About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2024
>>
[2024] ZAFSHC 232
|
|
Labuschagne v Director of Public Prosecutions (3858/2024) [2024] ZAFSHC 232; 2024 (2) SACR 463 (FB) (26 July 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES
Of
Interest to other Judges: YES
Circulate
to Magistrates: YES
Case
no:
3858/2024
In
the matter between:
FRANCOIS
LABUSCHAGNE
APPLICANT
And
DIRECTOR
OF PUBLIC PROSECUTIONS
RESPONDENT
CORAM:
JP DAFFUE, J
HEARD
ON:
26 JULY 2024
ORDER
ON:
26
JULY 2024
REASONS
Introduction
[1]
The applicant, a sentenced prisoner, is stuck between
a rock and a
hard place. Neither the regional court, nor the high court is
prepared to hear his bail application pending a petition
to the Judge
President of this court for leave to appeal his convictions and the
sentence imposed upon him. Clearly, the applicant
is entitled to be
heard, but the question to be decided is by which court.
Material
factual background
[2]
On 25 March 2024 the applicant was convicted in the regional
court,
Bloemfontein (the court
a quo
) on several charges pertaining
to contravention of the Sexual Offences Act 32 of 2007, the details
of which are not relevant for
purposes hereof. On 9 May 2024 he was
sentenced. The one sentence relevant to the present application is
the sentence of 5 years’
imprisonment in terms of s 276(1)(i)
of the Criminal Procedure Act 51 of 1977 (CPA). He is presently
serving this sentence at the
Bloemfontein Correctional Services
Centre.
[3]
Immediately after sentence the applicant’s legal
representative
sought leave from the court
a quo
to appeal to the high court
against his convictions and sentences which application was
dismissed. Notwithstanding his intention
to appeal, he failed to
apply to the court
a quo
for bail pending a petition in terms
of s 309(C)(2)(iii) for leave to appeal to this court.
[4]
On 19 July
2024 the applicant applied for bail in the high court pending the
reconstruction of the trial record and an application
to this court
for leave to appeal against his convictions and sentences. Daniso J
struck the application from the roll. She held
that there were no
pending proceedings in the high court as the intended application for
leave to appeal had not been lodged with
this court and therefore,
this court did not have jurisdiction to adjudicate the application.
The learned judge referred to
S
v Makola
[1]
and
S v
Masoanganye.
[2]
I may add that the applicant also relied on an affidavit by his
Cape Town attorney, Ms T Swanepoel, dated 19 July 2024 who
alleged
that the prosecutor in the court
a
quo
, Mr
York, had informed her correspondent in Bloemfontein that that court
was
functus
officio
and that the bail application could not be entertained.
[5]
Hereafter the applicant applied for bail to the court
a quo
which application served before that court on 24 July 2024. The
honourable presiding regional magistrate struck the matter from
the
roll based on the following reasons as recorded in an affidavit by
the applicant’s Bloemfontein attorney, Mr JH Jordaan:
a.
he did not have legislative authority to consider
the bail
application pending the petition;
b.
he had already dismissed the application for
leave to appeal the
convictions and sentences and was accordingly
functus officio
.
It is not clear whether
the reasons set out by Mr Jordaan were conveyed informally by the
court
a quo
to the parties. Fact of the matter is that this
court has not received any written reasons from the court
a quo
.
I would have expected the court
a quo
to provide the applicant
with authority for the decision to strike the application from the
roll on the basis of it being allegedly
functus officio
.
[6]
On Friday 26 July 2024 the applicant’s bail application
served
before me. The application that served before Daniso J was
supplemented with a further affidavit deposed to by the applicant
as
well as the aforesaid affidavit of Mr Jordaan.
[7]
The
applicant was represented by Adv SJ Janse van Rensburg, whilst the
Director of Public Prosecutions (DPP) was represented by
Adv SC
Choane. Mr Janse van Rensburg submitted, relying on my judgment in
S
v Sello,
[3]
that the high court had jurisdiction to adjudicate the bail
application as a court of first instance. I pointed out to him that
the facts in
casu
differ materially from the facts in that case as will be explained
later herein. I requested the parties to present me with authority
that this court did have jurisdiction to adjudicate the bail
application. They could not assist me. I was prepared to let the
matter stand down for several hours for them to find authority, but
my offer was not accepted.
