South Africa: Northern Cape High Court, Kimberley

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Clouts v S (CA&R 106/2009) [2010] ZANCHC 7 (12 February 2010)

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Reportable:

Circulate to Judges:

Circulate to Regional Magistrates

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YES / NO

YES / NO

YES / NO

YES / NO



NORTHERN CAPE HIGH COURT, KIMBERLEY



Saakno: / Case number: CA&R 106/2009

Datum verhoor: / Date heard: 11 / 02 / 2010

Datum gelewer/Date delivered: 12 / 02 / 2010



In the application of:


ASHWIN CLOUTS Appellant


and


THE STATE Respondent


Coram: Lacock R



JUDGMENT ON APPEAL



LACOCK J:


  1. The Appellant applied for bail pending his trial in the magistrate’s court, Kimberley, on 12 March 2009, which was refused. No appeal was noted against such refusal. Thereafter and on 21 August 2009 the Appellant once again applied for bail pending his trial alledging that new facts had emerged for the reconsideration of his bail application. This application met a similar fate to the first application. Hence the present appeal.


  1. Since I am satisfied that the Appellant was not afforded a fair hearing before the magistrate during his second bail application and since Adv. Baganeneng on behalf of the State conceded as much, I do not intend to deal with the merits of the appeal. Counsel for both parties are ad idem that the matter should be referred back to the magistrate to consider the second bail application afresh.


  1. The record reveals that, during the second application, the magistrate consistently interrupted the Appellant – who was not legally represented – thereby preventing him from presenting his case; refused him access to a restraining order despite the fact that both the prosecutor and the magistrate were in possession thereof and despite the provisions of Section 60(14) of the Criminal Procedure Act, 51 of 1977; and failed to afford the Appellant the opportunity to address her before judgment was delivered.


The irregularities not only tainted the proceedings before the magistrate, but prejudiced the Appellant to such an extent that the judgment has to be set aside.


  1. Wherefore the following order is made:-


  1. THE ORDER OF THE MAGISTRATE IN TERMS WHEREOF THE APPLICATION ON BAIL WAS DISMISSED ON 21 AUGUST 2009, IS SET ASIDE.


  1. THE MATTER IS REFERRED BACK TO THE MAGISTRATE FOR HEARING AND THE CONSIDERATION OF THE APPLICATION AFRESH.


_______________

HJ Lacock

JUDGE



On behalf of Applicant: Adv I.J. Nel

On behalf of Respondent: Adv H. Cloete o.i.o The Director of Public Prosecutions