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IN THE HIGH COURT OF SOUTH AFRICA

[TRANSVAAL PROVINCIAL DIVISION]

NOT REPORTABLE CASE NO: 26430/2008

DATE: 11 JULY 2008

In the matter between:

HABIBURAHMAN ZAHIR AHMED PATEL APPLICANT

and

MAGISTRATE CHOKWE FIRST RESPONDENT

DIRECTOR OF PUBLIC PROSECUTIONS SECOND RESPONDENT

MINISTER OF SAFETY AND SECURITY THIRD RESPONDENT

MINISTER OF HOME AFFAIRS FOURTH RESPONDENT

J U D G M E N T

PHATUDI [AJ]

[1] The Applicant brought this application on an Urgent basis, seeking relief, among others, in the following terms:

“2. Reviewing and setting aside the decisions of first Respondent handed down on the 23 May 2008, in which the first Respondent refused to release the Applicant on bail pending his trial at the Hatfield Magistrate Court under case number 222\1237\08.

3. Declaring the arrest and detention of the Applicant to be unlawful.

4. Releasing the Applicant from custody on such conditions and this honourable court deems meet…”

[2] The Respondent opposed the application on the basis that the Applicant is in essence appealing against the refusal of bail by the lower court and on that point alone, the matter must be struck from the roll.

[3] At the Commencement of the hearing, Mr Omar, Counsel for the Applicant, applied for the matter to stand down to afford them (Counsel for the parties) to discuss certain aspects with the view to reach an amicable settlement.

[4] Subsequent thereto, the parties agreed, as per the minute in terms of Rule 37 (8), that was handed in and marked “X” which provided that the:

“(i) Parties are in agreement that this matter is urgent;

(ii) Parties are in agreement that this matter is properly before this court by way of review…”

Mr Omar, Counsel for the Applicant, submitted that the Applicant has been arrested in terms of Section 41(1) of the Immigration Act 13 of 2002 (the Act) and that the Applicant is entitled to be released as provided in terms of Section 34 (1) (b) of the Act.

[5] The Applicant was arrested on 23 April 2008 at the Offices of the British Consulate in Pretoria in accordance with the provisions of Section 49(1) and 49 (12) of the Act as submitted by the Respondents. The Applicant has since been in custody.

[6] On the 21 May 2008, the Applicant applied for his release on bail which was unfortunately denied. The Applicant alleged in his Founding Affidavit that the State, in the bail proceedings, sought leave to hand in an Affidavit in terms of Section 212(1) of the Criminal Procedure Act 51 of 1977(CPA). The Applicant further alleged that his attorneys of record (at bail proceedings) objected to the handing in of the said statement on the basis of its irrelevancy to his bail application.

[7] Subsequent thereto, the first Respondent dismissed the opposition to the handing in of the statement. The State then closed its case. The Applicant submitted an affidavit in support of his bail application. He did not testify. Subsequent thereto the Applicant closed his case.

[8] The Magistrate, in his delivered judgment, stated, among others:

“But it is very important from the outset to place on record what I am dealing with here. I am not dealing here with an application for the deportation of the accused. I am sitting as a Court, a Criminal court and the accused or the Applicant is an accused in my court, he is charged with having committed a Criminal offence.”

[9] In his conclusion, the Magistrate found that he “is not persuaded that the administration of justice will be well served if the accused were to be admitted on bail.” The Applicant’s bail application was then dismissed.

[10] The Applicant in casu, sought relief to Review and set the decision of the first Respondent aside in which the first Respondent refused to release the Applicant on bail pending his trial.

[11] In rebuttal thereto, the Respondent’s Counsel submitted that bail proceedings are not Criminal proceedings but sui genesis in character and that the normal rules of evidence do not apply as strictly as with criminal proceedings. He further submitted that the State or any party may submit or present evidence on affidavit in support of or opposition of its application for bail.

[12] The parties agreed that this application for review is indeed brought in accordance with the provisions of Rules 53. Rule 53 provides:

“(1) Save where any law otherwise provides, all proceedings to bring under review the decision or proceedings of any inferior court and any tribunal, board or officer performing judicial, quasi-judicial or administrative functions shall be by way of notice of motion directed and delivered by the party seeking to review such decision or proceedings to the magistrate, presiding officer or chairman of the court, tribunal or board or to the officer, as the case may be, and to all other parties affected-

(a) calling upon such persons to show cause why such decision or proceedings should not be reviewed and corrected or set aside, and

(b) calling upon the magistrate, presiding officer, chairman or officer, as the case may be, to dispatch, within fifteen days after receipt of the notice of motion, to the registrar the record of such proceedings sought to be corrected or set aside, together with such reasons as he is by law required or desires to give or make, and to notify the applicant that he has done so.”

[13] Despite their agreement, the Applicant failed to direct the Notice of Motion to the Magistrate (first Respondent) calling upon such Magistrate to dispatch, to the registrar the record of such proceedings sought to be set aside. It is again noted that the parties agreed that this matter be urgently adjudicated by condoning non-compliance with the Rules relating to, time and service.

[14] Notwithstanding their agreement, urgency [as described by Erasmus in Superior Court Practice (p B1.55)] in “Urgent applications involves mainly the abridgement of times prescribed by the rules and secondarily, the departure from established filling and sitting times of the court.”

[15] Urgency does not provide for abridgement of the provisions of Rule 53(1) (b), specifically with reference to “the dispatch to the registrar the record of such proceedings sought to be set aside.”

[16] The record of the proceedings of the Bail Application the Applicant sought to be set aside, was neither dispatched to the registrar nor attached to this Notice of Motion.

[17] It is thus, not clear to me as to what transpired at the hearing of the Applicant’s Bail Application. However, noting from the Magistrate’s Judgment annexed to this application, the Applicant is charged in terms of Section 49(1) of the Immigration Act 13 of 2002 which provides that:

“(i) (a) Anyone who enters or remains in, or depart from the Republic in contravention of this Act, shall be guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding three months.”

[18] The emphasis “shall be guilty of an offence and liable on convictions to a fine or to imprisonment not exceeding three months” expressly provides that any person arrested and charged of Criminal offences shall be tried in accordance with the provisions of the Criminal Procedure Act. It is trite that every arrested has a right to be released on bail and such right may be limited if found to be in the interest of justice to so do.

[19] It is further trite that every arrested person has a right to appeal to the Higher Courts against the refusal of granting of Bail. The remedy available for the Applicant herein was to appeal against the refusal to grant bail by the Magistrate (First Respondent).

[20] In view of the above, I find that the Applicant’s Application to review and set aside the Magistrate’s decision cannot succeed on the reasons set out above. The proper procedure the Applicant ought to have applied would be to appeal against the refusal of bail by the Magistrate. This, is unfortunately, not a proper procedure of bringing the application for an appeal against such decision.

[21] I, accordingly make the following order;

APPLICATION IS DISMISSED

NO ORDER AS TO COSTS.

______________________

AML PHATUDI

Acting Judge of the High Court

Date of hearing: 1 JULY 2008

For the Plaintiff: Mr ZEHIR OMAR ATTORNEY

Instructed by: FRIEDLAND HART & PARTNERS

For the Defendant: ADV MENIGO MNC

Instructed by: STATE ATTORNEY (SECOND RESPONDENT)

Date of Judgment: 11 JULY 2008

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