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2021
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[2021] ZANCHC 58
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Liebenberg v S (CA&R 47/2020) [2021] ZANCHC 58; 2022 (1) SACR 43 (WCC) (29 October 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No:
CA&R 47/2020
Date
Heard:
07/10/2021
Date
Delivered:
29/10/2021
Reportable:
YES
Circulate
to Judges: YES
Circulate
to Regional Magistrates: YES
Circulate
to Magistrates: YES
In
the matter between:
NATASHA
LIEBENBERG
Applicant
v
THE
STATE
Respondent
JUDGMENT
O’Brien
AJ
[1]
The applicant appeared in the Regional
Court Kimberley on various charges of fraud, theft and uttering of a
forged document. She
initially pleaded not guilty to all the charges,
but during the trial, she made specific admissions in terms of
section 220 of
the
Criminal Procedure
Act, 51 of 1977
(‘the CPA’).
Because of these admissions, the court convicted her of all the
charges except one. The charges were taken
together for purposes of
sentence, and it sentenced her to six years imprisonment.
[2]
She appealed both the conviction and
sentence after being granted leave on petition by the Judge President
of this division. After
that, she applied for bail pending the
outcome of the appeal. Her application was successful, and she was
granted bail in the amount
of R5 000.00 coupled with certain
conditions.
[3]
Her appeal to the Kimberley High Court
succeeded in part. On certain charges the High Court found there to
be a duplication. It
set aside the charges concerning forgery and
uttering a forged document. The court reduced her sentence to four
years imprisonment.
She now applies for bail pending a petition to
the Supreme Court of Appeal (“the SCA”) against the
conviction and sentence.
It is unclear from the judgment on which
charges the applicant’s sentence was reduced. Also, whether the
charges were taken
together for purposes of sentence. More about that
later.
Jurisdiction
[4]
The issue in dispute is whether this Court
has jurisdiction to decide this application. Mr Mphela for the state
relies on an unreported
decision of this Court in
Anele
Kohlani v The State
(case number
974/21) delivered on 11 June 2021 submitted that this court does not
have jurisdiction to decide bail for lack of
jurisdiction. In his
view, the only Court which could fix bail is the SCA.
[5]
Mr Schreuder, on behalf of the applicant
submitted with reference to
S v
Banger 2016(1) SACR 115 (SCA)
,
that the court has jurisdiction to decide the question of bail
pending the petition to the SCA.
[6]
In
Kohlani
the
learned judge relied on the decision of
Van
Der Walt v Director of Prosecutions, Mpumalanga 2020(2) SACR 132 (MM)
in concluding that the applicant (
Kohlani
)
should approach the SCA to consider the question of bail pending an
intended application for special leave to appeal to the SCA.
This
necessitates a careful consideration and analysis of the statutory
provisions, and the Van Der Walt decision in an application
for bail
pending an appeal to the SCA.
[7]
The ratio in
Van
der Walt
appears to be that a Court
under the new dispensation - The Superior Court Act 10 of 2013 - has
to take into consideration when
deciding the question of bail pending
an application for special leave to the SCA, whether the applicant
has a reasonable prospect
of success on the merits of the case.
Accordingly, so the argument goes, bail could only be determined by
the SCA when special
leave must be granted. Stated differently, it is
only the SCA who could decide the question of bail.
[8]
I am in respectful disagreement with the
reasoning in Van Der Walt and Kohlani. The Court in Van Der Walt
proceeds from the premise
that it is not entitled to determine an
application for bail when the SCA must determine if an applicant has
a reasonable prospect
of success on the merits. But is the
consideration of bail pending appeal and reasonable prospects of
success on appeal conceptually
the same, in my view not.
[9]
In
Egling v
S
[2003] JOL 11005
(W)
Stegman J
dealt extensively with the difference between the test for leave to
appeal on the merits and the test for bail pending
appeal. After
referring to several of authorities, he concludes on page 29:
“
...When
a court is approached to release a prisoner on bail pending appeal,
it is required to exercise a discretion. The starting
point is that
the decision of the trial court is taken to be correct. At the same
time, the convicted person has a right of appeal
that must not be
rendered nugatory by the refusal of bail for insufficient reasons. It
is in the interest of justice that, wherever
possible, liberty should
be upheld by the release of the applicant on bail pending appeal.. ”
And on page 30:
“
I
hold that there is no general requirement of the law that an
applicant for bail pending appeal must demonstrate that he has a
reasonable prospect of success on appeal.”
