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IN THE NORTH WEST HIGH COURT

MAHIKENG

CA20/2017

In the matter between:

MTHANDAZO MATITWANE                                                             Applicant

and

THE REGIONAL COURT PRESIDENT                                  1^st Respondent

THE DIRECTOR OF PUBLIC PROSECUTION                     2^nd Respondent

GURA J & KGOELE J

 

DATE OF HEARING: 10 NOVEMBER 2017

DATE OF JUDGMENT: 10 NOVEMBER 2017

DATE REASONS HANDED : 23 NOVEMBER 2017

FOR THE APPLICANT : Ms Nel

FOR THE RESPONDENT : Adv. Nontenjwa

 

REASONS FOR JUDGMENT

 

KGOELE J

[1] The applicant, who is an adult male and currently held in custody at Lichtenburg Police Station, North West Province, launched an application in this Court (the Review application) for the reviewing and setting aside of the Order of the Regional Court Magistrate, granted on the 12^th May 2016 wherein the bail of the applicant was summarily cancelled.

[2] The Review application is not opposed by both the respondents who were cited therein.  At the time of the cancellation of his bail, the applicant had not yet paid it.  The Review application served before this Court on the 10^th of November 2017 and an Order setting aside the cancellation of the bail and the reinstatement thereof was granted and the reasons were reserved.  The reasons follow hereunder.

[3] The factual background that led to the Review application is as follows:-  The applicant was accused no. 3 in the matter under Case No. A204/2015 at the Magistrate Court Lichtenburg.  He was charged together with his co-accused with the offence of robbery with aggravating circumstances.  He was granted bail on the 4th of May 2015. The matter was transferred to the Regional Court at Lichtenburg.

[4] It appears from the record of proceedings that on the 28^th April 2016 when the charges were put to the applicant before the Regional Magistrate there was a misunderstanding between applicant and his legal representative as the applicant pleaded guilty contrary to the instructions he had given to the legal representative.  The applicant and his legal representative could not resolve their misunderstanding at the time.  The Regional Court Magistrate gave them an opportunity to do that and this led to the withdrawal of his legal representative from further representing him in the trial.

[5] The presiding Regional Court Magistrate explained the rights to legal representation to the applicant once more and he insisted that he wanted to conduct his own defence as he did not want to be seen to be delaying the matter.  He repeated his plea of guilty when the charges were put to him for the second time, but the presiding Regional Court Magistrate altered his plea of guilty to not guilty in terms of Section 113 of the Criminal Procedure Act 51 of 1977 (CPA) .  The matter was postponed on this day to the 12^th of May 2016 just after the plea of the applicant was obtained because the interpreter was not well.

[6] On the 12^th of May 2016 the matter was proceeded with and the first State witness testified.  When the applicant was given an opportunity to cross examine this witness, he then changed his mind and indicated that he wanted to be legally represented as, according to him, he realised that he made a mistake by electing to conduct his own defence and that he would not be able to cross-examine the witness on his own.  There was an altercation between the presiding Regional Court Magistrate and the applicant again about him causing a delay.  The applicant ended up cross-examining the witness on his own.  When he was through with his cross-examination, he insisted that the matter should be postponed so that he could get a legal representative.  The presiding Regional Magistrate then agreed to postpone the matter, and in addition, mero motu cancelled his bail because, according to the presiding Regional Magistrate, the conduct of the applicant amounted to delaying tactics and there was fear in her mind that the applicant might pay the bail and disappear.  It was the Presiding Regional Court’s Magistrate’s view that the applicant had no intention of finalising the matter.  The case was postponed and he remained in custody for almost a year before he could get a legal representative.  He was in custody at the time when his bail was cancelled because firstly, he had not paid the bail amount and secondly, he was still held in custody by virtue of another matter in which he was appearing before the Vryburg Magistrate Court, which was subsequently withdrawn. 

