JUDICIAL OFFICERS ALLIANCE OF SOUTH AFRICA
KWAZULU-NATAL · A COLLEAGUE PROFILE
Durban Magistrates’ Court · KwaZulu-Natal
Magistrate Scelo Zuma on the bench. Photograph used with thanks.
I. The colleague
The Judicial Officers Alliance of South Africa is proud — and fortunate — to count Magistrate Scelo Zuma among its members. He is one of the officers who give the Alliance its standing in KwaZulu-Natal: a magistrate of the Durban Magistrates’ Court who has carried the work of that court with distinction, and who has been prepared to think and write about the law of the lower courts as if it mattered. He completed the LLB in 2010, served articles and was admitted as an attorney in 20131. He joined the National Prosecuting Authority in 2014 and acted as control prosecutor from 2016 to 20192. At the NPA he was ranked first in KwaZulu-Natal from 2016 to 2018. He left the NPA in 2019 for private practice and, in the same year, was appointed as an acting magistrate. He now sits permanently in Durban3.
That is the ordinary, demanding path of a lower-court officer in this country. What is not ordinary is three consecutive years at the top of a provincial NPA ranking, and the consistency with which he has since used the Durban court not only as a place of work but as a place from which the institution itself may be spoken about without embarrassment. JASA is honoured by his membership. He is the kind of colleague an alliance is built for: intellectually serious, loyal to the district bench, and unwilling to treat the Magistrates’ Court as a waiting room for somewhere else. KwaZulu-Natal is the better for him. So is the Alliance4.
1Attorneys Act 53 of 1979 (then in force). Admission in 2013 preceded commencement of the Legal Practice Act 28 of 2014 on 1 November 2018. See now LPA 28 of 2014, ss 24–25, read with s 114. 2National Prosecuting Authority Act 32 of 1998, ss 20 and 24. A control prosecutor exercises directed authority within a cluster or court under the Director of Public Prosecutions. 3Magistrates Act 90 of 1993, ss 9–10; Magistrates’ Courts Act 32 of 1944, s 9. 4Criminal Procedure Act 51 of 1977, s 50(6)(c). Schedule 6 lists the most serious offences for purposes of the reverse-onus bail regime in s 60(11)(a).
Applicable law
Section 50(6)(c) of the Criminal Procedure Act 51 of 1977 provides:5
“The bail application of a person who is charged with an offence referred to in Schedule 6 must be considered by a magistrate’s court: Provided that the Director of Public Prosecutions concerned, or a prosecutor authorised thereto in writing by him or her, if he or she deems it expedient or necessary for the administration of justice in a particular case, may direct in writing that the application must be heard by a regional court.”
Section 60(1)(b) provides:6
“Subject to the provisions of section 50(6)(c), the court referring an accused to any other court for trial or sentence retains jurisdiction relating to the powers, functions and duties in respect of bail in terms of this Act until the accused appears in such other court for the first time.”
Read together, these sections have produced a live dispute about which court must hear a bail application — especially where an accused has chosen not to apply for bail in the magistrates’ court, and applies only after the matter has been transferred to the regional court.
Section 50(6)(c) creates the impression that the magistrates’ court enjoys exclusive jurisdiction over Schedule 6 bail, unless the DPP or a prosecutor authorised in writing directs that the application be heard in the regional court. Section 60(1)(b) appears to cut the other way. It provides that the transferring court retains its powers, functions and duties in respect of bail until the accused appears in the receiving court for the first time.
The cases
In S v Makinana 2004 (2) SACR 46 (E) the Eastern Cape High Court, in the course of granting a declaratory order, held that the magistrates’ court has exclusive jurisdiction to hear a bail application where the accused is charged with a Schedule 6 offence, subject to a direction under section 50(6)(c), from first appearance until the accused appears in the higher court to which the matter may be transferred. Upon that first appearance, the receiving court enjoys jurisdiction to deal with bail7.
At paragraph 8 the Court held that section 50(6)(c) and the “subject to” clause of section 60(1)(b) must be interpreted restrictively. They mean no more than that Schedule 6 bail must be heard initially in the magistrates’ court, unless the DPP directs otherwise; but once the matter is transferred to a regional court or a High Court, that court — as the court before which the matter is pending — acquires jurisdiction to entertain any bail application that may then be brought8.
In S v Mzatho and Others 2007 (2) SACR 309 (T), a decision that has become the most frequently cited authority on this circuit, the Court approved a concurrent-jurisdiction approach. It held that, in appropriate circumstances, a regional court may refer a matter back to the district court for a bail hearing even after the accused has appeared in the regional court9.
The “appropriate circumstances” in that case were specific. The courthouse had a solitary regional-court seat. It would have been appropriate, and in the interests of justice, to revert to the district court for bail and thereafter to return to the regional court for trial. The same magistrate could not justly hear the bail application and then remain seized of the trial10.
