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[2014] ZAGPJHC 425
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Hack v S (A397/2009) [2014] ZAGPJHC 425 (22 October 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: A397/2009
DATE: 22 October 2014
In the matter between:
HERBERT
HACK
....................................................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
JUDGMENT
MALULEKE J AND RANCHOD J:
After the conclusion of the bail
hearing this court ruled that the application be dismissed and that
reasons will follow later.
These then, are the reasons:
1. The appellant applied for “extension
of bail” pending application or petition to the Supreme Court
of Appeal (“SCA”)
for special leave to appeal against our
dismissal of his appeal on the 10 October 2014 against conviction for
51 counts of fraud
and a sentence of 5 years imprisonment imposed
upon him on the 08 February 2008 by the Regional Magistrate N. L.
Louw sitting in
the Johannesburg Specialised Commercial Crime Court.
The appellant was released on bail of R45 000.00, pending appeal on
the 08
February 2008 which bail terminated on 10 October 2014 when
the appeal was dismissed by this court and the appellant was ordered
to surrender himself within 72 hours to commence serving the
sentence.
2. It is necessary at the onset to
record the following pertinent facts and provisions:
2.1. On the 10 October 2014 we made the
following order:
2.1.1. “The appeal on sentence
and conviction is dismissed;
2.1.2. The appellant is to present
himself to the Registrar of the High Court, Gauteng Local Division
Johannesburg within 72 hours
of the making of this order to commence
serving his sentence”.
2.2.
s16
(1) (b) of the
Superior Courts
Act 10 of 2013
provides:
“16 (1) subject to
s15
(1), the
Constitution and any other law…
(a) …
(b) an appeal against any decision of a
Division on appeal to it, lies to the Supreme Court of Appeal upon
special leave having
been granted by the Supreme Court of Appeal”.
2.3. s321 of the Criminal Procedure Act
provides:
(1) The execution of the sentence of a
superior court shall not be suspended by reason of any appeal
against a conviction or by
reason of any question of law having been
reserved for consideration by the court of appeal, unless –
(a) …
[paragraph (1) (a) deleted by Act 33 of
19967]
(b) the superior court from which the
appeal is made or by which the question is reserved thinks fit to
order that the accused be
released on bail or that he be treated as
an unconvicted prisoner until the appeal or the question reserved has
been heard and
decided.
3. On the 10 October 2014, immediately
after the order in paragraph 2.1. above was handed down Counsel for
appellant gave oral notice
of intention to apply for extension of
bail pending application to us for leave to appeal our decision to
the SCA. In the light
of the recent SCA decision of Van Wyk and
Galela v The State (20273/2014) (20448/2014) ZASCA 152 (22 September
2014) the appellant
has to approach the SCA direct for special leave
to appeal to that Court in terms of s16 (1) (b) of Act 10 of 2013. In
other words,
we have no jurisdiction for purposes of hearing
application for leave to appeal further our decision. At the time
there was, in
our minds, uncertainty as to whether in the
circumstances we could consider application for bail pending petition
to the SCA.
4. On 15 October 2014 applicant’s
Counsel, Mr Eia, addressed a letter to us (Maluleke and Ranchod JJ)
advising inter alia
that the appellant was in the process of settling
the petition for special leave to appeal and requesting that since it
is evident
that the application for bail must be heard by us, bail
should be provisionally extended pending a formal application to us
for
leave to appeal our decision on the 22 October 2014. For this
request Mr Eia then relied on the following cases: S v Hlongwane
1989
(4) SA 79
(T), S v Human
1990 (2) SACR 155
NC, S v Nel
2002 (1) SACR
425
(T) and S v Tsotsi
2004 (2) SACR 273
(E). In the light of these
decisions we accepted and agreed with appellant’s Counsel that
we do indeed have the authority
and jurisdiction to hear and consider
the application for bail or extension of bail pending a petition to
the SCA and therefore
on 20 October 2014 the parties were advised
that the application for extension of bail will be heard on 22
October 2014.
