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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

CASE NO: 739/2020

In the matter between:

THINA GCILITSHANA.                                                                          Applicant

And

DIRECTOR OF PUBLIC PROSECUTIONS,

EASTERN CAPE, GRAHAMSTOWN                                                    Respondent

JUDGMENT

MAJIKI J

Background

[1] The applicant is currently awaiting trial at Wesbank correctional centre, East London (Wesbank). He and three others face charges of robbery with aggravating circumstances relating to robbery of a delivery truck at gunpoint around Komga. It is alleged that they removed a drop in safe from the truck containing a sum of about R38 000.00. They all applied for bail at Komag magistrate court and the said proceedings are still under way. The applicant has approached this court to intervene on urgent basis on those proceedings. His application is opposed by the respondent.

[2] In the urgent application he seeks that he be released on bail in the amount of R5000.00 with normal bail conditions and any conditions that this court may deem fit pending the finalization of the criminal proceedings and/or any other alternative relief.

[3] The main basis for the application is that there was miscarriage of justice in the magistrate court which led to his continued detention, without justifiable reason. According to the applicant, the magistrate amongst other reasons, postponed the bail proceedings to beyond the time prescribed in section 50(6)(d) of the Criminal Procedure Act (the CPA). She also permitted the flouting of Direction 3(c) issued in terms of Regulation 10 of the regulations under the Disaster Management Act, 2002 signed by minister of justice and correctional services (the minister) on 30 March 2020, allowing the bringing of awaiting detainees for bail applications. Further, there was an outbreak of Covid 19 at Wesbank, he is at risk of contacting the infection.

[4] It is common cause that on 12 February 2020 the applicant first appeared in Komga magistrate’s court. The matter was postponed for bail hearing to 20 February 2020. According to the magistrate that was for bail information and availability of legal representative, Mr Makangela. According to the applicant the postponement was opposed because the state sought it because it said it was entitled to a seven day postponement.

[5] It is further common cause that on 20 February 2020 the matter was postponed for legal representation at state expense (legal -aid). The matter was further postponed to 27 February 2020. On that date it was postponed to 16 March 2020 for formal bail application.

[6] It is further common cause that the bail proceeded on 19 and 31 March 2020. It is the fourth and last applicant who is currently under cross-examination in the applicants’ case.

[7] From 16 March 2020 it appears that the applicant started not to be happy with the delays he alleges occurred in the conduct of the proceedings. According to him, his legal representative, Mr Parkies was ready to proceed but the matter was called at 15h00, the magistrate acceded to the staff complaint that, they were not willing to work beyond 15h00. She postponed the hearing to 19 March 2020. The matter proceeded on that day until 15h00.

[8] The magistrate on the other hand states that on this day Mr Parkies requested a stand down in order to consult. He also advised that Mr Quluba who was also to appear for other applicants was still on the way. Mr Quluba arrived after the recall of the matter, after 12h00. Mr Quluba also requested about five minutes in order to consult. The legal representatives indicated that they were busy with drafting affidavits until 14.45 when the matter had to be postponed to 19 March 2020. On that date one applicant fell sick and bail proceedings commenced at 11h00. The matter was proceeded with and was postponed to 24 March 2020 for further proceedings.

[9] On 24 March 2020 the presiding magistrate was not available, the matter was postponed for her availability to 7 April 2020. According to the applicant they were told by the prosecutor that she had come into contact with a person suspected of having contracted Covid 19 and there was no clarity as to when she would return. According to the magistrate on the said 24th an enquiry was held as to the lawfulness of the applicant’s arrest.

[10] Dissatisfied with the state of affairs the applicant and his co-accused launched an urgent application in this court for intervention in the bail proceedings. The parties made an undertaking that the bail application would proceed on 30 March 2020. The matter was proceeded on 31 March 2020 from 10h00 to 15h30. The matter was thereafter postponed to 7 April 2020. On 7 April 2020 the prosecutor, who is working alone in that court, was not available, his wife having taken ill. The opposed application for postponement was granted. According to the magistrate, the legal representatives thereafter became obstructive and did not participate in the process of arranging a further date. She postponed the matter to 14 April 2020. That is the date that brought issues to the climax that led to this application being rescheduled by the applicant.

Parties contentions relating to events from 14 April 2020

[11] On 14 April 2020 the applicant and all other detainees were not brought from Wesbank. According to the applicant there was no explanation given. He was advised by his legal representative that the magistrate told the legal representatives that she had an important meeting to attend, they needed to arrange a postponement date. They reluctantly agreed with the magistrate to postpone the matter to 16 April 2020. The date was communicated to the prosecutor. His legal representative was thereafter excused by the magistrate. Later that day the legal representatives were advised by court officials that the matter was postponed to 7 May 2020, without being communicated to them.

