About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2023
>>
[2023] ZAFSHC 105
|
|
Sello v S (1173/2023; Court a quo RC 34/2022 (Welkom)) [2023] ZAFSHC 105; 2023 (2) SACR 399 (FB) (10 March 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no:
1173/2023
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: YES
Case
no: Court a quo RC 34/2022 (Welkom)
In
the matter between:
SELLO
LUCAS SELLO
Applicant
and
THE
STATE
Respondent
CORAM:
JP DAFFUE, J
HEARD
ON:
10
March 2023
DELIVERED
ON:
10 March 2023
These
reasons were handed down electronically by circulation to the
parties’ representatives by email, and release to SAFLII.
The
date and time for hand-down is deemed to be 10h00 on 13 April 2023.
REASONS
[1]
On 10 March 2023 the applicant applied for bail pending his appeal to
this court.
After
considering the submissions by both parties I granted the following
orders:
‘
1.
Bail in the amount of R10 000.00 (Ten Thousand Rand) is granted
to the applicant, Sello Lucas Sello, pending
his appeal to this court
under appeal number A19/2023 against his conviction and sentence in
the Regional Court under case number:
RC34/2021 (Welkom).
2.
The following bail conditions shall apply:
2.1
the applicant shall not visit the district of Welkom, including the
township Thabong, at
any time pending the finalisation of this
appeal;
2.2
the applicant shall refrain from making any contact whatsoever,
whether personal, by telephone,
email, facebook or any other social
media, with any relatives of the deceased person pending the
finalisation of this appeal;
2.3
the applicant shall report to the main police station in Kempton Park
once every week between
06h00 and 18h00;
2.4
the applicant shall ensure that his appeal does not lapse and is
proceeded with to finality;
2.5
in the event of the lapsing of applicant’s appeal, or an
unsuccessful appeal to this court in terms whereof
the applicant has
to undergo a custodial sentence, he shall within 48 hours of such
occurrence report for further incarceration
at the Groenpunt
Correctional Centre.
3.
Reasons for this order will follow in due course.’
REASONS
FOR THE ORDER
[2]
As a
precursor to the evaluation of the evidence and submissions presented
to me, it is appropriate to consider the rationale for
considering
bail applications on an urgent basis. It is trite that these
applications should in principle be heard as a matter
of urgency. In
Magistrate
Stutterheim v Mashiya
[1]
the Supreme Court of Appeal emphasised that ‘the right to a
prompt decision is thus a procedural right independent of
whether the right to liberty actually entitles the accused to bail.’
It is also not strange to find that an appellant has
the right to
appeal the refusal of bail without prior leave of the court refusing
bail.
[2]
Furthermore, the right
to freedom and security of a person is contained in s 12(1) of the
Constitution. The rights to human dignity,
equality and freedom are
referred to in conjunction with each other in four sections of the
Constitution,
[3]
emphasising the
value attached to freedom of the individual. Therefore, I believe
that it is of paramount importance that matters
of personal freedom
should be dealt with on an urgent basis.
[3]
On 26 August 2022 the applicant was convicted in the regional court,
Welkom
on a charge of murder. On 2 September 2022 he was sentenced to
15 years’ imprisonment. The honourable regional magistrate
dismissed his application for leave to appeal the conviction and
sentence. The applicant sought leave to appeal from this court.
On 27
January 2023 two judges of this division granted him leave to appeal
in respect of his conviction and sentence. There is
no guarantee that
the appeal will succeed, but reasonable prospects of success on
appeal have been found.
[4]
On 15 February 2023 the appellant filed his notice of appeal. It also
appears
from the appeal file that the full record of the proceedings
in the regional court has been prepared and filed with this court.
Consequently, the applicant is now merely awaiting the allocation of
a date for the appeal hearing. I have ascertained from the
appeals
clerk that this appeal will in all probability only be heard during
the third term of 2023.
