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[2013] ZAKZPHC 72
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Bailey and Others v S (AR371/13) [2013] ZAKZPHC 72 (28 November 2013)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: AR371/13
DATE:
28 NOVEMBER 2013
In
the matter between:
TRAVIS
BAILEY
.............................................................................................................
First
Applicant
BONISILE
CHUTSHELA
..........................................................................................
Second
Applicant
ZENZELE
DLEZI
..........................................................................................................
Third
Applicant
TYRONE
HOFLAND
..................................................................................................
Fourth
Applicant
TRACEY-ANNE
PRETORIUS
......................................................................................
Fifth
Applicant
And
THE
STATE
............................................................................................................................
Respondent
ORDER
The
application is dismissed.
JUDGMENT
SEEGOBIN J:
INTRODUCTION
[1]
This is an application by the five applicants for bail pending the
outcome of their review application and an appeal against
sentence
both of which are set down for hearing in this court on 6 March 2014.
The applicants were arraigned in the Magistrate’s
Court,
Durban, on one count of contravening section 5(b) read with sections
1, 13(f), 17(e), 18, 19, 25 and 64 and Part III of
Schedule 2 of the
Drugs and Drug Trafficking Act 140 of 1992
, and further read with
sections 51(2)(a)
read with
Part II
of Schedule 2 of the
Criminal Law
Amendment Act 105 of 1997
. The allegation was that on 21 October 2010
and at or near Briar Lane Durban North in the district of Durban, the
accused unlawfully
dealt in an undesirable dependence producing
substance to:
Tetrahydrocannabino
, contained in 44.148
kilograms of cannabis or dagga as it is commonly referred to. The
trial proceeded before the learned magistrate,
Ms N Kathrada. The
applicants, who were legally represented, pleaded not guilty to the
charge but failed to testify in their defence.
At the conclusion of
all the evidence presented by the State they were convicted.
The first, fourth and fifth applicants
were each sentenced to eight
(8) years imprisonment while the second and third applicants were
each sentenced to five (5) years
imprisonment. It is common cause
that the applicants are currently serving their sentences and have
been doing so since about May
2013.
[2]
Following upon their unsuccessful applications in the court
a quo
for leave to appeal against conviction and sentence, the applicants
were subsequently granted leave by the High Court to
appeal
against sentence only, pursuant to a petition filed by the applicants
with the Judge President. It is this appeal which
has been set down
on 6 March 2013.
REVIEW
PROCEEDINGS
[3]
Together with the appeal is a review application instituted by the
applicants in which they seek to have the ‘entire proceedings’
conducted in the court
a quo
to be set aside on the basis of
an alleged irregularity committed by the learned magistrate during
the sentencing stage. The alleged
irregularity relates,
inter
alia
, to the fact that the learned magistrate had ordered the
conversations of the legal representatives which took place during
the
adjournments, to be transcribed. The applicants further allege
that the learned magistrate went ahead and listened to the recorded
conversations that took place privately between the legal
representatives and unilaterally attributed remarks to certain of the
legal representatives. They contend that this conduct on the part of
the learned magistrate has resulted in a serious miscarriage
of
justice. The applicants accordingly contend that the learned
magistrate was biased against them and as such the ‘entire
proceedings’ fall to be set aside.
[4]
It should be pointed out that the review which is currently pending
before this court is in fact the fourth review application
being
brought by the applicants in this matter. The first two reviews
involved the alleged incompetence of the applicants
then legal
representative, Advocate Van der Veen. It would seem that no
allegations of bias were made against the learned magistrate
at that
stage nor of any acrimony that may have existed between the bench and
the defence. Both these applications were dismissed
by Mr Justice
Kruger and Madam Justice Mokgohloa, the court finding that the
allegations that the applicants had not received a
fair trial due to
the alleged incompetence of their counsel, to be unfounded. It would
seem that the initial review application
under case no. AR155/12 was
either dismissed or struck off the roll by the court on 28 August
2012 due to non-appearance.
HIGH
COURT’S JURISDICTION
[5]
In the present application for bail before me a preliminary issue to
be decided is whether this court has jurisdiction to entertain
an
application for bail pending the outcome of the review/appeal in this
matter. Ms Greef who appeared on behalf of the State contended
that
by virtue of the provisions of section 307(1) of the Criminal
Procedure Act 51 of 1977
[1]
(“CPA”) the correct forum in which the issue of bail
should be dealt with is the court
a
quo
.
