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[2013] ZASCA 178
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Prinsloo v S (613/2013) [2013] ZASCA 178 (29 November 2013)
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 613/2013 Not Reportable
In the matter between:
JACOBUS
MICHAEL
PRINSLOO
………………………………..
Appellant
and
THE STATE
………………………………………………………
Respondent
Neutral citation
: Prinsloo v The State
(613/2013)
[2013] ZASCA 178
(29 November 2013)
Coram
:
Lewis, Theron and Majiedt JJA
Heard
:
15 November 2013
Delivered
:
29 November 2013
Summary
:
Bail - Pending appeal - court not
functus officio
in respect of
further bail application based on new facts.
ORDER
On appeal from:
North Gauteng High Court,
Pretoria (Mavundla J sitting as court of first instance):
1.
The appeal is
upheld.
2.
The
order of the trial court that it was functus officio when a fresh
bail application was brought before it is set aside.
3.
The
matter is referred back to the trial court so that it can hear the
bail application brought by the appellant.
JUDGMENT
THERON JA (LEWIS and MAJIEDT JJA
concurring):
[1]
The
appellant, Mr Jacobus Michael Prinsloo, was charged and convicted in
the North Gauteng High Court (Mavundla J) of murder, theft
and the
unlawful possession of a firearm and ammunition. He was sentenced to
an effective term of imprisonment of twenty five years.
After
sentence, and pending an application for leave to appeal, the
appellant applied for bail and the application was refused.
Subsequent to the grant of leave to appeal, the appellant again
applied to the high court for bail, on the basis that new facts
that
had arisen, and that application was also refused. Mavundla J found
that the court was functus officio in respect of the bail
application. It is against that order that the appellant appeals,
with the leave of the high court.
[2]
The
following order was given in this court immediately after argument
was concluded:
‘1 The appeal is upheld.
2.
The order of the
trial court that it was functus officio when a fresh bail application
was brought before it is set aside.
3.
The
matter is referred back to the trial court so that it can hear the
bail application brought by the appellant.’
The court indicated that reasons for the order
would be given. These are the reasons.
[3]
The
background facts are briefly the following. Shortly after his arrest,
the appellant was granted bail in the sum of R20 000,
subject to
certain conditions. The appellant’s passport was not withdrawn
and he was allowed to travel outside the country.
He is a geologist
by profession and a large part of his work was conducted in the
neighbouring African countries. After his conviction,
the appellant’s
bail was extended but the amount of bail increased to R30 000. A
further condition was imposed that he had
to inform the State of any
impending travel outside of the Republic.
[4]
Argument
in respect of sentence was heard on 27 May 2013 and the appellant’s
bail was extended until the following day, 28
May 2013. He was
sentenced on 29 May 2013. The appellant’s bail was revoked at
that stage. Immediately after the imposition
of sentence, the
appellant lodged an application for leave to appeal against his
convictions and sentences. The appellant then
applied for bail,
pending the application for leave to appeal. The evidence of the
appellant and the investigating officer was
led in that application.
The high court found that the appellant had not discharged the onus
resting on him to show that there
were exceptional circumstances
justifying his release on bail and refused bail.
[5]
On
4 June 2013, the high court granted the appellant leave to appeal
against his convictions and sentences. Immediately after leave
to
appeal was granted, the appellant’s legal representative raised
the possibility of the court entertaining another bail
application.
The response of the State was that the court was functus officio,
having previously refused an application for bail
pending an
application being brought for leave to appeal. The high court was
swayed by the State’s argument. The judge said
the following in
this regard:
‘Yes. Mr de Klerk I am inclined to agree
with your colleague that this court is functus officio, but having
said that, assuming
that the court was not functus officio I would
still, and the mere fact that the bail or the mere fact that leave to
appeal has
been granted that per se does not necessarily alter the
situation, because insofar as the issues that I canvassed in the
previous
application would still stand. I would not be dissuaded from
the prima facie view which I eventually came to in declining bail.’
It must be noted that at that stage, the new
bail application had not yet been launched. The approach of the high
court, in expressing
a view on an impending application, is both
surprising and improper.
[6]
On
18 July 2013, the appellant made a further application for bail in
the high court on the ground of new facts, namely, that he
had been
granted leave to appeal and had secured additional funds for the
purpose of bail (security in the amount of R800 000).
At the hearing
of this appeal, it was placed on record by the parties that after the
appellant had filed the further bail application
in the high court
and a copy thereof had been placed before the judge, the parties were
called to the judge’s chambers. It
was in chambers that the
judge advised the parties that he could not entertain the further
bail application as the court was functus
officio.
[7]
The
order granted by the high court, dated 18 July 2013, reads:
‘
Having
heard counsel for the applicant and for the State in chambers it is
hereby ordered that:
1.
That
this Court in respect of the bail application or any further bail
application
pending the appeal
or petition to the Supreme Court of Appeal is functus officio;
2.
That leave to
appeal to the Supreme Court of Appeal against the above order is
granted.’
It is this order that is before us.
[8]
It
is extremely inappropriate for a judicial officer, in chambers, and
without properly entertaining an application, to make an
order in
respect thereof. Applications should, in the usual course, be dealt
with in court and after argument has been heard. There
are of course
exceptions to this general rule, such as urgent applications or where
there is good reason for a matter to be heard
in chambers.
[9]
At
the hearing of the appeal, counsel for the respective parties were
agreed that the judge in the court below had erred in finding
that he
was functus officio. A judicial officer is not only entitled, but
obliged to hear a bail application based on new facts.
Section 65(2)
of the
Criminal Procedure Act 51 of 1977
expressly states that an
appeal will not lie in respect of new facts unless such new facts
have been placed before the judicial
officer against whose decision
the appeal has been brought.
[I]
Although this section refers to a magistrate,
it is equally applicable to proceedings in the high court. This court
in
S v Bruintjies
2003 (2) SACR 575
(SCA) confirmed that changed or new circumstances
need to be placed before the court during a bail application and not
before an
appeal court.
[10]
The
order made by the high court, that it was functus officio in respect
of ‘any further bail application pending the appeal,’
deprives the appellant of an opportunity to place the new facts
before the trial court. This places the appellant in an invidious
position. He is in fact in a state of limbo regarding his attempts to
seek bail as an appeal cannot lie until the new facts have
been
considered by the high court.
[11]
It
is for these reasons that the appeal was upheld.
L V THERON
JUDGE OF APPEAL
APPEARANCES:
FOR APPELLANT: PA Van Wyk SC
Instructed by:
Dreyer & Dreyer Attorneys, Pretoria
McIntyre & Van Der Post, Bloemfontein
FOR
RESPONDENT: P Marriott with J Van Der Westhuizen
Instructed
by:
Director of Public Prosecutions, Pretoria
Director of Public Prosecutions, Bloemfontein
[I]
Section
65(2)
reads:
‘
An
appeal shall not lie in respect of new facts which arise or are
discovered after the decision against which the appeal is brought,
unless such new facts are first placed before the magistrate or
regional magistrate against whose decision the appeal is brought
and
such magistrate or regional magistrate gives a decision against the
accused on such new facts.
’