Director of Public Prosecutions, Gauteng Local Division, Johannesburg v The Magistrate: Kagiso and Another (04168/2017) [2017] ZAGPJHC 23 (27 February 2017)
The court found that the magistrate's failure to afford the prosecutor an opportunity to oppose bail was a material irregularity. As a result, the bail order was set aside. The second respondent must be re-arrested and brought before a magistrate. However, the court declined to order that the accused remain in...
Source-derived case information.
- Citation
- [2017] ZAGPJHC 23
- Parties
- Applicant: Director of Public Prosecutions, Gauteng Local Division, Johannesburg; Respondent: The Magistrate: Kagiso; Respondent: Olivier, Petrus Johannes
- Court
- South Gauteng High Court, Johannesburg
- Jurisdiction
- South Africa
- Case Number
- 04168/2017
- Procedural Posture
- Review Application / Review of Bail Order Granted by Magistrate
- Outcome
- The bail order granted by the magistrate is set aside. The accused is to be re-arrested and brought before a magistrate. The request to keep the accused in custody until trial is dismissed. No order as to costs.
- Judges
- Wright, Makhanya
- Legal Topics
- Bail Review, Procedural Irregularity, Sexual Offences
Source-derived case record
Summary, issues, holding and outcome
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Parties
Director of Public Prosecutions, Gauteng Local Division, Johannesburg
Applicant
The Magistrate: Kagiso
Respondent
Olivier, Petrus Johannes
Respondent
Procedural Posture
Review Application / Review of Bail Order Granted by Magistrate
Legal Issues
- 1 Whether the magistrate's granting of bail without affording the prosecutor an opportunity to oppose constituted an irregularity.
- 2 Whether the bail order should be set aside and the accused re-arrested.
- 3 Whether the accused should remain in custody until the trial is finalised.
Ratio Decidendi
The court found that the magistrate's failure to afford the prosecutor an opportunity to oppose bail was a material irregularity. As a result, the bail order was set aside. The second respondent must be re-arrested and brought before a magistrate. However, the court declined to order that the accused remain in custody until the trial is finalised, as this would unjustly prevent him from exercising his right to apply for bail anew.
Court Disposition
The bail order granted by the magistrate is set aside. The accused is to be re-arrested and brought before a magistrate. The request to keep the accused in custody until trial is dismissed. No order as to costs.
Orders
- The Magistrate’s order of 12 December 2016 granting bail to the second respondent is set aside.
- The second respondent is to be arrested and brought forthwith before a Magistrate.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 04168/2017
DATE : 27 FEBRUARY 2017
Not reportable
Not of interest to other judges
Revised.
In the matter between:
THE DIRECTOR OF PUBLIC PROSECUTIONS,
GAUTENG LOCAL DIVISION, JOHANNESBURG APPLICANT
and
THE MAGISTRATE : KAGISO FIRST
RESPONDENT
OLIVIER, PETRUS JOHANNES SECOND
RESPONDENT
JUDGMENT
WRIGHT J
1. In this review application the DPP seeks to set aside the order of the first respondent granting bail to the second respondent in the amount of R5 000 with conditions on 12 December 2016. The second respondent has been charged with sexual assault. The allegation in the founding affidavit is that the second respondent had, prior to 12 December 2016 been denied bail after a formal application. The allegation is further that on 12 December 2016 the first respondent, of his own accord raised the question of bail, discussed the matter with counsel for the second respondent in court and then granted bail without affording the prosecutor an opportunity to oppose bail. The trial was postponed to 7 March 2017.
2. There is an unsigned statement by the first respondent. The first respondent states correctly that the prosecutor was given an opportunity to say why the case should not have been struck off the roll. In fact the case was not struck off the roll. The first respondent does not deny that bail was granted without affording the prosecutor an opportunity to oppose bail.
3. The failure to give the prosecutor an opportunity to oppose bail constitutes an irregularity and the granting of bail falls to be set aside. It follows that the second respondent should be arrested and brought before a Magistrate forthwith. I cannot accede to a prayer that the second respondent is to remain in custody until the trial is finalised. In the present circumstances the second respondent cannot be prevented from applying for bail.
ORDER
1. The Magistrate’s order of 12 December 2016 granting bail to the second respondent is set aside.
2. The second respondent is to be arrested and brought forthwith before a Magistrate.
3. The prayer a) for an order that the second respondent remains in custody pending the finalisation of his trial is dismissed.
4. No order as to costs.
GC WRIGHT J
JUDGE OF THE HIGH COURT,
MAKHANYA J
I agree. It is so ordered.
On behalf of the Applicant:
Adv R Bester
Instructed by:
DPP
On behalf of the Respondents: No appearance
Date of Hearing:
27 February 2017
Date of Judgment:
27 February 2017