De Jager v Attorney-General, Natal, and Another

• Jurisdiction: South Africa
• Judge: Caney J
• Judgment Date: 04 July 1967
• Citation: 1967 (4) SA 143 (D)
• Court: Durban and Coast Local Division

C Caney, J.:

This is an application for bail, in association with an application to review an order of a magistrate, the second respondent, made by him under the provisions of sec. 106 (b) of the Criminal Procedure Act, 56 of 1955.

On 23rd February, 1967, the applicant was committed for trial on a charge of assault with intent to commit murder and on charges of being D illegally in possession of a firearm and of ammunition in contravention of the relevant legislation. The complainant in the first of these three charges is the applicant's wife. They are a young couple, he being 20 years of age and she a couple of years younger than he, and they had been married about nine months at the time of the incident out of which these charges arose.

E This incident occurred in the early hours of 19th November, 1966, when the applicant shot his wife with a pistol. He was arrested on the same day and was first before a court on 21st November. On the 25th of that month he was released on bail in the sum of R200 on conditions, one of which was that he did not communicate with the complainant either directly or indirectly.

F His trial commenced before a regional magistrate on 23rd January, 1967, and when the prosecution case was closed the magistrate converted the proceedings into a preparatory examination in which the applicant was committed for trial, as I have said. The applicant pleaded not G guilty and reserved his defence. He was again admitted to bail in the sum of R200 on conditions, one of which was the same as that hitherto stipulated, relating to his not communicating with the complainant.

At that stage, on his committal for trial, sec. 88 of the Act applied with the consequence that he was entitled to be released on bail subject to the provisions, in particular, of para. (a), that is to say that if H the magistrate had reason to believe that, notwithstanding any conditions, he was not likely to appear or to comply with any condition imposed, the magistrate might refuse to admit him to bail.

On 28th April, hearing that a warrant had been issued for his arrest, the applicant surrendered himself and appeared before the same magistrate, the second respondent, who, on 1st May, heard evidence intended to show that the applicant had made default in the condition I have mentioned by communicating with the complainant, not once but on a

Caney J

number of occasions. The magistrate heard evidence also on the part of the applicant, who was represented by an attorney.

At the conclusion of that hearing, on 2nd May, the magistrate made an order under sec. 106 that the applicant 'be detained in gaol until his trial' and that 'the recognizance should also be declared forfeited'.

A Sec. 106, in so far as relevant to the present proceedings, provides -

'if it appears to the court . . . that default has been made in any condition of a recognizance . . . such court . . . may -

(a)

issue an order declaring the recognizance forfeited, and . . .

(b)

issue a warrant for the arrest of the person admitted to bail and afterwards, on being satisfied that the ends of justice would otherwise be defeated, commit him, when so arrested, to a gaol until his trial.'

B There are two distinct stages: firstly, the proof of default in a condition of the recognizance; that may result in forfeiture of the recognizance, whether it is that of the accused or of one or more sureties for him, and may also result in the issue of a warrant for the arrest of the accused; secondly, proof thereafter that the ends of justice would be defeated if the accused were not committed to gaol; C that may result in his being committed to gaol until his trial.

It appears to me that it is competent under this section to declare a recognizance forfeited and yet to refrain from committing the accused to gaol but to admit him to bail afresh. The magistrate, as I have said, made orders under both para. (a) and para. (b).

D On 29th May the applicant's attorney wrote a letter to the first respondent, the Attorney - General, in which he said it was clear that no appeal could be noted against the magistrate's order and that at least two months would elapse before review proceedings could be heard and so he enquired of the Attorney - General what would be his attitude to an application for the fresh release of the applicant on bail. The E Attorney-General stated in reply that he was not prepared to agree to the applicant being released. On 15th June the applicant filed and served the present application to be again admitted to bail. This is supported by his petition in which he refers to the evidence given at his preparatory examination and also the evidence as a consequence of F which the magistrate made the two orders to which I have referred. A copy of each of these proceedings was put before me.

The Attorney-General, in opposition to the application, filed affidavits on the part of the prosecutor in the magistrate's court and the investigating officer, to which the applicant has replied by affidavit. During the hearing of the argument on the application on 23rd June, I G raised with counsel the question whether the magistrate's order committing the applicant to gaol until his trial did not operate as a complete bar to his now being admitted to...