Essentially this section provides that a sentence of an accused
person is not automatically suspended pending a review unless
the
court which imposed the sentence releases the accused on bail.
She contended that the same principle is implicit in the
wording of
section 309(5) of the CPA
[2]
regarding the situation where an appeal is pending.
[6]
Mr Mathews, who appeared on behalf of the applicants, submitted that
in view of the fact that both the review proceedings and
the appeal
are currently pending in the High Court it is the High Court which
has the power to entertain an application for bail
and not the lower
court. He submitted that given the peculiar circumstances of this
matter, namely one that involves a review of
the learned magistrate’s
conduct as well as an appeal, it would be imprudent to remit the
matter to the learned magistrate
to consider an application for bail
at this stage.
[7]
The power of the High Court (previously the Supreme Court) to grant
bail has been the subject of debate in a number of leading
cases. In
the absence of any statutory enactment empowering the court to do so,
the court has the power to grant bail as an incident
of its common
law power to control its own judgments. The authorities cited
hereunder are illustrative of the point.
[8]
In
Chunilall
v Attorney-General Natal,
Didcott J pointed out that the power to grant bail is a special
power, that is derived from the CPA, and the court has no powers,
outside of those presented within the four corners of the CPA.
Emphasis was placed on the fact that the court has no inherent power,
apart from that placed on it from the CPA, to grant bail.
[3]
[9]
However, the Supreme Court of Appeal in
Magistrate,
Sutterheim v Mashiya
[4]
relied on its inherent jurisdiction for its ability to intervene in
uncompleted bail proceedings in the magistrate’s
court. Further
in
Majali
v S
[5]
the high court pointed out that it is able to supervise and ‘quality
control’ the lower courts with regard to civil
and criminal
matters. The court pointed out that the jurisdiction to intervene
lies within the common law.
[10]
In
S
v Hlongwane
,
the issue facing the court was whether it could grant bail where
there is a petition pending. The court discussed the powers of
the
high court (then the Supreme Court) to grant bail in general, in
terms of its statutory powers as well as the common law. The
headnote
contains the following useful guidelines:
[6]
“
(1)
The Supreme Court has the common-law power to use the
interdictum
de homine libero exhibendo
to enquire into the lawfulness or
unlawfulness of the detention of any person and where such detention
is unlawful, to order his
release. That wide common-law power could
possibly include the narrower power to order the conditional release
on bail of a person
in appropriate circumstances.
(2)
That the Supreme Court does have a general common-law power to
release a prisoner on bail has been accepted or presupposed
in
various decisions.
(3)
When a person has been lawfully arrested on a charge for the purposes
of criminal proceedings, his right to release on bail
until he is
sentenced in the trial court is regulated by chap 9
(ss 58
–
71
)
of the
Criminal Procedure Act 51 of 1977
. Chapter 9 contains a
codification of such rights from arrest to sentence. An accused
cannot therefore during such period rely
on any common-law power of
the court to release on bail except possibly if particular
circumstances occur where such a common-law
power can be exercised
within the framework of chap 9 and without conflicting with it.
(4)
After sentence in a criminal trial in a Supreme Court the court has
the common-law power to control its sentence. The court
can
accordingly suspend the sentence pending the determination of any
further steps which may be performed in a court (including
application for leave to appeal, a petition to the Chief Justice,
appeal, a special entry or the reservation of a question of law)
and
temporarily release the sentenced person. The court may also impose a
condition, for instance that the person lodge bail in
order to secure
his release. The court has therefore, after sentence, a common-law
power to release on bail.
(5)
A part of (4) above overlaps with
s 321(1)
(b)
and (2) of Act
51 of 1977 and where this occurs s 321(1)
(b)
and (2) replaces
the common law.
(6)
A Provincial Division's power to release on bail a person convicted
in the Supreme Court and sentenced to imprisonment does
not expire
after the court grants leave to appeal to the Appellate Division.
(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)
(c)
(vi)
(release on bail by a Provincial Division as a court of appeal).
Where this occurs the statutory power replaces the common-law
power.
(9)
After sentence in an inferior court, the inferior court itself has a
statutory power to release on bail pending the determination
of a
review or an appeal.
(10)
After disposal of an appeal by the Appellate Division and since the
abolition of appeals to the Privy Council, no court has
any power,
common-law or statutory, to release a sentenced prisoner on bail,
neither pending a petition to the State President
for clemency, nor
pending a petition to the State President in terms of s 327 of Act 51
of 1977 for the hearing of evidence which
only became available
subsequent to the trial.”
