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[2015] ZASCA 79
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Banger v S (195/2015) [2015] ZASCA 79; 2016 (1) SACR 115 (SCA) (28 May 2015)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 195/2015
In
the matter between:
ALLAN
WAYNE
BANGER
..............................................................................................
APPELLANT
and
THE
STATE
....................................................................................................................
RESPONDENT
Neutral
Citation:
Banger v S
(195/2015)
[2015] ZASCA 79
(28 May 2015).
Coram:
Cachalia and Mbha JJA and Van der
Merwe AJA
Heard:
20 May 2015
Delivered:
28 May 2015
Summary:
No appeal lies against the refusal of
bail by the High Court sitting as a court of first instance without
leave to appeal in terms
of the
Superior Courts Act 10 of 2013
.
ORDER
On
appeal from:
Gauteng Division of the
High Court, Pretoria (Fabricius and
Fourie JJ
concurring, sitting as court of first instance):
The
matter is struck from the roll.
JUDGMENT
Van
der Merwe AJA (Cachalia and Mbha JJA concurring):
[1]
This judgment considers the effect of the
Superior Courts Act 10 of
2013
[1]
on an appeal against the
refusal of bail by a High Court sitting as a court of first instance.
[2]
The appellant, Mr Allan Wayne Banger, was convicted in the regional
court on 331 counts of contravening
s 6
of the
Prevention of
Organised Crime Act 121 of 1998
. The appellant admitted that during
the period from 16 January 2003 to 17 November 2006, he received
payments totalling R2 034 146.73.
The regional court found
that the appellant ought reasonably to have known that these monies
represented the proceeds of unlawful
activities and sentenced him to
10 years’ imprisonment, five years of which were suspended for
a period of five years on
condition that he is not convicted of
contravening
s 6
of Act 121 of 1998, committed during the period
of suspension.
[3]
The regional court granted leave to appeal against the convictions
and sentence. It also granted the appellant bail pending
the outcome
of the appeal to the High Court. The appeal was heard by the North
Gauteng Division, Pretoria (Fabricius and Fourie
JJ). It dismissed
the appeal on 19 March 2015. Counsel for the appellant indicated that
an application would be made to this court
for special leave to
appeal against the dismissal of the appeal against both conviction
and sentence. In the light hereof, the
appellant applied to the High
Court for bail pending the application for special leave to appeal on
the merits. The High Court
dismissed the application. The appellant
did not apply to the High Court for leave to appeal against the
refusal of bail, but noted
an appeal to this court in the belief that
the appellant had an automatic right of appeal.
[4]
It is important to point out that the regional court had granted bail
pending the outcome of the appeal to the High Court. The
bail had
lapsed when the appeal was dismissed. The application to the High
Court to extend the bail pending an application for
leave to appeal
to this court, was therefore a fresh application. The High Court
dealt with this application for bail sitting as
a court of first
instance ─ albeit by two judges ─ and not as an appeal.
[5]
There is no doubt that the appellant has the right to appeal against
the refusal of bail. That is provided for in s 35(3)
(o)
of the Constitution. What is in issue is the procedure applicable to
an appeal against the refusal of bail by the High Court sitting
as a
court of first instance.
[2]
[6]
This question was first dealt with by this court in
S
v Botha
.
[3]
Prior to the enactment of the
Superior Courts Act, appeals
from the
High Court (then the Supreme Court) were regulated by ss 20 and
21 of the Supreme Court Act 59 of 1959. The court
held in
Botha
that as bail applications are criminal proceedings, an appeal against
the refusal of bail by a High Court sitting as a court of
first
instance did not lie to it in terms of s 20 of the Supreme Court
Act, as the section regulated only appeals against
a judgment or
order of the High Court in civil proceedings or on appeal to it.
[7]
Section 21(1) of the Supreme Court Act provided:
‘
In
addition to any jurisdiction conferred upon it by this Act or any
other law, the appellate division shall, subject to the provisions
of
this section and any other law, have jurisdiction to hear and
determine an appeal from any decision of the court of a provincial
or
local division.’
The
court held that s 21 was sufficiently wide to include bail
appeals from the High Court sitting as a court of first instance,
unless they were excluded by any other law. It consequently had to
consider whether such bail appeals were excluded by the provisions
of
s 315(4)
of the
Criminal Procedure Act 51 of 1977
. This section
provides:
‘
An
appeal in terms of this Chapter shall lie only as provided in
ss 316
to
319
inclusive, and not as of right.’
[8]
The court further held in
Botha
that none of these sections were applicable to bail appeals. It
therefore concluded that s 21(1) of the Supreme Court Act
provided for a right of appeal directly to this court against the
refusal of bail by the High Court sitting as a court of first
instance. As no provision required leave to appeal in respect of such
right of appeal, it became known as an automatic right of
appeal. In
S
v Masoanganye
[4]
Harms AP lamented the fact that the calls of this court to correct
the legislative oversight that resulted in the automatic right
of
appeal, had been ignored for more than two decades.
[5]
[9]
In my view, the complaint has now been addressed in the
Superior
Courts Act. The
position currently is as follows: Chapter 5 of the
Superior Courts Act deals
with appeals against any decision of the
High Court as a court of first instance or on appeal to it, except
for appeals from the
High Court that are regulated in terms of the
Criminal Procedure Act or
in terms of any other criminal procedural
law.
