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[2009] ZAGPJHC 72
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Jwara and Others v S (A229/09) [2009] ZAGPJHC 72 (21 August 2009)
IN GAUTENG SOUTH
HIGH COURT
JOHANNESBURG
CASE NO
: A229/09
DATE
: 21/08/2009
In the matter between
PETROS DUMISANI JWARA AND OTHERS APPLICANTS
And
STATE RESPONDENT
_________________________________________________________
J U D G M E N T (Leave to appeal)
_________________________________________________________
MOSHIDI J
:
[1] This is the judgment of the court on the application for leave to
appeal. It is an application for leave to appeal to the
Supreme
Court of Appeal against the judgment of Borchers J (of this High
Court) in dismissing an appeal to her from an order of
a regional
magistrate refusing the applicants’ bail on 25 May 2009.
Borchers J is currently not available as she is on long
leave.
[2] The grounds of appeal are as set out in the notice of application
for leave to appeal, dated 14 April 2009. The application
is opposed
by the State.
[3] Before ruling on the application, I wish to make the following
comment. Bail proceedings are inherently matters to be dealt
with
expeditiously since the liberty of the applicants is in issue.
Contrary to the submissions made on behalf of the applicants,
I am
not entirely convinced that the applicants in fact, and procedurally
require leave to appeal from this Court in order to pursue
the matter
in the Supreme Court of Appeal.
State counsel today has submitted that there is such a procedure. As
I understand the current law the applicants indeed have the
right to
appeal directly to the Supreme Court of Appeal in circumstances where
bail was refused. See in this regard
S v Botha en ‘n Ander
2002 (1) SACR 222.
In
S v Kock
2003 (2) SACR 5
at par. 26
Heher AJA, (as he then was), said:
“The second matter concerns the question of the court, which is
most appropriate to hear an appeal of this nature which has
been
initiated in the magistrate’s court and pursued before a single
Judge of the High Court. The present law allows a further
appeal
only to the Supreme Court of Appeal (by reason of 21(1) of the
Supreme Court Act 59 of 1959). This appeal, which required
no
in-depth consideration of legal issues, however, could have been
disposed of before a Full Court of the Witwatersrand Local
Division
at least as expeditiously and at less expense to both the appellant
and the State if the law had provided greater flexibility.
This is a
concern which warrants the attention of the Legislature sooner rather
than later.”
The learned authors, Du Toit et al, in the Commentary on the Criminal
Procedure Act (service 39 2008 at 9-77), define the concern
as
follows:
“There is presently no mechanism whereby an appeal from the
judgment of a High Court, as a court of first appeal, can be
channelled to a full bench of the High Court. The Supreme Court of
Appeal has recommended that the Department of Justice should
urgently
pay attention
to this aspect. See
S v Viljoen
2002 (2)
SACR 550
(SCA),
as well as
S v Kock
2003 (2) SACR 5
(SCA)
14g - h and
S v van Wyk
2005 (1) SACR 41
(SCA) at (1).”
As far as could be ascertained, the concern expressed above was yet
to be addressed. The situation remains unsatisfactory.
[4] Based on the above, I am of the view that had the applicants
utilised the above procedure immediately after the judgment of
Borchers J on 25 May 2009, the matter would in all likelihood have
received earlier attention as opposed to what may occur hereafter.
This would have been in their interest as their trial is yet to
commence.
The court is told that the trial has been set down for some time in
October 2009. The applicants have been in custody since 23
March
2009. If, however, I am incorrect in my view that the applicants do
not require from this Court leave to appeal, I have
to deal with the
merits of the application for leave to appeal.
Counsel for the applicants has submitted today that there are
reasonable prospects of success on appeal. On the other hand, the
State has contended that there are no such reasonable prospects and
that the application ought to be refused.
[5] The proper test has always been whether there are reasonable
prospects of another court coming to a different conclusion.
See in
this regard
New Clicks South Africa (Pty) Ltd v Tshabalala-Msimang
and Another, NNO Pharmaceutical Society of South Africa and Others v
Minister
of Health and Another
2005 (3) SA 231
(C) at 237B - C
and
237 H - I.
[6] In the present matter, I have carefully studied the record of the
proceedings in the regional court as well as the judgment
of my
Sister, Borchers J. I have also considered the arguments advanced in
the heads of argument as well as the arguments advanced
orally today
by the respective parties.
The main factual disputes whether the applicants will probably
interfere with state witnesses or investigators or have made threats
of violence against investigators, in my view, are all arguable
matters. The first two disputed facts are clearly by nature
unpredictable.
In short, the order of Borchers J could be appealable, as is
envisaged in
S v Mabena and Another
2007 (1) SACR 482
(SCA) at
par.[22]. A comforting sense of justice compels that the issue of
the liberty of the applicants, which is enshrined in
the Bill of
Rights, should be adjudicated on by more than one Judge. It is also
a matter of expediency.
[7] The application in my view falls to be allowed. In the result, I
make the following order:
Leave is hereby granted to the applicants to appeal to the Supreme
Court of Appeal.
______________________
DSS MOSHIDI
JUDGE OF THE HIGH COURT
SOUTH GAUTENG HIGH COURT,
JOHANNESBURG
COUNSEL FOR THE APPLICANT JCLJ VAN VUUREN SC
INSTRUCTED BY NARDUS GROVE ATTORNEYS
COUNSEL FOR THE STATE I BAYAT
INSTRUCTED BY DPP, JHB
DATE OF HEARING 21/08/2009
DATE OF JUDGMENT 21/08/2009