[11]
The principles set out in
S
v Hlongwane
(supra) have been applied in a number of cases,
[7]
including
S
v Hattingh
in which McLaren J held as follows:
[8]
“
This
court has been given no power by statute to grant bail in
circumstances such as these, but it was held in
Copthall Stores
Ltd v Willoughby's Consolidated Co Ltd
1913 AD 305
that this
court has an inherent right to control its own judgments.”
[12]
In
Majali v S
(supra)
it was held as follows at paragraph 15 (emphasis in original text):
“
The
common-law inherent jurisdiction power to grant bail must be
exercised consistently with the nature and purpose of section 39(2)
of the Constitution, which provides that a court ‘must promote’
the spirit, purport and objects of the Bill of Rights
and ‘
enjoins
courts to develop the common law in the interests of justice’
when dealing with matters involving the fundamental constitutional
issue of liberty. In this context, to ‘
promote
’
means to further or advance the constitutional imperative of taking
into proper account the fundamental rights encapsulated
in sections
12(1)
(a)
and 35(1)
(f)
, of the Constitution.”
[13]
This was re-iterated by the learned authors Van den Berg and Van der
Merwe (see footnotes below) when they state as follows:
[9]
“
The
court correctly held that the High Court's inherent jurisdiction
included the exercise of supervisory control over lower court
proceedings, and the power to exercise such control by intervening in
uncompleted lower court proceedings. It is submitted, however,
that
in granting bail the court went too far, considering the unremarkable
facts and limited prejudice that the accused would
suffer as a
result of the postponement. The High Court in effect usurped the
function of the lower court and, it is submitted,
was not justified
in intervening and hearing the matter as a court of first instance.
It must, however, be acknowledged that the
learned judge's reasoning
that the courts are enjoined to develop the law in accordance with
the spirit of the Constitution was
admirably activist in the
circumstances, and is to be commended.”
[14]
In
S
v Tsotsi
the issue was whether the high court was able to grant bail pending
the review and possible setting aside of proceedings that occurred
in
the military court. Although the civilian high courts play a role in
overseeing the military courts and their processes, there
was no
provision within the CPA or any of the military statutes or codes
that allowed the high courts to grant bail of a person
convicted in
the military courts. Plasket J held as follows regarding the inherent
power of the high courts to grant bail:
[10]
“
Two
points need to be made about the common-law power to grant bail. The
first is that, as it derives from the inherent jurisdiction,
it must
be exercised consistently with the nature and purpose of the inherent
jurisdiction which was, in terms of the common law,
and is, in terms
of s 173 of the Constitution, a power that exists to enable Superior
Courts (in the words of s 173) ‘to
protect and regulate their
own process, and to develop the common law’. The second point
flows from this. It is that the
power to grant bail in the absence of
a statutory empowerment is a manifestation of the power of Superior
Courts to regulate their
own orders in the interests of justice . . .
Circumstances such as those pertaining in this case—where a
person seeks bail
pending an application to the High Court to review
and set aside a conviction and sentence—appear to me to fall
within the
ambit of the inherent jurisdiction, even though the
proceedings that will be challenged on review are proceedings before
a military
court—a court that functions not in terms of the
Criminal Procedure Act but
in terms of the Defence Act, the MDC and
the Military Discipline Supplementary Measures Act, within its own
hierarchy of courts
and serving its own purposes that do not
correspond completely with the purposes served by the civilian
courts. Despite the fact
that military courts are not part of the
ordinary court structure, the Superior Courts exercise a supervisory
jurisdiction over
them that is similar in all material respects to
the supervisory jurisdiction that they exercise over magistrates'
courts. In these
circumstances, I cannot see a reason in principle
why the inherent jurisdiction does not apply to enable this Court to
grant bail:
This Court, in doing so, could be said to be exercising
its common-law jurisdiction to control the orders of lower courts
within
its area of jurisdiction, one of the bases for jurisdiction at
common law contemplated by Eloff AJP and Stegmann J in
S v
Hlongwane
.”
[15]
Plasket J further remarked that whenever the inherent jurisdiction of
the high court is in issue, the court has a discretion
whether or not
to invoke same.
