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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO: 2026-070472
In the matter between:
UGOCHUKWA BALDWIN NWACHUKU First Applicant
K[...] M[...] Second Applicant
and
THE REGIONAL COURT MAGISTRATE,
SPECIALISED COMMERCIAL CRIME COURT, BELLVILLE First
Respondent
THE STATE Second Respondent
Corum: Fortuin J et Lekhuleni J
Summary: Bail — Review against refusal to extend bail pending imposition of sentence —
Effect of s 58 of Criminal Procedure Act 51 of 1977 – Consideration of bail after conviction
but before sentence – Discretion of the trial court - Presumption of innocence.
Heard: 2 April 2026
Delivered (electronically): 13 April 2026
JUDGMENT
LEKHULENI J (FORTUIN J Concurring):
Introduction
[1] This is an application brought on an urgent basis in terms of Rule 6(12) of the
Uniform Rules of Court, in which the applicants seek an order reviewing and setting
aside the cancellation on 2 March 2026 of the first and second applicants’ bail and
the refusal by the first respondent to reinstate the applicants’ bail. The applicants
also seek an order granting them bail for an appropriate amount, subject to the
necessary conditions, pending the passing of sentence by the first respondent. In
addition, the applicants seek an order that their release on bail shall endure up to
and including the trial court passing sentence and, in any appeal brought against
conviction or sentence.
Background facts
[2] The applicants stood trial in the Specialised Commercial Crime Court in Bellville.
The two applicants were charged together with other three accused before the court
a quo. From the record, they were all legally represented. The second applicant’s
husband, who, from the record, appears to be a Nigerian national, was accused 2 at
the trial, absconded during the trial, and he is still at large. A warrant for his arrest
has been authorised against him. The charge sheet reveals that the applicants faced
24 counts of essentially fraud, theft and money laundering in relation to donations
received in the context of the business of the International Chu rch with which they
were associated. On 02 March 2026, the trial court gave an elaborate judgment on
the merits. The court a quo convicted the applicants on one count of money
laundering. However, it acquitted them on all the other counts levelled against them.
[3] After the court gave judgment on the merits, it invited the legal representatives of
the applicants to address it on the accused's position regarding bail. For the
purposes of this judgment, I will confine myself to the submissions that were made
by the legal representatives of the two applicants before the court and the argument
by the legal representatives of the two applicants before the court and the argument
that the state presented. Mr Johnston, who appeared for the first applicant,
submitted before the trial court that the matter had been on the regional court roll for
eleven years and that his client, who was on warning, had attended court without fail
ever since he was released. Mr Johnston implored the court a quo to release his
client on warning, or, in the alternative, on such terms and conditions as the court
deemed fit.
[4] Mr Liddell, who appeared on behalf of the second applicant, made a similar
request to the trial court. However, in addition to his request, Mr Liddell informed the
court that the second applicant was a South African citizen and a single parent.
Counsel explained to the court a quo that the second applicant was a mother of
three minor children and was their primary care giver. One of the minor children was
in grade 10, the other was in grade 5, and the youngest was five years old. Mr
Liddell further submitt ed that should the second applicant not return home, the
children would be left without a parent. Counsel implored the trial court to extend the
second applicant’s bail.
[5] The State advocate, Mr Agulhas, opposed the defence’s request and submitted
that the accused were found guilty of a serious offence. Mr Agulhas submitted before
the magistrate that the minimum sentence was applicable and that it would not be in
the interes t of justice to permit their further release either on bail or on warning.
Counsel implored the court to revoke their bail and to remand them in custody.
[6] After listening to both parties, the court postponed the matter to 10 April 2026 for
presentence reports and further proceedings. The court revoked the accused's bail
and found, inter alia, that one of the accused had already absconded. The court
considered that the accused attended court regularly. It noted that their status had
changed, as they had now been convicted. The court further considered that the
Criminal Law Amendment Act 105 of 1997 is applicable and stated that the bad
outweighs the good. The court cancelled the bail and remanded the a pplicants in
custody for further proceedings. It is this order that the applicants seek to review and
set aside in this Court.
The present application
set aside in this Court.
The present application
[7] As foreshadowed above, the applicants seek an order that the regional
magistrate's decision revoking their bail be reviewed and set aside. Mr Liddell, who
appeared on behalf of the applicants, submitted that the regional magistrate
misdirected herself in respect of the second applicant in that she did not engage nor
consider the fact that the second applicant was a custodian or primar y caregiver of
the three minor children. Notwithstanding that this aspect was raised with the court,
counsel submitted that the court a quo overlooked it and thus committed an
irregularity by cancelling the second applicant’s bail.
[8] The applicants asserted in the founding affidavit that their bail history was
exceptional in that the offence for which they were convicted did not fall within either
Schedule 5 or Schedule 6 of the Criminal Procedure Act 51 of 1977 (‘the CPA’).
