South Africa: Eastern Cape High Court, Grahamstown

[6]        Section 43 of the Criminal Procedure Act provides that:

“43 Warrant of arrest may be issued by magistrate or justice

(1) Any magistrate or justice may issue a warrant for the arrest of any person upon the written application of an attorney-general, a public prosecutor or a commissioned officer of police−

(a) which sets out the offence alleged to have been committed;

(b) which alleges that such offence was committed within the area of jurisdiction of such magistrate or, in the case of a justice, within the area of jurisdiction of the magistrate within whose district or area application is made to the justice for such warrant, or where such offence was not committed within such area of jurisdiction, which alleges that the person in respect of whom the application is made, is known or is on reasonable grounds suspected to be within such area of jurisdiction; and

(c) which states that from information taken upon oath there is a reasonable suspicion that the person in respect of whom the warrant is applied for has committed the alleged offence.

(2) A warrant of arrest issued under this section shall direct that the person described in the warrant shall be arrested by a peace officer in respect of the offence set out in the warrant and that he be brought before a lower court in accordance with the provisions of section 50.”

[7]        The second ground upon which the arrest or should I say the re-arrest of the applicant is assailed, is that such re-arrest is only permissible or justified in respect of Schedule 5 and 6 offences only. Namely offences where Section 60 (11) of the Criminal Procedure Act is applicable. Stock theft is listed under Schedule 1 of the Act.

[8]        Authority for this submission can be found in a decision of this division where the court was grappling with the validity of the re-arrest of an accused person whose case had previously been struck off the roll. That S v Hewu[2] where the following was stated:

“[23] Section 60(11) of the Act does not constitute an absolute bar to a court’s refusal to postponement and a decision to strike it from the roll in terms of s 342A(3)(a). It will always depend on the facts of the matter. Where a postponement is refused as a result of an investigation by the court in terms of s 342A which revealed that the accused had been in prison for a very long time and there appear to be no prospect of bringing the matter to trial, the immediate rearrest of the accused immediately after such a ruling and in terms of s 60(11) of the Act, would constitute an abuse of power in circumstances. If it later transpires that the trial can be proceeded with and be completed soon, the rearrest of the accused could be justified. Once again it will all depend on the facts. Mr Marais gave the example of instances where charges are provisionally withdrawn against an accused for purposes of awaiting forensic test results. If the tests are positive and the prosecution has a case to prosecute, there is no reason why the rearrest of the accused should be impermissible, simply because the accused had appeared in court before.”

[9]        The issue of the validity of the warrant of arrest was raised when the applicant appeared before the Magistrate in Aliwal North subsequent to his arrest. An application for his release on warning was made on this basis. Especially also, it is alleged by applicant, the issue of the offence being a Schedule 1 instead of 5 or 6. The Magistrate expressed doubts as to whether or not she had the authority to set the warrant of arrest aside. To this end, she invited the parties to make submissions to her in this regard and postponed the matter to the 14 November 2019. It is not clear from the papers when the matter was postponed to the 14 November 2019 or what circumstances informed a postponement to that date. The record of proceeding in the Magistrate’s court has not been availed. Even though it is sought to set aside the Magistrate’s decision to “remand” the matter, she was not given notice of these proceedings nor was she cited / joined.   

[10]      On the 6 November 2019 the applicant sought to have the matter heard as a matter of urgency as envisaged in terms of Practice Rule 12 (d). The duty judge not being satisfied that the matter was of sufficient urgency to be heard on a day other than a normal motion court day directed the matter to proceed the normal way.

[11]     According to the notice of motion, notice of this application was to be given to‒     (1) Registrar of the High Court Port Elizabeth; (Not clea why Port Elizabeth)

                                    (2) The Minister of Police, c/o the State Attorney; and

                                    (3) The Director of Public Prosecutions, Grahamstown.

The latter being first and second respondents. With costs be sought only from second respondent on an attorney and client basis. The respondents were required to deliver their notice of intention to oppose the application as well as their answering affidavits, if any, by not later than the 11 November 2019. Both respondents were served on the 7 November 2019 and the matter was apparently scheduled to be heard on the 12 November 2019, four days later.

[12]     The impugned warrant of arrest is annexed to the notice of motion as well as a document entitled “DECLARENT’S PARTICULARS”. Both documents are dated 23 October 2019 the date on which the warrant of arrest was executed resulting in applicant’s re-arrest. The declaration is made by Warrant Officer Janse Van Rensburg who is the investigating officer in the matter (the stock theft case). The declaration records inter alia that the applicant is positively linked to the stock theft case he is investigating where thirty (30) sheep were stolen. That he is on parole in respect of another stock theft case that was committed in 2014. That he is also charged with stock theft in respect of Aliwal North CAS 55/06/2018.

