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2011
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[2011] ZAECPEHC 23
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Mugridge v S (CC48/2006) [2011] ZAECPEHC 23 (2 June 2011)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE – PORT
ELIZABETH)
Case
No.: CC48/2006
Date
heard: 02 June 2011
Date
delivered: 02 June 2011
In the matter between:
SIMON
PETER MUGRIDGE
Applicant
and
THE STATE
Respondent
B A I L A P P E A L J U D G M E
N T
DAMBUZA, J
:
The applicant in this bail
application was convicted in 2007 of rape, indecent assault,
crimen
injuria
, Contravention of the Film and Publications Act 65 of
1996 and possession of drugs. He was sentenced to an effective term
of
15 years imprisonment. I granted him leave to appeal to the
Supreme Court of Appeal against the convictions and sentence. He now
applies for bail pending his appeal.
It turns out as, appears from the
affidavit filed by the applicant in support of his bail application
that the record of proceedings
in the trial Court went missing about
a year and a half to two years ago, after it had been forwarded to
the Registrar of the
Supreme Court of Appeal.
There is no indication on the papers
before me that the application was served on the Registrar of the
Supreme Court of Appeal
and there is no written indication from that
office as to what the explanation is regarding the missing record.
But it is common cause that a new
record has to be prepared and that the costs thereof is about
R32,000.00.
Mr Le Roux
who appears on behalf of the
respondent confirms these facts from the bar. Neither the Registrar
of this Court nor the Registrar
of the Supreme Court of Appeal
assumes responsibility for this cost. And the Office of the Legal
Aid which represents the applicant,
I am advised, is unable to bear
this cost. With the result that the appeal process has, seemingly
reached a dead-end.
Meanwhile the applicant remains
incarcerated at the St Albans Prison, serving the sentence in
respect of which he was granted
leave to appeal.
This is an extraordinary situation
which, in my view, on its own constitutes an exceptional
circumstance within the meaning of
Section 60(11) of the Criminal
Procedure Act, Act 51 of 1977. I am mindful of the fact that the
existence of reasonable prospects
of succeeding on appeal does not,
of itself constitute an exceptional circumstance. But that factor,
in this case together, with
the lost record of the proceedings in
the criminal trial, through no fault of the applicant, and the fact
that no one is willing
to assume responsibility therefore, and the
resultant undue delay of the appeal process, cumulatively do
constitute exceptional
circumstances. Consequently the peculiarity
in the circumstances, individually constitute exceptional
circumstances and/or, viewed
with other factors, cumulatively
constitute such exceptional circumstances. I am alive to the fact
that the applicant is serving
a long sentence. On the other hand, it
would appear that there is no increased risk of abscondment. The
applicant states in the
affidavit that his passport has expired.
There is also evidence that he will be constructively occupied with
church related activities
whilst he is out on bail. In the end I am
persuaded that the interests of justice permit that the applicant be
admitted to bail.
Further, because of the main
persuasive factor for the granting of bail, I consider it necessary
that the record of these proceedings
(i.e. the bail application) and
my order in respect thereof be brought to the attention of the
President of the Supreme Court
of Appeal urgently so that the
deadlock may be resolved and the appeal finalised. There is no
indication, on the record as to
whether he is aware of the problems
that beset the appeal.
Consequently the following order
shall issue:
[8.1] Bail is granted in the amount of
R10,000.00; such bail shall be subject to the conditions set out in
Annexure “A”
hereto.
[8.2] The Registrar of this Court is
ordered to forward a copy of the record of these proceedings
(including this judgment) to the
President of the Supreme Court of
Appeal, Bloemfontein within seven days hereof.
_________________________
N. DAMBUZA
JUDGE OF THE HIGH COURT
Appearances
:
For the applicant: Adv A. Hattingh
instructed by Roelofse & Roelofse Inc. of Port Elizabeth.
For the respondent: Adv M. Le Roux on
behalf of the Director of Public Prosecutions, Port Elizabeth
ANNEXURE “A”
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION – PORT
ELIZABETH
CASE NO.: CC48/06
In the matter between:
SIMON PETER MUGRIDGE
Applicant
versus
THE STATE
Respondent
BAIL CONDITIONS
That the Applicant will not leave the
Magisterial district of Port Elizabeth without leave of Captain
Shanagan of the Family Violence,
Child Protection and Sexual
Offences Unit of the South African Police (FCS).
That the Applicant report on Mondays,
Wednesdays and Fridays between 08:00 and 15:00 to Captain Shanagan,
in his absence Mrs Yolande
Ferreira, of the FCS at 22 Old
Grahamstown Road, Chamber House, 2
nd
Floor, Room 231,
North End, Port Elizabeth.
That the Applicant shall not apply
for a passport or any travel documents.
That the Applicant shall take up
residence and employment at the premises of the Wells of Life
Churches International, No. 6
St. Andrews Street, Yathar House,
Central, Port Elizabeth
and
Should the need arise to change his
residence or place of employment, the Applicant shall report it to
the said Captain Shanagan
prior to such change.
5. That the Applicant shall report to
the Registrar, High Court, Port Elizabeth within 3 Court days from
being served with a notice
to serve any sentence as determined by the
Supreme Court of Appeal, on finalization of the appeal.