[12] On 16 April 2020 the legal representative went to court, the court building was locked. Security officers advised that both the magistrate and the prosecutor came into contact with an officer from Wesbank who tested positive to Covid 19. They were under quarantine until they are cleared of illness.

[13] According to the magistrate and the prosecutor, after the outbreak of Covid 19 during the weekend of 10 April 2020 at Wesbank, the magistrate was advised that no prisoners would be taken out of the prison and that testing was in progress. On 14 April 2020 she advised the legal representatives that there would be stakeholders meeting to explore measures to put in place in the light of the pandemic. She had specifically told one of the representatives, Mr Sintwa, earlier on that there would be no point to arrange a date at that stage. Furthermore, on 31 March 2020 the minister had also issued directives regarding taking detainees to court.

[14] She and the prosecutor attended the meeting which lasted about 30 minutes. The number of affected inmates was confirmed as 40, as a result it was minuted that, as a measure of protection against infection, no prisoners could be taken out of prison until testing, estimated to last 21 days had been concluded. At about 11h30 she went back to court to deal with postponements necessitated by the lockdown. None of the legal representatives were in court, even at a subsequent roll call at 12.15. The matter was thereafter postponed to 5 May 2020.

[15] Subsequently, it was confirmed that at the meeting both the magistrate and the prosecutor came into contact with an official who tested positive to Covid 19. They had to self quarantine until 29 May 2020.

[16] The issue for the application is whether there is a basis for this court intervene in the incomplete bail proceedings. If it finds the reason to do so, whether it should proceed to consider the bail application.  

[17] At the time of the hearing of the application the affidavit filed by Area Commissioner at Wesbank, clarified that ;

• there were no Covid 19 infections at other areas of the prison, except the female prison;

• testing at remand center would commence by end of last week ; and

• all officers who may have been exposed to the infection were in self isolation, away from the prison.

[18] This information puts to bed the possible infection of the applicant as submitted as a basis for this court’s intervention. Further, the Area Commissioner specified how the process of testing had unfolded, with the remand centre testing having started last week. That provides a better feel of how that process is to unfold than the conclusion period that, in the 14 April 2020 meeting, was estimated to last approximately 21 days.

Law

[19] With regard to other reasons informing the application, reference was made to Majali v S [2011] ZAGPHC 74 (19 July 2011) to the effect that this court has power to intervene in incomplete bail proceedings. Therein, at paragraph 14 it was stated:

“ A High Court has inherent jurisdiction to intervene in uncompleted bail proceedings commenced in a magistrate’s court, and also has supervisory power over the conduct of proceedings in the magistrates’ courts in both civil and criminal matters, to ‘supervise the manner in which’ the courts discharge their functions in order to ensure ‘quality control’. The jurisdiction to intervene exists at common law, and also subsists under section 166 of the Constitution. The power to intervene in unconcluded bail proceedings in lower courts is rarely exercised. It is only exercised in very special and peculiar cases, like the present where a grave injustice could occur if there is no lawfully justifiable reason to detain an arrested person...”

[20] At paragraph 18 that court stated :

“ A bail application should in principle be heard as a matter of urgency because it affects personal liberty. In Magistrate, Stutterheim v Mashiya 2003 (2) SACR 106 (SCA), Cameron J held:

‘It is evident that finalising an application for bail is always a matter of urgency. ….And if bail is refused, the decision can be appealed. The right to prompt decision is thus a procedural right independent of whether the right to liberty actually entitles the accused to bail.’ The deprivation of a person’s liberty due to arrest pending trial is subject to judicial supervision and control. In exercising such oversight in regard to bail proceedings a court is expressly enjoined by the provisions of section 60 not to act as a passive bystander but to take the initiative in the bail proceedings”.

[21] Section 50(6)d of the CPA provides:

“ “ (d) the lower Court before which a person is brought in terms of this subsection, may postpone any bail proceedings or bail application to any date or Court, for a period not exceeding seven days at a time, on the terms which the Court may deem proper and which are not inconsistent of this Act if -

(i) ..............................................

(ii) …………………………………………..

(iii) …………………………………………..

(iv) It appears to the court that it is necessary in the interests of justice to do so.”

