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REPUBLIC OF SOUTH AFRICA

SOUTH GAUTENG HIGH COURT, JOHANNESBURG

CASE NO: 41210/2010

DATE:19/07/2011

REPORTABLE

REPORTABLE
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED.

…………………….. ………………………...
DATE SIGNATURE
In the matter between:

In the matter between:

SANDI MAJALI Applicant

and

THE STATE Respondent

JUDGMENT
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MOKGOATLHENG J

(1) After his bail application was postponed in the Johannesburg

Commercial Court in terms of section 50(6)(d) of the Criminal
Procedure Act 51 of 1977, the applicant launched an urgent bail
application seeking his release from custody. At the conclusion of the
urgent application I issued an order admitting the applicant to bail. I
indicated that the reasons for the order would follow. These are the
reasons predicating the order.

THE FACTUAL MATRIX

(2) The applicant alleges that on 20 October 2010 after reading an article
in The Times newspaper that he was sought by the police as a suspect
in a fraud investigation, he instructed his attorney to verify the report.
The applicant’s attorney established that the Johannesburg
Commercial Court Prosecutor had instructed the investigating officer
Captain Nhlapo to arrest the applicant for allegedly committing fraud.

(3) The Prosecutor confirmed that the applicant would be charged with
fraud. He added that he had no grounds of objecting to the applicant’s
release on bail because he was not considered a flight risk. He stated
that he was in the process of verifying whether the applicant had
pending criminal investigations, criminal charges, or warrants of arrest
issued against him.

(4) The applicant was duly arrested. At the inception of the bail
proceedings, the Prosecutor made an application for the postponement
of the proceedings based on the ground that he wanted to confirm
whether the applicant had any pending criminal investigations, criminal
charges, previous convictions or any outstanding warrants of arrests
issued against him. He informed the presiding officer that the State had
reason to believe that the applicant was facing similar fraud charges in
other centres in the Republic of South Africa pertinently at Sandton in
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Johannesburg, Durban and Cape Town, consequently, he needed the

matter to be postponement to establish these exigencies.

(5) The applicant’s counsel countered the States application by making an

application that the applicant be released on bail. In his affidavit in
support of the bail application, the applicant stated that he was a
reputable businessman, had fixed residential and business addresses,
had no previous convictions, or warrants of arrest issued against him
and was not aware of any pending criminal charges and undertook not
to interfere with the investigation, witnesses or prejudice the
administration of justice. He also undertook to attend his trial.

(6) The applicant’s counsel opposed the application for a postponement.

He challenged the State to furnish the applicant with the relevant
docket case numbers, and the names of the investigating officers of
these alleged fraud investigations.

(7) The applicant’s counsel argued that the State could not lawfully justify
the continued detention of the applicant, as it has had ample
opportunity to have investigated these aspects, consequently, the
purported lack of sufficient information could not be laid at the door of
the applicant if the State was negligent or remiss in its investigation.
When applicant’s counsel made these submissions, Captain Nhlapo
was present in court. He did not volunteer any information and was not
called upon by the Prosecutor to counter these submissions.

(8) Despite the fact that the Prosecutor did not adduce any evidence
supporting what he categorised as the State’s reasonable belief that
the applicant may have previous convictions, pending criminal
investigations, criminal charges, or warrants of arrest issued against
him, the presiding officer acceded to the application for a
postponement.
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(9) In the urgent bail application, Captain Nhlapo confirmed that he was
not per se against the applicant being released on bail, however, he
had received information that the applicant was implicated in other
fraud charges – not related to the fraud the applicant was facing –
which were the subject of investigation at other police stations, namely
Sandton, Cape Town and Durban, consequently, he needed time to
investigate and verify this information.

(10) Captain Nhlapo stated that did not have any information regarding the
nature of the fraud, or the names of the investigating officers in these
criminal investigations, but had received information that the fraud
charges against the applicant were investigated under four docket case
numbers at the Sandton Police Station, and was informed that the
Financial Services Board was the complainant in all these matters. He
was not aware if any warrants of arrest were issued pursuant to the
investigations in any of these matters. He did not know the details of
the fraud allegedly committed by the applicant or the estimated fraud in
monetary terms allegedly being investigated.