[11]
[16]
Often the inherent jurisdiction to grant bail has come about in
extradition cases. In one such case
[12]
Mahommed J held that the high court had the inherent jurisdiction to
grant bail where a person is to be committed to prison in
terms of s
10(1) of the Extradition Act 67 of 1962, even though there are no
appeals pending against the magistrate’s decision.
[17]
Where a court has referred a matter to another court for trial, or
conviction, or sentencing the court retains all powers regarding
the
bail conditions, etc. until the accused has appeared in such court
for the first time.
[13]
[18]
Where no litigious proceedings are pending, i.e. where the matter has
reached the final court forum and has been disposed of,
then the high
court will have no power to grant bail, including the bail of a
person to be removed from the Republic as he or she
has been found to
be an illegal immigrant in terms of the Admission of Persons to the
Republic Regulation Act 59 of 1972.
[14]
Also bail pending an appeal lapses where an appeal has been struck
off the roll and will as such need to be considered afresh where
a
court is considering the re-instatement of the appeal.
[15]
[19]
In
S
v Ndjadayi
[16]
the court held that the effect of the Constitution Act 200 of 1993 on
an application for release from detention was a species of
interdictum
de libero non exhibendo
and as such civil proceedings under and in terms of section 20 of the
Supreme Court Act 59 of 1959.
[17]
Refusal of bail is as such appealable by the court of first instance,
i.e. the high court, but only with leave of the court. But
in
S
v Botha en ‘n ander
[18]
it was held that bail proceedings are criminal proceedings for the
purpose of sections 20 and 22 of the Supreme Court Act
[19]
and that there is a right to appeal the bail proceedings to a higher
court without the need for prior leave by the court of first
instance.
[20]
It would seem to me that the High Court always has the power to
control its own proceedings. Inherent in this is the
power to
grant bail which is an incident of its common law power to control
its own judgments. This is not to say that in every
instance the High
Court would be obliged to consider an application for bail. This
would depend on the facts and circumstances
of each case. The general
rule, however, is that bail applications should be pursued in the
court of first instance because it
is that court that is best
equipped to deal with the issue, having been steeped in the
atmosphere of the case. A refusal of bail
in that court could result
in that decision being taken on appeal to the High Court and
thereafter to the SCA if necessary. As
a matter of practice this is
the route that should be followed. The peculiar circumstances of a
case however, may dictate otherwise.
MERITS
OF THE BAIL APPLICATION
[21]
I revert to the application proper. The application is brought on
notice of motion supported by affidavits from the various
applicants.
An opposing affidavit was filed by the State. The applicants
did not deem it necessary to file a reply.
[22]
Save for certain allegations contained in the affidavits of the
fourth and fifth applicants concerning the alleged conduct
of the
learned magistrate insofar as the review application is concerned,
the case made out by each of the applicants is the same.
They
all aver that they were released on bail pending the finalisation of
the criminal proceedings in the court
a quo
, that they
attended each and every court appearance without incident and that
even after conviction they continued to attend all
court appearances
without any incident. Additionally, they set out their personal
circumstances which are relevant to the
issue of bail. These
circumstances are all spelt out in the affidavits and I do not
consider it necessary to repeat them
in any great detail herein. The
applicants are all South African citizens and are aged 44, 24, 51, 35
and 36 years respectively.
The first, second and third applicants
aver that they are not in possession of any passports, assets, bank
accounts or ties outside
of the country. The fourth and fifth
applicants say nothing about all of this. The second and third
applicants aver that due to
the ongoing violence in the prisons, both
of them have been traumatised and consider their lives to be in
danger. The third applicant
in particular contends that he was
repeatedly stabbed and “otherwise assaulted” on numerous
occasions in the past four
months. He provides no details regarding
such stabbing and assaults. All of them undertake to adhere fully to
any bail conditions
that may be set by this court.
[23]
A matter of grave concern insofar as the first, second and third
applicants are concerned is the fact that neither one of them
has any
financial resources whatsoever. In this regard the first applicant
makes the following disclosure in paragraph 5 of his
affidavit:“(5)
I
digress further herein to add that this matter is currently also
subject to a review application, such review matter having been
set
for hearing in March 2014. I am aware that my second and third
co-applicants herein, namely Chutshela and Dlezi, have
no financial
resources whatsoever at this stage. I am also advised that the
legal resources of my other remaining co-applicants
herein are almost
exhausted and, in order to reduce legal costs herein, the decision
has been taken to bring application in order
that both matters,
namely the review application and sentence appeal, be argued
simultaneously before the High Court in March 2014.
