About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2007
>>
[2007] ZASCA 93
|
|
S v Crossberg (439/2007) [2007] ZASCA 93; [2007] SCA 93 (RSA) (22 August 2007)
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Not Reportable
Case no: 439/2007
In
the matter between:
JEWELL
CROSSBERG
.......................
Appellant
and
THE
STATE
.......................
Respondent
_______________________________________________________
Coram
:
Navsa, Heher, Jafta,
Ponnan JJA et Malan AJA
Date
of hearing:
22
August 2007
Date
of delivery:
22
August 2007
Summary
:
Bail ─ after conviction and sentence trial judge refusing bail
pending an application for leave to appeal to this court on
the basis
that there were no prospects of success on the merits ─ this
court granting leave to appeal ─ in the interests
of justice
that bail be granted pending finalisation of appeal.
Neutral citation:
This
judgment may be referred to as
Crossberg
v S
[2007] SCA 93
(RSA).
_____________________________________________________
JUDGMENT
_____________________________________________________
THE COURT
THE COURT:
[1] This is an appeal against the
refusal of bail accompanied by an application for condonation for its
late filing. The background
is set out hereafter.
The background
[2] On 5 April 2007 the appellant Mr
Jewell Crossberg was convicted in the Transvaal Provincial Division
on a charge of murder and
on four counts of attempted murder. The
State was held to have proved its case, namely that the appellant had
shot and killed Mr
Jealous Dube and had fired shots at four other
persons with the same weapon with the intention of killing them.
[3] The appellant was sentenced to 20
years’ imprisonment on the charge of murder and five years’
imprisonment on each
of the four counts of attempted murder. The
trial court ordered that the sentences run concurrently. Thus the
appellant was sentenced
to an effective sentence of 20 years’
imprisonment.
[4] After the appellant had been
sentenced he applied for leave to appeal to this court against the
convictions. This was refused
by the trial court. He applied for bail
pending his application for leave to appeal to this court. That
application was also refused
by the trial court.
[5] In refusing bail the trial court
said the following:
‘
The
general attitude of a court is that when an accused person is still
awaiting trial and where there is no indication that the interests
of
justice might be prejudiced that such an accused person should be
released on bail on suitable conditions pending his trial. The
notion
is underpinned by the presumption of innocence against any accused
person, which exists in our law. However, once an accused
person has
been convicted and sentenced, the position changes radically, because
the presumption of innocence against the accused
is no longer
applicable and the court now knows for a fact that an accused person
has in fact been convicted. . .
[T]he pivotal and decisive consideration
in such an application is the reasonable prospect of success on
appeal as it would serve
no purpose to release an accused on bail
pending an appeal which is doomed to fail.’
[6] The trial court concluded as
follows:
‘
Suffice
to say that having given this matter careful consideration I am not
satisfied that there is a reasonable prospect that the
Supreme Court
of Appeal will grant the petition for leave to appeal.’
[7] On 11 June 2007 this court granted
the appellant leave to appeal the convictions referred to earlier.
Counsel for the State was
approached by the appellant’s legal
representatives to ascertain the State’s attitude in the light
of this new development.
According to the affidavit of the appellant,
which the State did not controvert, counsel for the State agreed that
since the very
basis of the refusal of bail had fallen away the State
would not oppose a fresh application for bail. Indeed, according to
the appellant
the State agreed bail conditions subject to approval by
the court.
[8] An approach by appellant’s
counsel (accompanied by counsel for the State) to the trial judge to
arrange the hearing of a
fresh application for bail was unsuccessful.
Another judge was appointed by the Deputy Judge-President to hear the
application. The
problem was that the judgments in terms of which the
appellant was convicted and sentenced, as well as the judgments
refusing the
application for leave to appeal and the bail
application, had not been revised and signed by the trial judge.
Repeated attempts to
have the judgments finally revised and signed
failed.
[9] In his affidavit the appellant
refers to a number of conversations between his legal representatives
and the trial judge, as well
as with the judge appointed to hear the
fresh application. It is not necessary for present purposes to
explore this aspect any further,
save to record that it is not
disputed that months elapsed without the fresh application being
finalised.
[10] This frustrating state of affairs
led the appellant’s legal representatives to advise the
appellant to proceed with this
appeal against the initial refusal by
the trial judge to grant bail pending an application for leave to
appeal his convictions to
this court. I record that the fresh
application for bail has in any event recently been withdrawn.
[11] The State filed heads of argument
but no affidavit denying any of the material facts upon which the
appellant relied. At the
commencement of the hearing before us
counsel for the State conceded that he had no basis upon which to
oppose the present appeal.
The law
[12] The appellant was convicted of
murder and attempted murder, which in the ordinary course attract
heavy sentences.
[13] It is so that there is a
different emphasis in respect of bail pending finalisation of a trial
as against bail pending finalisation
of an appeal. The presumption of
innocence operates in favour of an accused person until his guilt has
been established in court.
