Smith v Attorney-General, Bophuthatswana

• Jurisdiction: South Africa
• Judge: Hiemstra CJ, Theal J Stewart J
• Judgment Date: 26 September 1983
• Citation: 1984 (1) SA 196 (B)
• Hearing Date: 13 September 1983
• Court: Bophuthatswana Supreme Court

Hiemstra CJ:

The appellant appeals against a refusal of bail by the magistrate of Molopo. He is being held since 18 August on various

Hiemstra CJ

charges of fraud and theft of money from the State. The total amount involved at this stage is about R240 000.

When he applied for bail, the Attorney-General personally opposed the application and invoked s 61A of the Criminal Procedure Act 51 of 1977 (RSA) as inserted in that Act by Act A 33 of 1980 (B). The section reads as follows:

"61A

Attorney-General may prevent granting of bail to accused permanently or ordinarily resident outside jurisdiction of Supreme Court.

(1)

If an accused who is in custody in respect of any offence applies under s 60 to be released on bail in respect of such offence, and the Attorney-General, whether by way of a certificate submitted to court or B in person, informs the court before which the accused applies for bail -

(a)

that the accused, according to information at the disposal of the Attorney-General, is permanently or ordinarily resident at a place or in an area inarea in respect of which the Supreme Court of Bophuthatswana does not have jurisdiction; and

(b)

that it is likely, in the opinion of the C Attorney-General, according to information at the disposal of the Attorney-General or by reason of the circumstances of the particular case, that if the accused be released on bail he -

(i)

will not appear at the place and on the date and at the time appointed for his trial or to which the proceedings relating to the offence in respect of which he is so released on bail are D adjourned;and

(ii)

on such date and at such time, will be beyond the area in respect of which the Supreme Court of Bophuthatswana has jurisdiction,

and by so doing render impossible his trial or the further hearing of his case,

and that the Attorney-General on the grounds of the likelihood referred to in para (b) (i) and (ii), objects to E the granting of bail to the accused, the court shall, subject to the provisions of ss (2), refuse the application for bail.

(2)

Any notification by the Attorney-General in relation to -

(a)

the circumstances contemplated in ss (1) (a), shall be conclusive proof of the existence of the existence of such circumstances unless and until the contrary F be proved in a competent court;

(b)

the matters referred to in ss (1) (b) (i), shall be conclusive and final proof of such matters.

(3)

In applying this section, the provisions of ss (2), (3), (4) and (5) of s 61 shall mutatis mutandis apply".

The Attorney-General informed the magistrate's court that the accused is permanently or ordinarily resident in the Republic of South Africa and therefore outside the jurisdiction of the G Supreme Court of Bophuthatswana, and he also expressed to the court his opinion that, on the grounds stated in ss (1) (b) (i) and (ii), the accused would not stand his trial if he should be released on bail.

This country is particularly exposed to abscondment of accused persons before trial because it has long unguarded borders and H it does not have extradition agreements with any country except the Republic of South Africa, and even there extradition can take six months.

Mr Lowe, for the appellant, contended firstly that the magistrate's discretion had not been ousted by s 61A, and that the Attorney-General should have submitted evidence to form the basis for a finding that the appellant would not be likely to stand his trial if he should be released on bail. This contention is quite untenable in the light of ss (2),

Hiemstra CJ

quoted above. The mere statement by the Attorney-General constitutes "conclusive and final proof". The magistrate, and consequently this Court when sitting on appeal, has no discretion and is bound to the notification made by the Attorney-General.

A The main burden of Mr Lowe's argument was that s 61A is unconstitutional and should by this Court be declared null and void and of no force and effect. It was contended that the section impinges upon the safeguards for personal freedom contained in s 12 (3) (b) of the Constitution Act 18 of 1977. B If that should be so, s 61A would be void in the light of s 7 of the Constitution, which provides that any law passed subsequent to the Constitution which is inconsistent with the provisions thereof, shall to the extent of such inconsistency be void.

Section 12 lays down in ss (3) (a) and (b):

"(3) Everyone has the right to liberty and security of person and no one shall be deprived of his liberty C save in the following cases and in accordance with a procedure prescribed by law:

(a)

the lawful detention of a person after conviction by a competent court;

(b)

the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an D offence or fleeing after having done so, provided that such a person shall be brought promptly before a Judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within reasonable time or to release pending trial, and that release may be conditioned by guarantees to appear for trial."

Two issues arise from this contention: (i) does s 61A impinge E upon s 12 (3), and (ii) if so, is it not covered by s 18 of the Constitution, which reads:

"18.(1) The rights and freedom referred to in ss 9 to 17 may be restricted only by a law of Parliament and such a law shall have a general application.

(2)

Except for the circumstance provided for in this Declaration, a fundamental right and freedom shall not F be totally abolished or in its essence be encroached upon."

I deal first with the submission that s 61A is inconsistent with s 12 (3), which forms part of the Declaration of Fundamental Rights in the Constitution, customarily called the "Bill of Rights". The relevant passage is that a person may be G deprived of his liberty when arrested on reasonable suspicion of having committed an offence -

"provided that such a person shall be brought promptly before a (judicial officer) and shall be entitled...