For that
matter, it should be noted that I personally currently have no
resources for the legal proceedings whatsoever at this
stage and am
entirely reliant on my wife and family for assistance in this
regard.”
[24]
Despite the fact that he has no financial means to fund his own bail,
the first applicant is nonetheless “
prepared to attempt to
assist both my second and third co-applicants herein, namely
Chutshela and Dlezi, insofar as the depositing
of bail monies is
concerned, as and where possible
”.
[25]
The second and third applicants make it plain that they have nothing
and are totally reliant on the first applicant for assistance.
The
third and fourth applicants, on the other hand, say nothing about
their financial positions or whether they can afford to pay
any bail
at all. During the course of the argument on 29 November 2013 I did
raise with Mr Mathews my concerns regarding the financial
positions
of the applicants and whether they can afford to pay bail in the
first place.
DISCUSSION
[26]
Generally while courts would always lean in favour of granting bail
to an accused person pending his/her trial, different considerations
apply after conviction and sentence. This was pointed out by the
court in
S
v Williams
[20]
where
the following was stated:
“
Different
considerations do, of course, arise in granting bail after conviction
from those relevant in the granting of bail pending
trial. On the
authorities that I have been able to find it seems that it is putting
it too highly to say that before bail can be
granted to an applicant
on appeal against conviction there must always be a reasonable
prospect of success on appeal. On the other
hand even where there is
a reasonable prospect of success on appeal bail may be refused in
serious cases notwithstanding that there
is little danger of an
applicant absconding. Such cases as
R v Milne and Erleigh (4)
1950
(4) SA 601
(W) and
R v Mthembu
1961 (3) SA 468
(D) stress the
discretion that lies with the Judge and indicate that the proper
approach should be towards allowing liberty to
persons where that can
be done without any danger to the administration of justice. In my
view, to apply this test properly it
is necessary to put in the
balance both the likelihood of the applicant absconding and the
prospects of success. Clearly, the two
factors are inter-connected
because the less likely the prospects of success are the more
inducement there is on an applicant to
abscond. In every case where
bail after conviction is sought the
onus
is on the applicant
to show why justice requires that he should be granted bail.”
[27]
In
S
v Hudson
,
[21]
Flemming DJP set out the following principles in the light of the
factors set out in
S
v Williams
(supra):
“
To
hold that the prospects of success on appeal may never be a
permissible consideration, would run counter to authority. The
need to have regard to the prospects is also readily apparent if one
considers the extremes.
(
a
)
If it is known that the appeal is very likely to succeed, the spectre
is raised of the administration of justice detaining a man
well
knowing of the prospect that he will be undergoing something which he
should be able to avoid. In
S v De Abreu
1980 (4) SA 94
(T) the Court, aware of the undesirability of a single Judge
anticipating a decision on appeal, took into account that on the
particular charges the appeal was likely to succeed.
(
b
)
If it is so that the appellant has no prospect of avoiding
imprisonment, the only value of bail is to the appellant. He would
gain postponement and not avoidance. (A chance to take to flight is
not a legitimate advantage.) A court will not allow bail procedures
to frustrate punishment procedures which have been duly formalised.
Cf
S v Hlongwane
1989 (4) SA 79
(T) at 102E-G.”
[28]
Flemming DJP in
S v Hudson,
(supra) set the test as follows at
433e-f:
“
Considering
the granting of bail involves, as is well known, a balancing of the
interests of the administration of justice against
the wishes of the
accused. But that is, of course, not accurate. Those interests are
not fully in opposition. It is also to the
public good and part of
public policy that a person should enjoy freedom of movement, of
occupation, of association, etc. That
public interest is qualified,
when appropriate, in the interests of the administration of justice.
Secondly, considering bail involves
a balance between unequal
considerations. Risk of harm to the administration of justice
involves unquantifiable and unprovable
future possibilities. The
interests of the accused generally turn upon extant facts and
intentions. But it remains the chances
that the administration of
justice may be harmed which may justify the impact of detention
despite a pending appeal.”