(11) The applicant’s counsel requested this Court to exercise its inherent
jurisdiction and release the applicant on bail as there was no lawful
reason justifying the continued detention of the applicant or the refusal
to release him on bail.

THE FRAUD
(12) The basis of the fraud charge against the applicant is that on or about
27 August 2010 at Johannesburg and or Pretoria he together with other
accused persons acting in furtherance of a common purpose
unlawfully, falsely and with the intent to defraud, and to the actual or
potential prejudice of Daphney Mashile Nkosi, and Brian Amos Nkosi
and Kalahari Resources (Pty) Ltd and/or the majority shareholders put
out and presented to the Companies and Intellectual Property
Registration Office that The South African Community Government
Union referred to as accused 6, was authorised to pass a special
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resolution disqualifying Daphney Mashile Nkosi and Brian Amos Nkosi

as directors of Kalahari Resources (Pty) Ltd and appointed the
applicant together with four other accused as directors of Kalahari
Resources (Pty) Ltd and the only persons authorised to exercise the
powers and functions of directors over Kalahari Resources (Pty) Ltd.

THE APPLICABLE LAW

(13) Section 60 which governs the principles of bail provides:
“Bail application of accused in court

(1)(a)An accused who is in custody in respect of an offence shall, subject to the

provisions of section 50(6), be entitled to be released on bail at any stage
preceding his or her conviction in respect of such offence, if the court is
satisfied hat the interests of justice so permit.

(b) Subject to the provisions of section 50(6)(c), the court referring an accused
to any other court for trial or sentencing retains jurisdiction relating to the
powers, functions and duties in respect of bail in terms of the Act until the
accused appears in such other court for the first time.

(c) If the question of the possible release of the accused on bail is not raised
by the accused or the prosecutor, the court shall ascertain from the accused
whether he or she wishes that question to be considered by the court.

(2) In bail proceedings the court–

(a) may postpone a any such proceedings as contemplated in section
50(3);
(b) may, in respect of matters that are not in dispute between the accused
and the prosecutor, acquire in an informal manner the information that
is needed for its decision or order regarding bail;
(c) may, in respect of matters that are in dispute between the accused and
the prosecutor, require of the prosecutor or the accused, as the case
may be, that evidence be adduced;
(d) shall, where the prosecutor does not oppose bail in respect of matters
referred to in subsection (11)(a) and (b), require of the prosecutor to
place on record the reasons for not opposing the bail application.
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(2A) The court must, before reaching a decision on the bail application,
take into consideration any pre-trial services report regarding the
desirability of releasing an accused on bail, if such a report is available.
(3) If the court is of the opinion that it does not have reliable or
sufficient information or evidence at its disposal or that it lacks
certain important information to reach a decision on the bail
application, the presiding officer shall order that such
information or evidence be placed before the court.”

(14) A High Court has inherent jurisdiction to intervene in uncompleted bail

proceedings commenced in a magistrate’s court, and also 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
Wahlhaus and Others v Additional Magistrate, Johannesburg and
Another 1959 (3) SA 113 (A) at 119-20. S v Hlogwane 1989 (4) SA
79 T;Constitution of the Republic of South Africa Act 108 of 1996,
s 166; Van Rooyen and Others v The State and Others (General
Council of the Bar of South Africa Intervening) 2002 (2) SACR 222
(CC) (2002 (5) SA 246) in paras [19]ff; Magistrate Stutterheim v
Mashiya 2003 (2) SACR 106 (SCA);

THE CONSTITUTION
(15) The common law inherent jurisdiction power to grant bail must be
exercised consistently with the nature and purpose of the section
39(2) of the Constitution, which provides that a court “must promote”
the spirit, purport and objects of the Bill of Rights and “enjoins courts to
develop the common law in the interests of justice” when dealing with
matters involving the fundamental constitutional issue of liberty. In this
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context, to “promote” means to further or advance the constitutional

imperative of taking into proper account the fundamental rights
encapsulated in sections 12(1)(a) and 35(1)(F) of the Constitution.
When interpreting section 60 of the Criminal Procedure Act 51 of
1977, every judicial officer is obliged to take full account of the
Constitution in the light of the requirements of section 39(2).