(my
emphasis).
[10]
I respectfully agree with the reasoning
encapsulated in the last sentence of the preceeding paragraph. I
accept
Egling
was decided before the introduction of the Superior Courts Act. But
there is a conceptual difference between bail pending appeal
and
reasonable prospects of success on appeal regarding the merits of a
conviction and sentence.
[11]
My starting point is the Constitution.
Section 35(3)(o) states every accused person has a right to a fair
trial, which includes
the right of appeal to, or review by, a higher
court. That right includes the right to appeal against the refusal of
bail.
[12]
In
S v
Banger 2016(1) SACR 115 (SCA)
at
para 14, the court said bail appeals are inherently urgent. An
accused person should not be deprived of his/her constitutional
rights to freedom and freedom of movement for longer than is
reasonably necessary. The Court emphasized an applicant’s right
to appeal against the refused bail; however, 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.
[13]
In Banger, the court dealt with the
distinction between Section 21(1) of the Supreme Court Act, 59 of
1959, and the Superior Courts
Act. The Court reasoned that in terms
of the new dispensation regarding 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 the
High Court comprised of
more than one judge, the appeal lies directly
to the SCA. By implication, as I understand the Court’s
reasoning, an unsuccessful
appeal against conviction and sentence
does not preclude an applicant from applying for bail in the High
Court pending a further
appeal to the Supreme Court of Appeal. As
stated in Egling, an applicant for bail pending need not show that he
has a reasonable
prospect of success on appeal. Reasonable prospects
of success on appeal is but one factor that must sway a court to
grant bail.
[14]
The SCA in
Banger
reasoned that after the dismissal of an appeal by a full bench of the
High Court, the previous bail lapsed and a new application
must be
made. In
Banger
the accused was convicted and sentenced in the Regional Court. An
appeal to the High Court was unsuccessful. The accused, instead
of
applying for bail pending appeal in the High Court, filed a petition
to the SCA. In view of his application for special leave
to appeal to
the SCA, the accused applied for bail pending the outcome of his
application for special leave on the sentence and
conviction. The
High Court dismissed his application. The accused did not apply to
the High court for leave to appeal against the
refusal of bail,
believing he had an automatic right of appeal. The Supreme Court of
Appeal struck the matter from the roll for
the reasons mentioned to
in paragraph [13] above.
[15]
Banger
was
not discussed or referred to in
Kohlani
and
Van
der Walt
. In my respectful view,
the reasoning that the SCA must determine whether an accused has
reasonable prospects of success, and therefore
has to hear an
application for bail, is flawed and should not be followed. In Van
Der Walt, the court erred by not distinguishing
between bail pending
appeal and a reasonable prospect of success on appeal.
[16]
There is another reason I differ from the
reasoning in
Kohlani
and
Van der Walt
.
[17]
Section 16 of the Superior Courts Act
relevantly determines:
“
(1)
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 instances 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 consisited of more than
one judge to the Supreme Court of Appeal;
(b)
an appeal against the decision of
a Division on appeal to it, lies to the Supreme Court of Appeal upon
special leave having been
granted by that court or the Supreme Court
of Appeal...”
[18]
In
Director
of Public Prosecutions, Gauteng v KM 2017(2) SACR 177 (SCA),
the court discussed section 311 of the CPA and decided that this
section provides for an appeal as of right, without leave. An
appeal
under section 311 of the CPA is also an appeal regulated in terms of
the CPA. Accordingly, section 16(1)(b) of the Superior
Courts Act
does not apply.
[1]
It further
held that in terms of the definition of an appeal in the Superior
Courts Act does not include an appeal in a matter
regulated in terms
of the CPA or in terms of any other criminal proceedings. The
question of bail is thus not governed by the provision
of section
16(1)(b) of the Superior Courts Act. Therefore a High Court is not
precluded to decide the issue of bail pending an
application for
special leave to appeal to the SCA.