1
[14]
Section 60
of the
Criminal
Procedure Act 51 of 1977
regulates the granting of bail pending
finalisation of a trial. In respect of bail pending a petition to
this court the High Court
has a common law power to release the
would-be appellant. See in this regard
S
v Hlongwane
.
2
[15] The prospects of success are very
relevant in an assessment of whether to release the appellant pending
finalisation of an application
for leave to appeal.
3
As pointed out in the
Hlongwane
case, a substantial number of
applications for bail pending a further appeal are launched as a
dilatory tactic.
4
That of course amounts to an abuse of
court process. On the other hand, there may be a number of such
applications that are meritorious.
[16] Bail applications should in
principle be heard as a matter of urgency. In
Magistrate,
Stutterheim v Mashiya
5
,
this court said the following:
‘
It
is evident that finalising an application for bail is always a matter
of urgency. ...
And
if bail is refused, the decision can be appealed. The right to a
prompt decision is thus a procedural right independent of whether
the
right to liberty actually entitles the accused to bail.’
6
[17] Over and above the procedural
right is the Constitutional right to freedom and security of the
person as set out in s 12(1) of
the Constitution. Our courts have
always treated matters of personal freedom as matters of importance
and urgency.
[18] The appellant has the right to
appeal the refusal of bail without prior leave of the High Court. See
in this regard
S v Van Wyk
2005 (1) SACR 41
(SCA).
[19] It is important to note that the
appellant was released on bail during the entire period of his trial.
It is not disputed that
the State, recognising that bail had been
refused by the trial court on the narrow basis that there were no
prospects of success,
agreed not to oppose a fresh application for
bail and in fact agreed bail conditions subject to the court’s
approval. As noted
earlier the State has not filed an affidavit in
opposition and has therefore not indicated that the appellant is a
flight risk. Furthermore,
there is no factual basis on which one can
conclude that it is not in the interests of justice for the appellant
to be released pending
the finalisation of his appeal.
[20] Leave to appeal was granted by
this court. The trial court’s emphatic view that there were no
prospects of success would
therefore appear to have been without
foundation.
[21] The amount and conditions of bail
agreed by the State are reflected in the order that is to follow. In
our view, it is in the
interest of justice that the appellant be
released on bail in the amount and on the conditions agreed by the
State.
Condonation
[22] The appellant has explained that
he was advised first to pursue an application for leave to appeal
before proceeding with the
appeal against the refusal of bail by the
trial judge. Of course, in the event that the application for leave
to appeal to this court
against the convictions failed, the appellant
would not have proceeded with the appeal against the refusal of bail.
[23] Furthermore, it is due to no
fault of the appellant that he was unable to arrange the hearing and
finalisation of a fresh application
for bail. Thus, the appellant has
provided a satisfactory explanation and is entitled to condonation.
[24] There is one further aspect that
requires attention. It is regrettable that the State has waited until
the matter was called
in open court to make known its attitude in
respect of the present appeal. The consequence has been inconvenience
and for the appellant
it involved the costs of engaging two counsel.
[25] The following order is made:
(a) The application for condonation is
granted.
(b) The appeal is upheld.
(c) The order of the court below is
set aside and substituted with the following:
‘
The
applicant is granted bail in an amount of R50 000.00 (Fifty Thousand
Rand) pending the finalisation of his appeal in the Supreme
Court of
Appeal on the following conditions:
(a) Applicant is
prohibited from obtaining any passport and/or any other travelling
document whilst on bail.
(b) The Applicant is
prohibited from visiting any International Airport or Harbour where
access can be obtained to any means of leaving
the Republic of South
Africa.
(c) The Applicant is
prohibited from leaving the Northern Province without the prior
written consent of the Investigating Officer
in this matter.’
_________________
M
S NAVSA
JUDGE
OF APPEAL
_________________
J
A HEHER
JUDGE
OF APPEAL
_________________
C
N JAFTA
JUDGE
OF APPEAL
_________________
V
M PONNAN
JUDGE
OF APPEAL
_________________
F
R MALAN
ACTING
JUDGE OF APPEAL
1
Section
35(1)(f) of the Constitution gives arrested persons a right to be
released from prison if the interests of justice permit,
subject to
reasonable conditions. This of course clearly deals with the
position before finalisation of a trial. In
S
v Acheson
1991
(2) SA 805
(Nm) Mahomed J said the following at 822A-C:
‘
An accused
person cannot be kept in detention pending his trial as a form of
anticipatory punishment. The presumption of the law
is that he is
innocent until his guilt has been established in Court. The Court
will therefore ordinarily grant bail to an accused
person unless
this is likely to prejudice the ends of justice.’
See also Du Toit
et
al
Commentary
on the
Criminal Procedure Act
in
relation to pre-trial release at 9-2A to 9-5.
2
1989
(4) SA 79
(T) at 102A-G
3
Hlongwane
at 102D-G.
4
At
102E-G.
5
2003
(2) SACR 106
(SCA) at 113c-d.
6
See
also
Du
Toit et al
at
9-8.