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2025
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[2025] ZAGPJHC 923
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Balland v S (A439/2012) [2025] ZAGPJHC 923 (17 September 2025)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NUMBER:
A439/2012
(1) REPORTABLE:
NO
(2) OF INTEREST TO
OTHER JUDGES: NO
(3) NOT REVISED
17 September
2025
In
the matter between:
BALLAND,
ARNOLD
Appellant
and
THE
STATE
Respondent
JUDGMENT
YACOOB J: (KUNY J CONCURRING)
[1]
This appeal served on our criminal appeal
roll on 11 August 2025. No heads of argument were filed. The State
had filed a notice
of intention to have the matter struck off the
roll due to the failure to file heads of argument.
[2]
In addition, a notice of surrender and
detention warrant was uploaded as part of the record, dated 10 April
2024. This indicated
that the appeal was previously struck from the
roll, on 20 November 2014, and Mr Balland, the appellant, who was
apparently on
bail pending appeal, had been at large for almost ten
years.
[3]
The court then requested the State
Advocate, Ms Moseki, to establish whether Mr Balland was in fact
still at large, and if so how
it was that his attorney procured a
power of attorney and managed to get the appeal set down again.
[4]
It was our view that it would not be in the
interests of justice to simply strike the matter from the roll
without more. If Mr Balland
was at large, his attorney would have to
be ordered to explain how a power of attorney was obtained, and an
order would be made
that the matter may not be re-enrolled until he
was once again in custody. If Mr Balland was in custody, a different
order would
be appropriate.
[5]
Ms Moseki’s enquiries were fruitless
for almost a month. However, on 12 September 2025, an affidavit was
provided from a Clerk
of the Court, Protea Magistrates Court,
confirming that in fact Mr Balland, the appellant, had been
re-arrested on 19 April 2024,
9 days after the warrant was issued,
and was currently serving his sentence at the Kutama Sinthumule
Correctional Centre.
[6]
In those circumstances many of our concerns
fall away. However, we must still do more than simply remove or
strike the matter, to
avoid a situation where the matter is
repeatedly enrolled and removed without being determined.
[7]
For these reasons, we make the following
order:
1.
The appeal is struck from the roll.
2.
The appeal may not be re-enrolled unless
the appellant files:
a.
An application for condonation, setting out
in full the reasons for non-compliance and why it is in the interests
of justice to
enroll the appeal.
b.
Heads of argument on the merits of the
appeal.
JUDGE S YACOOB
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
I AGREE.
JUDGE S KUNY
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
This judgment is handed down
electronically by circulation to the parties or their legal
representatives by email, by uploading
it to the electronic file of
this matter on Caselines, and by publication of the judgment to the
South African Legal Information
Institute. The date for hand-down is
deemed to be 17 September 2025.
APPEARANCES
ON BEHALF OF
APPELLANT:
No appearance
ON BEHALF OF THE
RESPONDENT:
E Moseki
Office of the Director of Public
Prosecutions, Johannesburg