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2019
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[2019] ZAMPMBHC 9
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Van der Walt v Director of Public Prosecutions Mpumalanga (31/5/2019)) [2019] ZAMPMBHC 9; LEGODI JP (23 October 2019)
IN
THE HIGH COURT OF SOUTH AFRICA MPUMALANGA DIVISION
[FUNCTIONING
AS GAUTENG DIVISION PRETORIA, MBOMBELA CIRCUIT COURT]
CASE
NUMBER 1683/2019
REPORTABLE:
YES / NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED.
DR
DANIE VAN DER
WALT
APPLICANT
And
THE
DIRECTDOR OF PUBLIC PROSECUTIONS
MPUMALANGA
RESPONDENT
JUDGMENT
LEGODI
JP
[1]
This judgment is about whether this court is competent to determine
whether the applicant, Dr
Danie Van der Walt, has reasonable
prospects of success on appeal and is thus entitled to be released on
an extended bail pending
petition to the Supreme Court of Appeal for
special leave in circumstances where this court is not competent to
make such a determination
in an application for leave to appeal.
[2]
Subject to section 15(1), the Constitution and any other law on
appeal against any decision of
a Division on appeal to it, lies to
the Supreme Court of appeal upon special leave having been granted by
the Supreme Court of
Appeal
[1]
.
Leave to appeal may only be given where the Judge or Judges concerned
are of
the
opinion,
inter
alia,
that the appeal
would
have a reasonable prospects of success
[2]
.
[3]
It is because of the legislative imperative referred to in sections
16(1) (b) and 17 (1) (a)(i)
above that both the State and Defence in
this case were requested to file written heads of argument to deal
with the question as
postulated in paragraph [1] above. The defence
has done so and the state only in two pages filed a day before the
hearing this
application aligned itself with the defence that this
court has the competence to entertain the application for extension
of bail
pending petition to the Supreme Court of Appeal for special
leave, despite the imperative in sections 16 and 17 referred to in
paragraph [2] above.
[4]
As a background, on 27 July 2017 the applicant was convicted in the
Regional Court sitting at Emalahleni
Mpumalanga on a charge of
culpable homicide resulting from alleged medical negligence, and was
sentenced to five years’ imprisonment.
With the leave of the
court
a quo
, he appealed to this court against both his
conviction and sentence. His bail was extended by the Regional Court
pending finalisation
of his appeal to this court, and this the
Regional Court did I want to believe, after having found that there
were reasonable prospects
of success on appeal, an aspect which it
had the competence to pronounce itself on.
[5]
The court of appeal having been constituted as Legodi JP and Mankge
AJ and after having heard
argument on the appeal, dismissed the
appeal on both conviction on11 April 2019. On 6 May 2019 the notice
by the clerk of the court,
Emalahleni, which directed the Appellant
to report to serve the sentence, was suspended by Brauckmann AJ
pending substantial application
to this court for extension of bail
pending the hearing of petition for special leave to the Supreme
Court of Appeal. That substantial
application was laid before this
court on 24 May 2019 constituted as Legodi JP and Brauckmann AJ, as
Mankge AJ was not available,
and parties had no problem with the
court as constituted for purpose of hearing the present application.
[6]
The ace-card for the contention on behalf of the applicant that this
court is competent to hear
the present application is based on the
old decision in S v Hlongwane
1989 (4) SA 79
(T). In that case the
two judges who sat as court of appeal having dismissed the appeal,
and application for leave to appeal in
terms of the old Supreme Court
Act, granted extension of bail pending petition to the Appellate
Division.
[7]
In doing so, the two Judges on appeal found that the standard of
proof in an application for leave
to appeal is higher than in an
application for extension of bail pending petition for special leave
to the Appellate Division.
In his oral argument before us, Advocate
Maritz SC, on behalf of the applicant, acknowledged that the appeal
court in Hlongwane
case was competent to hear the application for
leave to appeal and consider the merits of the intended appeal to the
Appellate
Division, but that this court does not have such competence
to do so
.
[8]
In the same breath he contended that this court is competent to hear
the application for extension
of bail, and consider the reasonable
prospects of success on the proposed appeal, based on the following:
Firstly, that this court
has inherent powers to do so in common law,
read with section 173 of the Constitution. Secondly, that the
standard of proof on
the extension of bail, as it was the case in
Hlongwane matter, is low, and lastly that the Supreme Court of Appeal
is not competent
to deal with the extension of bail as is not a court
of first instance, and that this court is and should therefore hear
the application
for extension of bail and pronounce itself on the
prospects of success regarding the proposed appeal.
