REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: A212/2021

(1)	REPORTABLE: NO
(2)	OF INTEREST TO OTHER JUDGES: NO
(3)	REVISED: NO
 
Date:	 12 August 2021	E van der Schyff

In the matter between:
TSHOLO V MOFOKENG			APPELLANT
and
THE STATE			RESPONDENT
JUDGMENT
Van der Schyff J

[1]	The appellant was arraigned in the Magistrate's Court of Nigel on a charge of rape, contravening section 3 of the Sexual Offences Act, 32 of 2007. The complainant was 15 years old at the time, and the offence is a Schedule 6 offence in terms of the Schedules to the Criminal Procedure Act 51 of 1977.  The appellant was legally represented, and he brought a bail application before the learned Magistrate G. Mokoena. Bail was refused on 8 June 2021. Dissatisfied with the decision of the court a quo, the appellant launched this appeal.

[2]	Before this court ventures into the merits of the appeal, it is necessary to determine whether the bail proceedings conducted in the Magistrate's Court were conducted in accordance with the law. I requested counsel to address me specifically on the significance of the fact that the 'affidavit' with which the appellant placed 'evidence' before the court was signed on his behalf by his legal representative, but not by him. 

[3]	Mr. Botha, who appeared for the appellant, although conceding that there was no evidence under oath before the court on behalf of the appellant, submitted that all the role players, the prosecutor, and the presiding officer, were aware of the fact that the statement was signed on behalf of the appellant, and accepted that the bail application would proceed on this premise. Because there is no prejudice to any party, Mr. Botha submitted that the court should condone this technical irregularity. Advocate Pruis confirmed that the record indicates that all parties were aware of the fact that the ‘affidavit’ was signed on behalf of the appellant.

[4]	Section 60 (11) of the Criminal Procedure Act, 51 of 1977 provides:

'Notwithstanding any provision of this Act, where an accused is charged with an offence referred to-
(a)	In Schedule 6, the court shall order that the accused be detained in custody until he or she is dealt with in accordance with the law, unless the accused, having been given a reasonable opportunity to do so, adduces evidence which satisfies the court that exceptional circumstances exist which in the interest of justice permit his or her release;
(b)	…' 

[5]	Hiemstra, in Hiemstra’s Criminal Procedure, explains that s 60(11)(a) and (b) 

'represent the gravamen of the legislature's intensified battle against serious crimes. Bail applicants who are charged with offences mentioned in these Schedules have an uphill battle …'

[6]	The Constitutional Court extensively considered the principles relating to bail in S v Dlamini, S v Dladla, S v Joubert; S v Schietekat 1999 (4) SA 623 (CC), and held, amongst others at para [61], that when s 60(11) applies applicants cannot put relevant factors before the court 'informally' nor can they rely on information produced by the prosecution. They 'actually have to adduce evidence'. In S v Mathonsi 2016 (1) SACR 417 (GP), the appellant appealed against the refusal by a magistrate to grant him bail pending his trial on a charge of robbery with aggravating circumstances. He launched two bail applications before the same magistrate. The second application was based on new facts. During the second application, no evidence was led, and the appellant's attorney merely addressed the court from the bar. The High Court held that s 60(11)(a) burdened the appellant with placing evidence before the magistrate. Where no evidence was presented, the procedure in the magistrate's court was flawed. The court held that it is the court's duty, in the interests of justice, to guide the parties as to how the proceedings should unfold. Because there was no evidence by way of viva voce evidence or affidavit from the appellant, the court held that there was no second bail application due to the procedure used.

[7]	Section 60(11)(a) prescribes that an accused must 'adduce evidence' when a bail application is brought in terms of the said section. Evidence can be adduced either viva voce or by way of affidavit. A statement signed on behalf of an accused cannot constitute an affidavit, even if the statement is read into the record. If the correctness of the statement was affirmed by the appellant or confirmed under oath, the position might have been different. However, after the accused's legal representative read the statement into the record, the court only put the following to the appellant: 'Your legal representative has indicated that he has signed on your behalf'. He answered, 'Yes, your Worship'. Binns-Ward J recently explained in S v Kilian [2021] ZAWCHC 100 (24 May 2021) that there is a 'true onus' on an applicant in cases where s 60(11) applies to prove facts establishing exceptional circumstances. He states that 'the discharge of the onus is a central consideration in s 60(11) applications'. I am of the view that the appellant could not, and did not, discharge the onus resting on him when a statement, which is not an affidavit, was read into the record on his behalf.

[8]	In Monthusi (supra), the High Court granted bail to the appellant despite finding that there was no evidence, and factually no bail application, before the court. I agree with Professor Du Toit that it is not competent for a court to grant bail when an accused is charged with a Schedule 5 or 6 offence where the accused failed to discharge the onus – S v Mathebula 2010 (1) SACR 55 (SCA). The Supreme Court of Appeal confirmed in S v Mabena 2007 (1) SACR 482 (SCA) at para [26] that the court is obliged to conduct a proper bail enquiry in terms of the Criminal Procedure Act. Such an enquiry cannot be conducted in the absence of evidence from the appellant.

[9]	 However, this is not the end of the matter. In casu, the learned magistrate erroneously accepted the statement as evidence and considered the bail application. This constituted a gross irregularity in the proceedings, irrespective of whether the application was granted or dismissed. The irregularity effectively rendered the proceedings a nullity as there was no bail application in terms of s 60(11)(a) before the court. Section 21(1)(b) of the Superior Courts Act, 10 of 2013, empowers the High Court to review proceedings from all Magistrate's Courts within its area of jurisdiction. Section 22(1) of the same Act provides the grounds upon which proceedings of a Magistrate's Court may be brought under review and includes, amongst others, 'gross irregularity in the proceedings'. 

[10]	It will be an injustice if the matter is not referred back for a bail application to be heard. Due to the remarks made by the learned magistrate when judgment was handed down, I am of the view that it is prudent to require that another presiding officer decide the bail application. I also have to consider that the record indicates that the matter may have been transferred to the Regional Court by the time that this judgment is handed down. It is trite that the Magistrate's Court will have the necessary jurisdiction to hear the bail application until the appellant appears in the Regional Court for the first time – DPP Limpopo v Patel and Another [2021] ZALCC 10 (30 April 2021).

ORDER
In the result, the following order is made:
1.	The judgment and order handed down by the learned Magistrate G Mokoena in the bail application of T Mofokeng in the Nigel District Court on 8 June 2021 is reviewed and set aside;
2.	A bail application is to be heard without delay by the court with the necessary jurisdiction, be it the Nigel Magistrate's Court by another presiding officer, or the Nigel Regional Court.

____________________________
E van der Schyff
Judge of the High Court

Delivered:  This judgement is handed down electronically by uploading it to the electronic file of this matter on CaseLines. As a courtesy gesture, it will be sent to the parties/their legal representatives by email. The date for hand-down is deemed to be 12 August 2021.

For the appellant:	Mr. M G Botha		
Instructed by: 	Legal Aid
Counsel for the respondent: 	Adv. C Pruis
Instructed by:	State Attorney, Pretoria
Date of the hearing:	11 August 2021
Date of judgment:	12 August 2021