(16) Section 12(1)(a) of the Constitution guarantees everyone’s right to

freedom and security of the person, which includes the right not to be
deprived of freedom arbitrarily or without just cause. The Constitution
does not create an absolute right to personal freedom. Liberty is
qualified and circumscribed by section 35(1)(f) which reads:
“Everyone who is arrested for allegedly committing an offence has the
right….to be released from detention if the interests of justice permit,
subject to reasonable conditions.”

(17) It is clear that the approach to bail by judicial officers must be

considered within the prism of the Constitution. Section 35(1)(f) of
the Constitution postulates a judicial evaluation of different factors
that make up the criterion of the interests of justice. The application of
constitutional norms to the law and practice of bail obliges judicial
officers to harmonise section 60 bail provisions with constitutional
norms and imperatives. The purpose of bail is to strike a balance
between the interests of society and the liberty of an accused person
consequently, the basic objectives traditionally ascribed to the
institution of bail, is to maximise personal liberty in accordance with the
normative precepts of the Bill of Rights S v Dlamini and Others; S v
Joubert; S v Schietekat 1999 (7) BCLR 771 (CC).

(18) 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
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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.

(19) 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.

(20) 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.

(21) 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 INTERPRETATION OF SECTION 50(6)(d)

(22) 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,
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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.

(23) Section 50 (6)(d) provides:

“ (d) the lower Court before which a person is brought in terms
of this subsection, may postpone any bail proceedings or
bail application to any date or Court, for a period not
exceeding seven days at a time, on the terms which the
Court may deem proper and which are not inconsistent of
this Act if -
(i) the court is of the opinion that it has
insufficient information disposal to
reach a decision on the bail
application;
(ii)
…………………………………………..
(iii)

………………………………………….
.
(iv) It appears to the court that it is
necessary in the interests of justice
to do so.”

(24) 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)
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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).

(25) Although a bail application is less formal than a trial, it remains a formal
court process that is essentially adversarial in nature. A court is
afforded greater inquisitorial powers in such an inquiry to ensure that
all material factors are investigated and established. The granting of a
postponement necessarily requires a court to establish the content and
reliability of the circumstances predicating the application for a
postponement and to evaluate these against constitutional imperatives
and traditional basic bail objectives. The form such an inquiry and
evaluation should take is not prescribed section 60(3), but a court
reasonably informed of its constitutional imperatives should be aware
of the essential form such a judicially inquiry should take. If there is a
dispute regarding any issue it behoves that the prosecution and the
applicant be given an adequate opportunity to be heard on the issue.

(26) The presiding officer is enjoined in terms of section 50 (6)(d) to

evaluate and weigh the cogency of the proffered reasons predicating
the application for a postponement, and balance these against the
liberty of the applicant and basic objectives traditionally ascribed to the
institution of bail. The presiding officer is thereafter required to make a
value judgment whether it would be in the interests of justice to accede
to the postponement.

(27) In evaluating the sufficiency of information or evidence where there is a

contentious dispute raised by the applicant challenging the source and
essence of the reasons predicating the State’s application for a
postponement, in our adversarial criminal law system predicated on a
person’s constitutional right to a fair trial, the presiding officer is
enjoined in accordance with the prescripts of an impartial inquiry, to
investigate the source of the information advanced by the State in
support of the application for postponement in order to test the veracity
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and reliability of such information to properly arrive at a considered

conclusion whether the information is insufficient to enable the Court
to reach a decision on the bail application, and consequently, whether
it is in the interests of justice to postpone the bail application
proceedings.

(28) In the present matter the only information the presiding officer had at
his disposal was the ipse dixit of the State prosecutor. Because the
State seeks an indulgence to investigate or establish certain aspects
relating to the applicant’s criminal record it bears an onus to show that
the belief – that there is a possibility that the applicant has previous
convictions of a similar nature, pending criminal investigations or
charges, or warrants of arrest issued against him, – is reasonably held,
and that these factors have a direct bearing and consequences in
relation to the charge the applicant is facing, consequently, that his
release on bail was not in the interests of justice as it may affect or
impede the administration of justice.

(29) The applicant in his affidavit contradicts the State’s information,

predicating its application for a postponement and places same in
dispute. The Investigating Officer was present in Court but was not
called upon by the State prosecutor or the presiding officer to proffer
additional information, or adduce evidence in support of the State’s
application for a postponement, despite a direct challenge from the
applicant’s counsel attacking and disputing the very basis and essence
of the State’s invocation of a postponement in terms of section 50(6)
(d).

