CRI/APN/215/87 IN THE HIGH COURT OF
In the matter between:
DIRECTOR OF PUBLIC PROSECUTIONS Applicant and
1. ISAK JOHANNES ENSLIN Respondents
ANDREAS REDELINGHUYS Respondents
RULING AND ORDER
Delivered by the Hon. Mr. Justice Sir Peter Allan on
the 16th day of September, 1987
This is an application by the Crown for estreatment of
There is no copy of the charge sheet on the file but it
appears that the accused/first respondent was charged with various
including assault and theft. He is a resident of Meyerton,
R.S.A, On 24 July 1987 he appeared before the High Court for a bail
He was represented by Mr. Redel inghuys, the second
respondent. Mr. Mdhluli for the Crown opposed the application.
The accused was granted cash bail in the sum of M5.000
with: one surety in the sum of M500. He deposited his passport and
to report daily to the Maseru Charge Office. For some
reason his counsel, Mr. Redelinghuys stood as his surety.
/The accused ...
The accused made regular reports until 6 August and then
he jumped bail and went home to South Africa; hence this application
to estreat his cash bail.
The Court file in the bail application (CRI/APN/177/87)
does not contain a copy of the recognizance which was supposed to
signed by the accused and his surety. Apparently this was
because none was signed, although a receipt (no. 778144 of 24 July
was issued for payment of the cash bail. The accused should not
have been allowed to go without signing the recognizance. However,
paid the cash bail and he knew the terms of his release for he obeyed
them at first. Then he broke the agreement and consequently
must now be estreated.
With regard to the second respondent, I am rather at a
loss to know why he, as counsel for the accused, was ever allowed or
to stand as a surety. In my opinion this is irregular. In
fact it is of such a rare occurrence that I have been able to find
one relevant South African and one English authority. Both are
old ones. The English case was R. v Scott Jervis (1876)Q.B.D.
in which the judge held that it was. "inexpedient"
for a solicitor to stand bail for his client. In R. v Booi 1932
398, Gardiner J.P. expressed his surprise. He said, "it
seems to me to be a novel thing for Counsel to stand bail for an
person." It was held to be undesirable. I entirely
There are certain categories of persons who cannot be
allowed to stand bail for accused persons for what should be obvious
These include police officers, court officials and judicial
staff and also counsel. They are all not only too closely involved in
court matters but it would
/be inappropriate ...
be inappropriate for them to be placed in a position
where a court might have to take action against them because an
has jumped bail or misbehaved in some other way.
Mr. Redelinghuys stated in this Court that he did not
offer to become a surety but that he was requested to do so and he
can only say, with respect, that if this was so then it
By an oversight in the Registry he was not required to
sign a bond. He has, however, honoured his undertaking and has
M500 to the Court. Mr. Mdluli for the Crown has stated
that the Crown is not asking for a forfeiture order with regard
I do not consider that it is necessary to make such an
order because, apart from the impropriety of allowing counsel to
become a surety,
I do not see what control he could have exercised
over the accused, especially as counsel had apparently not offered
himself as a
surety in the first place. I do not find that there was
any failure of duty on his part,.
Accordingly, this application is granted to the extent
that it is ordered that the cash bail of M5,000 deposited by the
respondent is now to be estreated, and a warrant for
his arrest is to issue.
The M500 offered by the second respondent, if it has
been paid into Court, is to be refunded to him.
P. A. P. J. ALLEN
JUDGE 16th September, 1987
Mr. Mdhluli for the Crown Mr. Redelinghuys in person
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