Petition
procedure in the high court and incomplete trial records
[8]
An
application for leave to appeal, still referred to as a petition in
the CPA, is addressed to the Judge President of the high
court with
the necessary jurisdiction.
[4]
This application must be accompanied by the application to the court
a quo
for leave to appeal, the magistrate’s reasons and the record of
the proceedings in the court
a
quo
in
respect of which the application was refused.
[5]
[9]
Before I
evaluate the applicable legal principles, it is recorded to be common
cause that the trial record is incomplete. It appears
from the
applicant’s affidavit, confirmed by correspondence, that there
was a complete mess with the recording of the proceedings
in the
court
a
quo
.
[6]
Consequently, the applicant cannot proceed with an application for
leave to appeal in terms of s 309(C)(2)(a)(iii), read with s
309(C)(4)(c) of the CPA. Furthermore, the presiding regional
magistrate is the only person who can appropriately consider and
adjudicate a bail application on the evidence presented to him as the
court of first instance.
[10]
I observed
in
S v
Nkhahle
[7]
as follows:
‘
It
becomes more and more prevalent, from my own experience dealing with
reviews and appeals in this division, but also reading judgments
from
other divisions, that courts of appeal are confronted with missing
and/or incomplete records. Something needs to be
done
urgently. We are living in the digital era, the so-called
Fourth Revolution, but it is often forgotten that the human
element
can never be ignored. Machines and sophisticated equipment must
be operated by people and if the operators do not
possess the
necessary skills, the best equipment in the world become useless.
I shall make some suggestions
infra
.’
[11]
In
S
v Schoombee and another
[8]
the Constitutional Court authoritatively confirmed the importance of
a proper record of proceedings in connection with the right
to a fair
trial as follows:
‘
It
is long established in our criminal jurisprudence that an accused's
right to a fair trial encompasses the right to appeal. An
adequate record of trial court proceedings is a key component of this
right. When a record 'is inadequate for a proper
consideration of an appeal, it will, as a rule, lead to the
conviction and sentence being set aside.'”
The Constitutional Court
went further and also confirmed that the loss of trial records is a
widespread problem which raises serious
concerns about endemic
violations of the right to appeal. Also, that reconstruction should
not be the norm in providing appellants
with their trial records.
[9]
[12]
A complete
trial record is the foundation of an appeal process. The duty of all
parties, including the presiding judicial officer,
to ensure that
proper trial records are kept, is beyond doubt.
[10]
A reconstruction of the trial record will have to be embarked upon
before the applicant may apply to this court for leave to appeal.
[13]
It is not necessary for purposes hereof to deal further with this
issue, save
to state that it is apparent that the applicant is
prevented, without a proper trial record, from lodging an application
in the
high court in accordance with s 309C(2)(a)(iii) of the CPA for
leave to appeal to this court against his convictions and sentences.
Evaluation
of the statutory provisions and the legal principles relating to bail
[14]
It is
appropriate to consider the rationale for adjudicating bail
applications on an urgent basis. In
Magistrate
Stutterheim v Mashiya
[11]
the Supreme Court of Appeal emphasised that ‘the right to a
prompt decision is thus a procedural right independent of
whether the right to liberty actually entitles the accused to bail.’
It is also not strange to find that an appellant has
the right to
appeal the refusal of bail without prior leave of the court refusing
bail.
[12]
Furthermore,
everyone has the right to freedom and security of the person as set
out in s 12(1) of the Constitution. The rights
to human dignity,
equality and freedom are referred to in conjunction with each other
in four sections of the Constitution,
[13]
emphasising the value attached to freedom of the individual.
Therefore, although the applicant’s situation is different than
other citizens in that he has been convicted and sentenced to
imprisonment, I believe that it is of paramount importance that
matters of personal freedom be dealt with on an urgent basis.
[15]
Mr Janse
van Rensburg, relying on my judgment in
Sello,
[14]
submitted that I was entitled to adjudicate the bail application. In
Sello
leave to appeal the conviction and sentence had already been granted
by two of my colleagues. The notice of appeal as well as the
complete
trial record had been filed and the parties were merely awaiting a
date for hearing of the appeal. When I pointed out
to Mr Janse van
Rensburg that the facts
in
casu
were not on all fours with the facts in that case, he immediately
conceded this.