[29]
In
S v Hudson
(supra) Flemming DJP showed support for Marais
J’s approach in
S v Anderson
when he says the following
at 434a-d:
“
In
S v Anderson
1991 (1) SACR 525
(C) Marais J, with reference to
a case where there is no reason to be concerned about whether or not
the applicant will abscond,
did not support an enquiry whether there
'is a reasonable prospect of success’. He said that if the
appeal is 'reasonably
arguable and not manifestly doomed to failure',
the lack of merit in the appeal should not be the cause of a refusal
of bail. I
agree. I add that if the conclusion that the appeal is
manifestly doomed to failure can be reached only after what is
tantamount
to or approximates a full rehearing, the appeal
should ordinarily for purposes of considering bail be treated as an
appeal
which is arguable. The question is not whether the appeal
'will succeed' but, on a lesser standard, whether the appeal is free
from predictable failure to avoid imprisonment. Cf
S v Moeti
1991
(1) SACR 462
(B) wherein it was said that the applicant for bail must
convince that there is 'a reasonable possibility' that the
appeal
will avert imprisonment.”
[30]
In
S
v Myers
[22]
the factors that were
carefully weighed concerned the likelihood of success of the appeal
and the possibility of the accused absconding.
In this matter, the
accused had absconded once before when the Law Society wished to
investigate his practice – on this basis
the court decided that
he be held in custody pending the outcome of the appeal.
[31]
The approach of the court in
S
v Mabapa
[23]
was the following:
“
Although
the conventional approach to bail pending appeal has been that it
should be granted only if there are reasonable prospects
of success
on appeal and no likelihood that the appellant will abscond (see
S
v Anderson
1991 (1) SACR 525
(C) at 527
e
-
g
,
per
Marais J), a more lenient, fundamental rights and liberty-orientated
approach has developed in the last decade. In some instances
the
test applied was in fact whether it could be said that the appellant
had
no possibility
of success on appeal (see
S v Anderson
(supra
at 526
j
),
per
Marais J and
S v Naidoo
1996 (2) SACR 250
(W) at 252,
per
Joffe J). This more
lenient approach is set out by Shakenovsky AJ in
S v McCoulagh
2000 (1) SACR 542
(W) at 549 - 51, and it is not necessary
to quote passages from the judgments again. The shades of approach
differing from
the conventional can be summarised as follows:
(a)
Even in the absence of reasonable prospects of success, bail should
be granted where the possibility cannot safely be excluded
that the
term of imprisonment, which the Court of appeal may substitute
would, at that stage, have expired. In such a case,
'it is enough
that the appeal against sentence is reasonably arguable and not
manifestly doomed to failure' -
S v Hudson
1996 (1) SACR 431
(W) at 434
b
,
per
Flemming DJP;
S v De Villiers en 'n
Ander
1999 (1) SACR 297
(O) at 310
c
. To the test
stated in
Anderson
, Flemming DJP added that
‘
if
the conclusion that the appeal is manifestly doomed to failure can be
reached only after what is tantamount to or approximates
a full
rehearing, the appeal should ordinarily for purposes of considering
bail be treated as an appeal which is arguable. The
question is not
whether the appeal ''will succeed'' but, on a lesser standard,
whether the appeal is free from predictable
failure to avoid
imprisonment. . . . (T)he applicant for bail must convince that there
is a ''reasonable possibility'' that the
appeal will avert
imprisonment.’
With
reference to the
Hudson
case, it was stated in two reported judgments that bail pending
appeal ought not lightly to be refused on the sole ground of absence
of prospects of success -
S
v Ndhlovu and Another
1999
(2) SACR 645
(W)
at 646
j
;
S v
De Villiers en 'n Ander (supra
).
(b)
The approach that it is desirable that sentence be served as soon as
possible, if there is no reasonable prospect of success on
appeal
“should be applied with circumspection and care, and
only in
clear-cut cases
” -
S v Richardson
1992 (2) SA 169
(E); supported in
S v Hudson (supra
at 434
a
) (emphasis
added by Flemming DJP).
(c)
The test is whether the applicant has
no
possibility of
success on appeal -
per
Joffe J in
S v Naidoo
1996 (2)
SACR 250
(W) at 251
h
-
i
. This test was disapproved of
by Van Oosten J in
S v Rawat
1999 (2) SACR 398
(W) at 401
f
.
Van Oosten J concluded at 401
g
-
h
that
“
where
it has not been shown that a
reasonable
possibility exists
that the Court of Appeal will interfere with the appellant's sentence
to the extent that the appellant may not
go to prison, then bail
should not be granted”.’ [original emphasis].
