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[2015] ZAECMHC 73
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Dalindyebo v S (267/04) [2015] ZAECMHC 73 (16 October 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION: MTHATHA]
Reportable
CASE
NO: 267/04
In
the matter between:
BUYELEKHAYA
DALINDYEBO
Applicant
And
THE
STATE
Respondent
JUDGMENT
PAKADE
J:-
[1]
The applicant is the King of the AbaThembu Tribe, having a Great
Place at Bumbane Royal Place in Tyalarha Farm, Mthatha.
[2]
On 21 October 2009 he was convicted by this Court on charges of: One
count of Culpable Homicide; Three counts of Arson; Three
counts of
Assault with intent to do grievous bodily harm; one count of
defeating the ends of Justice and One count of Kidnapping.
He was
sentenced to an effective total term of (15) fifteen years
Imprisonment for all the counts.
[3]
With the leave of this Court he appealed against his conviction and
sentence to the Supreme Court of Appeal and was granted
bail pending
appeal. The Appeal was prosecuted on 21 August 2015 and judgment
delivered on 1 October 2015 in terms whereof the
applicant was partly
successful in that the appeal was allowed against conviction and
sentence on the count of Culpable Homicide
and both conviction and
sentence thereon were set aside . The Appeal against conviction and
sentence in respect of the rest of
the charges was dismissed and
sentences were confirmed. The confirmed sentences have the inevitably
effect that the applicant should
serve a term of (12) twelve years
imprisonment.
[4]
It was one of the conditions of bail he was granted pending appeal
that he had to surrender himself to the SAPS Liaison Officer
at the
Director of Public Prosecutions, Mthatha within (14) fourteen days of
the judgment by the Supreme Court of Appeal . The
Judgment of the
Supreme Court of Appeal, having been delivered on 1 October 2015, the
fourteen day period expires on 21 October
2015.
[5]
The applicant has now approached this Court on Notice of Motion to
which he has attached a founding affidavit informing the
Court that
he intends to appeal against the judgment delivered by the Supreme
Court of Appeal and that he had already given instructions
to his
legal team to prepare an application for leave to appeal and for
direct access to the Constitutional Court. He further stated,
under
oath , that the application for leave to appeal will be filed with
the Registrar of the Constitutional Court
within (15)
fifteen days, that is, on 22 October 2015 .
[6]
In essence there is no appeal pending in the Constitutional Court as
at the time the applicant seeks the extension of bail.
Instead an
application for leave to appeal was filed in the Supreme Court of
Appeal on 12 October 2015. Mr Cilliers SC, counsel
for the applicant
has informed me during the hearing of this matter that the Registrar
of the Supreme Court of Appeal had informed
the applicant's Attorney
to file an application for leave to appeal directly in the
Constitutional Court. In terms of Rule 19 of
the Constitutional Court
Rules Leave to Appeal has to be filed with the Registrar of the
Constitutional Court within (15) fifteen
days from the date of
judgment, hence the applicant has instructed his legal team to file
it on 22 October 2015. He now seeks the
following relief pending
appeal:
“
1.
That the bail of the applicant be extended pending the finalisation
of an appeal by the applicant to the Constitutional Court
of South
Africa.
2.
The following conditions will apply:
2.1
The same terms and conditions that applied with reference to the bail
of the applicant pending the outcome of the appeal to
the Supreme
Court of Appeal will apply;
2.2
The applicant is further ordered to surrender himself to the SAPS
Liaison Officer , at the offices of the Director of Public
Prosecutions , Mthatha within 14 days of the judgment by the
Constitutional Court on the appeal and /or the date on which
the
appeal is struck from the roll of the Constitutional Court and/ or in
the event that leave to appeal to the Constitutional
Court is refused
by the Constitutional Court whichever event occurs first in order
that effect may be given to any sentence in
respect of these
proceedings;
2.3
In the event that the applicant intends to leave the borders of South
Africa , he shall first obtain the written permission
from the
Investigating officer, Superintendent Ndokwenu ( telephone 082778503)
[ wrong no.] not less than 14 days before he is
due to leave which
permission will not unreasonably be withheld ;
2.4
The applicant is further ordered to file an application for leave to
appeal against both his conviction and sentence to the
Constitutional
Court on or before 22nd of October 2015;
2.5
The bail is cancelled and a warrant for the arrest of the accused is
issued immediately upon the latter failing to adhere to
any of his
bail conditions ".