[5]
The bail application was set down as an urgent application. Adv GSJ
van Rensburg
who appeared for the applicant had filed detailed heads
of argument prior to the matter being called. Adv NM Tshefutsa
appeared
for the Director of Public Prosecutions (the DPP). Neither a
notice of opposition, nor an answering affidavit was filed by the
DPP, but Ms Tshefutsa indicated that the DPP was opposing the
application. Having been confronted with an unusual application, I
requested the parties at the outset to address me on the jurisdiction
of this court to hear the bail application. Both parties
were not in
a position to make meaningful submissions. Consequently, I adjourned
for an hour to allow them an opportunity to obtain
instructions,
consider the legal position and present me with their submissions.
[6]
I mentioned
above that Mr Van Rensburg had filed detailed heads of argument. He
attached thereto two judgments of the Supreme Court
of Appeal, to wit
Rohde v
The State
[4]
and
S
v Crossberg.
[5]
I pointed out to Mr Van Rensburg before I adjourned the matter that
these two judgments did not support the case he sought to advance.
In
both instances the Supreme Court of Appeal granted leave to appeal
against the convictions and sentences whereupon the accused
persons
returned to the high court to apply for bail pending appeal which
applications were dismissed. Both of them successfully
appealed to
the Supreme Court of Appeal against the judgments refusing bail. In
both matters the Supreme Court of Appeal did not
entertain the bail
applications as a court of first instance notwithstanding the fact
that that court granted leave to appeal the
convictions and
sentences. More about this later.
[7]
When the
court reconvened Ms Tshefuta did not have any objection to either the
jurisdiction of the court to consider bail, or granting
of bail on
the conditions suggested by me. Thus, the application became
unopposed. In an endeavour to persuade me of the court’s
jurisdiction Mr Van Rensburg referred me to subsec 309(5) read with s
307 of the Criminal Procedure Act 51 of 1977 (the CPA) as
well as the
summary of the high court’s statutory and common law powers set
out in
S
v Hlongwane
[6]
.
I shall return to his submissions, but first, it is deemed necessary
to consider s 60 of the CPA and some authorities in that
regard.
[8]
Section 60 reads as follows:
’
60
Bail application of accused in court
(1)
(a)
An
accused who is in custody in respect of an offence shall, subject to
the provisions of section 50 (6), be entitled to be
released on bail
at any stage preceding his or her conviction in respect of such
offence, if the court is satisfied that the interests
of justice so
permit.
(b)
Subject
to the provisions of section 50 (6)
(c)
, the court
referring an accused to any other court for trial or sentencing
retains jurisdiction relating to the powers, functions
and duties in
respect of bail in terms of this Act
until the accused appears in
such other court for the first time.
(c)
If the
question of the possible release of the accused on bail is not raised
by the accused or the prosecutor, the court shall
ascertain from the
accused whether he or she wishes that question to be considered by
the court. (Emphasis added)
Cognisance
should be taken that subsec 60(1)(b) has been amended with effect
from 1 August 1998. Prior thereto subsec 60(1) read
as follows:
‘
An
accused who is in custody in respect of any offence may at his first
appearance in a lower court or at any stage after such appearance,
apply to such court or, if the
proceedings against the accused
are
pending
in a superior Court
, to that
Court, to be released on bail in respect of such offence, and any
such court may, subject to the provisions of s 61, release
the
accused on bail in respect of such offence on condition that the
accused deposits with the clerk of the court or, as the case
may be,
the Registrar of the Court, or with a member of the prisons service
at the prison where the accused is in custody, or with
any police
official at the place where the accused is in custody, the sum of
money determined by the court in question.' (Emphasis
added)
Contrary
to the reference to pending proceedings, the amended subsection
refers to the stage when ‘the accused appears in
such other
court for the first time.’ Until such time the magistrate’s
court as the transferring court retains jurisdiction
in respect of
bail applications. The question to be answered is whether this
section applies in casu, bearing in mind that it may
be argued that
the applicant has not yet appeared in this court for the first time.
As mentioned he has already been convicted
and sentenced in the
regional court.