[32]
In
S v Mabapa
(supra) the court further held in para 8 that:
“
In
deciding what the standard is, it remains significant that s 35(1) of
the Constitution of the Republic of South Africa Act 108
of 1996
provides that everyone who has been arrested for allegedly committing
an offence has the right to be released from
detention if the
interests of justice permit, subject
to reasonable conditions. This provision has
been considered in depth
by the Constitutional Court in
S v Dlamini;
S v Dladla and
Others; S v Joubert; S v Schietekat
[1999] ZACC 8
;
1999 (2) SACR 51
(CC)
(1999
(4) SA 623
,
1999 (7) BCLR 771)
, Kriegler J writing for an unanimous
Court. Section 35(3) also guarantees the right of an accused to a
fair trial, which includes the
right to be presumed innocent and
the right to appeal to a higher Court. The constitutional importance
of the right to appeal
has been recognised in
S v Steyn
[2000] ZACC 24
;
2001
(1) SACR 25
(CC)
(2001 (1) SA 1146
;
2001 (1) BCLR 52).
Section 12 of
the Constitution guarantees everyone's right to freedom and security
of the person, which includes the right not
to be deprived of freedom
arbitrarily or without just cause. But, as cautioned by Kriegler
J in
S v Dlamini (supra
in para [79]), the Constitution does
not create an unqualified right to personal freedom. If such a right
may even be limited or
removed before conviction,
the principle
applies even more strongly after conviction pending appeal.
Although the opportunity for interfering with evidence is not that
real at this stage,
the possibility that a convicted person may
abscond when on bail pending the appeal, is increased
. Of course,
all the other factors mentioned in
s 60
of the
Criminal Procedure Act
must
be considered and if the conclusion under that section remains
that bail should not be granted, the matter of prospects of success,
sic rebus stantibus
, should not be relevant after conviction.
This judgment deals with those cases where a person would
have been (and still would be)
granted bail under
s60(4)
- (11) but he or she has now been convicted
and sentenced to imprisonment
.”
[my
emphasis]
[33]
However, In
S
v Masoanganye
,
[24]
Harms AP (as he then was) pointed that
“
[s]ince
an appeal requires leave to appeal which, in turn, implies that the
fact that there are reasonable chances of success on
appeal, is on
its own not sufficient to entitle a convicted person to bail pending
an appeal:
R v Mthembu
1961(3) SA 468 (D) at 417 A-C.
What is of more importance is the seriousness of the crime, the risk
of flight, real prospects
of success on conviction, and real
prospects that a non- custodial sentence might be imposed.”
[34]
In the present matter Mr Mathews has contended strongly, insofar as
the review proceedings are concerned, that it is ‘
highly
probable
’ that the entire proceedings before the court
a
quo
will be set aside given the gross irregularity that was
committed by the learned magistrate. I disagree. In my view, even if
it
is found that the irregularity complained of has resulted in a
miscarriage of justice it is highly unlikely that the entire
proceedings
would be set aside and the trial ordered to commence
de
novo
before another magistrate. Since the alleged irregularity is
confined to the sentencing proceedings it is only these proceedings
that may in all likelihood be set aside. In that event there
would be nothing stopping the reviewing appeal court from considering
the issue of sentence afresh.
[35]
The essential issue in this matter is whether the interests of
justice permit the release of the applicants on bail at this
stage.
The applicants have been convicted of a serious offence. The
proliferation of drugs and the prevalence of drug-related offences
in
this country are a matter of grave concern. The evidence showed that
the applicants were cultivating a ‘superior’
quality of
dagga. They did so by creating a sophisticated greenhouse effect in a
residential suburb. It is a known fact that drugs
not only destroy
innocent lives, they also destroy the very fabric of society.
It is for this reason that our courts are
now imposing robust
sentences for such offences. In these circumstances, I do not
believe that the sentences imposed by the
learned magistrate are
shockingly inappropriate or disproportionate to the offence
committed. Even though the applicants have been
given leave to appeal
against sentence which presupposes some prospects of success, this
does not, in my view, mean that a totally
non-custodial sentence will
be imposed. I do not consider the applicants prospects to be
clear-cut so as to mean that their sentences
will be set aside and
replaced with a wholly non-custodial one.
[36]
Additionally, I consider that inasmuch as the applicants may have
adhered to their bail conditions up to the sentencing stage,
things
have now changed with the sentences they face. The risk of
abscondment is even greater at this stage. A further factor to
be
considered is that their review and appeal are to be heard on 6 March
2014 which is less than three months away. It seems
that the
main reason why the applicants are seeking bail at this stage is to
allow them an opportunity to pursue employment opportunities
in the
meantime given their precarious financial positions. This, in
my view, hardly serves as a cogent reason for the granting
of bail
particularly having regard to the serious nature of the offence of
which they have been convicted.