[6]
As already alluded to above, there is no application for leave to
appeal launched and pending in the Constitutional Court. Mr
Carpenter, together with Mrs Majova, counsel for the state has
submitted that on this basis this court has no jurisdiction to
entertain bail application. In developing his argument on this point,
Mr Carpenter submitted that by operation of the precedent
system this
Court is bound by the judgment of the Supreme Court of Appeal and for
this reason it cannot suspend the judgment of
the Appeal Court by
granting bail to the applicant when the Appeal Court had directed
that the applicant should serve the sentences.
Further this Court is
functus
officio
,
so goes the submission of Mr Carpenter.
[7]
I have already alluded above to the fact that the applicant has
stated under oath that he has made a decision to appeal against
the
judgment of the Supreme Court of Appeal. The applicant has stated in
his founding affidavit that in compliance with Rule 19
of the
Constitutional Court Rules he has given instruction to his legal team
to prepare and file an application for leave to appeal
to the
Constitutional Court and his application for direct access to that
Court will be filed within the prescribed period of (15)
fifteen days
from 1 October 2015. He still has time to file the application for
leave to appeal and as long as the time prescribed
by the Rules of
the Constitutional Court has not prescribed he has a right to launch
an application for the Extension of his bail
pending appeal to that
Court.
[8]
The submission relating to
functus
officio
has a bearing on the facts of the case which are not before me. Those
facts served before the trial court at the time it made an
order
releasing the applicant on bail pending appeal to the Supreme Court
of Appeal. The trial court found that those facts constitute
prospect
of success on appeal and granted leave to appeal and bail pending
appeal. This Court is not
functus
officio
on those facts and is entitled to take them into consideration in
deciding whether to extend bail or not. In having resort to them
,
this Court will not either be traversing on the judgment of the
Supreme Court of Appeal because that Court did not consider the
prospects of success if the applicant were to wish to appeal further
to the Constitutional Court. To the extent that the Supreme
Court of
Appeal did not consider the prospects of success and extension of
bail pending appeal, this Court must consider them.
The finding of
the trial court on prospects of success has not been affected by the
judgment of the Supreme Court of Appeal. They
remain intact and are
as valid and relevant now in the same way they were when the
appellant was granted leave to appeal and bail
pending appeal to the
Supreme Court of Appeal. The State has not produced new facts which
change would enable me to decide differently
on prospects of success.
The answering affidavit opposing bail has not brought about any new
material such as that, the applicant
is a flight risk, has committed
other offences while on bail or is threatening the witnesses who
testified against him in the trial.
The answering affidavit deposed
to by one of the Deputy Directors of Public Prosecutions merely
regurgitates certain legal provisions,
in particular the provisions
of the
Criminal Procedure Act, 51 of 1977
and is to a very large
extent argumentative. It does not raise essential material issues but
a duplication of the State’s
heads of argument.
[9]
The next point on this issue is whether this Court does not have
jurisdiction to entertain this application as further contended
for
by the State. Mr Carpenter has referred to
section 321(1)
(b) of the
Criminal Procedure Act, 51 of 1977
and submitted that this Court is
not the Superior Court from which the appeal is made as envisaged in
this subsection, which can
order the release of the accused on bail
pending appeal. The section needs reproduction in order to comprehend
the submission made
by Mr Carpenter. It reads as follows:
“
321
When execution of sentence may be suspended.
(1)
The execution of the sentence of a superior court shall not be
suspended by reason of any appeal against a conviction or by
reason
of any question of law having been reserved for consideration
by the court of appeal , unless -
(a)
............
(b)
The superior court from which the appeal is made or by which the
question is reserved thinks fir to order that the accused
be released
on bail or that he be treated as an unconvicted prisoner until the
appeal or the question reserved has been heard and
decided :".