[6]
This is the result of
the definition of ‘appeal’ in
s 1
of the
Superior
Courts Act. The
clear intention was to create a regulatory scheme in
respect of all appeals from the High Court. Subject to any other law,
appeals
from the High Court are regulated either in terms of the
Superior Courts Act or
the
Criminal Procedure Act.
[10]
Section 65
of the
Criminal Procedure Act provides
for an appeal to
the High Court against the refusal of bail or the imposition of a
condition of bail by a lower court. In terms
of
s 65A(1)
, the
Director of Public Prosecutions (DPP) may appeal to the High Court
against a decision of a lower court to release an accused
person on
bail or against the imposition of a condition of bail. The DPP may in
terms of
s 65A(2)
appeal to this court against the decision of
the High Court to release an accused person on bail. The provisions
of
s 316
of the
Criminal Procedure Act apply
mutatis mutandis to
such a case.
[7]
It follows
that the DPP must obtain leave to appeal from the High Court or, if
refused by that court, by this court on petition
to it in terms of
s 316(8).
It is important to note that
s 316
of the
Criminal Procedure Act does
not provide for an appeal in respect of
bail by an accused person.
[8]
Sections 315
and
316
deal only with appeals that originate from a
conviction or sentence by a single judge of the High Court.
Section
316(1)
provides that any accused convicted of any offence by a High
Court may apply to that court for leave to appeal against such
conviction
or against any resultant sentence or order. If an
application for leave to appeal is granted, the appeal must, in terms
of
s 315(2)
(a)
,
be heard either by a full court of the relevant Division of the High
Court or this court, depending on whether the appeal requires
its
attention. If such appeal is heard by a full court, a further appeal
to this court is possible with the special leave of this
court on
petition to it, in terms of
s 316(3).
The
Criminal Procedure Act
does
not, however, provide for an appeal against the refusal of bail
by the High Court sitting as a court of first instance.
[9]
It is also not provided for in any other criminal procedural
law. It follows that such appeal is regulated by the
Superior Courts
Act.
[11
]
Section 16(1)
of the
Superior Courts Act provides
:
‘
Subject
to
section 15(1)
, the Constitution and any other law─
(a)
an appeal against any decision of a Division as a
court of first instance lies, upon leave having been granted─
(i) if the court
consisted of a single judge, either to the Supreme Court of Appeal or
to a full court of that Division, depending
on the direction issued
in terms of section 17(6); or
(ii)
if the court consisted of more than one judge, to the Supreme Court
of Appeal.’
[12]
Thus, it is clear that in respect of all appeals against the refusal
of bail by the High Court sitting as a court of first
instance,
application for leave to appeal must be made to that court. If that
court refuses leave to appeal, it may be granted
by this court in
terms of
s 17(2)
(b)
of the
Superior Courts Act. If
the High Court consisted of a single
judge, the appeal lies to a full court, unless a direction is given
in terms of
s 17(6)
that the matter requires the attention of
this court. If, as is the case here, the High Court of first instance
consisted of more
than one judge, the appeal lies directly to this
court.
[13]
The appellant did not apply for leave to appeal to the High Court
against its dismissal of his bail application. This court
therefore
has no jurisdiction to entertain the matter and it should be struck
from the roll.
[14]
Bail appeals are inherently urgent in nature. An accused person
should not be deprived of his or her constitutional rights
to freedom
and to freedom of movement for longer than is reasonably necessary.
The majority of appeals against the refusal of bail
by the High Court
as a court of first instance, will arise from a court that consists
of a single judge and will not require the
attention of this court.
In these matters application for leave to appeal should generally be
made immediately after the refusal
of bail and, upon leave to appeal
having been granted, a full court of that Division of the High Court
should generally dispose
of these appeals more expeditiously and
cost-effectively than was the position before the advent of the
Superior Courts Act.
[15
]
The matter is struck from the roll.
_______________________
C
H G VAN DER MERWE
ACTING
JUDGE OF APPEAL
APPEARANCES:
For
Appellant: F van As
Instructed
by:
Justice
Centre, Pretoria
Justice
Centre, Bloemfontein
For
Respondent: Ms P Vorster
Instructed by:
Director of Public
Prosecutions, Pretoria
Director
of Public Prosecutions, Bloemfontein
[1]
The
date of commencement of the
Superior Courts Act for
present purposes
is 23 August 2013.
[2]
The
same procedure would be applicable to an appeal by an accused person
against a condition of bail imposed by the High Court
as court of
first instance.
[3]
S
v Botha
[2001]
ZASCA 146; 2002 (1) SACR 222 (SCA).
[4]
S
v Masoanganye
[2011]
ZASCA 119
;
2012 (1) SACR 292
(SCA) para 15.
[5]
See
also
S
v Viljoen
[2002] ZASCA 81
;
2002 (2) SACR 550
(SCA) para 26 and
S
v Kock
[2003] ZASCA 1
;
2003 (2) SACR 5
(SCA) para 26. Further see E du Toit
(ed)
Du
Toit: Commentary on the
Criminal Procedure Act
(2014
) at ch9-103 – ch9-104.
[6]
In
terms of the Interpretation Act 33 of 1957 ‘law’, means
any law, proclamation, ordinance, Act of Parliament or
other
enactment having the force of law.
[7]
See
s 65A(2)(
b
)
of the
Criminal Procedure Act.
[8
]
S
v Botha
para
11.
[9]
S
v Botha
para
3.