Mitchell v Attorney-General, Natal

• Jurisdiction: South Africa
• Judge: Galgut J
• Judgment Date: 07 October 1991
• Citation: 1992 (2) SACR 68 (N)
• Hearing Date: 07 October 1991
• Counsel: E du Toit SC for the applicant R J Seggie for the respondent
• Court: Natal Provincial Division

Galgut J:

This is an application for review in which the provisions of s 61(1) of the Criminal Procedure Act 51 of 1977 are directly relevant. Section 61(1) provides:

I 'If an accused who is in custody in respect of any offence referred to in Part III of Schedule 2 applies under s 60 to be released on bail in respect of such offence, and the Attorney-General, either by written notice or in person, informs the Court before which the accused applies for bail that information is available to him -

(a)

which, in his opinion, cannot be disclosed without prejudice to J the public interest or the administration of justice; and

Galgut J

(b)

A which, in his opinion, shows that the release of the accused on bail is likely to affect the administration of justice adversely or to constitute a threat to the safety of the public or the maintenance of the public order,

and that he on the ground of the likelihood of such adverse effect or of such threat objects to the granting of bail to the accused, the court shall refuse the application for bail.'

B The applicant is an accused in a criminal trial at which he and others face, inter alia, 11 counts of murder. The trial is due to commence next week and is expected to run into 1992.

The applicant was arrested on 2 August 1991 and was on that day taken to the magistrate's court at Pietermaritzburg where he intended to apply in terms of s 60 to be released on bail. At the hearing counsel for the State C sought a postponement of the matter. In doing so, he relied on the provisions of s 61(4) which reads as follows:

'(4)(a) Where an accused under ss (1) applies to be released on bail and the prosecutor informs the court before which the accused applies for bail that the matter of bail has been or will be referred to the D Attorney-General, the court shall postpone the determination of the application pending the decision of the Attorney-General.'

Being bound by this section the magistrate postponed the matter until 16 August 1991. The matter was referred to the Attorney-General, who is the respondent in this application. He was in possession of certain affidavits containing information relevant to his function in terms of s 61(1) and on E 14 August 1991 he received written representations on behalf of the applicant on the question whether or not he should act in terms of his powers under s 61(1). Having considered the contents of the affidavits and the representations, he issued a notice in terms of s 61(1) (annexure A to his answering affidavit), and this notice was placed before the magistrate when the matter came before him again on 16 August. That notice reads as follows: F

'Notice in terms of s 61 of the

Criminal Procedure Act 51 of 1977

I, Michael Wilfred Charles Imber, Attorney-General for the Province of Natal, hereby inform the court that information is available to me

(a)

which, in my opinion, cannot be disclosed without prejudice to the public interest or the administration of justice; and G

(b)

which, in my opinion, shows that the release of the accused on bail is likely to affect the administration of justice adversely and that on the grounds of the likelihood of such adverse effect I object to the granting of bail to the accused, who is in custody in respect of offences of murder (11 counts) offences referred to in Part III of Schedule 2 of the Criminal Procedure Act 51 of H 1977.'

Considering himself to be bound in terms of s 61(1) by this notice the magistrate refused to hear the bail application.

By the application now before me, which is...