[9]
I came
across two judgments that are not directly applicable, but indicate a
possible lack of jurisdiction by the high court to
determine bail
applications in the present circumstances, to wit
Director
of Public Prosecutions, Eastern Cape, and Another v Louw NO: In re S
v Makinana
[7]
(Makinana)
and
S v
Seroka.
[8]
The facts in
Makinana
differ from the matter in casu. In that case there was a dispute as
to whether the magistrate’s court or the regional court
had
jurisdiction to hear a bail application once the matter had been
transferred to the regional court for trial. The accused’s
bail
application was dismissed by the magistrate’s court before the
transfer and after transfer to the regional court he
again applied
for bail, alleging new facts. The regional magistrate refused to hear
the application on the basis that he had no
jurisdiction. The high
court made the following order:
[9]
‘
It
is declared that, in terms of
s 50(6)
(c)
of the
Criminal
Procedure Act 51 of 1977
, read with s 60(1) of the Act, a
magistrate's court has exclusive jurisdiction
to hear a bail
application in respect of any case in which an accused person is
charged with a Schedule 6 offence (provided that
the Director of
Public Prosecutions does not direct otherwise in terms of the proviso
to s 50(6)
(c)
) from the first appearance of the accused
until
he or she appears in any other court to which his or her matter may
be transferred
,
whereupon such other court shall enjoy
jurisdiction
to entertain a bail application (whether or not it
is the accused's bail application).’ (Emphasis added)
[10]
The
presiding judges in
Makinana
also referred with approval to
S
v Makola
[10]
where the court held as follows pertaining to a part-heard matter in
the Supreme Court (now the high court):
[11]
‘My interpretation above is fortified by the further
consideration that where the matter is
pending
before the Supreme Court, such Court will in any event be the
appropriate Court at that stage of the proceedings to deal
with any
bail application.
Counsel prosecuting on behalf of the State would certainly be in a
better position than a prosecutor in the magistrate's court
to assist
the Court and to deal with the latest facts and circumstances
relevant to a bail application. It would indeed lead to
an anomalous
situation if the present case against the appellant was to proceed in
the Witwatersrand Local Division while his second
bail application
had to be dealt with in the magistrate's court at Boksburg.’
(Emphasis added)
[11]
The facts
in
Seroka
also differ from the facts in casu. In that case the matter had been
transferred to the regional court for trial whereupon the
accused
applied to that court for bail. There was only one regional
magistrate at the seat of the court and he decided to refer
the
matter back to the magistrate’s court for the bail application.
The magistrate refused to hear the application, but the
high court
held that the decision was invalid and set it aside. It held that
once an accused person has appeared in another court
pursuant to a
transfer of such person from the transferring court for sentencing or
trial purposes, such receiving court shall
be vested, to the
exclusion of the transferring court, with exclusive jurisdiction in
respect of bail application proceedings, unless the
receiving court refers the matter back to the transferring court for
a bail application.
[12]
[12]
Grosskopff
JA, the scribe of a unanimous court, stated the following in
S
v Makola
[13]
:
‘
In
my judgment s 60(1) gives both the 'lower court' and the 'superior
Court' jurisdiction to release an accused on bail. As far
as the
lower court is concerned the section provides that '[a]n accused who
is in custody in respect of any offence may at his
first appearance
in a lower court or at any stage after such appearance, apply to such
court . . . to be released on bail in respect
of such offence. . . .'
The Supreme Court, on the other hand, will have the jurisdiction to
entertain an original application for
bail, as opposed to an appeal,
at any stage, provided 'the proceedings against the accused
are
pending
' in such Court.’ (Emphasis added)
Consequently,
the matter was remitted to the Supreme Court (now the high court)
to reconsider the appellant's application for
bail. It is
emphasised that the appellant in
Makola
was an accused person
and not a convicted and sentenced person. His criminal trial in the
high court was still pending. In my view
the court was with respect
correct to consider the applicability of s 60.