[10]
This submission of the state is framed as though bail pending appeal
can only be considered in terms of the
Criminal Procedure Act, 51 of
1977
. It overlooks the fact that it may also be considered outside
the perimeters of the
Criminal Procedure Act. It
overlooks the trite
law that the High Court has an inherent jurisdiction to deal with any
matter including bail application even
if it is not brought within
the ambit of the
Criminal Procedure Act
>(
Veenendal v Minister of Justice
[1]
.
Mohamed J’s dictum is instructive in this respect . He
clarified to me what has been bothering me until Mr Cilliers referred
to this judgment. Mohamed J said and I agree with him:
"
Dealing first with the question of jurisdiction, I had initially
questioned whether this Court did indeed have the jurisdiction
to
grant bail where there were no statutory provisions authorizing such
a course . Whatever the validity of my initial doubts might
have been
counsel for the applicant has drawn my attention to a judgment of the
Full Court of this Division in the case of
S v Hlongwane
1989(4)SA 19 (T) as authority for the proposition that the Court does
indeed have an inherent jurisdiction
to grant bail in appropriate
circumstances . More particularly in Hlongwane ' s case the court
expressly approved a previous judgment
by my Brother Harms where he
had held that a court indeed had an inherent jurisdiction to grant
bail i circumstances substantially
similar and not identical
because there was indeed an appeal pending in the case before Harms J
to which reference is made i
Hlongwane's case. I do not
think , however , that that distinction affects the principle
behind the Court's finding
i Hlongwane's case and I am accordingly of
the view that , notwithstanding the fact that no appeal is presently
pending in the
case of the applicant , I have an inherent
jurisdiction to grant bail "
.
This
judgment was approved and applied by Madlanga AJ ( as he then was )
in
Zaire
v Minister of Home Affairs
[2]
where he found that the applicants were entitled to release , even in
the absence of an empowering statutory provision , but only
pending
the finalisation of the applications and on condition of payment of
bail . Madlanga AJ upheld the principle that in the
absence of
empowering statutory provision justifying the release of a person
from detention, the court can invoke its inherent
power to release
him or her. This becomes clear from page 93 of his judgment when he
said:
“
Even
though the instant matters relate to arrest and detention in the
context of pending deportations in terms of the Immigration
Act, I do
not find that to be a basis for distinction. The plain point made in
other cases is that the court exercises its power
in terms of its
inherent jurisdiction. That is an inherent power that I too surely
have ".
[11]
This is the power that I surely have too in the present application,
to use inherent jurisdiction of this Court to extend bail
of the
applicant pending appeal to the Constitutional Court.
[12]
I cannot disturb the finding of the trial court on the prospects of
success on appeal to the Supreme Court of Appeal. The applicant
has
partially succeeded on appeal to the Supreme Court of Appeal in the
most serious count of culpable homicide and a sentence
of ten years
imprisonment imposed by the trial court was set aside. I can only,
without further ado, merely extend the finding
on prospects of
success to be prospects of success of appeal to the Constitutional
Court. There is, in my view, a real likelihood
that the
Constitutional Court may interfere with the sentence on the basis of
the delay in bringing the applicant to justice coupled
with the undue
delay in finalising the matter. A period of twenty years has elapsed
since the commission of the offences in 1995.
The applicant has been
saddled with this case for about ten years after his arrest. The
interest of justice will not have been
best served if the applicant
is refused bail , serves his sentence and thereafter the
Constitutional Court interferes with the
sentence either by
suspending the sentence or granting him an option of a fine .
Anything is possible in Court.
[13]
Mr Carpenter further submitted that although there are no grounds of
appeal placed before this Court the aspects on which the
applicant
desires to appeal to the Constitutional Court, as gleaned from his
founding affidavit fall out of the scope of matters
the
Constitutional Court is enjoined to hear by section 167(3) (b) of the
Seventeenth Amendment Act of 2012 and on this basis leave
to appeal
will not be entertained by the Constitutional Court.
