- Ferrel Govender asked the High Court to send his second bail application back to the Durban Magistrates’ Court.
- He argued that the retirement of the magistrate who heard his earlier bail proceedings justified a fresh hearing before another magistrate.
- The High Court ruled that any further bail application must be heard in the High Court unless it refers the matter back.
Ferrel Govender’s latest attempt for bail has turned into a key legal battle over which court has the power to hear renewed bail applications after a criminal case moves to the High Court for trial.
Govender, who has been in custody since 1 January 2025 and is awaiting trial under High Court case number CCD 45/2025, went to the High Court in Durban hoping for an order that would let his second bail application, based on new facts, be heard by the Durban Magistrates’ Court.
He made this application after Magistrate KR Bruorton, who had handled both his original and first renewed bail applications, retired. Govender argued that a new magistrate should be appointed to hear his latest bid.
Govender’s case
Govender based his argument on what he called new facts. These included a planned recusal application involving Bruorton, supposed discrepancies in CCTV footage and witness statements, and the offer of stricter bail conditions if he were released.
He offered R3 million for bail and proposed moving to Sandton, wearing an electronic tracking device, reporting to the police every day, and allowing authorities to keep track of his movements.
The Director of Public Prosecutions opposed this, arguing that the magistrates’ court no longer had jurisdiction since Govender had already appeared in the High Court, where his trial is now pending.
Judge clarifies the law
Judge JI Henriques looked at the Criminal Procedure Act along with different legal views on bail jurisdiction. The judge found that while Schedule 6 bail applications start in the magistrates’ court, jurisdiction moves to the receiving court once the accused appears in the High Court.
“The proper administration of justice requires that proceedings be conducted before the correct forum,” Judge Henriques said.
Judge Henriques said the High Court can send a bail application back to a lower court in rare cases, but only if it decides it is in the interests of justice. She found that this had not happened in Govender’s case.
The judge also dismissed the idea that because the original magistrate retired, someone else could simply take over. She found that the law does not allow for this.
Forum shopping warning
Judge Henriques warned that if accused people could move back and forth between the magistrates’ court and the High Court for more bail applications, it would encourage forum shopping and create uncertainty in the justice system. “Jurisdiction is determined by law, not by the convenience of the parties,” Judge Henriques said.
The court declared that the High Court alone has the authority to hear Govender’s second bail application on new facts. It dismissed his application, refused to send the matter back to the Durban Magistrates’ Court, and made no order as to costs.
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