Case Review: Criminal Procedure
| Jurisdiction | South Africa |
| Author | Michael Cowling |
| Citation | (2005) 18 SACJ 209 |
| Date | 19 August 2019 |
| Pages | 209-228 |
| Published date | 19 August 2019 |
Case reviews
209
Criminal Procedure
MICHAEL COWLING
University of KwaZulu-Natal
Bail
Bail – conditions – appeal against
Section 63(1) of the Criminal Procedure Act 1977 enables any court
to increase or reduce the amount of bail or amend or supplement any
condition imposed in respect of a particular accused who has been released
on bail and in respect of whom conditions have been imposed as part of
the bail process. On the other hand s 65(1)(
a
) of the Act makes provision
for appeal to the High Court against a decision concerning refusal to grant
bail in the magistrates’ courts. However, confusion between ss 63(1) and
65(1)(
a
) exists since the latter also provides for an appeal against the
‘imposition by such court of a condition of bail, including a condition
relating to the amount of bail money and including an amendment or
supplementation of a condition of bail...’ (at 99
d
).
d).d
This raises the question as to what is the precise nature of the relationship
between s 63(1) and s 65(1). Both refer to subsequent amendments of
existing orders pertaining to the setting of the relevant conditions and
the amount of bail money. This was the issue that confronted the court
in
Shefer v Director of Public Prosecutions
2004 (2) SACR 92 (T) where
an accused had been released on bail subject to the condition that he
and his family were to surrender their passports and hence would not be
permitted to travel overseas pending fi nalization of the trial. The reason
for this was the accused held dual South African and Israeli citizenship and
had extensive business links and personal contacts all over the world. He
had been charged with fraud, theft and contravention of the Corr uption
Act 1992 and was hence considered to be a fl ight risk.
However, shortly after release on bail subject to the above conditions the
accused applied to cour t for the latter to be amended in order to per mit
him to travel overseas to fi nalise certain business deals. At the same time
(and rather coincidentally) he also wished to have the travel restrictions on
his wife and children relaxed in order that they might attend the wedding
of a distant relative in Mauritius.
Therefore he applied in terms of s 63(1) to the regional cour t that
originally imposed the conditions for the amendment of the conditions
pertaining to overseas travel. The regional court dismissed the application
concerning overseas travel although it did grant more lenient reporting
(2005) 18 SACJ 209
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210
SACJ •
(2005) 2
times. The accused sought to challenge this ruling in the High Cour t
by way of application for a review of the said decision. In the founding
affi davit the accused was at pains to point out that the application ‘is not
being brought as a review of the learned magistrate in the strict sense
but as an application directed to the inherent and constitutional power
of this honourable court to address the issues which I have raised in the
honourable regional court by way of exhausting necessary domestic
remedies’.
It is diffi cult to discern what is meant by the above. More particularly,
did this constitute an application for review, or did it constitute an appeal
in terms of s 65? It could also have been construed as an application for
extended relief in terms of s 63. The court concluded that the purpose of
s 63 is to provide the necessar y procedure where, for example, changed
circumstances require appropriate amendments to the conditions or the
amount of bail determined at an earlier stage (at 99
f-g
amount of bail determined at an earlier stage (at 99f-gamount of bail determined at an earlier stage (at 99
). Thus, for example,
f-g). Thus, for example, f-g
delays in a trial might justify the release of an accused on bail during the
course of that trial. This indicates the fl exible nature of the bail process.
On the other hand, as pointed out in
S v Maliwa
1986 (3) SA 721 (W)
s 65 is analogous to an ordinary criminal appeal. The effect of this is that
the same procedures need to be followed – which clearly did not happen
in this case. In this regard the court in
Shefer’s
case (supra) held that
the ‘absence of a notice of appeal is not only a procedural defect, it is
one going to the very root of the requirement of an appeal and is thus
fundamental’ (at 99
i.
)
The court concluded that the accused was in effect appealing against
the regional court’s decision not to amend the bail conditions in terms of
s 63. However, in view of the failure on the part of the accused to comply
with the procedure for lodging such appeal (in terms of s 65(3)) it was
not possible for the accused to rely on common-law powers of review.
This gave the appearance that the accused was simply ignoring the regional
court’s decision. The accused was not entitled to do this – especially
in light of the fact that, although a super ior court had powers to review
bail conditions, s 65 left ‘very little room for the court’s common-law
powers …’ (at 100
f
powers …’ (at 100fpowers …’ (at 100
). The clear message being sent by the court in
f). The clear message being sent by the court in f
Shefer’s
case is that accused should not attempt to disguise what should have been
an appeal in terms of s 65 as a review application.
Bail – jurisdiction to hear bail applications
Magistrates’ courts are creatures of statute and therefore can do nothing
that is not authorized by an empowering statute or other provision.
Following from this it is a truism to state that a ma gistrate will only enjoy
jurisdiction to hear a particular matter where this is authorized in terms of
some or other valid law – usually legislation.
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