[16]
Although s 60 of the CPA deals with bail applications by accused
persons which
is not the case
in casu
, it is appropriate to
refer to this section and some authorities in order to support the
conclusion reached in this judgment. I
quote the following:
’
60 Bail
application of accused in court
(1)
(a)
An
accused who is in custody in respect of an offence shall, subject to
the provisions of section 50 (6), be entitled to be
released on bail
at any stage preceding his or her conviction in respect of such
offence, if the court is satisfied that the interests
of justice so
permit.
(b)
Subject
to the provisions of section 50 (6)
(c)
, the court
referring an accused to any other court for trial or sentencing
retains jurisdiction relating to the powers, functions
and duties in
respect of bail in terms of this Act
until the accused appears in
such other court for the first time.
(c)
If the
question of the possible release of the accused on bail is not raised
by the accused or the prosecutor, the court shall
ascertain from the
accused whether he or she wishes that question to be considered by
the court.’ (emphasis added)
Cognisance should be
taken that subsec 60(1)(b) has been amended with effect from 1 August
1998. Prior thereto subsec 60(1) read
as follows:
‘
An accused who is
in custody in respect of any offence may at his first appearance in a
lower court or at any stage after such appearance,
apply to such
court or, if the
proceedings against the accused
are
pending
in a superior Court
, to that Court,
to be released on bail in respect of such offence, and any such court
may, subject to the provisions of s 61, release
the accused on bail
in respect of such offence on condition that the accused
deposits with the clerk of the court or,
as the case may be, the
Registrar of the Court, or with a member of the prisons service at
the prison where the accused is in custody,
or with any police
official at the place where the accused is in custody, the sum of
money determined by the court in question.'
(emphasis added)
Contrary to the reference
to pending proceedings, the amended subsection refers to the stage
when ‘the accused appears in
such other court for the first
time.’ Until such time the magistrate’s court as the
transferring court retains jurisdiction
in respect of bail
applications. The question to be answered is whether this section
applies
in casu
, bearing in mind that it may be argued that
the applicant has not yet appeared in this court for the first time.
As mentioned,
he has already been convicted and sentenced in the
regional court. The apparent purpose of the legislature as expressed
in subsec
60(1)(b) is to ensure that the magistrate’s court
retains jurisdiction in respect of bail applications until the
accused
person appears in such other court,
ie
the regional
court or the high court, for the first time.
[17]
I made the
following observations in
Sello
:
[15]
‘
I came across two
judgments that are not directly applicable, but indicate a possible
lack of jurisdiction by the high court to
determine bail applications
in the present circumstances, to wit
Director of Public
Prosecutions, Eastern Cape, and Another v Louw NO: In re S v Makinana
(Makinana)
and
S v Seroka.
The facts in
Makinana
differ from the matter in casu. In that case there was a dispute as
to whether the magistrate’s court or the regional court
had
jurisdiction to hear a bail application once the matter had been
transferred to the regional court for trial. The accused’s
bail
application was dismissed by the magistrate’s court before the
transfer and after transfer to the regional court he
again applied
for bail, alleging new facts. The regional magistrate refused to hear
the application on the basis that he had no
jurisdiction. The high
court made the following order:
‘
It is declared
that, in terms of
s 50(6)
(c)
of the
Criminal Procedure
Act 51 of 1977
, read with s 60(1) of the Act, a
magistrate's
court has exclusive jurisdiction
to hear a bail application in
respect of any case in which an accused person is charged with a
Schedule 6 offence (provided that
the Director of Public Prosecutions
does not direct otherwise in terms of the proviso to s 50(6)
(c)
)
from the first appearance of the accused
until he or
she appears in any other court to which his or her matter may be
transferred
,
whereupon such other court shall enjoy
jurisdiction
to entertain a bail application (whether or not it
is the accused's bail application).’ (Emphasis added)
The presiding judges in
Makinana
also referred with approval to
S v Makola
where the court held as follows pertaining to a part-heard matter in
the Supreme Court (now the high court): ‘My interpretation
above is fortified by the further consideration that where the matter
is
pending before the Supreme Court, such Court will in any event
be the appropriate Court at that stage of the proceedings to deal
with any bail application.
