S v Mokodutle

• Jurisdiction: South Africa
• Judge: HF Brauckmann AJ
• Judgment Date: 19 February 2021
• Docket Number: CC 03/2017

Brauckmann AJ:

INTRODUCTION:

[1]

This is an application by accused number 5 in this matter, Mr Mokodutle ("the applicant"), to be released on bail pending the trial in the matter. A trial date have currently not been allocated to the case as a "fresh" indictment containing 179 charges of amongst other robbery, murder and racketeering were handed to the accused's legal representatives and the Court was informed that further particulars would be sought by most of the accused in the matter regarding the indictment and charges contained therein. It seems therefore that the trial in this matter will not start or be finalised soon.

[2]

The applicant was arrested on 30 September 2018 and the case against him (in Bloemfontein) was withdrawn in 2019. However, on the same day, he was arrested again in respect of a Sandringham Case of alleged murder of three policemen. He appeared in the Johannesburg Court, and the case was transferred to this Division's Circuit Court in Delmas before it eventually was transferred to Middelburg. The case therefore has a long history. Mr Mokodutle have been in detention since September 2018 without the matter being placed for trial.

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Brauckmann AJ

[3]

The applicant is facing fifty one counts in this matter as indicated in the indictment, which was served on his legal representatives shortly before his appearance in this Court on 25 January 2021. These charges include one count of contravening section 2(1)(e) of the Prevention of Organized Crime Act 121 of 1998, conducting an enterprise through a pattern of racketeering activity, one count of contravening section 2(1)(g) of the Prevention of Organized Crime Act 121 of 1998, managing an enterprise and contravening section 18(2) of the Riotous Assemblies Act 17 of 1956, conspiracy to commit a crime of robbery with aggravating circumstances as defined in section 1 of Act 51 of 1977.

[4]

The applicant is further charged with three counts of murder, twelve counts of attempted murder, 10 counts of robbery with aggravating circumstances, two counts of attempted robbery with aggravating circumstances, four counts of contravening section 3 of the Firearms Control Act 60 of 2000, unlawful possession of a firearm, four counts of contravening section 4 of the Firearms Control Act, unlawful possession of prohibited firearms, four counts of contravening section 90 of the Firearms Control Act, unlawful possession of ammunition, three counts of contravening section 5 of the Explosives Act 26 of 1956, five counts of malicious injury to property, and one count of contravening section 120(6) of the Firearms Control Act, unlawful pointing of a firearm.

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Brauckmann AJ

[5]

It is common cause that the charges against the applicant for murder and the ten counts of robbery with aggravating circumstances, fall within the ambit of schedule 6 of the Criminal Procedure Act, Act 51 of 1977 ("The CPA"), which places an onus of a burden of proof on the applicant to prove, on a balance of probabilities, that exceptional circumstances exist, which would make his release on bail, in the interest of justice.

[6]

There are thus two requirements. Firstly, the applicant must establish the existence of exceptional circumstances and secondly his release should not be against the interest of justice. Thus, the factors in s 60(4) (a)-(e) of the CPA.

[5]

The applicant raises, for the first time at the bail application on 28 January 2021, that this Court lacks jurisdiction to hear the matter. The common cause facts surrounding the transfer of the case to the Mpumalanga Division of the High Court are common cause. The applicant appeared in Bloemfontein Regional Court on 4 September 2019 for trial. The matter was withdrawn by the State and the applicant was immediately arrested and transferred to Johannesburg where he appeared in the Johannesburg Regional Court in respect of a

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Brauckmann AJ

Sandringham incident. The withdrawal of the matter in Bloemfontein was initiated by Adv. Hein van der Merwe (DPP's office, Pretoria).

[6]

The applicant appeared in Johannesburg Regional Court several times and on 8 November 2019, the matter, upon the request of the State, was transferred to the Mpumalanga Division of the High Court at Delmas to be joined with the accused which appeared following an alleged incident at Kriel (Ganala). The request was founded on an instruction issued by Advocate Hein van der Merwe, Deputy Director of Public Prosecutions, Gauteng Division, Pretoria in the form of a letter dated 7 November 2019.

[7]

Upon this instruction the Sandringham - matter (alleged murder of three members of the South African Police Services) was transferred to this Division of the High Court. The legal question, according to Adv Potgieter on behalf of the applicant is whether the transfer was procedurally correct in terms of the law. If not, so the argument went, it follows that the matter ought not to be entertained further on this Court's roll and struck off in respect of the applicant.

[8]

In the light of my findings in respect of the bail application, I am not going to dwell on the legal arguments in too much detail.

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Brauckmann AJ

[9]

Section 22 of the National Prosecuting Authority Act (Act 32 of 1998) determines the functions of the National Director which is instructive. Section 22(3) is relevant: -

"Where the National Director or a Deputy National Director authorised thereto in writing by the National Director deems it in the interest of the administration of justice that an offence committed as a whole or partially within the area of jurisdiction of one Director be investigated and tried within the area of jurisdiction of another Director, he or she may, subject to the provisions of section 111 of the Criminal Procedure Act, 1977 (Act 51 of 1977), in writing direct that the investigation and criminal proceedings in respect of such offence be conducted and commenced within the area of jurisdiction of such other Director."

[10]

In terms of Section 111 of The CPA

''(1) (a) The direction of the National Director of Public Prosecutions contemplated in section 179 (1) (a) of the Constitution of the Republic of South Africa, 1996, shall state the

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name of the accused, the relevant offence, the place at which (if known) and the Director in whose area of jurisdiction the relevant investigation and criminal proceedings shall be conducted and commenced."

[11]

Applicant submitted that only the National Director and / or a Deputy National Director authorised in writing could have issued the direction that the case of the applicant be transferred to the Mpumalanga Division of the High Court. Both Advocates GL Roberts and / or Hein van der Merwe lack authority to issue such an instruction. It follows that if they could not have issued the direction which they clearly could not have, that the transfer of the matter was irregular, and the continued detention of the applicant would be unlawful. Hence the Court is requested to find that the transfer was irregular, and the applicant's matter is not proper before the Court and ought to be struck from the court roll.

[12]

This is a bail application and not a trial. The applicant is not tried or investigated by this court at this stage...