[37]
In all the circumstances and for the reasons set out herein, I am not
persuaded that the interests of justice should permit
the release of
the applicants on bail at this stage.
ORDER
[39]
The order I make is the following:
The
application is dismissed.
Date of
Judgment : 18 December 2013
Date of
Hearing : 28 November 2013
Counsel for
Applicants : Adv. S Mathews
Instructed by
: Stowell & Co.
Counsel for
Respondent : Adv. W Greeff
Instructed by
: The Director of Public Prosecutions
Durban,
KwaZulu-Natal
[1]
Section
307(1)
of the
Criminal Procedure Act reads
as follows: “Subject
to the provisions of
section 308
, the execution of any sentence
shall not be suspended by the transmission of or the obligation to
transmit the record for review
unless the court which imposed the
sentence releases the person convicted on bail.”
[2]
Section
309(5)
states: “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 power in respect
of the granting of bail which a magistrate’s court has in
terms of
section 307.
”
[3]
See
Chunilall
v Attorney-General, Natal
1979 (1) SA 236
(D); also
Beehari
v Attorney-General, Natal
1956 (2) SA 598
(N) and
S
v Kaplan
1967 (1) SA 634
(T) 636A-B. See also S van der Merwe
et
al Du Toit’s
Commentary
on the
Criminal Procedure Act
(Revision
Service 50 – January 2013) ch9-p8.
[4]
2003
(2) SACR 106
(SCA) at 110a.
[5]
Majali
v S
[2011] ZAGPJHC 74 para14; Van der Merwe op cit ch9-p8.
[6]
S
v Hlongwane
1989
(4) SA 79
(T) at 81 of the headnote and also Van der Merwe op cit
ch9-p8 to p9 and A Kruger
Hiemtra’s
Criminal Procedure
(Service Issue 6 – May 2013) p9-14(1) – p9-15.
[7]
S
v Human
1990
(2) SACR 155
(NC);
S
v Malcolm
1999 (1) SACR 49
(SEC) and referred with approval in
Crossberg
v S
[2007] SCA 93 (RSA) at para 14.
[8]
S
v Hattingh
1992
(2) SACR 466
(N) at 496b; McLaren J quoted Centlivres CJ in
R
v Milne & Erleigh (7)
1951 (1) SA 791
(A) at 881H. See also Van der Merwe op cit ch9-p9 to
p10.
[9]
J
Van Der Berg
Bail
– A Practitioner’s Guide
3ed (2012) at 70 – 71; Van der Merwe op cit ch9-p10.
[10]
S
v Tsotsi
2004 (2) SACR 273
(E) paras 11 – 12. Also
Van
der Merwe op cit ch9-p10. Regarding the extension of bail after
conviction generally see Kruger op cit p9-3.
[11]
S
v Tsotsi
supra para 13. Also
Van
der Merwe op cit ch9-p10.
[12]
Veenendal
v Minister of Justice
1993
(1) SACR 154
(T). See also
S
v Thornhill (2)
1998 (1) SACR 177
(C) at 180e-g. See also Van der Merwe op cit
ch9-p11.
[13]
Van
der Merwe op cit ch9-p17.
[14]
Chunguete
v Minister of Home Affairs
1990
(2) SA 836
(W); Van der Merwe op cit ch9-p11.
[15]
Van
der Merwe op cit ch9-p17.
[16]
1995 (2) SACR 583 (E).
[17]
See
sections 16
and
17
of the
Superior Courts Act 10 of 2013
.
[18]
2002 (1) SACR 222 (SCA).
[19]
See
sections 16
,
17
and
19
of the
Superior Courts Act 10 of 2013
. See
also
S
v Van Wyk
2005 (1) SACR 41
(SCA) para 1; Van der Merwe op cit ch9-p11.
[20]
1981
(1) SA 1170
(ZA) at 1171H – 1172B.
[21]
1996 (1) SACR 431
(W) at 432d-g.
[22]
1993 (1) SACR 383
(C) at 384j – 385a.
[23]
2003 (2) SACR 579
(T) para 5.
[24]
2012
(1) SACR 292
(SCA) para 14.