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[2013] ZASCA 27
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S v Sewnarain (877/12) [2013] ZASCA 27 (25 March 2013)
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case No: 877/12
Not reportable
In the matter between:
RAJIV
SEWNARAIN
.............................................................................
APPELLANT
and
THE
STATE
........................................................................................
RESPONDENT
Neutral citation:
Sewnarain v S
(877/12)
[2013] ZASCA 27
(25 March 2013)
Coram:
Malan and Theron JJA and Van der Merwe AJA
Heard:
25 March 2013
Delivered:
25 March 2013
Summary: Appeal against refusal of bail ─ no
exceptional circumstance shown as required by s 60(11)(
a
)
of
Criminal Procedure Act 51 of 1977
─ appeal dismissed.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
Kwazulu-Natal High Court,
Pietermaritzburg (Swain and
Henriques JJ sitting as court of first instance):
The appeal is dismissed.
______________________________________________________________
JUDGMENT
______________________________________________________________
VAN DER MERWE AJA (MALAN AND THERON JJA CONCURRING)
[1] This is an appeal against the refusal of bail by the
Kwazulu-Natal High Court, Pietermaritzburg (Swain and Henriques JJ).
[2] On 10 December 2010 the appellant’s wife was
shot and killed. On 20 December 2010 the appellant confessed to a
magistrate
that he had arranged for his wife to be killed by a hit
man. On 22 December 2010 the appellant pleaded guilty to the murder
of
his wife before another magistrate. On the same date he was
sentenced to life imprisonment.
[3] Approximately a year later, the appellant launched
an application to have the conviction and sentence reviewed and set
aside.
In the review application he said that he was assaulted,
threatened and unduly influenced by the investigation officer, as a
result
of which neither the confession nor the plea of guilty was
made freely and voluntarily. He also said that the combined effect of
the intake of medication, exhaustion and bereavement because of the
loss of his wife, was that he was not in his sound and sober
senses
at the relevant time. He therefore admitted to something that he had
not done. The appellant filed reports by expert witnesses
in support
of his case. In opposition the respondent relied on the observations
at the time of the two magistrates and the appellant’s
erstwhile attorney.
[4] On 18 September 2012 the court a quo referred the
review application for the hearing of oral evidence. The basis for
this order
was a finding ‘that a real, genuine and bona fide
dispute of fact arises on the papers, as to whether the applicant was
in
his sound and sober senses, when he confessed and pleaded guilty
to the crime for which he was charged’. The court a quo
directed that the matter must be afforded preference
[5] The appellant subsequently applied to the court a
quo for his release on bail pending the outcome of the review
application.
This application was dismissed on 23 October 2012, hence
the present appeal.
[6] The appellant accepts that
s 60(11)(
a
)
of the
Criminal Procedure Act 51 of 1977
is applicable. The appellant
therefore had to satisfy the court a quo that exceptional
circumstances exist which in the interests
of justice permit his
release on bail.
[7] The court a quo found that a reasonable prospect of
success in the review application is an ‘indispensible
criterion’,
that the appellant failed to show that criterion
and that in any event the appellant did not show exceptional
circumstances as
contemplated in
s 60(11)(
a
).
[8] It was never the appellant’s case that
exceptional circumstances consist of good prospects of success on
review. I am
prepared to assume, however, that the appellant has a
reasonable prospect of success with the review application. This
assumption
seems to me to follow necessarily from the referral of the
review application for the hearing of oral evidence. For obvious
reasons
it is undesirable for this court to say more on the subject
of the merits of the review. It also follows that it is unnecessary
to express an opinion on the question whether reasonable prospects of
success on appeal must in these circumstances necessarily
always be
shown by an applicant for bail. It is trite that a reasonable
prospect of success on appeal or review in itself does
not entitle an
applicant to bail.
[9] The question therefore is whether the court a quo
erred in finding that the appellant did not prove exceptional
circumstances.
In this regard the only circumstance relied upon by
the appellant that could possibly be regarded as exceptional, is the
allegation
that because his financial resources have been exhausted
he will only be able to retain his present legal team and expert
witnesses
in order to conduct the review application properly, if he
is allowed to recommence his bus building and repair business in
order
to generate income and that he would be able to do so almost
immediately after his release.
[10] However, the allegation lacks a factual foundation.
First, even in the best of circumstances it will probably take
several
months to re-establish the business as a profitable concern.
The business was closed down in December 2010. It will have to be
re-established at different premises with newly recruited employees.
In order to do so at least a totally enclosed spraybooth large
enough
to accommodate a bus will have to be constructed and fitted with
suitable extraction systems, at an estimated cost of in
excess of
R70 000.00. Only after completion hereof could permission to
operate the business be considered by the local municipality.
On the
evidence the indication is that the process of consideration of an
application for a trade permit for this type of business
will take at
least two months. Second, on his own showing the appellant is
possessed of sufficient assets to enable him to fund
the litigation.
He says that an amount of approximately R500 000.00 is owed to
him by debtors of the business and that if
released on bail he would
be able to recover that amount. Clearly this amount could be
recovered by his attorney whilst the appellant
is incarcerated. And
the appellant says that equipment and stock of the business presently
stored are worth R150 000.00 and
R700 000.00 respectively.
[11] In the result the appeal is
dismissed.
_______________
C H G VAN DER MERWE
ACTING JUDGE OF APPEAL
APPEARANCES:
For Appellant: V Moodley
Instructed by:
Logan Chetty Attorneys, Pietermaritzburg
Symington & De Kok, Bloemfontein
For Respondent: A Truter
Instructed by:
The Director of Public Prosecutions,
Pietermaritzburg
The Director of Public Prosecutions,
Bloemfontein