[22] There seems to be no much material disputes as to the reasons the parties provided for the postponements from 14 April 2020, the date on which this application turns on. There may be lack of detail on one party here and there, but the issues are capable of being resolved on common cause facts. The issue turns on whether the magistrate allowed flouting of the above section of CPA together with the directive of the minister so as to cause grave injustice where there was no lawful justifiable reason to detain the applicant.

[23] The relevant directive 3(c) state:

“ No awaiting trial detainee held in Correctional Centres and police holding cells may be brought to any court or court precinct, unless for a first appearance, a bail application...”

[24] The magistrate stated that the bail proceedings are nearly complete. In my view, the said proceedings are fairly advanced, with the last of the applicants being cross examined. The matter proceeded for full court hours on two occasions. This distinguishes this matter from that of Mr Majali. Therein, the prosecutor had indicated that there was no basis to oppose bail, the proceedings had not commenced and the state sought a postponement in order for investigating officer, who had been present throughout, to verify information about other pending criminal investigation, pending charges and existing warrants of arrest. The investigating officer in the High Court application indicated that he was not opposed to the granting of bail per se but wanted to verify information he received that Mr Majali was being investigated in other fraud unrelated matter, elsewhere.

[25] The minister’s directive is permissive in my view. It must be viewed in the light of the desire to ease congestion in correctional centers, the right to have bail proceedings finalized and knowing if interests of justice will eventually permit the detainee to be released. However, these have to be balanced with all other factors at play.

[26] Similarly, section 50(6)(d) allows postponements, where necessary, however such are not to be beyond a period of 7 days. In circumstances like the present where there are longer postponements, a separate enquiry would ensue as to why the postponements were longer. In one or other circumstances, the court would be able to find that there were justifiable reasons for doing so.

[27] I do discern from the facts that it cannot conclusively be said the magistrate’s court was not committed to proceeding with the bail proceedings herein. Up to 16 March 2020 the state had no hand in the postponements. On 16 March 2020 the postponement was for three days to 19 March 2020, and there was a change of stance from the applicants.  After being allowed up to 15h30 to prepare evidence on affidavits to giving oral evidence. On 19 March 2020 the matter proceeded. Again the postponement was for two court days to 24 April 2020, when the issues relating to Covid 19 and other health issues emerged.

[28] Thereafter, the court and Wesbank had to deal with circumstances brought by emergency of Covid 19. This fact has to be viewed in the light of the fact that the outbreak was new, nobody has had an opportunity to deal with the situation before. It was a national disaster. With how the minister’s directives are framed, I would not regard the precautionary measures put by Wesbank authorities as unreasonable. According to the applicant the magistrate told his legal representative that she was to attend an important meeting. The magistrate says she told the legal representatives about the meeting that would explore measures in the light of the pandemic to safeguard the public and the prisoners. She asked the parties to wait, after the meeting, when she went back to court the legal representatives were not there. At that stage the time that was estimated for prisoners to be taken out was twenty one days from 14 April 2020.

[29] We now know of the actual situation as deposed to by the Area Commissioner and that the magistrate and the prosecutor will finish the self quarantine on 29 April 2020. In all likelihood, it is possible that the matter, which the magistrate said is nearly complete, could be proceeded with to finality this week.

[30] Having said that, I am not persuaded that the bail proceedings were deliberately frustrated and postponed without just reasons.

[31] I am inclined to intervene in the bail proceedings, in the light of what is stated in paragraph 29, above. I have considered the information placed by the applicant relevant to him being granted bail by this court, however, in exercising this Court’s supervisory role, the intervention will not be to the extent of setting aside the fairly advanced bail proceedings, pending in the magistrate court and replace them with an order of this court, at this stage. Further, mindful of the fact that bail proceedings remain urgent, an order will be made that will make it possible to have an expedited hearing of those proceedings.

In the result the following order is made:

1. Rule Nisi is hereby made calling upon the respondents to show cause in this court on Wednesday 29 April 2020 at 9:30 why the bail application should not further be proceeded with, even remotely, if needs be, on 29 and 30 April 2020.

2. Each party is ordered to pay its own costs up to this stage of the proceedings.

B. Majiki

Judge of the High Court

Attorney for the applicant :   Mr Makangela

Makangela Mtungani Inc     Applicant’s attorneys

No 50 Blakeway Road

Mthatha

Counsel for the respondent : Mr De la Harpe

Instructed by                         :State Attorney

Port Elizabeth

C/O. Whitesides

53 African Street

Grahamstown

Ref: R Asmal

Date heard: 22 April 2020

Date emailed to parties: 27 April 2020

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