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IN THE HIGH COURT OF SOUTH AFRICA

(NORTH WEST DIVISION, MAHIKENG)

CASE NO.: M90/16

DATE: 03 MARCH 2016

In the matter between:

JOHANNES SETWABA..............................................................................................1^ST APPLICANT

KENNETH RANTANDARA......................................................................................2^ND APPLICANT

BENNETH VUKEYA..................................................................................................3^RD APPLICANT

TAURAI MUKHOZHO..............................................................................................4^TH APPLICANT

And

DE SOUZA NO.........................................................................................................1^ST RESPONDENT

THE NATIONAL DIRECTOR OF

PUBLIC PROSECUTIONS...................................................................................2^ND RESPONDENT

THE COMMISSIONER OF CORRECTIONAL

SERVICES, KGOSE MAMPURU II

CORRECTIONAL CENTRE................................................................................3^RD RESPONDENT

REASONS FOR JUDGMENT

Landman J:

[1] On 26 February 2016 I made the following order:

“1.The non-Compliance with the rules regarding service and time limits in this application is condoned;

2.The First respondent’s ruling under case number RE30/16, on 16 February 2016, postponing the applicants’ bail hearing to 4 March 2016 is reviewed and set aside;

3. The unopposed bail application by the 1^st and 2^nd applicants is granted on the following conditions;

3.1 They pay bail amount of R 500 each;

3.2 They may not interfere with the state witnesses;

3.3 They should not go to their work places unless instructed to do so their employer;

3.4 They must report at Temba Police Station once a week;

4. The bail hearing relating to the third and fourth applicants shall be convened on Monday 29 February 2016 to be heard by the Presiding Magistrate or any other available Magistrate.

5. The second respondent is directed to communicate urgently with the investigation officer to make sure that the evidence that is going to be led on Monday 29 February 2016 is available on the said date.

6. The third respondent is ordered to release the first and second applicants on bail as set out in this order.

7.This order be faxed to the Senior Magistrate of the Magistrate Court of Moretele, held at Temba and the first respondent.”

These are the reasons for making the order.

Liberty

[2] Everyone has a right to freedom and security of the person, which includes the right not to be deprived of freedom arbitrarily or without just cause. See section 12(1)(a) of the Constitution of the Republic of South Africa of 1996 (the Constitution). This right is limited by section 35(1)(f) of the Constitution which provides that everyone who is arrested for allegedly committing an offence has the right to be released from detention if the interests of justice permit, subject to reasonable conditions. The right to be released from detention if the interests of justice permit, subject to reasonable conditions is given expression, inter alia, by section 60 of the Criminal Procedure Act 51 of 1977 (the CPA).

In S v Dlamini and Others; S v Joubert; S v Schietekat [1999] ZACC 8; 1999 (7) BCLR 771 (CC) the Constitutional Court remarked that:

“The purpose of bail is to strike a balance between the interests of society and the liberty of an accused person consequently, the basic objectives traditionally ascribed to the institution of bail, is to maximise personal liberty in accordance with the normative precepts of the Bill of Rights.”

[3] A bail application by a person in detention and the finalisation of an application for bail, because it affects personal liberty, is always a matter of urgency. See Magistrate, Stutterheim v Mashiya 2003 (2) SACR 106 (SCA) where Cameron JA 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.”

Review powers

[4] The bail proceedings in the case before me have not been finalised. However, this court has inherent jurisdiction to intervene in uncompleted bail proceedings commenced in a Magistrate’s Court. As Mokgoatlheng J points out in Majali v the State (41210/2010) at para 14:

“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.”

The facts

[5] The applicants were arrested on 7 February 2016. They were all employed by Unica Iron and Steel. They and others were arrested on charges relating to public violence, malicious damage to property and theft. The prosecutor informed the court that it looked like the accused were on strike. He also said that their employer suffered a loss of R 600 000.

[6] On their third appearance in the Temba Magistrate’s Court on 12 February 2016, the first and second applicants (who were accused no 2 and 6) applied for bail. Their applications are formally in order. The prosecutor did not oppose their application.

[7] The third and fourth applicants (who were accused no 8 and 5) applied for bail. They each have previous convictions. The prosecutor opposed their application.

[8] The court postponed the unopposed and the opposed bail applications for 17 days until 4 March 2016 in order to receive evidence from their employer.

The application

[9] The applicant launched an application on an urgent basis to review and set aside the postponement. They also requested this court to fix bail and grant consequential relief.

Evaluation

[10] An application for bail may be brought by a person in detention without reference to any co-accused and is to be adjudicated on its own merits even though the application may have much in common with a similar application by co-accused. To this extent, a bail application is not the same as a trial for the allegedly committing a crime where co-accused are usually tried together unless there is some reason to separate their trials. Convenience may dictate that the bail applications of co-accused be heard together but each accused’s right to bail must not be jeopardized.

The postponement

[11] After applications for bail were submitted the learned Magistrate received oral submissions from the respective legal representatives of the accused. The Magistrate decided that the court needed to hear evidence from the employer of the accused. They were all employed by the same employer. The Magistrate was perfectly entitled to postpone the applicant’s bail application, opposed and unopposed, for this purpose. Section 50 (6)(d) of the CPA provides that:

“ (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) the Court is of the opinion that it has insufficient information disposal to reach a decision on the bail application;…

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

[12] But, regardless of the reason for the postponement, the power of the court to postpone the application is curtailed by the provisions of section 50(6)(d) to a postponement not exceeding 7 days. The court postponed the unopposed and the opposed bail applications for 17 days until 4 March 2016. But I must immediately add that the court intended to postpone the application to 1 March 2016, which would also have exceeded 7 days, but postponed the applications until 4 March 2016 to accommodate one of the legal representatives. The other legal representatives acquiesced in this. Clearly the accused, including the applicants, were not aware that the length of the postponement was irregular.

[13] The effect of the postponement by the learned magistrate would be, save for the outcome of this application, to detain the applicants for 10 days in excess of the permitted 7 day postponement. This postponement pays no heed to the fact that bail appeals must be dealt with on an urgent basis. It violates the constitutional rights of the applicants and other accused. Mokgoatlheng J points out in Majali v the State (41210/2010) at para 33 that:

“A bail inquiry is a judicial process that has to be conducted impartially and judicially and in accordance with relevant statutory and constitutional prescripts. A postponement or refusal of bail without lawful justification is an unlawful deprivation of a person’s liberty.”

[14] It follows that the lengthy postponement constitutes a grave irregularity and infringes on the rights of the applicants to a speedy hearing and decision on their application for bail.

The remedy

[15] The harm done to the applicants cannot be cured by a court order. The most that can be achieved is to ensure that due process takes place. Mr Moeataesi, who represented the Director of Public Prosecutions, did not object to an order granting bail to the first and second applicant and suggested appropriate bail conditions.

[16] As regards the third and fourth applicants Mr Moeataesi was opposed to their being granted bail by this court. It appears to me that it was necessary for the Magistrate to receive evidence from their employer. No such evidence was at hand when the urgent application served before me on Friday 26 February 2016. The best that I could do in the circumstances was to order the bail application be heard in the Temba Magistrate’s Court on the next court day being Monday 29 February 2016. I also ordered that arrangements be made to have the necessary evidence at hand.

[17] In the premises I made the order set out above.

AA Landman

Judge of the High Court

Appearances

Date of hearing: 26 February 2016

Date of Judgment: 3 March 2016

For the Applicants: Adv kelaotswe

Instructed by Nonyane Attorneys.

For the Respondent: Adv Moeataesi

Instructed by Director of Public Prosecutions

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