Counsel prosecuting on behalf of the
State would certainly be in a better position than a prosecutor in
the magistrate's court
to assist the Court and to deal with the
latest facts and circumstances relevant to a bail application. It
would indeed lead to
an anomalous situation if the present case
against the appellant was to proceed in the Witwatersrand Local
Division while his second
bail application had to be dealt with in
the magistrate's court at Boksburg.’ (Emphasis added)
The facts in
Seroka
also differ from the facts in casu. In that case the matter had been
transferred to the regional court for trial whereupon the
accused
applied to that court for bail. There was only one regional
magistrate at the seat of the court and he decided to refer
the
matter back to the magistrate’s court for the bail application.
The magistrate refused to hear the application, but the
high court
held that the decision was invalid and set it aside. It held that
once an accused person has appeared in another court
pursuant to a
transfer of such person from the transferring court for sentencing or
trial purposes, such receiving court shall
be vested, to the
exclusion of the transferring court, with exclusive jurisdiction in
respect of bail application proceedings, unless the
receiving court refers the matter back to the transferring court for
a bail application.’ (footnotes omitted)
[18]
The facts
in
S v
Makola
[16]
are not on all fours with the facts
in
casu
.
In
Makola
the criminal trial served before the high court (then known as the
Supreme Court) as the court of first instance. FH Grosskopf
JA made
the following statement on behalf of a unanimous court:
‘‘
In my
judgment s 60(1) gives both the 'lower court' and the 'superior
Court' jurisdiction to release an accused on bail. As far
as the
lower court is concerned the section provides that '[a]n accused who
is in custody in respect of any offence may at his
first appearance
in a lower court or at any stage after such appearance, apply to such
court . . . to be released on bail in respect
of such offence. . . .'
The
Supreme Court
, on the other hand,
will have the
jurisdiction to entertain an original application for bail
, as
opposed to an appeal, at any stage, provided '
the proceedings
against the accused are pending' in such Court
.’ (emphasis
added)
The
learned judge of appeal continued as follows:
[17]
‘
I
do not agree that once the appellant had applied for bail in the
magistrate's court s 60(1) prevented him from bringing the second
bail application in the Supreme Court where the proceedings were
pending.
My
interpretation above is fortified by the further consideration that
where the matter is pending before the Supreme Court, such Court
will in any event be the appropriate Court at that stage of the
proceedings to deal with any bail application
. Counsel
prosecuting on behalf of the State would certainly be in a better
position than a prosecutor in the magistrate's
court to assist
the Court and to deal with the latest facts and circumstances
relevant to a bail application. It would indeed lead
to an anomalous
situation if the present case against the appellant was to proceed in
the Witwatersrand Local Division while his
second bail application
had to be dealt with in the magistrate's court at Boksburg.
I
fail to see on what principle the appellant should be barred from
bringing his second bail application on fresh grounds in the
Supreme
Court
where the case is pending
.
’
(emphasis added)
[19]
S v
Masoanganye
[18]
the trial court granted leave to appeal the convictions and
sentences, but refused the appellants bail pending appeal. Harms AP
remarked as follows in the appeal against the refusal of bail:
‘
It
is important to bear in mind that the decision whether or not to
grant bail is one entrusted to the trial judge because that
is the
person best equipped to deal with the issue, having been steeped in
the atmosphere of the case. Through legislative oversight,
something
this court has complained about for more than two decades, and
ignored by the Executive, a convicted person has an automatic
right
of appeal to this court against a refusal of bail. But there is a
limit to what this court may do. It has to defer to the
exercise of
the trial court's decision unless that court failed to bring an
unbiased judgment to bear on the issue, did not act
for substantial
reasons, or exercised its discretion capriciously or upon a wrong
principle.’
[20]
Sub-section 309(3) of the CPA must be considered. It reads as
follows:
‘
(3)
The
provincial or local division concerned shall thereupon [
ie
the noting and prosecution of an appeal when there is an automatic
right of appeal, or when leave to appeal has been granted in
terms of
s 309B or 309C] have
the
powers referred to in section 304(2)
,
and …’
Clearly, the high court’s
powers are restricted to cases involving an automatic right of
appeal, or when leave to appeal has
been granted. Therefore, it does
not have the power to consider a bail application when the lower
court has dismissed the application
for leave to appeal and in the
absence of any pending procedure in the high court.