[19]
Bail proceedings are criminal proceedings.
The provisions of the CPA governs the issue of bail. In section 65 of
the CPA, provision
is made for an appeal to a High Court if bail is
refused in a lower court. See
S v
Botha 2002(1) SACR 222 (SCA)
at
paragraph 5 followed in
S v Tucker
2018(1) SACR 616 (WCC)
. Because
section 1 of the Superior Courts Act excludes an appeal in a matter
regulated by the CPA, the provisions’ of section
16(1(b)
requesting special leave to appeal do not apply. (KM supra at para
35). This shows that the bail determination in the circumstances
like
the present (where the appellant was unsuccessful in the High Court)
the High Court has the jurisdiction to determine bail.
Stated
differently, the SCA need not determine the prospects of success on
appeal for a High Court to decide bail.
[20]
The applicant in the matter under
discussion was sentenced to six years imprisonment. On appeal, that
sentence was reduced to four
years imprisonment. She has now applied
for special leave to appeal to the SCA against conviction and
sentence. When her appeal
against her conviction and sentence
succeeded in part, her bail lapsed. Therefore, the applicant is of
right entitled to apply
for new bail. On
Kohlani
and
Van Der Walt,
the applicant must lodge her application for bail pending special
leave to appeal to the SCA. This approach contradicts
Banger
and
KM,
as discussed above. This Court has jurisdiction to entertain this
application afresh for bail pending the decision of the SCA to
grant
special leave to appeal or not.
[21]
I turn to the merits of this application.
As stated previously, the conviction and sentence succeeded in part
on appeal. However,
the order of the court of appeal appears to be
problematic. In paragraph (a) of the order, it states that the appeal
against the
conviction and sentence succeeds in part. It reduced the
sentence to four years imprisonment. The difficulty with this order
is
that it does not say on what charges the applicant was successful.
It bears mention that the Regional Court took all the charges
together for the purpose of the sentence. Second, the order on appeal
does not say which sentences were set aside and which sentences
were
substituted. Third, the order does not say whether the court took
together the charges for the purpose of the sentence. Fourth,
the
order does not say whether the sentence is antedated. There is thus a
reasonable prospect that a higher court would interfere
with the
sentence, albeit on technical issues.
[22]
Mr Mphela argued that the Court should not
let the applicant on bail pending special leave to appeal. Although
conceding there may
be some difficulty with the order imposed on
appeal, he submitted that the applicant has no prospect of success on
appeal. He bases
this argument on the applicant’s admissions
made in terms of section 220 of the CPA, which amounted to a guilty
plea. However,
the applicant contends she was coerced to make these
admissions. Whether that is the truth or not is not for me to decide.
[23]
He further submitted that the applicant had
shown suicide tendencies, and she might not report to correctional
services. I considered
this argument carefully. However, the
applicant has already spent eight months in prison, was released, and
has not committed suicide.
It also appears that there is a genuine
attempt to contest the conviction and sentence. I received no
evidence that the applicant
is a flight risk, and will abscond.
[24]
In my view, the interest of justice, given
an individual’s right to liberty, moves me to grant the
applicant bail.
[25]
I make the following order:
1.
Bail is granted to the applicant pending
her application for special leave to the Supreme Court of Appeal in
the amount of R5 000.00
under the following conditions:
(a)
If the Applicant’s application for
special leave to appeal to the Supreme Court of Appeal is dismissed
or partly successful,
she has to report to Correctional Service
Centre, Kimberley;
(b)
Such reporting to the Correctional Centre,
Kimberley, must be done within 48 hours after being served with a
notice to do so.
S.C
O’Brien
Acting
Judge
On
behalf of the Applicant:
Adv.J. SCHREUDER
Adv.
C.F VAN HEERDEN
(PGMO
Attorneys)
On
behalf of the Respondent:
Adv. I MPHELA
Adv.
L. SETOUTO
(DDP,
Kimberley)
[1]
See
paragraphs 32-35 in particular of
KM
.