THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Case no:  102/2002
REPORTABLE

In the matter between:

Robert MATSHIKWE, Magistrate, Stutterheim
Appellant

and

Mbulelo Clement Erasmus MASHIYA
Respondent

Before:
Howie P, Schutz JA, Streicher JA, Cameron JA, and
Mthiyane JA
Heard:

9 May 2003
Judgment:
30 May 2003

Magistrates’ Courts – Higher courts’ supervision of manner of
functioning – Order that magistrate hear argument at specified time
and give judgment an hour later – No case made out for such order –
Order in circumstances unjustified

JUDGMENT
_______________________________________________________

CAMERON JA

CAMERON JA:

[1] The question in the appeal is whether an order a High Court judge
issued directing a magistrate to hear argument in an opposed bail
application by not later than 15h00 on the day of the order, and to
give judgment an hour later, was in the circumstances of this case
justified.
[2] The appellant is the district Magistrate at Stutterheim.  The
respondent, a medical doctor in private practice, is the district
surgeon of Whittlesea.  On Saturday 30 June 2001 he was
arrested on a charge of raping his 17-year old stepdaughter.  He
was detained for two nights at the Stutterheim Police Station.
When on the Monday he was brought before a colleague of the
appellant, his attorney applied for bail.  The prosecution requested
but was refused a seven-day postponement of the proceedings.1
Since the investigating officer was not before court, the matter
was postponed to the next day.
[3] On the Tuesday the appellant (to whom I shall refer as ‘the
magistrate’)
presided.

He,
too,
refused
a
seven-day
postponement.  So the bail hearing commenced.  The

1 Section 50(6)(d) of the Criminal Procedure Act 51 of 1977 permits a lower court to postpone a

investigating officer testified opposing bail.  The prosecution
closed its case.  The respondent testified in support of bail.  He
also closed his case.  The magistrate thereupon postponed the
matter to Thursday 12 July – nine days later – ‘for judgment’.  The
respondent’s attorney, Mr Zuko Lwazi Tini, objected.  The
magistrate told him that the earliest date available was
Wednesday 11 July – eight days hence.  The respondent was to
remain in custody.
[4] Mr Tini sought the advice of senior counsel.  Thereafter he
approached the magistrate in chambers, requesting him to re-call
the matter.  The magistrate refused.  Undaunted, Mr Tini brought
an urgent application in the High Court in Grahamstown.  The
order he sought was to compel the magistrate to hear argument
and give judgment in the bail application.
[5] The application came before Pillay J on Thursday 5 July.  He
issued a rule nisi calling on the magistrate to show cause by
12h00 the next day why the order sought should not be granted.
The order was faxed to the magistrates’ offices, Stutterheim.

bail application for up to seven days at a time if amongst other reasons it has insufficient
information or evidence at its disposal to reach a decision.

There was no response.  At about noon on Friday 6 July Pillay J
granted the following order:
1. That the District Magistrate Stutterheim, Mr Matshikwe, be directed to
hear the addresses [of the prosecutor and the defence attorney] by not
later than 15h00 on 6 July 2001.
2. That the District Magistrate of Stutterheim, Mr Matshikwe, be directed to
give judgment [in the bail application] by not later than 16h00 [on 6] July
2001.

[6] The order was faxed to Stutterheim and at about 12h50 the matter
was called.  The magistrate heard both parties’ arguments, as the
order directed.  But he declined to comply with its second part.
He stated that he was ‘not in a position to decide and give a just
decision’:
‘I want to evaluate the evidence and your submissions carefully and apply my
mind to the matter.  I will be able to give a well-considered judgment in this
matter on 11/7/2001.
The accused in custody.
Court adjourns.’
[7] By now there was (as the appellant’s counsel put it during
argument) a considerable amount of ‘needle’ in the dispute.  On
Saturday Mr Tini went back to Grahamstown.  Notwithstanding
the proceedings still pending before the magistrate, he applied to
the full bench of the High Court for the respondent’s release on
bail.  He also applied for the magistrate to be committed to prison
for contempt of court.  The matter came before Kroon and Leach

