Majali’s positive legacy may outstrip his negative one

Last Monday I appeared in the Tembisa Magistrate’s Court on behalf of one of the suspects arrested for public violence relating to the protests in that township the previous week.

In court seven there were, I believe, 19 accused who made their first appearance before a packed gallery waiting to hear what the fate of their loved ones would be in the short term. Would they be remanded in custody pending investigation and a formal bail application, be granted bail or, as it turned out, be released on warning?

While the facts of the case may not be discussed here – the matter is sub judice – the decision to allow the suspects their freedom while the investigation is taking place is the correct one and a credit to both prosecutor and magistrate who went about their business of analysing the facts before them without regard to any of the hype surrounding the Tembisa unrest.

This unfortunately is not always the case and got me thinking that the late Sandile Majali might well have landed up leaving a positive legacy that may become so commonplace that it could even eclipse all the negative publicity surrounding Oilgate and any other negative issues with which he was allegedly associated.

Let’s give this context.

As most people are aware the police are required to take the people that they arrest to court within 48 hours subject to the proviso that if the 48 hours ends after 4pm on a weekday, then they must take you to court on the next day, before 4 pm. If the 48 hours ends on a weekend or a public holiday, then they must take you to court on the first court day, before 4pm. In certain circumstances the police or prosecutor can grant bail but that is not the issue under discussion here.

Once at court however, few people are aware of the fact that the court is entitled to postpone the bail proceedings in terms of section 50 of the Criminal Procedure Act 51 of 1977 for seven days at a time. This might not seem too harsh to those people who have not been subjected to it before but for those who are arrested for the first time, have just about managed to maintain their sanity for 48 hours while waiting to be brought to court and are then informed that they have another seven court days (usually in prison rather than the police holding cells) it is usually earth shattering news.

If this postponement is as a result of prosecutors genuine concerns relating to serious crimes then there is no problem because the public want to see the police, prosecution and court exercising extreme caution before releasing suspects back onto the street.

Where however this is down to laziness, ineptitude or just bloody mindedness on the part of the state it is unacceptable because not only is the subject unnecessarily traumatized but often placed in danger by being exposed to dangerous criminals.

In July 2011 Judge Mokgoatlheng delivered a decision which sets out the basis for allowing Majali to be released on bail in the South Gauteng High Court in October 2010, after the bail application had been postponed in the Johannesburg Commercial Crimes Court.

Majali had launched an urgent bail application to the High Court – which was granted – at the conclusion of which the Judge indicated that the reasons for the order would follow, which is what the July decision sets out.

The reason why this decision is important is not because it creates law but rather because it clarifies an important point relating to the existing law on bail. If you ask around you may well be surprised to learn how many people have spent 10 or more days in jail simply because the state asked the court to postpone the matter for investigation, and the bail hearing along with it, and the courts simply rubber stamped it on the prosecutors say so.

Judge Mokgoatlheng is confirming that :

“A High Court has inherent jurisdiction to intervene in uncompleted bail proceedings commenced in a magistrate’s court, and has supervisory power over the conduct of proceedings in the magistrates’ courts in both civil and criminal matters, to ‘supervise the manner in which’ the courts discharge their functions in order to ensure ‘quality control’. The jurisdiction to intervene exists at common law, and also subsists under section 166 of the Constitution. The power to intervene in unconcluded bail proceedings in lower courts is rarely exercised. It is only exercised in very special and peculiar cases, like the present where a grave injustice could occur if there is no lawfully justifiable reason to detain an arrested person

The judge then examines this in terms of the Constitution, Criminal Procedure Act and case law which requires a reading of the decision (see link above).

He then confirms :

“A bail application should in principle be heard as a matter of urgency because it affects personal liberty. In Magistrate, Stutterheim v Mashiya 2003 (2) SACR 106 (SCA), Cameron J held: ‘It is evident that finalising an application for bail is always a matter of urgency. ….And if bail is refused, the decision can be appealed. The right to prompt decision is thus a procedural right independent of whether the right to liberty actually entitles the accused to bail.’ The deprivation of a person’s liberty due to arrest pending trial is subject to judicial supervision and control. In exercising such oversight in regard to bail proceedings a court is expressly enjoined by the provisions of section 60 not to act as a passive bystander but to take the initiative in the bail proceedings.

