Moyakhe and Another v Attorney-General, Transkei

• Jurisdiction: South Africa
• Judge: Davies AJ
• Judgment Date: 31 July 1992
• Citation: 1993 (1) SACR 444 (TK)
• Hearing Date: 31 July 1992
• Counsel: D van Zyl for the applicants G J J Beukes for the respondent
• Court: Transkei Supreme Court

Moyakhe and Another v Attorney-General, Transkei
1993 (1) SACR 444 (TK)

1993 (1) SACR p444

Citation	1993 (1) SACR 444 (TK)
Court	Transkei Supreme Court
Judge	Davies AJ
Heard	July 31, 1992
Judgment	July 31, 1992
Counsel	D van Zyl for the applicants; G J J Beukes for the respondent

Flynote : Sleutelwoorde H

I Bail — Denial of by Attorney-General in terms of s 61 of Criminal Procedure Act 13 of 1983 (Tk) — Whether audi alteram partem rule applicable — Section 61 making such inroads into traditional functions of courts that once Attorney-General decides to consider whether he should make an order thereunder, he should at least disclose to arrested person all information which he would have placed before court in opposition to J granting of bail in usual course of events.

1993 (1) SACR p445

Headnote : Kopnota

A Section 61 of the Criminal Procedure Act 13 of 1983 (Tk), which gives the Attorney-General the right to prohibit the granting of bail in certain circumstances, makes such inroads into the traditional functions of the courts that once the Attorney-General decides to consider whether he should make an order thereunder, he should at least disclose to the arrested person all information which he would have placed before the B court in opposition to the granting of bail in the usual course of events.

Case Information

Application for an order setting aside the decision of the Deputy Attorney-General to prohibit the granting of bail to the applicants who had been charged with the theft of a motor vehicle.

C D van Zyl for the applicants.

G J J Beukes for the respondent.

Judgment

Davies AJ:

This is the extended return day of a rule nisi granted on 24 June 1992 calling on the respondent to show cause, if any, why an order in the following terms should not be granted:

'2.1

D That the decision of the Deputy Attorney-General of Transkei to issue an order in terms of the provisions of s 61 of the Criminal Procedure Act 13 of 1983 be reviewed and set aside.

2.2

That the applicants be granted leave to bring an application to the magistrate for the district of Ngqeleni in terms of s 60 of the said Criminal Procedure Act to be released on bail.

2.3

E That the respondent pay the costs of this application.'

Respondent opposes confirmation of the rule.

It is common cause that the applicants were arrested on 20 May and were brought before the magistrate, Ngqeleni, on 23 May charged with 'C/s 132 Act 9 of 1983 - Theft of motor vehicle'. No particulars of the charges were given and the applicants were not asked to plead. They were represented by an attorney whose intention was to apply for bail on their F behalf. However, before a formal application for bail was made the prosecutor served on applicants a notice in the following terms:

'Notice of intention to consider the issuing of a certificate in terms of s 61 of Act 13 of 1983 (Criminal Procedure Act)

G Be pleased to take notice that the Deputy Attorney-General of the Republic of Transkei has information that the accused Sebenzile Moyake and Wiseman Mkrazuli have been arrested on charges of amongst others theft in contravention of s 132 Act 9 of 1983.

Be pleased to take further notice that the Deputy Attorney-General is to consider the issuing of a certificate prohibiting the granting of H bail to the said accused. Should the accused oppose or object to the issuing of the said certificate he or they must submit representations to the Deputy Attorney-General on or before 4 June 1992, setting out the grounds or reasons why such certificate should not be issued.

The information at the disposal of the Deputy Attorney-General is that the accused might leave the Republic of Transkei should they be released on bail in order to hamper the proper administration of I justice. Further that the accused should they be released might hamper the investigations of the police by disposing of articles which might serve as exhibits in a trial.

That the accused would interfere with State witnesses or potential witnesses. That the accused would continue with their unlawful activities.'

In response to this notice each applicant, by way of affidavits, made representations to the Deputy Attorney-General in support of a request J that he refrain from

1993 (1) SACR p446

Davies AJ

A issuing the contemplated certificate. The Deputy Attorney-General decided however to issue the certificate, and it is that decision that applicants seek to have set aside by way of review.

The Criminal Procedure Act 13 of 1983 ('the Act') came into force on 1 July 1985. It repealed and replaced the Criminal Procedure Act 56 of 1955, B as amended from time to time. Section 61 of the Act, with which the application is concerned, was, however, amended in December 1985 by s 20 of the General Law Amendment Act 25 of 1985, which substituted a new section in the following terms:

'61(1) Whenever any person has been arrested on a charge of having committed any offence referred to in Part III of Schedule 2, or theft, whether under common law or a statutory provision or any conspiracy, C incitement or attempt to commit such theft, the Attorney-General may, if he considers it necessary in the interest of the administration of justice or the safety of the public or the maintenance of public order, issue an order that such person shall not be released on bail or otherwise before sentence has been passed or he has been discharged.

(2)(a) Notwithstanding the provisions of this Act or any other law, but subject to the provisions of ss (3) and (5), no person shall be D released on bail or otherwise contrary to the terms of an order issued under ss (1).

(b) Whenever any person arrested for an offence referred to in ss (1) applies to be released on bail or otherwise and the public prosecutor informs the Judge, court or magistrate to whom or to which the application is made that the matter has been referred to the Attorney-General with a view to the issuing of an order in terms of ss E (1), such person shall, pending the decision of the Attorney-General, not be released on bail or otherwise: Provided that, if no such order is issued within the period of 14 days immediately following upon the date on which such Judge, court or magistrate is so informed, such person may again apply to be released on bail or otherwise and may, subject to the provisions of...