JJ.  They first directed that the Director of Public Prosecutions in
the Eastern Cape be notified.  Then on the Saturday evening they
heard argument.  There was no appearance for the magistrate.
The DPP however appeared.  He stated that on the basis of the
record he was unable to contend that bail should have been
refused.  The judges considered that there were grounds to
exercise the High Court’s inherent jurisdiction to intervene in the
uncompleted proceedings below.  They granted bail of R4 000,
subject to conditions – the respondent had to vacate the family
home until the case was finalised; not contact the complainant or
her mother; and report to the police weekly.
[8] The sole issue before us is the order Pillay J granted on Friday 6
July.  The events of the Saturday do not show that the appeal is
pointless because the respondent was released on bail.  On the
contrary, they show that the issues are live, since in releasing the
respondent the full bench expressed the prima facie view that the
magistrate had committed contempt of court in not complying with
the order of Pillay J.  The judges therefore issued a further rule
nisi calling on the magistrate to show cause why he should not be
committed to prison for contempt of that order, and why he should

not pay the costs of both the bail and contempt proceedings in the
High Court from his own pocket (de bonis propriis) on a punitive
scale.  The fate of Pillay J’s order, leave to appeal against which
was granted by this Court, has a bearing on the subsequent
order.
[9] The respondent himself has no further interest in the question and
was not represented before us.  In the interests of full argument,
the Court approached the Johannesburg Bar for assistance, and
its members Ms Kathree and Ms Cassette submitted written
argument and appeared pro amico.  (I shall refer to the Bar, albeit
somewhat loosely, as ‘the amicus’.)  We are indebted to counsel
for performing this task in the public interest, as well as for their
valuable submissions.
[10] At the outset Mr de Bruyn for the appellant drew our attention to
the practice direction in the Eastern Cape High Court requiring
that two judges hear appeals and reviews from magistrates’
courts.2  He correctly characterised the application before Pillay J
as necessarily entailing either an appeal from or a review of the
magistrate’s decision to postpone the question of bail (coupled

2 See Rule 19(b) of the Rules of Practice in the Eastern Cape Division of the High Court of South

with an application for a mandatory order), and therefore
contended that since the judge sat alone his order was
incompetent.
[11] It would of course be unfortunate to decide a matter of such
broad importance on so narrow and formalistic a ground.  But in
any event the Supreme Court Act provides that during court
vacations one judge ‘shall be competent to exercise all the
powers, jurisdiction and authority of a court’ of the division (except
an appeal from a fellow judge).3  Since the matter came up in
vacation Pillay J was thus entitled to deal with it.
[12] So it is the substance of the order and not the technicalities of
its provenance that we must deal with.  Counsel for the magistrate
made a radical attack upon the order, submitting that it was in
principle invalid and irregular because it undermined the
independence, dignity, effectiveness and functioning of the
magistracy.  He also contended that the order inhibited the right to
a fair trial, by rushing the magistrate into a decision, and for the
same reason infringed and inhibited women’s rights, in that it
could have led to a guilty and dangerous person wrongly being

Africa, issued with effect from 1 May 2002 (in apparently identical terms to its predecessor),

granted bail.  The amicus, in full and detailed submissions,
defended the order, contending that the High Court has the power
to grant a compulsory order (mandamus) to require a magistrate
to dispose of a bail application urgently.  Given the urgency of all
bail applications, the magistrate had a duty to dispose of it as
urgent – and justice therefore required that Pillay J issue the
order.
[13] That the higher courts have supervisory power over the conduct
of proceedings in the magistrates’ courts in both civil and criminal
matters is beyond doubt.  This includes the power to intervene in
unconcluded proceedings.  This Court confirmed more than four
decades ago that the jurisdiction exists at common law.4  It
subsists under the Constitution, which creates a hierarchical court
structure5 that distinguishes between superior and inferior courts
by giving the former but not the latter jurisdiction to rule on the
constitutionality of legislation and presidential conduct6 as well as
inherent power.7  The Constitutional Court has emphasised the

contained in H Erasmus Superior Court Practice D4-1 at D4-8.
3 Supreme Court Act 59 of 1959 s 13(5).
4 Wahlhaus v Additional Magistrate, Johannesburg and Another 1959 (3) SA 113 (A) 119-120.
5 Constitution s 166; S v Rens 1966 (1) SA 1218 (CC) para 28; S v Steyn 2001 (1) SA 1146 (CC)
para 15; van Rooyen and Others v The State and Others 2002 (5) SA 246 (CC) paras 19ff.
6 Constitution sections 167-170.
7 Constitution s 173.