[13]
The heading of chapter 9 of the CPA is ‘Bail.’ This whole
chapter – from s 58 to
s 70 - is not applicable to convicted
and sentenced persons. Its apparent purpose is to make arrangements
for the release of accused
persons on bail during the period from
their arrest until finalisation of their criminal trials, ie upon
acquittal or sentence.
In support of my contention it is apposite to
quote the first section of the chapter, to wit s 58:
‘
58
Effect of bail
The
effect of bail granted in terms of the succeeding provisions is that
an accused
who is in custody shall be released from custody
upon payment of, or the furnishing of a guarantee to pay, the sum of
money determined
for his bail, and that
he shall appear
at the
place and on the date and at the time appointed
for his trial
or to which the proceedings relating to the offence in respect of
which the accused is released on bail are adjourned, and that
the
release shall
, unless sooner terminated under the said
provisions,
endure until a verdict is given
by a court in
respect of the charge to which the offence in question relates,
or
,
where sentence is not imposed forthwith after verdict and the court
in question extends bail,
until sentence is imposed.’
(Emphasis added)
[14]
In
Hlongwane
the court presented a history pertaining to bail applications over a
period in excess of a century, quoting various statutory provisions
and judgments from this country and abroad. The dicta
[14]
in
Hlongwane
that may point to the high court’s jurisdiction to deal with a
bail application as in casu, translated into English, reads
as
follows:
‘
(7)
After sentence in an inferior court, the Supreme Court has a common
law power to release on bail pending further proceedings
in a
superior Court. Where the Court is asked to exercise that common law
power, the statutory power of the inferior court has
to be borne in
mind.
(8)
A part of the area covered by the common law power referred to in
(7) above, is also governed by s 304(2)
(c)
(vi) (release
on bail by a reviewing Court) and by s 309(3) read with s 304(2)(vi)
(release on bail by a Provincial Division
as a Court of appeal).
Where this occurs the statutory power replaces the common law power.’
[15]
The apparent purpose of the legislature as expressed in subsec
60(1)(b) is to ensure that the magistrate’s
court retains
jurisdiction in respect of bail applications until the accused person
appears in such other court, ie the regional
court or the high court,
for the first time. The appeal in this court is yet to be heard,
although leave to appeal was already
granted on 23 January 2023. The
rhetoric question to be asked is whether this means that the high
court can only deal with the
bail application on the day when the
appeal is actually heard in this court, the effect being that this
court’s jurisdiction
is ousted in the meantime so that the
applicant has to return to the regional court to apply for bail
pending appeal. That court
has already dismissed the application for
leave to appeal against conviction and sentence. If a bail
application pending appeal
in that court is also dismissed, the
applicant will have to return to this court in order to appeal such
unsuccessful bail application.
Such a procedure is not called for in
casu. Unlike in a criminal trial, the applicant does not have to
appear before the high court
who adjudicates his appeal. His legal
representative will argue the appeal. When the two judges of this
division entertained the
application for leave to appeal in chambers
in accordance with the normal practice, the appearance of the
applicant was obviously
also not required.
[16]
I am satisfied that s 60 is inapplicable. Consequently, it needs to
be considered whether the high
court is at all entitled to adjudicate
a bail application in the present instance, ie whether it has the
required statutory, alternatively
common law powers. Mr Van
Rensburg’s reliance on subsec 309(5) is misplaced. This
subsection deals with appeals against decisions
of the high court
given on appeal to it. It reads as follows:
‘
(5)
When a provincial or local division of the Supreme Court gives a
decision on appeal against a decision of the magistrate's court
and
the former decision is appealed against, such division of the Supreme
Court has the powers in respect of the granting of bail
which a
magistrate's court has in terms of section 307.’
Unlike
as Mr Van Rensburg submitted, s 307 is not relevant for the reason
that it is merely referred to in subsec 309(5) which I
indicated is
not applicable.