(30) By opposing the State’s application for a postponement the applicant

in terms of section 60(2)(c) was in effect, impugning, and disputing
the reliability of the State’s information predicating its application for a
postponement, consequently, upon the applicant’s challenge, it was
incumbent on the presiding officer to invoke the provisions of section
60(3). Section 60(3) is peremptory, it enjoins the presiding officer to
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order that reliable or sufficient information or evidence be placed before

the Court in order to enable it to reach a decision on the bail
application, –which decision includes a postponement, the refusal or
granting of bail,–after such information or evidence has been properly
considered by the presiding officer.

(31) The applicant unlike the State which can place information informally at
the disposal of the Court, has an onus and is enjoined in terms of
section 60 11(a) to satisfy the Court by adducing evidence that
“exceptional circumstances exist” that “it is in the interests of justice to
release him on bail.” The applicant in his affidavit in support of the bail
application pertinently avers that such is the case in respect of his bail
application.

(32) In my view the State failed to place sufficient information or evidence at

the disposal of the Court, except the disputed and challenged ipse dixit
of the Prosecutor. In casu the presiding officer had evidence on oath
from the applicant and informal information from the State at his
disposal. Without conducting a formal judicial inquiry as enjoined by
section 60(3), and having regard to constitutional imperatives, the
presiding officer could not rationally and properly exercise his judicial
discretion to conclude that he had insufficient information or evidence
at his disposal to reach a decision on the bail application and
consequently, was obliged to postpone the bail application
proceedings.

(33) 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
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is not aware of any pending criminal investigations or charges, or

warrants of arrest issued against him.

(34) 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.

(35) The State is not entitled to detain an accused person in custody in

order to complete an investigation. S v Bennett 1976 (3) SA 652 (C)
at 655C;S v Du Preez (supra at 379F). Although it was held in
Duncan v Minister of Law and Order 1986 (2) SA 805 (A) at 819G-
820A that section 50 contemplates further investigation after arrest, it
is necessary to weigh up the applicant’s right to apply for bail and the
State’s right to investigate rationally having regard to constitutional
imperatives. The State is not entitled to detain the applicant in custody
for purposes of investigation and consequently in so doing frustrate the
applicant’s constitutional right not to be detained without lawful and just
cause. Novick v Minister of Law and Order and Another 1993 (1)
SACR 194 (W).

(36) In irregularly postponing the bail application or bail proceedings in

terms of section 50 (6)(d), the presiding officer ignored the applicant’s
section 60(11) evidence which in the absence of countervailing
contrary rebuttal evidence, sufficed as proof beyond reasonable doubt
that the applicant had proved that exceptional circumstances existed,
which in the interests of justice, justified and permitted his release on
bail. Consequently, in applying the High Court’s inherent common law
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and constitutional jurisdiction, I am satisfied that the applicant in his

affidavit in support of the bail application has complied with and
satisfied the requirements of section 60 (11) and is entitled to be
released on bail.

THE ORDER
(37) I consequently make the following order:

(i) The applicant is released on bail in the amount of R10 000.00 (ten
thousand rands). The applicant is to pledge his premises at 706
Adrian Street, Sandown within seven (7) days hereof as security for
such bail amount.
(ii) The applicant is to report at Sandton Police Station every Monday
and Friday between 08:00am and 8:00pm.
(iii) The applicant is not to leave the jurisdiction of the South Gauteng
High Court without the permission of the Investigating Officer which
permission may not be unreasonably withheld.

Dated at Johannesburg on the 18th July 2011.

________________________________
MOKGOATLHENG J
JUDGE OF THE HIGH COURT

DATE OF HEARING: 23RD OCTOBER 2010

DATE OF JUDGMENT: 19TH JULY 2011
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ON BEHALF OF THE APPLICANT: D NTSEBENZA SC

INSTRUCTED BY: NGCEBETSHA MADANGA ATTORNEYS
TELEPHONE NUMBER: 082-335-4189
REF. NO.: MR J NGCEBETSHA
ON BEHALF OF THE RESPONDENT: SK ABRAHAMS
INSTRUCTED BY: THE STATE ATTORNEY
TELEPHONE NUMBER: (012) 845-6000
REF. NO.: ADV. SK ABRAHAMS