[13]     The application for the warrant of arrest is purportedly signed by the Public Prosecutor and reads:

“Application is hereby made for the issue of a warrant for the arrest of Zukile Mandla on a charge of theft of stock 30 sheep there being information taken upon oath a reasonable suspicion that he / she has committed the alleged offence on or about 20 July 2019 in the district of Aliwal North.”

The bottom part of the document under the heading “WARRANT OF ARREST” and signed by the Magistrate the written application is said to be by Detective Warrant Officer AJ Janse Van Rensburg.

[14]     This prompted an assertion that the person who applied for the warrant of arrest in writing is Warrant Officer Janse Van Rensburg “but that the signature is that of the prosecutor instead of the Police Officer that applied in writing”.[3] And the applicant’s counsel to argue that the signing and stamping of the application by the public prosecutor as if he is applicant is irregular, misleading and bad in law rendering the warrant of arrest to be defective and invalid.[4]      

[15]     Presumably because of the haste and clumsiness with which the matter was placed before, applicant having chosen to set his own time-frames, the investigating officer was not available to depose to an opposing affidavit. No affidavit be it a confirmatory one was deposed to by the prosecutor concerned. An affidavit opposing the granting of the relief sought in this matter was deposed to by Theo Herman De Koker who described himself as a Detective Commander, Aliwal North Police Station and that Warrant Officer Janse Van Rensburg works under him.    

[16]      The gist of the opposition is encapsulated in paragraph 10 of De Koker’s affidavit as follows:

“10. The interests of justice would be seriously compromised if the application is granted and the administration of justice would also be brought into disrepute. The Applicant is currently out on parole. He also has two stock theft cases pending against him as well. This means that the offence is now Schedule 5 category and he would have to show that it is in the interests of justice for him to be released.”

[17]     The parties are in agreement that theft of stock is a Schedule 1 offence. Listed under Schedule 1 offence is:

“An offence referred to in Schedule 1‒

(a) and the accused has previously been convicted of an offence referred to in Schedule 1; or

(b) which was allegedly committed whilst he or she was released on bail in respect of an offence referred to in Schedule1.”

[18]     That applicant is on parole in relation to a stock theft case is not denied. That there are two other stock theft cases pending against him is not denied. In fact this is admitted in paragraph 12 of the replying affidavit.          

[19]     A number of points have been raised by the respondents in limine, inter alia, that the notice of motion is defective and flawed; failure to join the Magistrate. I have already alluded to the manner in which applicant devised his own time frames, failure to cite the Magistrate in her official capacity as the “decision” maker, failure to provide this court with a record of proceedings in the Magistrates’ Court which are sought to be reviewed – at least the Magistrate’s decision to “remand” the matter. As indicated I do not have all the facts relating to the circumstances that led to the matter being postponed to 14 November 2019 or why to that date in particular. As rightly pointed out by the respondents, the issue of the validity of warrant of arrest was still pending before the Magistrate’s Court.

[20]     As regards the merits there is no basis to suggest or impute wrong doing on the part of the prosecutor who signed the warrant of arrest – to suggest he made it appear that he and not the investigating officer was applying for a warrant of arrest. Obviously under the normal scheme of things, the investigating officer would submit an application for a warrant of arrest through the prosecutor especially in view of the fact that Janse Van Resnburg was not a commissioned officer.   

[21]     I am not satisfied that the applicant has made out a case for the invalidity of the warrant of arrest in question. On the authority of S v Hewu, his re-arrest was justified in view of the fact that the charge against him falls to be dealt with in terms of Section 60 (11) for reasons stated by De Koker in his affidavit.

[22]     Accordingly, the application which in my view was ill-conceived and premature is dismissed with costs.

_____________­­__

NG BESHE

JUDGE OF THE HIGH COURT

APPEARANCES

For the Applicant              :   Adv: ME Menti

Instructed by                   :    SA LUNGU ATTORNEYS

C/o MQEKE ATTORNEYS

115B City Chambers

High Street

                                                            GRAHAMSTOWN

                                                            Ref: Mr V Mqeke

                                                            Tel.: 081 370 0710

For the 1^st, 2^nd Respondents:        Adv: NJ Sandi

Instructed by                         :           STATE ATTORNEY, PORT ELIZABETH

C/o MILI ATTORNEYS

                                                            110 High Street

                                                            GRAHAMSTOWN

                                                            Ref: Mr D Mili

                                                            Tel.: 046 – 622 7076

Date Heard                          :           15 November 2019

Date Reserved                    :           15 November 2019

Date Delivered                     :           21 November 2019