[17]
The subsection that is indeed applicable is subsec 309(3) which reads
as follows:
‘
(3)
The
provincial or local division concerned shall thereupon (ie the noting
and prosecution of an appeal when there is an automatic
right of
appeal or when leave to appeal has been granted as provided for in
subsecs (1) and (2)) have
the
powers referred to in section 304 (2)
,
and, unless the appeal is based solely upon a question of law, the
provincial or local division shall, in addition to such powers,
have
the power to increase any sentence imposed upon the appellant or to
impose any other form of sentence in lieu of or in addition
to such
sentence:
Provided
that, notwithstanding that the provincial or local division is of the
opinion that any point raised might be decided in
favour of the
appellant, no conviction or sentence shall be reversed or altered by
reason of any irregularity or defect in the
record or proceedings,
unless it appears to such division that a failure of justice has in
fact resulted from such irregularity
or defect.’ Emphasis
added)
[18]
Section 304 deals with the procedure on review. The review court’s
powers are set out in subsec
304(2). In subsec 309(3) the legislature
afforded the high court adjudicating appeals to it the same powers as
contained in subsection
304(2). One such power is applicable in casu,
to wit as described in subsec 304(2)(c)(vi) which reads as follows:
‘
(c)
Such
court, whether or not it has heard evidence, may, subject to the
provisions of section 312-
(i)
…
(ii)
…
(iii)
…
(iv)
…
(v)
…
(vi)
make any such order in regard to the suspension of the execution of
any sentence against the person convicted
or the admission of such
person to bail
, or, generally, in regard to any matter or thing
connected with such person or the proceedings in regard to such
person as to the
court seems likely
to promote the ends of
justice
.’ (Emphasis added)
[19]
I referred
to the
Rhode
and
Crossberg
judgments of the Supreme Court of Appeal above.
[15]
At first glance, and considering that the Supreme Court of Appeal was
not asked in either case that bail be granted pending the
appeals to
it, it might be argued that these cases are excellent examples of the
state of the law, ie that the trial court must
always deal with bail
pending appeal. I mentioned earlier that I was confronted with this
application on an urgent basis and whilst
having concerns as to
whether this court may entertain the application. It was the first
time that I was confronted with such an
application during a stint of
more than 11 years on the high court bench.
[20]
There is
good reason why the high court should be entitled to hear bail
applications as in casu, whilst the Supreme Court of Appeal
should
not do so. In petitions to the Supreme Court of Appeal the trial
record is not provided to that court, unless the accused
was not
represented during the trial in which case the justices considering
the petition usually request to be provided with the
trial record.
Rule 6 of that court’s rules sets out which documents are to be
provided to the court.
[16]
The
position is different in the high court. All applications for leave
to appeal must be accompanied by the full trial record,
[17]
allowing the judges not only to rely on the judgment of the court a
quo and written representations thereto, but to consider the
evidence
presented.
[21]
The applicant was released on bail during the entire period of his
trial. He was granted bail in the
amount of R1 000.00 in the absence
of opposition by the State. He is employed by the City of
Johannesburg as a firefighter and
emergency responder, is married
with two children and is also the owner of immovable property in the
estimated value of R1.4 million
over which a mortgage bond is
registered. As mentioned, the present bail application is not opposed
by the State. There is no reason
to doubt any of the allegations
contained in the founding affidavit in support of the application.
All these allegations are indicative
of the fact that the applicant
will not abscond. He is not a flight risk and not even in possession
of a passport. He was also
prepared to offer an increased amount of
R10 000 in respect of bail. The bail conditions set by the court were
accepted to be in
order by both parties. Although some of those
conditions may seem to be irrelevant, bearing in mind that the
criminal trial has
been finalised, I decided to impose them in order
to prevent the applicant as a convicted person to get in contact with
the deceased’s
family pending the appeal.
[22]
I am satisfied that at the moment when the application for leave to
appeal against conviction and sentence
was considered and granted by
my colleagues, this court became vested with jurisdiction in respect
of the bail application proceedings.