[9]
In my view consideration of prospects of success by this court, in
whatever form, is excluded
as contemplated in section 16(1)(b) of the
Act. There can never be a lower or higher standard of consideration
of reasonable prospects
of success seen in the context of “
reasonable
prospects of success
” and “
in the opinion of the
court”
in section 17 of the Act. In fact, it would result
in an untenable situation for this court to express itself on the
prospects
of success in the petition, or intended appeal to the SCA.
That would amount to second guessing the decision of the SCA to which
this court does not have the competence to pronounce itself on.
[10]
Seeing this court as court of first instance on the extension of bail
based on the substantive
application for such extension in my view,
misses the point. As a point of departure, it is not the duty or
function of this court
at this stage to analyse the evidence led in
the court
a
quo
in
great detail. To do so would create an untenable situation for the
court that will subsequently be dealing with the appeal
[3]
.
[11]
The substantive application, in the present proceedings, for
extension of bail extensively deals
with the evidence tendered in the
court
a quo
to persuade this court on the “reasonable
prospects of success” for which this court is not competent to
do in an application
for leave to appeal. To suggest that this court
is a court of first instance in the extension of bail application,
and therefore
entitled to consider prospects of success on a “lower
scale of proof” makes no legal sense.
[12]
In fact what we are being asked to do, is to maintain the
status
quo
by extending bail which came about because the Regional Court
had the authority to extend, after having considered the prospects
of
success on the proposed appeal, an issue which this court does not
have the legislative competence to consider. I also do not
think this
court has such competence, or inherent power, to do so at common law.
The court in Hlongwane-matter had the competency
to deal with the
application for leave to appeal to the Appellate Division, and
therefore there was no impediment for it in dealing
with the
requirement of prospects of success on appeal. I however have serious
reservation whether having found no prospects of
success in an
application for leave to appeal, it was entitled to revisit its
position purportedly on a lower standard of proof.
[13]
The introduction of reasonable prospects of success on a lower
standard of proof as contended
will be superfluous and out of place.
‘
What
the test of reasonable prospects of success postulates is a
dispassionate decision based on the facts and the law, that a court
of appeal would reasonably arrive at a conclusion different to that
of the trial court. In order to succeed, therefore, the appellant
must convince court on proper grounds that he has prospects of
success on appeal and that those prospects are not remote, but have
a
realistic chance of succeeding. More is required to be established
than that there is a mere possibility of success, that the
case is
arguable on appeal that the case cannot be categorised as hopeless.
There must, in other words, be a sound, rational basis
for the
conclusion that there are prospects of success on appeal’
[4]
.
[14]
In his oral argument Mr Maritz contended that ‘all what we
actually have to decide is:
‘
Are you a flight risk and is
your case hopeless one, in other words, are your merits so poor, and
if the merits are so poor, are
they such that your case is hopeless
one than we could refuse bail’.
[15]
Reasonable prospects of success on appeal as explained in the Smith
case makes no such distinction,
neither does it water down the
explanation to sneak in competence for this court to deal with
reasonable prospects of success,
and grant extension of bail. In my
view, to do so would be to deny, or refute the essence, and disguise
the imperative in sections
16(1)(b) and 17 the Superior Courts Act.
In my view, the Supreme Court of Appeal is best suited to deal with
the extension of bail.
For this, I do not find it necessary to deal
with the merits of the application for extension of bail pending
special leave to
the SCA.
[16]
Even if I was to be wrong with regard to the incompetence of this
court to consider reasonable
prospects of success on the extension of
bail, I do not think that we would find otherwise in favour of the
applicant. He elected
not to give evidence and his challenge to the
evidence up to this stage with new submissions, continues to display
skirmishes and
surprises in the conduct of his case.
[17]
Consequently the application is hereby dismissed on the basis that
this court has no competence
to deal with the application for
extension of bail and consider reasonable prospects of success on
appeal.
LEGODI
JP
I
agree
BRAUCKMANN
AJ
DATE
OF HEARING:
: 24 MAY 2019
DATE
OF JUDGMENT
: 31 MAY 2019
FOR
THE APPELLANT
: ADV J D MARITZ SC
INSTRUCTED
BY
: BDK ATTORNEYS
GROUND FLOOD, OXFORD
TERRACE
3 ON 9
TH
STREET
HOUGHTON ESTATE
TEL: 011 838 1214
REF R.C KRAUSE
Email:
rudi@bdk.co.za
CELL 082 496 0325
FOR
THE DEFENDANT
: ADV ELBIE LEONARD SC
INSTRUCTED
BY
: DIRECTOR OF PUBLIC PROSECUTION
GAUTENG, PRETORIA
TEL: 012 351 6709
NVCB
[1]
Section 16(1)(b)
of the
Superior Courts Act 10 of 2013
[2]
Section 17(1)(a)(i)
of Act 10 of 2013
[3]
S v Viljoen 2002 (2) SACR 550 (SCA)
[4]
S
v Smith
2012 (1) SACR 567
(SCA) at para 7.