5. At the commencement of this hearing
Ms Coetzee for the respondent took the point, ostensibly in limine,
that since the applicant
has to-date still not complied with the
court order of the 10 October 2014 to hand himself to the Registrar
of the Gauteng Local
Division, Johannesburg within 72 hours after the
date of the order, he is thereby in contempt of the court order of
this court
which was to-date “made 12 days or 288 hours ago”.
It is further contended that in the light of this non-compliance
it
is accordingly not in the interests of justice at this stage to grant
the applicant bail pending his petition to the SCA and
consequently
his application should be dismissed.
6. There is no evidence by appellant to
explain the reasons for this continued breach of the court order. Mr
Eia submitted from
the bar that:
(a) But for the court’s
misunderstanding of its jurisdiction, applicant could have obtained
extension of the bail on the date
of the order;
(b) Ms Coetzee, for respondent, had
represented to him that the Director of Public Prosecutions will not
enforce the court order;
and
(c) Applicant is an Orthodox Jew and
this is a period of “holy holiday” for him, and as we
understood Mr. Eia this was
legitimate reason not to comply with the
order.
7. The failure of the appellant to
comply with our court order must also be considered in the light of
the fact that it was an express
condition of the bail pending appeal
granted to appellant on 08 February 2008 by the magistrate that on
the unsuccessful determination
of his appeal he must hand himself in
to commence service of his sentence. Appellant was and continues to
be legally represented
and was no doubt well aware of the conditions
of bail pending appeal as well as our court order of the 10 October
2014.
8. The grounds of the petition and
proposed appeal do not in our view enjoy reasonable prospects of
success. We are mindful of the
fact that the SCA is being petitioned
to decide this very issue, and we have considered the matter only in
the exercise of our
discretion to decide in accordance with the
provision of s321 of CPA whether it is in the interests of justice
that the execution
of sentence of a superior court be suspended on
the basis of the facts before us. As was pertinently stated by Maya
JA in Beetge
v The State (925/12)
(2013) ZASCA 1
(11 February 2013)
at paragraph 4:
“The application to be admitted
to bail after conviction is governed by s321 of Act 51 of 1977. These
provisions prohibit
the suspension of a sentence imposed by a
superior court by reason of any appeal against a conviction unless
the trial court thinks
it fit to order the sentenced accused’s
release on bail”.
In these circumstances we are not
persuaded that it is in the interests of justice to suspend the
execution of sentence when we
believe that the petition is without
reasonable prospects of success.
9. The sentence in this case was
imposed on 08 February 2008. In S v Nel
2002 (1) SACR 425
at 429 (i)
in a matter where bail was sought pending application for leave to
further appeal from the SCA to the Constitutional
Court, Moseneke J
(“as he then was”) pertinently opined as follows:
“It is not in the interests of
justice that a duly convicted person should delay or postpone serving
his sentence by seeking
to be released on bail without any reasonable
prospect of an appellate court altering such conviction or
sentence”.
10. The situation in our present case
is analogous. In any event we are in agreement with the respondent’s
submission that
if applicant is in breach of a condition of bail and
in contempt of our court order of the 10 October 2014 as he evidently
is,
then it cannot be in the interests of justice that this
application for extension of bail should be considered.
In the result this application for bail
pending petition application to the SCA for special leave was refused
and dismissed.
G.S. S. MALULEKE
JUDGE OF THE HIGH COURT
AND
N. RANCHOD
JUDGE OF THE HIGH COURT
Appearances:
Counsel on behalf of Appellant :
Adv. P. Eia
Instructed by : Werksmans Attorneys
(Mr Burger)
Counsel on behalf of Respondent :
Adv. C Coetzee
Instructed by : Director of Public
Prosecutions
Date heard : 10 October 2014
Date delivered : 22 October 2014