[7] On the 7^th of June 2017 he appeared in the Regional Court again represented by Mr Mokgwatlheng from Legal Aid South Africa.  Mr Mokgwatlheng addressed the Court with regard to the cancellation of the applicant’s bail by the then Presiding Regional Court Magistrate.  The presiding officer at that time, refused to reinstate the bail.  In view of the fact that there was no longer any hindrance for him to be released on bail as the matter in the Vryburg Magistrate Court had been withdrawn, he then filed this application.

[8] His current legal representative, Mrs Nel from the Legal Aid South Africa, submitted before this Court that the Regional Court Magistrate committed a gross irregularity by cancelling the bail of the applicant on the 12^th of May 2016.  Further that the bail was cancelled mero motu, due to the fact that the Presiding Regional Magistrate “can see that he [the accused] is causing a delay in the matter and there is a fear that he might pay bail and disappear.  He [the accused] has got no intention of finalising the matter” 

[9] According to Mrs Nel, the Regional Court Magistrate flouted the provision of Section 68(1) of the CPA in cancelling the applicant’s bail without information on oath.  In expanding on this proposition, she argued that the Regional Magistrate did not take into consideration the grounds for the cancellation of bail which are always a prerequisite in these kind of applications, as set out in Section 68(1)(a) to (g) of the CPA, which grounds are as follows:-

(a) The accused is about to evade justice or is about to abscond

in order to evade justice;

(b) The accused has interfered or threatened or attempted to

interfere with the witnesses;

(c) The accused has defeated or attempted to defeat the ends of Justice;

(d) The accused poses threat to the safety of the public or of a particular person;

(e) The accused has not disclosed or has not correctly disclosed

all his or her previous convictions in the bail proceedings or where his or her true list of previous convictions has come to light after his or her release on bail;

(f) Further evidence has since become available or factors have

arisen, including the fact that the accused has furnished false information in the bail proceedings, which might have affected the decision to grant bail; or

(g) It is in the interest of justice to do so.

[10] Lastly she submitted that the Regional Court Magistrate, in cancellation of the bail of the applicant, did not take into consideration that the applicant, at that time, was incarcerated in another matter and that he had not yet paid the bail that was fixed in this matter.  According to her the Regional Court Magistrate’s contention that the applicant “might pay bail and disappear”, is considered to be grossly irregular and clearly biased.

[11] Advocate Nontenjwa appearing on behalf of the second respondent conceded to all the submissions made by Mrs Nel on behalf of the applicant.

[12] It is apparent that the cancellation of the bail of the applicant was not in line with the provisions of Section 68(1) of the CPA.  There was no application that was brought before the Court and no evidence under oath was led which justified the cancellation of bail.  The Presiding Regional Magistrate acted wholly mero motu without being authorised by any legislation to take the step in the manner in which she did.  It is trite law that a Magistrate’s Court is a creature of Statute, and in the absence of an enabling Statute, the actions of the presiding Regional Magistrate were grossly irregular.

[13] In addition, the decision taken was clearly biased because the Audi Alteram partem rule was not adhered to.

[14] The above sums up the reasons why the following Order was made on 10 November 2017:-

14.1  That the order of the Regional Court Magistrate dated 12th May 2016 wherein the bail of the applicant in the matter under case no. RC 156/2015 at the Regional Court of Lichtenburg is hereby reviewed and set aside;

14.2  That the bail of the applicant is hereby reinstated.

 

 

________________

A M KGOELE

JUDGE OF THE HIGH COURT

 

I agree

 

 

                                     

SAMKELO GURA

JUDGE OF THE HIGH COURT

 

Attorneys for the Applicant: Legal Aid South Africa

1^st Floor Protea Office Park

Sekame Road, Mmabatho

MAHIKENG

 

Attorneys for the Respondent: Director of Public Prosecutions

Mega City Complex

East Gallery 2^nd and 3^rd Floor

MMABATHO

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