REPUBLIC OF SOUTH AFRICA |
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: A17/2025
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO, OTHER-GUDGES: YES/NO
(3) REVISED: YESHO. AA .
ZI[O7[2025— /a ;
DATE SIGNATURE |
In the matter between:
THE STATE Applicant
and .
WILLEM LUND Respondent |
JUDGMENT
STRYDOM, J
[1] This is an application for condonation for the late filing of a notice of intention
to appeal pursuant to the granting of bail to the respondent in the Regional
Magistrates’ Court on 27 March 2023. Should condonation be granted, the
State is seeking leave to appeal against the granting of bail pending the
respondent's appeal.
2
[2] The Criminal Procedure Act 51 of 1977 (the CPA) provides in section 65A a
right to the State to appeal to the High Court against the granting of bail to an
accused in the lower court. This section reads as follows:
“(1) (a) The attorney-general may appeal to the superior court having jurisdiction,
against the decision of a lower court to release an accused on bail or against the
imposition of a condition of bail as contemplated in section 65(1)(a).
(b) The provisions of section 310A in respect of an application or appeal
referred to in that section by an attorney-general, and the provisions of
section 65 (1) (b) and (c) and (2), (3) and (4) in respect of an appeal
referred to in that section by an accused, shall apply mutatis mutandis with
reference to a case in which the attorney-general appeals in terms of
paragraph (a) of this subsection.
(2) (a) The attorney-general may appeal to the Appellate Division against a
decision of a superior court to release an accused on bail.
(b) The provisions of section 316 in respect of an application or appeal referred
to in that section by an accused, shall apply mutatis mutandis with
reference to a case in which the attorney-general appeals in terms of
paragraph (a) of this subsection.
(c) Upon an appeal in terms of paragraph (a) or an application referred to in
paragraph (b) brought by an attorney-general, the court may order that the
State pay the accused concerned the whole or any part of the costs to which
the accused may have been put in opposing the appeal or application,
taxed according to the scale in civil cases of that court.
(3) If the appeal of the attorney-general in terms of subsection (1) (a) or (2) (a) is
successful, the court hearing the appeal shall issue a warrant for the arrest of the
accused.” 4
[3] Section 65A(1)(b) cross references to séction 310A of the CPA and this section
provides as follows: ae ,
“(1) The attorney-general may appeal against a sentence imposed upon an
accused in a criminal case in a lower court, to the provincial or local division having
jurisdiction, provided that an application for leave to appeal has been granted by a
judge in chambers.
3
(2) (a) A written notice of such an application shall be lodged with the registrar of
. _ the provincial or local division concerned by the attorney-general, within a
period of 30 days of the passing of sentence or within such extended period
as may on application on good cause be allowed.
(b) The notice shall state briefly the grounds for the application.
(3) The attorney-general shall, at least 14 days before the day appointed for the
hearing of the application, cause to be served by the deputy sheriff upon the
accused in person a copy of the notice, together with a written statement of the
rights of the accused in terms of subsection (4): Provided that if the deputy sheriff
is not able so to serve a copy of the notice, it may be served in any other manner
that may on application be allowed. *.
(4) An accused may, within a period of 10 days of the serving of such a notice upon
him, lodge a written submission with the registrar concerned, and the registrar shall
submit it to the judge who is to hear the application, and shall send a copy thereof
to the attorney-general. a
(5) Subject to the provisions of this section, section 309 shall apply mutatis
mutandis with reference to an appeal in terms of this section.
(6) Upon an application for leave to appeal referred to in subsection (1) or an
appeal in terms of this section, the judge or the court, as the case may be, may
order that the State pay the nod concerned the whole or any part of the costs
to which the accused may have been put in opposing the application or appeal,
taxed according to the scale in -elyil cases of the provincial or local division
concerned.” #¢ .
[4] For purposes of a bail application the references in section 310A to ‘sentence’
should be read by inserting the word ‘bail’. In terms of this section the State, if
dissatisfied by the granting of bail ina lower court, shall, within a period of 30
days of the granting of bail,-or within such extended period as may on
application on good cause be allowed, file a written notice of an application for
leave to appeal. This application is to be decided by a judge in chambers.
[5] In this matter the notice of appeal was not served within the prescribed period
of 30 days of the granting of bail. What transpired before and after the granting
of bail to the respondent on the 27 March 2023 should be briefly referred to.