therefore that because the applicants chose to apply to
the magistrate's court for bail, as they were free to do
in terms of
s 60
of the
Criminal Procedure Act 51 of 1977
, they abandoned the alternative choice given
them by that section, viz the choice of directing their initial application for
bail
to the Supreme Court in which the matter was
pending."
Stegmann J applied the same reasoning in the
present case. I respectfully disagree with the construction which the learned
judge has
placed on
s 60(1)
in both these cases. Counsel appearing for the State
in this appeal in fact conceded the appeal, and rightly so.
In my judgment
s 60(1)
gives both the "lower court" and the "superior
court" jurisdiction to release
7 an accused on bail. As far as the
lower court is
concerned the section provides that "[a]n accused who is
in custody in respect of any offence may at his
first
appearance in a lower court or at any stage after
such
appearance, apply to such court .... to be released
cm
bail in respect of such offence ...." The supreme
court,
on the other hand, will have jurisdiction to entertain
an
original application for bail, as opposed to an appeal,
at any stage, provided "the proceedings against the
accused are pending" in such court.
It appears from the judgment granting leave to
appeal in the present matter that the learned judge in
the court
a quo
assumed throughout that when the
appellant brought his first bail application on 1
September 1993 the proceedings against him were already
"pending" in the supreme court within the meaning of s
60(1) of the
Act. In
my judgment, and for the reasons
which follow, the learned judge erred in making that
assumption. (In the
Baleka
case he also assumed at
8
379E/F that "[s]ince its inception, the matter has
been
'pending before a Superior Court'".) On the strength of that
wrong assumption the court
a quo
took the view that at the time of the
first bail application the appellant was faced with an election whether to apply
for his release
on bail in the magistrate's court, Boksburg, or in the supreme
court. The learned judge concluded that having elected to bring the
first bail
application in the magistrate's court the appellant thereby abandoned his other
option of applying in the supreme court.
It is clear in my opinion that at the time of the first bail application
on 1 September 1993 there were no proceedings pending against
the appellant in a
superior court. There could accordingly be no question of an election on the
part of the appellant. The further
conclusions based on the said erroneous
assumption can likewise not be justified.
As at 1 September 1993 the appellant had not even been asked to plead in
terms of
s 119
of the
Act.
9 When
he was required to plead on 23
September 1993 the
appellant pleaded not guilty to the various charges put
to him. Thereafter the attorney-general still had to
decide
in terms of
s 122(2)
whether to arraign the
appellant on a charge at a summary trial before a
superior court or any other court having jurisdiction, or
to institute a preparatory examination. There was
therefore still no question of any pending proceedings
against the appellant in a superior court at that stage.
According to
s 76(1)
the proceedings at a summary trial
in a superior court shall be commenced by serving an
indictment on the accused and lodging it with the
registrar of the court. This had been done by the time
the appellant brought the second bail application on 12
April 1994. By then the proceedings against the
appellant were undoubtedly pending in the Witwatersrand
Local Division, thus entitling the appellant to apply to
that court for bail in terms of
s 60
(1) . I do not agree
that once the appellant had applied for bail in the
10
magistrate's court
s 60(1)
prevented him from bringing
the second bail application in the supreme court where
the proceedings were pending.
My interpretation above is fortified by the
further consideration that where the matter is pending
before
the supreme court, such court will in any event be
the appropriate court at that stage of the proceedings to
deal with any bail application. Counsel prosecuting on
behalf of the State would certainly be in a better
position than a prosecutor in the magistrate's court to
assist the court and to deal with the latest facts and
circumstances relevant to a bail application. It would
indeed lead to an anomalous situation if the present case
against the appellant was to proceed in the Witwatersrand
Local Division while his second bail application had to
be dealt with in the magistrate's court at Boksburg.
I fail to see on what principle the appellant
should be barred from bringing his second bail
application on fresh grounds in the supreme court where
11
the case is pending. There is nothing in
s 60(1)
which
expressly precludes such a step. The section
actually
makes provision for an accused to apply for bail "at
any
stage" in the proceedings. That provision is
consistent
with the notion of more than one bail application. (See
S
v Nkosi en Andere
1987(1) SA 581 (T) at 584-C;
S
v
Acheson
1991(2) SA 805 (Nm HC) at 821 G-J.)
The court
a quo
further held that if there
were
grounds on which the appellant wished to found a second
bail application, he was not entitled to approach the
supreme court, but obliged in terms of
s 65(2)
to renew
his first bail application in the magistrate's court at
Boksburg.
S 65(2)
provides as follows:
"An appeal shall not lie in respect of new facts which arise or are
discovered after the decision against which the appeal is brought,
unless such
new facts are first placed before the magistrate or regional magistrate against
whose decision the appeal is brought
and such magistrate or regional magistrate
gives a decision against the accused on such new
facts."
12
S 65(2)
makes provision for a particular
case, viz where
new facts are discovered before an appeal is heard. The
legislature could never have intended that
s 65(2)
should
also govern all other renewal applications. In my
judgment such new applications may indeed be brought
under
s
60(1)
of the
Act.
The
provisions of
s 62
and
s 63(1)
lend further
support to the conclusion that the Witwatersrand
Local
Division has jurisdiction to consider the appellant's
second bail application.
S 62
provides that "[a]ny
court
before which a charge is pending in respect of which
bail
has been granted, may at any stage, whether the bail was
granted by that court or any other court, on application
by the prosecutor, add any further condition of bail"
with regard to those aspects set forth in the section.
S 63(1)
reads as follows:
"Any court before which a charge is pending in respect of which bail has
been granted may, upon the application of the prosecutor
or the accused,
increase or reduce the amount of bail determined under
section 59
or
60
or amend
or supplement any
13
condition imposed under
section 62
, whether imposed by that court or any
other court, and may, where the application is made by the prosecutor and the
accused is not
present when the application is made, issue a warrant for the
arrest of the accused and, when the accused is present in court, determine
the
application."
It is the court "before which a charge is
pending" which
has jurisdiction to act in terms of these two
sections.
If bail had been granted in the present matter by
the
magistrate, Boksburg, the Witwatersrand Local
Division
would have been the only court which has jurisdiction
at
this stage to add further conditions of bail, or increase
or reduce the amount of bail, or amend or supplement any
conditions imposed by the magistrate. In my view it
could never have been the intention of the legislature on
the one hand to authorise the supreme court before which
a charge is pending to amend conditions of bail, yet on
the other hand to disallow that same court to hear a new
application for bail.
It follows that the court a
quo
in my
judgment
wrongly decided that it did not have jurisdiction to
14
entertain the appellant's second bail application. This
court accordingly made the order set out above.
F H GROSSKOPF JA
VAN HEERDEN
JA)
E M GROSSKOPF JA)
SMALBERGER
JA)
HARMS JA) Concur.