[21]
Sub-section 304(2), quoted in subsec 309(3), deals with the review
court’s
powers. One such power is applicable
in casu
, to
wit as described in subsec 304(2)(c)(vi), which reads as follows:
‘
(c)
Such
court, whether or not it has heard evidence, may, subject to the
provisions of section 312-
(i) …
(ii) …
(iii) …
(iv)
…
(v)
…
(vi) make
any such order in regard to the suspension of the execution of any
sentence against the person convicted
or the admission of such
person to bail
, or, generally, in regard to any matter or thing
connected with such person or the proceedings in regard to such
person as to the
court seems likely
to promote the ends of
justice
.’ (emphasis added)
[22]
In
S
v
Hlongwane
[19]
the full court presented a history pertaining to bail applications
over a period in excess of a century, quoting various statutory
provisions and judgments from this country and abroad. The following
dicta
[20]
in
Hlongwane
confirm that the high court’s common law power to deal with
bail applications as
in
casu
are restricted by the statutory laws. The following is a translation
from the Afrikaans judgment into English:
‘
(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)(vi)
(release on bail by a Provincial Division as
a Court of appeal).
Where this occurs the statutory power replaces the common law
power
.’ (emphasis added)
[23]
It is
apposite to refer to three judgments of the Supreme Court of Appeal,
to wit
Rohde
v The State (Rohde),
[21]
S v Scott-Crossley
[22]
and
Crossberg
v S (Crossberg).
[23]
These three judgments do not support the applicant’s case. In
all three instances the Supreme Court of Appeal granted leave
to
appeal against the convictions and sentences. In the first case
Rohde
returned to the high court to apply for bail pending appeal which
application was dismissed. He successfully appealed to the Supreme
Court of Appeal against the judgment refusing bail. The Supreme Court
of Appeal did not entertain the bail application as a court
of first
instance, notwithstanding the fact that that court granted leave to
appeal the conviction and sentence. In
Crossberg
the trial judge refused to hear a new bail application
notwithstanding the fact that the Supreme Court of Appeal had granted
leave
to appeal the convictions and sentences. Consequently, the
Supreme Court of Appeal came to the assistance of
Crossberg
and granted bail. It is emphasised that the State agreed to bail as
well as the conditions to be imposed. The court made it clear
that
the trial court’s view that there were no prospects of success
appeared to have been without foundation.
[24]
[24]
In
Sello
I was prepared to adjudicate the bail application for the reasons
advanced therein and briefly touched upon in this judgment. There
is
good reason why the high court should be entitled to hear bail
applications as in
Sello
,
whilst the Supreme Court of Appeal should not do so. In petitions to
the Supreme Court of Appeal the trial record is not provided
to that
court, unless the accused was not represented during the trial in
which case the justices considering the petition usually
request to
be provided with the trial record. Rule 6 of that court’s rules
sets out which documents are to be provided to
the court.
[25]
The position is different in the high court. All applications for
leave to appeal must be accompanied by the full trial record,
[26]
allowing the judges not only to rely on the judgment of the court
a
quo
and
written representations thereto, but to consider the evidence
presented to the trial court.
[25]
In
conclusion, this court does not have any common law power to
adjudicate the bail application. The statutory power of the lower
court must be adhered to. Furthermore, there can also be no doubt
that the court
a
quo
is
best suited to adjudicate the bail application based on the
applicable principles notwithstanding that court’s dismissal
of
the application of leave to appeal.
[27]
In
casu,
I do not have the benefit of the court
a
quo’s
judgment
in respect of the convictions, the sentence, or the judgment
dismissing the application for leave to appeal, not even to
speak of
the trial record. In the event of a dismissal of the bail
application, the applicant would be entitled to appeal to this
court.
In such a case the court
a
quo’s
reasons
for refusing bail shall accompany the notice of appeal which would
place the court of appeal in a position to consider the
bail appeal.
[26]
Consequently, the high court lacks jurisdiction to adjudicate the
bail application
as a court of first instance for the reasons
apparent herein. Therefore, the applicant’s bail application
was struck from
the roll.
JP
DAFFUE J
Appearances
For
appellant:
Adv
GS Janse van Rensburg
Instructed
by:
JHJ
Attorneys Inc
Bloemfontein
For
respondent:
Adv
SC Choane
Instructed
by:
Director
of Public Prosecutions
Bloemfontein
[1]
1994 (2) SACR 32
(A).