[14]
Section 167(3) (b) of the Constitution of the Republic of South
Africa, 1996 (Act 108 of 1996) gives jurisdiction to the
Constitutional
Court. Section 3 thereof provides that the
Constitutional Court –
“
(b)
may decide -
(i
) constitutional matters ; and
(ii)
any matter , if the Constitutional Court grants leave to appeal on
the grounds that the matter raises an arguable point
of law of
general public importance which ought to be considered by that Court
; and
(c)
make a final decision whether a matter is within its jurisdiction".
[15]
The applicant has attached to his founding affidavit, a copy of his
application for leave to appeal to the Constitutional Court
which
embodies some of the grounds of appeal. One of those grounds is that
the Supreme Court of Appeal erred in not finding that
his right to a
fair trial , in particular his Constitutional right to be tried
within a reasonable time ( in terms of s.35(3)(d)
of the Constitution
of the Republic of South Africa , Act 108 of 1996) had not been
infringed . In my view there is no doubt that
this is a
constitutional ground because, as I have already alluded to above, a
considerable time of about twenty years has elapsed
before the matter
was finalised. It cannot be reasonably envisaged that the
Constitutional Court may reject this ground as not
being a
constitutional ground. This is a special Court on constitutional
matters and there is a real likelihood that it may take
a completely
different view on this ground from that taken by the Supreme Court of
Appeal.
The
other grounds are of a general nature and the Constitutional Court
may find that they raise an arguable point of law of general
public
importance which ought to be considered by it. The application for
leave to appeal with exhaustive ground of appeal is still
being
prepared and Mr Cilliers had so informed me in the hearing of this
matter.
[16]
There is no danger that the applicant may evade justice and not serve
his sentence if the Constitutional Court does not grant
him leave to
appeal to it or having granted him leave to appeal, dismisses the
appeal. For twenty years or over the applicant stood
trial. In fact
he is a permanent resident of Bumbane Great Place and a King over the
Aba Thembu tribe. It would be naive to think
that a King can abandon
his Kingdom under whatever circumstances.
[17]
In the circumstances, the application succeeds and the following
order is made:
1.
That the bail granted to the applicant by the trial Court pending
Appeal to the Supreme Court of Appeal is hereby extended pending
the
finalisation of appeal by the applicant to the Constitutional Court ;
2.
That the extension of bail is subject to the following conditions:
2.1
The same terms and conditions that prevailed to the bail of the
applicant pending the outcome of appeal to the Supreme Court
of
Appeal shall apply;
2.2
The applicant is further ordered to surrender himself to the Head of
Mthatha Correctional Service within 14 days of the judgment
by the
Constitutional Court appeal and/or the date of which the appeal is
struck from the roll of the Constitutional Court and/or
in the event
that leave to appeal to the Constitutional Court is refused by the
Constitutional Court, whichever occurs first, in
order that effect
may be given to any sentence in respect of these proceedings;
2.3
In the event that the applicant intends to leave the borders of South
Africa, he shall first obtain the written
permission from the
Investigating Officer, Superintendent Ndokwenu, (who must furnish the
applicant forthwith with his contact
telephone numbers) not
less than 14 days before he is due to leave, which permission will
not be unreasonably withheld;
2.4
The applicant is further ordered to file an application for leave to
appeal against both his conviction and sentence
to the Constitutional
Court, on or before 22 October 2015;
2.5
The bail is cancelled and a warrant for the arrest of the applicant
is issued immediately upon him failing to adhere to any
of his bail
conditions.
____________________________
L.P.
Pakade
JUDGE
OF THE HIGH COURT
For
the Applicant
:
Adv Cilliers
Instructed
by
:
Etiene Naude Attorneys
C/O
Smith Tabata Inc
34
Stanford Terrace
Mthatha
For
the Respondent
:
Adv Carpenter with Adv Majova
Instructed
by
:
Office of the Director
of Public Prosecutions
NPA
House
Sission
Street
Mthatha
Date
Heard
:
14 October 2015
Date
Delivered
:
16 October 2015
[1]
1993(2)SA 137 (T)
[2]
2012(3)SA 90