“The prosecutor has a duty to place before Court all relevant information which the Court needs in order to exercise its discretion with regard to the postponement, the granting or refusal of bail. A bail hearing is inherently a unique urgent formal judicial process. Although bail application proceedings like a criminal trial, are essentially adversarial, the inquisitorial powers of the presiding officer are paramount.”

The confirmation that finalising a bail application is always a matter of urgency suggests that the presiding officer needs to be extremely cautious when refusing an application for bail be heard on the first appearance. The fact that the State requests the postponement is not a basis.

Judge Mokgoatlheng continues :

“In terms of section 35(3) of the Constitution every accused person has a right to a fair trial, which includes the right to be presumed innocent. In a bail application the presumption of innocence operates in favour of the applicant even where there is a strong prima facie case against him.

“The presiding officer has a duty to investigate all aspects regarding the question of bail. If the parties do not of their own accord adduce evidence or otherwise produce information regarded by the court to be essential to the bail proceedings, a court in terms of section 60(3) must order that such information or evidence be placed before it.”

The crucial point is then set out by the Judge :

“I now turn to consider the interpretation and applicability of section 50(6)(d) having regard to the constitutional template of maximizing an accused person’s personal liberty, in order to establish whether the presiding officer in postponing the bail proceedings purely on the ipse dixit of the prosecutor, without the applicant who placed the information predicating the application for a postponement in dispute, being accorded an opportunity to test the reliability of such information under cross examination, whether the presiding officer’s decision to postpone the bail proceedings was judicially justifiable and correct.”

“An application for a postponement by the State in bail proceedings is not for the asking. The State seeks an indulgence consequently, it must furnish cogent sustainable persuasive reasons justifying the granting of such postponement. The presiding officer is enjoined by the constitutional imperatives predicating section 35(1)(f) of the Constitution to have due regard to the cogency of the reasons underpinning the State’s application for a postponement, to conduct and inquiry utilising his or her inquisitorial powers under section 60 (3) to determine whether the State has placed all relevant information or evidence before Court to enable it to properly exercise its judicial discretion to postpone the bail application in terms of section 50 (6)(d).”

While many lawyers will suggest that this is already part of our law very few of them will have visited criminal courts and watched one bail application after another being postponed for exactly that reason – the Court, upon a simple request by the State, granting the application to postpone the matter.

Judge Mokgoatlheng then concluded :

“A bail inquiry is a judicial process that has to be conducted impartially and judicially and in accordance with relevant statutory and constitutional prescripts. A postponement or refusal of bail without lawful justification is an unlawful deprivation of a person’s liberty. The discretion to postpone a bail application should not be influenced by untested notions predicated on a premise to investigate an applicant’s previous convictions, pending criminal investigations or charges where the applicant under oath states that he has no previous convictions and is not aware of any pending criminal investigations or charges, or warrants of arrest issued against him.

“In my view the failure by the presiding officer to order that reliable or sufficient information be placed before the Court by the State in terms of section 60(3) and the subsequent postponement of the bail application proceedings in terms of section 50 (6)(d), was a serious misdirection which resulted in the applicant’s infringement of his constitutional right to a fair trial which includes a bail application. The presiding officer in postponing the bail application proceedings on the was arbitrary the State Prosecutor’s ipse dixit had no rational basis and consequently the applicant’s constitutional right to liberty was infringed.”

When a judge says that the approach of the presiding officer in the lower court was a “serious misdirection” it means that he or she totally messed up.

What the Majali decision does is call on Magistrate’s to ascertain whether there is a basis for postponing a bail application based upon “cogent sustainable persuasive reasons” rather than simply assuming that because the prosecutor and police say so.

This, I would humbly suggest, applies even where the accused is not represented because the fact that the party concerned does not have a lawyer does not change the fact that the State still requires a proper basis for being granted what is after all an indulgence.

Where there is serious crime involved, the accused is a flight risk or would interfere with the investigation there is nothing stopping the state from raising the points. What this does is ensure that the state sets out a basis for postponing the application and where it doesn’t the presiding officer doesn’t lock up people simply because the state asks for time.

In Tembisa Court the Magistrate asked if I could furnish a copy of the decision to the public defenders which I did along with an emailed copy to the prosecutor.

The next time you are in a court and see prosecutors simply asking for and being granted a postponement for seven days in a bail application, without setting out a basis therefore make sure the public defenders in court are aware that this is not the way the system works.

Tell them to look up the Majali decision.