[2]
2012 (1) SACR 292
(SCA) para 15.
[3]
(1173/2023)
[2023] ZAFSHC 83
(13 April 2023).
[4]
Section 309(C)(2)(iii) of the CPA.
[5]
Section 309(C)(4)(c) of the CPA; see
Shinga
v The State & another (Society of Advocates (Pietermaritzburg
Bar) intervening as Amicus Curiae);
S v
O’Connell and others
2007
(2) SACR 28
(CC) para 55.
[6]
The applicant has shown that the trial proceeded over several days
and that on most days the proceedings have not been recorded
and/or
the court personnel have been unable so far to provide the
transcribers with the recordings for 18 April 2023, 19 July
2023, 8
September 2023, 25 March 2023 (when judgment was delivered) and 9
May 2024 (when sentences were imposed). The complainant
and her
mother testified on the first three days and the applicant obviously
regards their testimony as crucial.
[7]
2021 (1) SACR 336
(FB) para 16.
[8]
2017 (2) SACR 1
(CC) para 19.
[9]
Ibid
para 38.
[10]
Mompati
v S
(A86/2018)
[2018] ZAFSHC 129
(30 July 20218) at paras 9-11.
[11]
2003
(2) SACR 106
(SCA) p 113 c-d.
[12]
Section
65
of the
Criminal Procedure Act 51 of 1977
; also
S
v Van Wyk
2005 (1) SACR 41
(SCA) para 1.
[13]
Sections
1
,
7
(1),
36
(1) and
39
(1)(a)
[14]
Footnote 3 above.
[15]
Sello
loc cit
paras 9-11.
[16]
1994 (2) SACR 32
(A) p 34 d-e.
[17]
Ibid
p 35 c-g.
[18]
2012 (1) SACR 292
(SCA) para 15.
[19]
1989 (4) SA 79 (TPD).
[20]
Ibid
paras 7 & 8, pp 96 G – 97 B; the English translation
borrowed from Juta in the heading of the reported judgment at
p 81
F-G.
[21]
[2019] ZASCA 193;
2020
(1) SACR 329 (SCA).
[22]
2007 (2) SACR 470
(SCA) para 1.
[23]
(439/2007)
[2007] ZASCA 93
(22 August 2007).
[24]
Ibid
paras 10, 19-21 & 23.
[25]
SCA
rule 6
reads as follows:
‘
Application
for leave to appeal
Filing
of application
(1)
In every matter where leave to appeal is by law required of the
Court, an application therefor shall be lodged in triplicate
with
the registrar within the time limits prescribed by that law.
Annexures
required
(2)
Every such application shall be accompanied by —
(a)
a
copy of the order of the court a
quo
appealed
against;
(b)
where
leave to appeal has been refused by that court, a copy of that
order;
(c)
a
copy of the judgment delivered by the court a
quo
;
and
(d)
where
leave to appeal has been refused by that court, a copy of the
judgment refusing such leave:
Provided
that the registrar may, on written request, extend the period for
the filing of a copy of the judgment or judgments for
a period not
exceeding one month.
Answer
(3)
Every affidavit in answer to an application for leave to appeal
shall be lodged in triplicate within one month after service
of the
application on the respondent.
Reply
(4)
An applicant who applied for leave to appeal shall, within 10 days
after an affidavit referred to in subrule (3) has been
received, be
entitled to lodge an affidavit in reply dealing strictly only with
new matters raised in the answer.
Format
of application, answer and reply
(5)
Every application, answer and reply —
(a)
shall
—
(i) be
clear and succinct and to the point;
(ii) furnish
fairly all such information as may be necessary to enable the Court
to decide the application;
(iii) deal
with the merits of the case only in so far as is necessary for the
purpose of explaining and supporting
the particular grounds upon
which leave to appeal is sought or opposed;
(iv) be
properly and separately paginated; and
(b)
shall
not —
(i) be
accompanied by the record;
(ii) traverse
extraneous matters; or
(iii) exceed,
for the founding affidavit and answer 30 pages each and for the
reply 10 pages.
Request
for further documents
(6)
The judges considering the application may call for —
(a)
submissions
or further affidavits;
(b)
the
record or portions of it; and
(c)
additional
copies of the application.’
[26]
Section 309C(4)
of the CPA.
[27]
S v
Masoanganye
loc cit
para 15.