5Criminal Procedure Act 51 of 1977, s 60(1)(b). The transferring court retains bail jurisdiction until the accused’s first appearance in the receiving court. 6S v Makinana 2004 (2) SACR 46 (E). Declaratory order: the magistrates’ court has exclusive initial jurisdiction in Schedule 6 bail, subject to a written direction under s 50(6)(c), until first appearance in the higher court. 7S v Makinana 2004 (2) SACR 46 (E) at para 8: ss 50(6)(c) and 60(1)(b) are to be read restrictively. Once transferred, the court before which the matter is pending acquires jurisdiction. 8S v Mzatho and Others 2007 (2) SACR 309 (T). In appropriate circumstances a regional court may refer a bail application back to the district court even after the accused has appeared in the regional court. 9The ratio in Mzatho was driven by a solitary regional-court seat: the same regional magistrate could not justly hear the bail application and then remain seized of the trial. That factual predicate is part of the decision.
The High Court issued a declaratory order that a regional court, confronted with a bail application which in the opinion of the presiding magistrate it could not entertain, had the power to refer the bail application to a lower court if such referral would be in the interests of justice and would serve to protect the fundamental rights of the applicant for bail as entrenched in the Constitution1112.
What the cases do not permit
S v Mzatho and Others 2007 (2) SACR 309 (T) and S v Hlongwane and Others (AR507/13) [2015] ZAKZPHC 1, like the other decisions on this subject, share a particular trait: there was a single regional magistrate, and it was impractical and undesirable that the same officer hear the bail application and thereafter be seized of the trial. For that predicament the High Court warranted a deviation from the ordinary reading of section 60(1) (b). What is equally evident is that such a deviation must be exercised only where cogent reasons exist. It can never be a deviation of personal convenience.
Sadly, listening to many explanations as to why matters are referred back to the district court for bail, colleagues will cite S v Mzatho and Others 2007 (2) SACR 309 (T) — seemingly the most popular authority — but all the other parts of the principle are left behind, save for the ruling that a regional court may refer a matter to the district court for bail. To this end the “appropriate circumstances” part of the ratio decidendi is ignored. One cannot avoid the question whether that reading is adopted deliberately, as an interpretation of convenience.
The concept of the “interests of justice” is not a bare phrase. It is preceded by many considerations, some of them in conflict, some of them in contrast with one another. A decision is then reached as to what best serves the imperatives of justice in those circumstances13. Evident in the High Court decisions is that the judges understood and acknowledged that the legislation does not, in ordinary terms, permit the regional court to refer matters to the district court for a bail hearing. For the solitary regional-court seat they exercised the High Court’s inherent power to cause a deviation from the Act. What informed those deviations were cogent reasons.
Conclusion
From the above it is clear that once a matter has been placed before a higher forum, the magistrates’ court loses its powers, functions and duties relating to bail, unless there exist good reasons for the matter to be referred back for a bail application14. Convenience is not a good reason. A solitary regional seat, or some other circumstance that would make it unjust for the regional court itself to hear the application, may be. The statute is the starting point. S v Mzatho and Others 2007 (2) SACR 309 (T) is not a standing permission to empty the regional roll onto the district court.
Authorities
S v Dlamini; S v Dladla; S v Joubert; S v Schietekat 1999 (4) SA 623 (CC); 1999 (2) SACR 51 (CC). S v Hlongwane and Others (AR507/13) [2015] ZAKZPHC 1 (28 January 2015). S v Makinana 2004 (2) SACR 46 (E). S v Mzatho and Others 2007 (2) SACR 309 (T). Van Rooyen and Others v The State and Others 2002 (5) SA 246 (CC).
Legislation
10S v Hlongwane and Others (AR507/13) [2015] ZAKZPHC 1 (28 January 2015) (Van Zyl J). Cited on this circuit together with Mzatho for the power of a regional court, in the interests of justice, to protect the applicant’s constitutional rights in respect of bail. The classic referral-order language is that formulated in Mzatho. 11Constitution of the Republic of South Africa, 1996, s 35(1)(f): every arrested person has the right to be released from detention if the interests of justice permit, subject to reasonable conditions. See also s 12(1) and s 34. 12Constitution, s 165(2)–(4). A referral made for the convenience of the roll, and not because the regional court cannot justly hear the application, is not an exercise of that duty. 13S v Dlamini; S v Dladla; S v Joubert; S v Schietekat 1999 (4) SA 623 (CC); 1999 (2) SACR 51 (CC) (Kriegler J). The “interests of justice” in bail is a structured enquiry, not a slogan. 14Van Rooyen and Others v The State and Others 2002 (5) SA 246 (CC). Magistrates are judicial officers. The proper allocation of work between district and regional courts is part of the institutional independence of the lower courts.
Criminal Procedure Act 51 of 1977, ss 50(6)(c), 60(1)(b) and 60(11)(a), and Schedule 6. Magistrates Act 90 of 1993; Magistrates’ Courts Act 32 of 1944.
— Magistrate Scelo Zuma
Durban Magistrates’ Court
Published with pride by the Judicial Officers Alliance of South Africa
September 2026