Of Public Prosecutions
Case No. 1234/2000
Plaintiff C. S. Ntiwane
Defendant L.M. Maziya
is an application by one Robert Mandla Magongo to be released from
custody where he is being held in terms of the Magistrate's court
order pending prosecution. The charge against him is one which is a
non-bailable offence. It is also one in respect of which a Police
Officer may arrest a person suspected of committing a crime without a
warrant if the Police Officer has a reasonable suspicion that the
individual involved has committed the offence.
applicant Magongo is a high ranking policeman and the charge against
him relates to the interference to say the least with exhibits
comprising substances which were in the possession of the police for
prosecution purposes. The offence of which he is charged is a
non-bailable one. He was arrested and brought before the court. The
representative of the Director of Public Prosecutions was present and
that the prosecution was not to proceed that day for various reasons
given among the others that a member of the DPP staff will be
prosecuting. The Magistrate however responding to argument from the
applicant's attorney summarily dismissed the case and ordered that
the applicant be released. This happened and he was subsequently
rearrested by the same policeman who had arrested him in the first
case. The subsequent arrest was on the same charge as previously. He
was brought before the Magistrate and remanded in custody.
first dismissal of the case by the Magistrate and his order for the
release of the applicant was brought on review in different
proceedings in this court. In view of the applicant's re-arrest and
the fact that the applicant was at the time still in custody it
seemed to me that the question as to whether the Magistrate's order
should be set aside was academic and I have made no order on that
the present case there is only one issue and that is whether having
been released it was competent for a policeman to re-arrest him. It
has been argued that the Criminal Procedure and Evidence Act does not
make provision for a re-arrest and that once the police have made an
arrest on a reasonable suspicion and the accused had been released
that reasonable suspicion was somehow exhausted by the proceedings.
cannot see why the reasonable suspicion which the arresting officer
Ndlangamandla had at the commencement of the case should not persist.
despite the release of the accused from custody it is still possible
for him to be prosecuted for the same offence and if a police officer
continues to have reasonable suspicion there is no reason why he
should not be re-arrested.
question of unlawful arrest has not been canvassed in the Magistrate
Court and the presiding officer made the order for the continued
retention of the applicant in custody pending the case. These are not
review proceedings in the proper sense of the word as the Magistrate
himself is not a respondent in this case. A matter cannot be brought
to court in this manner other than by way of an appeal for review
because there are criminal proceedings pending in the Magistrate
Court that time. It is true that since these events I have in terms
of section 88 bis given the Director of Public Prosecutions leave to
prosecute for this offence in the High Court by way of
trial. There is no reason to treat the applicant differently from any
other person in custody on a non-bailable charge which is to be heard
in this court.
the application will be dismissed.