Sebe v Magistrate, Zwelitsha, and Another

• Jurisdiction: South Africa
• Judge: Pickard ACJ and Rees AJ
• Judgment Date: 24 May 1984
• Citation: 1984 (3) SA 885 (CkS)
• Hearing Date: 14 May 1984
• Court: Ciskei Supreme Court

Pickard ACJ:

This matter came before us as an appeal against the judgment of the magistrate of Zwelitsha in which he granted an application by the second respondent for the withdrawal of the appellant's bail and the forfeiture of the bail money in favour of the State.

Very belatedly, and after a date for hearing of the appeal had D been allocated, the appellant (hereinafter referred to as the applicant) saw fit to file a notice of motion applying on the same date for a review of the aforementioned order on the grounds that the magistrate's findings and orders were so unreasonable that they were inexplicable, except on the assumption of mala fides or ulterior motive or that the E magistrate in actual fact never applied his mind to the issues before him at all.

The aforesaid basis of the review is euphemistically summarised by myself in favour of the applicant. In actual fact the grounds of review are so badly drafted and set out that this Court would have been justified in summarily rejecting them as adequate grounds of review. However, in order to dispose of the F matter and in order to come to the assistance of the applicant, this Court has read into the grounds of review more than was actually stated and indicated its willingness to adjudicate on the merits of the review as if the papers had been correctly and properly drafted.

Furthermore the review has not been brought properly in terms G of the provisions of the Rules of Court (I refer to Rule 53) and the procedures prescribed have not been fully complied with. However, for the reasons stated above and in view of possible hardship to the applicant as a result of the procedural inadequacies, we have decided to overlook the H failure to comply with the Rules, to condone the same, and to hear argument on and deal with the merits as if a proper and regular review had been brought.

The facts of the matter amount to the following:

The applicant, having been arrested and charged in the magistrate's court of Zwelitsha with various charges of theft, fraud and corruption, was granted bail in terms of s 60 of Act I 55 of 1977, pending the hearing of the case against him, in an amount of R10 000.

Various conditions were prescribed by the magistrate's court in terms of s 62 of Act 51 of 1977 when it granted the bail. One of those conditions was that the accused was not to leave the Republic of Ciskei during the period that the bail was operative. This occurred on 21 December 1983.

Pickard ACJ

After the bail was granted the applicant paid the amount of A R10000 and duly released in terms of the order.

On 19 January 1984 the applicant appeared before the magistrate under arrest, having been re-arrested, on which occasion the prosecutor applied in terms of s 66 of Act 51 of 1977 to lead evidence to prove that the applicant had failed to comply with the abovementioned condition of bail. This the applicant B denied, whereupon the court proceeded to hear evidence placed before it in terms of the said section.

At the conclusion of evidence the magistrate found that the applicant had failed to comply with (or had breached) the said condition and that the failure to comply (or the breach) had been due to the fault of the applicant and accordingly C cancelled the bail and declared the bail money forfeited to the State.

It is this decision and order that the applicant now seeks to upset on appeal or alter on review.

All the evidence placed before the magistrate was directed at proving or disproving that the aforementioned condition of the bail had been breached. The magistrate, having heard evidence D fully on both sides, and allowing the normal opportunities for cross-examination and argument, rejected the evidence of the applicant and his witnesses and accepted the evidence of the State, finding that the applicant had, in fact, breached the said condition by leaving the Republic of Ciskei during the period when the bail conditions applied.

E After delivering a lengthy and comprehensive judgment (some 15 typed pages thereof) the magistrate came to the aforementioned conclusion and stated the following:

"Under the circumstances I have already mentioned, I feel that the State has proved its case on a balance of probabilities and in terms of s 66 of the Criminal Procedure Act 51 of 1977. The F accused's bail is cancelled and the bail money declared forfeited to the State."

At the hearing before this Court the second respondent raised, as a preliminary objection to the appeal, the point that the judgment and order of the magistrate referred to was not appealable and could only be challenged on review. In support of this contention the second respondent relied on the G following authorities: Pillay v Regional Magistrate, Pretoria, and Another 1977 (1) SA 533 (T); Ex parte Estate Phillips: In re R v Phillips 1958 (1) SA 803 (N) and Jack v Vermeulen NO and Another 1979 (1) SA 659 (C).

The...