role of the higher courts in ensuring ‘quality control’ in the
magistrates’ courts, and the importance of the High Court’s
judicial supervision of the lower courts in reviewing and correcting
mistakes.8  This entails, as Chaskalson CJ has observed, that the
higher courts can ‘supervise the manner in which’ the lower courts
discharge their functions.9  His general formulation echoes the
provisions of the Criminal Procedure Act, which provides that in
criminal proceedings subject to review in the ordinary course the
High Court may, amongst many ample powers, ‘remit the case to
the magistrate's court with instructions to deal with any matter in
such manner as’ it may think fit.10
[14] The higher courts have however emphasised repeatedly that
the power to intervene in unconcluded proceedings in lower
courts will be exercised only in cases of great rarity11 – where
grave injustice threatens, and where intervention is necessary to
attain justice.  The same approach has been followed under the

8 S v Steyn 2001 (1) SA 1146 (CC) paras 17, 19, 20 (Madlanga AJ, for the Court).
9 Van Rooyen (above) 2002 (5) SA 246 (CC) para 24, per Chaskalson CJ for the Court.
10 Act 51 of 1977 s 304(2)(c)(v).
11 Eliovson v Magid and Another 1908 TS 558 per Innes CJ at 561: ‘The case is a very special
and peculiar one’.  In Ginsberg v Additional Magistrate of Cape Town 1933 CPD 357 at 360
Gardiner JP (Watermeyer and Jones JJ concurring) envisaged instances where a magistrate tried
a case in the absence of the accused, or refused to allow the accused legal assistance.

Constitution.12  At the same time, although the cases in which
intervention has actually occurred are uncommon,13 this Court has
refused to define or limit the circumstances in which intervention
would be justified.14  The categories remain open.15
[15] A High Court challenge to a magistrate’s decision to postpone
judgment in a bail application is in this sense unprecedented.  But
in principle it falls well within the jurisdiction, and it cannot be
doubted that the power to intervene in a suitable case exists.  I did

12 Levack and Others v Regional Magistrate, Wynberg and Another 2003 (1) SACR 187 (SCA)
para 27.
13 In Eliovson v Magid (above) a magistrate ordered a ‘futile’ commission to take evidence in a
foreign country that was clearly irrelevant to the issues he had to try.  The High Court set aside
his order and remitted the matter to the magistrate ‘for judgment’.  In R v Willie Boon 1912 TPD
1136, a magistrate convicted the accused on various charges, but after learning of his previous
convictions purported to convert the trial from its commencement into a preparatory examination
into more serious charges.  An interdict was issued prohibiting him from doing so.  In Behrman v
Regional Magistrate, Southern Transvaal and Another 1956 (1) SA 318 (T), the court directed the
magistrate to order that particulars of the charge be furnished to the accused.  Similar orders
were granted in Essop v Regional Magistrate, Western Transvaal and Another 1963 (1) PH H16
(T) and Weber and Another v Regional Magistrate, Windhoek and Another 1969 (4) SA 394
(SWA).   In S v Bailey and Others 1962 (4) SA 514 (E), the magistrate refused an application to
recuse himself midway through a criminal trial.  The High Court intervened and substituted an
order upholding the application for his recusal.  IInn  TTiim
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meerr  ccaassee,,  tthhee  HHiigghh  CCoouurrtt  iinnssttrruucctteedd  tthhee  m
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meenntt’’..    IInn  tthhee  llaatttteerr  iitt  ssuubbssttiittuutteedd  iittss  oowwnn
rruulliinngg,,  wwhhiicchh  ccoonncceerrnneedd  tthhee  wwaayy  iinn  wwhhiicchh  eexxaam
miinnaattiioonn  aanndd  ccrroossss--eexxaam
miinnaattiioonn  ooff  wwiittnneesssseess  wwaass  ttoo
bbee  ppeerrm
miitttteedd..  In Pitso v Additional Magistrate, Krugersdorp and Another 1976 (4) SA 553 (T), the
magistrate refused to permit an accused who mistakenly pleaded guilty because of a
misunderstanding with his attorney to change his plea.  This was set aside and the case remitted
to another magistrate for trial.  In S v Memani 1994 (1) SA 515 (W), a magistrate ordered that the
accused’s advocate, whom he had found guilty of contempt of court in the course of the trial, no
longer be permitted to act for the accused.  The High Court set aside the order, but
recommended that the advocate withdraw from the case, and refused a mandamus requiring the
magistrate to hear him (522G-523B).
14 Wahlhaus (above) 1959 (3) SA at 120A; Ismail and Others v Additional Magistrate, Wynberg
and Another 1963 (1) SA 1 (A) at 5-6.
15 In Ismail (above) 1963 (1) SA at 6C-D Steyn CJ suggested very broadly that a ‘denial of justice
in the sense that it deprived [accused persons] of any right or set in train prejudicial results which