I am comfortable that, although
I was confronted with an unusual application, the dictum in
Hlongwane
supra in respect of subsec 309(3), read with subsec 304 (2)(c)(vi),
is a correct exposition of the law and should be followed.
If I were
to refuse to hear the application and/or dismiss it for lack of
jurisdiction, the applicant would have to return to the
regional
court, uncertain when such application would be heard. In the event
of an unsuccessful application, he would have to return
to this court
on appeal. Such a cumbersome and time-wasting procedure can never be
in the interest of justice. Consequently, I
was prepared to hear and
adjudicate the bail application which I did.
J
P DAFFUE, J
On
behalf of the Applicant: Adv
GSJ van Rensburg
Instructed
by: Finger
Attorneys
BLOEMFONTEIN
On
behalf of the Respondent: Adv
NNM Ntshefuta
Instructed
by: Director
of Public Prosecutions
BLOEMFONTEIN
[1]
2003
(2) SACR 106
(SCA) at 113 c – d.
[2]
See
s 65
of the
Criminal Procedure Act 51 of 1977
; also S v Van Wyk
2005
(1) SACR 41
(SCA) para 1 in respect of the right to appeal against
refusal of bail by the high court.
[3]
Sections
1
,
7
(1),
36
(1) and
39
(1)(a)
[4]
[2019] ZASCA 193;
2020
(1) SACR 329 (SCA).
[5]
(439/2007)
[2007] ZASCA 93
(22 August 2007).
[6]
1989
(4) SA 79
(T) at 95 E – 97 E
[7]
2004
(2) SACR 46 (E).
[8]
2021
(2) SACR 622 (LP).
[9]
Makinana
loc cit
para
33.
[10]
1994
(2) SACR 32 (A).
[11]
Makinana
loc cit
para 30.
[12]
Seroka
loc cit
par 19.
[13]
Makola
loc cit
pp 33 & 34.
[14]
Fn 6
supra,
paras 7 & 8, p 96 and the translation by Juta in the heading of
the reported judgment.
[15]
Par 6 of this judgment.
[16]
SCA
rule 6
reads as follows:
‘
Application
for leave to appeal
Filing
of application
(1)
In every matter where leave to appeal is by law required of the
Court, an application therefor shall be lodged in triplicate
with
the registrar within the time limits prescribed by that law.
Annexures
required
(2)
Every such application shall be accompanied by —
(a)
a
copy of the order of the court a
quo
appealed
against;
(b)
where
leave to appeal has been refused by that court, a copy of that
order;
(c)
a
copy of the judgment delivered by the court a
quo
;
and
(d)
where
leave to appeal has been refused by that court, a copy of the
judgment refusing such leave:
Provided
that the registrar may, on written request, extend the period for
the filing of a copy of the judgment or judgments for
a period not
exceeding one month.
Answer
(3)
Every affidavit in answer to an application for leave to appeal
shall be lodged in triplicate within one month after service
of the
application on the respondent.
Reply
(4)
An applicant who applied for leave to appeal shall, within 10 days
after an affidavit referred to in subrule (3) has been
received, be
entitled to lodge an affidavit in reply dealing strictly only with
new matters raised in the answer.
Format
of application, answer and reply
(5)
Every application, answer and reply —
(a)
shall
—
(i) be
clear and succinct and to the point;
(ii) furnish
fairly all such information as may be necessary to enable the Court
to decide the application;
(iii) deal
with the merits of the case only in so far as is necessary for the
purpose of explaining and supporting
the particular grounds upon
which leave to appeal is sought or opposed;
(iv) be
properly and separately paginated; and
(b)
shall
not —
(i) be
accompanied by the record;
(ii) traverse
extraneous matters; or
(iii) exceed,
for the founding affidavit and answer 30 pages each and for the
reply 10 pages.
Request
for further documents
(6)
The judges considering the application may call for —
(a)
submissions
or further affidavits;
(b)
the
record or portions of it; and
(c)
additional
copies of the application.’
[17]
Section 309C(4)
of the CPA.