Mr Davis,

 

Thank you for your comments hereunder.  I do not think that any of our magistrates will maintain the view that evidence do not have to be adduced in these instances.  This has in fact been a matter of grave concern.

Your observation and remarks are being circulated to all magistrates in my area of responsibility,  and a copy is endorsed to the Head of the Region.  Furthermore I am endorsing a copy to the editor of E – Mantshi for possible inclusion in our monthly magazine

 

Yours faithfully

 

Louis Radyn

 

 

Sirs,

 

The manner in which bail applications adjudicated in terms of the above sections of the Criminal Procedure Act are of concern to me. The sections appear to me to be peremptory, i.e “accused shall adduce evidence” prior to his or her release. Indeed when looking for a confession form while in Richmond I saw a minute of a cluster meeting dated back to 1999 where the cluster head stresses that magistrates must adduce evidence in these applications.

 

Furthermore at a training session held by the cluster head the supreme court of appeal decision in S v Mabena was brought to the attention of magistrates in the cluster and discussed. It is worth noting that in that case the SCA held that the release of an accused without proper compliance with the requirements of the section render the proceedings a “nullity”.

 

I am not aware of any decision or legislation that has modified this position and if there is one I would appreciate it if it be furnished to me.

 

A large number of cases have been put before me in this cluster and in other clusters where there has been no effort whatsoever to comply with the provisions of the section. Yesterday an attorney applied for a reduction of bail in a matter in which the provisions of S60 (11) (a) were patently not complied with.

 

If the original setting of bail is a nullity, how is the presiding officer supposed to deal with the matter?

 

Does the fact that the state does not oppose the release of the accused mean that the relevant sections of the bail legislation are not applicable or are magistrates ignoring the law as it is inconvenient or time consuming?

 

What is disturbing to me is that unless the law has been modified either by legislative intervention or by precedent that I am not aware of the requirement of adducing evidence is now long established in our law and jurisdiction. To err is human and I as probably all presiding officers do err on occasion however when magistrates deliberately ignore the law (lets not pretend that magistrates do not know what their duties are in terms of these section) this should be a matter of concern.

 

Regards

 

Garth Davis