not understand counsel for the magistrate to contest this.  What
he put in issue were the terms of the order, and the justification for
its being issued when it was.  In doing so he alluded to various
factual assertions that were not before us.  These included that
the draft order faxed to the magistrates’ offices in Stutterheim on
the Thursday did not reach the magistrate (hence the lack of
response), and that on the Friday the magistrate faxed his
reasons for persisting in the postponement to the High Court
(which apparently did not reach Kroon and Leach JJ).  These
assertions are not on record before us.  More important, they
were not before Pillay J, and the competency of his order must
thus be determined without reference to them.
[16] During argument there was moreover speculation about
possible reasons for the postponement and the magistrate’s
persistence in it.  These embraced not only his personal
circumstances (might he have had a medical condition requiring
hospitalisation for a week?) but his professional position (was
there a pile of outstanding judgments he preferred to surmount
first?).  It is not necessary to dwell on these possibilities.  It is

they could not avoid’ might justify intervention.

evident that finalising an application for bail is always a matter of
urgency.  Though the accused may not be entitled to be released
– since the Constitution permits bail only if the interests of justice
permit16 – he or she is certainly entitled at first instance to a
prompt decision one way or the other.17  And if bail is refused, the
decision can be appealed.  The right to a prompt decision is thus
a procedural right18 independent of whether the right to liberty
actually entitles the accused to bail.
[17] Nevertheless,
it
is
equally
obvious
that
conscientious
determination of bail applications – applying the ‘good judgment’19
they require – might demand reflection: overnight, or conceivably
even longer.  It is not desirable to try to lay down any general rule.
Nor does the case require us to do so.  It is not necessary to
decide whether, given the proactive duties imposed on

16 Constitution s 35(1)(f): Everyone 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 In S v Steyn (above) 2001 (1) SA 1146 (CC) para 17, the Constitutional Court observed that
the structure of the court system requires that the bulk of judicial work be completed in the
magistrates’ courts ‘as inexpensively and expeditiously as possible’.
18 See regarding the importance of finalising criminal proceedings in general Sanderson v
Attorney-General, Eastern Cape 1998 (2) SA 38 (CC) and Wild and Another v Hoffert NO and
Others 1998 (3) SA 695 (CC) para 29 (‘… presiding officers are duty bound to counteract all
manifestations of unnecessary delay in bringing criminal cases to finality’) and para 31 (‘…
although they may be powerless to repair systemic faults, prosecutors and magistrates can do a
great deal to ensure that the day-to-day business of their courts respects such a fundamental
requirement of fairness’), per Kriegler J for the Court.
19 S v Dlamini, S v Dladla and Others, S v Joubert, S v Schietekat 1999 (4) SA 623 (CC) para 42,
per Kriegler J for the Court.

magistrates during bail hearings,20 an eight- or nine-day
postponement could ever find justification, particularly when a
postponement under s 50(6)(d) of the Criminal Procedure Act21
has already been refused, and when evidence and argument are
complete.  Nor is it necessary to decide whether in this case –
which Pillay J described as ‘straightforward’, and which the full
bench, endorsing the attitude of the DPP, disposed of as such – a
postponement of that length could possibly have been warranted.
[18] No final view is necessary because I shall assume in favour of
the respondent that the circumstances at the time of Pillay J’s
order justified and demanded a prompt hearing and decision
about the respondent’s entitlement to bail.
[19] Even on this assumption, this particular order should not have
been granted.  The short reason is not that the order was
intrinsically incompetent, as counsel for the magistrate contended.
It is that no case was made out before Pillay J for subjecting the
magistrate to the undignifying prescriptions as to time that the
order contained.  In reaching this conclusion I bear in mind that it
is of course no indignity for a judicial officer to have a ruling

20 S v Dlamini (above) paras 10 and 50.

reversed or overturned.  All magistrates are subject to review and
all judicial officers (bar those in the highest courts) are subject to
correction on appeal.
[20] Nor does the supervision the higher courts exercise over the
manner in which the lower courts conduct their business subject
those courts to any intrinsic indignity.  And the suggestion implicit
in counsel’s argument that an order interfering with the functioning
of a lower court is incompetent because it infringes the
magistrate’s independence must be rejected.  An order that a
magistrate recuse himself midway through a criminal trial intrudes
on his court in the most radical fashion imaginable by terminating
his warrant to preside.  Yet if the circumstances oblige, such an
abrogation of judicial functioning would be justified.22  I would add
that counsel’s invocation of S v Pitje23 as authority for the
proposition advanced is regrettable.  There Steyn CJ, writing for
the Court, upheld a conviction for contempt of court in the case of
a black practitioner who objected to a magistrate’s ruling that
required him to sit at a separate table reserved for ‘non-
Europeans’.  The basis for the conviction – that the magistrate

21 See note 1 above.

was empowered to enforce apartheid arrangements in his court –
is not only obsolete, but the essential reasoning employed to
reach the result repugnant to the Constitution.  In these
circumstances, the decision itself can no longer stand, and it must
be overruled, and Pitje’s authority in any context terminated.
[21] Nor does the vice of the order lie in its impeding the
magistrate’s liberty ‘to hear and decide’24 the bail application, as
was contended.  Pillay J pointed out, and the amicus emphasised,
that the order nowhere prescribed what decision the magistrate
had to give.  It required him to give his decision – whether by
granting or refusing bail.
[22] For the same reason I do not think that the order by itself
infringed the rights of any group, including women, who are
entitled to protection under the Bill of Rights.  On the given
assumptions, the judgment the magistrate was ordered to deliver
could as easily have refused bail wrongly as granted it
unjustifiably.  The potential violation of rights in either case would

22 S v Bailey and Others 1962 (4) SA 514 (E).
23 1960 (4) SA 709 (A).
24 The Queen in Right of Canada v Beauregard (1987) 30 DLR (4th) 481 (SCC), adopted by a
plurality of the Court in De Lange v Smuts NO and Others 1998 (3) SA 785 (CC) para 70 and by
the whole Court in van Rooyen (above) 2002 (5) SA para 19.

stem not from the order requiring that judgment be delivered, but
from a bad judgment, which postponement would not improve.
[23] Counsel’s radical attack upon the order as intrinsically
incompetent must therefore fail.  It is not necessary for us to
decide whether an order instructing a magistrate to hear argument
and to give judgment at times specified could ever be justified.
What is clear, in my view, is that to prescribe so closely the
manner in which a magistrate must go about exercising his or her
jurisdiction would require very cogent justification.  Had argument
begun at 15h00 on Friday 6 July in compliance with the order, but
took longer than expected, or raised difficulties that the 16h00
judgment deadline could not accommodate, the unwarranted
restrictions imposed on the magistrate – and indeed on the parties
– are clear to see.
[24] In previous cases of intervention the courts have set aside the
magistrate’s order entirely,25 or directed that a specific order be
granted,26 or removed the case from the jurisdiction of the

25 A commission to take evidence abroad in Eliovson v Magid 1908 TS 558; converting a criminal
trial after conviction into a preparatory examination in R v Willie Boon 1912 TPD 1136.
26 Directing the furnishing of particulars to the charges in Behrman v Regional Magistrate,
Southern Transvaal and Another 1956 (1) SA 318 (T), Essop v Regional Magistrate, Western
Transvaal and Another 1963 (1) PH H16 (T) and Weber and Another v Regional Magistrate,
Windhoek and Another 1969 (4) SA 394 (SWA).

magistrate altogether.27  The order granted in this case is
unprecedented.  That is not to say that unprecedented
circumstances might not have warranted it.  But they had not
been shown to exist.  Alternative courses of action were moreover
open to Pillay J.  All were less intrusive.  He could simply have set
aside the magistrate’s order postponing the respondent’s bail
proceedings.28  Or he could have done this in conjunction with an
order directing the magistrate to hear argument with all
expedition, and to give judgment as soon as practicable
thereafter.
[25] Both courses of actions would have left the magistrate some
leeway in complying, and subjected him to less constraint upon
his independence, and to less indignity.  Setting aside the
postponement would have returned the respondent’s bail
application to the magistrate’s current roll.  Had he refused to deal
with it, or postponed the matter again, the respondent could
justifiably have approached the High Court to intervene by

27 S v Bailey and Others 1962 (4) SA 514 (E) (magistrate’s order refusing recusal application
substituted with order recusing himself), and Pitso v Additional Magistrate, Krugersdorp and
Another 1976 (4) SA 553 (T) (accused permitted to change mistaken guilty plea to not guilty, and
case remitted to a different magistrate for trial).
28 Compare S v Memani 1994 (1) SA 515 (W) 522-3, where the court merely set aside the
magistrate’s order that the accused’s advocate no longer be permitted to act in the trial.

assuming jurisdiction itself in his bail application.  Those paths
were also more likely to have avoided a fruitless confrontation.
[26] This conclusion makes it unnecessary to consider a further
question, whether subjecting a magistrate to the higher courts’
contempt jurisdiction is a constitutionally desirable or feasible way
of enforcing an order as to the manner in which a magistrate’s
jurisdiction is to be exercised. This question was not argued
before us, and I express no opinion on it.
[27] To summarise:  even if the magistrate’s postponement of the
bail proceedings was unjustified and unreasonable, and the
respondent was therefore entitled to a prompt decision on bail, no
case was made out before Pillay J for subjecting the magistrate’s
conduct of the proceedings to the time specifications the order
contained.  These were in the circumstances unwarrantably
constricting and demeaning to the magistrate, and the order must
therefore be set aside.
[28] We were asked to order costs, including the costs of two
counsel, against the respondent.  However, as pointed out earlier,
the only issue before us is the order of Pillay J on Friday 6 July.
The magistrate was not cited personally when that order was

obtained.  The first application was directed against the State.
Though the draft faxed to Stutterheim on the Thursday did
mention costs, the order issued the next day was without costs.
The magistrate was cited personally only on the Saturday, in the
twin applications for bail and for his committal for contempt.
Those orders, though deriving from the order of Pillay J, are not
before us.  A costs order adverse to the respondent regarding the
latter order thus seems unjustifiable.  However, since no
argument was directed to us on this point, a provisional order will
issue, subject to any representations.
[29] The appeal succeeds.  The order of Pillay J, academic as it has
become, is set aside.  There is no order as to costs.  If either party
wishes to direct submissions to the Court about the order relating
to costs, they may do so within fourteen days from the date of this
judgment.

E CAMERON
JUDGE OF APPEAL

HOWIE P
)
SCHUTZ JA
)
CONCUR
STREICHER JA )
MTHIYANE JA )