Furthermore, the applicants contended that they have a clean record and have
favourable personal circumstances. It was their submission that they were released
on bail 11 years ago and, during that period, attended court without fail. They also
stated that the trial court had no qualms about amending the bail conditions for some
of them to travel abroad, without demur from the state and without any negative
consequences to the bail system. According to the applicants, the 11 -year period
during which they have been on bail and have attended court without fail must carry
considerable weight in their favour.
[9] The applicants acknowledged that, pursuant to their conviction, the presumption
of innocence no longer applies to them. However, they implored the court to se t
aside the trial court's order and reinstate their bail pending sentencing proceedings.
The alleged legal lacuna in the CPA
[10] The applicants also raised a novel question for th is Court’s consideration. The
applicants contended that there is a lacuna in the CPA. According to the applicants,
the CPA does not address the precarious position that they now find themselves in.
The applicants contend ed that s 60 of the CPA provides a remedy for a deserving
The applicants contend ed that s 60 of the CPA provides a remedy for a deserving
candidate to apply for and be granted bail before conviction. At the other end of the
process, s 307 of the CPA allows an applicant to apply for and be granted bail after
sentence. The applicants asserted that there is simply not a legal mechanism
shaped to come to the assistance of an accused pers on who requires bail after
conviction but before sentence, when the extension of bail was denied. This is
exactly where the applicants now find themselves in this matter. In the applicants'
view, they are in limbo, as they cannot apply for bail before the trial court because
the presiding magistrate is functus officio.
[11] The applicants further a verred that the idea is captured in s 35(1)(f) of the
Constitution, which provides that every arrested person has the right to be released
from detention if the interest of justice permits, subject to reasonable conditions.
However, the reality is that the legislature sought to concretise the idea by creating
mechanisms for pre -trial release on bail, during the trial, and even after conviction
and sentence, but n ot between conviction and sentence. To this end, the applicants
note that the shadow hangs over those accused who, like the applicants, have been
convicted but not yet sentenced.
[12] The applicants point out that the interlude between conviction and sentence may
be lengthy, depending on various factors that may reasonably arise; yet this period
prevails without the accused having access to a ready statutory remedy. The
applicants further submit ted that the accused, in such a situation, remains in a no -
man's land, suspended, in the shadow and remediless. The applicants opine that
such an accused person must simply await his appeal.
[13] It was further submitted that the legislative assistance to the one (bail before
trial/ conviction) and also the other (bail after sentence), while leaving those such as
the applicants (after conviction but before sentence) in limbo, is a legislative
omission which is a breach of the applicants’ constitutional right to equality. In the
present matter, the applicants submitted that pre -sentencing reports for the two
applicants where the judgment exceed 100 pages would take a minimum of 6 to 7
weeks to complete. Considering the estimated time required to obtain the necessary
pre-sentence reports, along with t he subsequent preparation by legal counsel, it
pre-sentence reports, along with t he subsequent preparation by legal counsel, it
appears that the upcoming trial court date of 10 April 2026, would be unachievable if
the applicants choose to utilise the benefits that a thorough pre -sentencing report
could provide.
[14] To this end, the applicants implored the court to exercise its inherent jurisdiction
in terms of s 173 of the Constitution to fill the lacuna and prevent grave injustice. The
applicants beseeched the court to restore them to their rightful place (by rein stating
their bail) as litigants who should have every reason to expect a superior court to
come to their assistance.
[15] Mr Agulhas, counsel for the state, opposed the applicants’ submissions and
contended that, considering the seriousness of the charge s and the fact that the
applicants face direct imprisonment, the state applied for the withdrawal of the
applicants’ bail upon conviction. The regional magistrate afforded the applicants and
their counsels an opportunity to respond to the application, whic h they did. After
hearing all the parties, the regional magistrate exercised her powers under s 58 of
the CPA and revoked the bail of the applicants.
[16] The state also relied on the decision of S v Maloutzi 2015 (2) SACR 341 (CC)
para 31, where the Con stitutional Court ruled that the inherent power to regulate
process does not apply to substantive rights but rather to adjectival or procedural
rights, that the power must be used sparingly, otherwise there would be legal
uncertainty and potential chaos. The Court also noted that the High Court cannot use
this power to assume jurisdiction that it does not otherwise have. Mr Agulhas
submitted that the applicants have not made out a case for this court to exercise its
inherent jurisdiction to reinstate their bail. Counsel prayed the court to dismiss the
applicants’ application.
Discussion
(a) Urgency in bail proceedings
[17] Before I can address the disputed issues discussed above, I deem it proper to
address the preliminary issue raised by this Court with the parties at the hearing of
this application. This matter appeared in the urgent court, and the applicant s had to
satisfy the requirements of Rule 6(12) of the Uniform Rules of Court. Mr Liddell,
appearing for both applicants, submitted that the deprivation of liberty presently
endured by the applicants constitutes ongoing and immediate prejudice which is
endured by the applicants constitutes ongoing and immediate prejudice which is
incapable of ade quate redress in due course. Counsel asserted that the urgency of
the matter is grounded in the principle that liberty once infringed cannot be
retrospectively restored, and any delay in judicial intervention perpetuates
irreparable harm. Moreover, counsel pointed out that the applicants’ circumstances
fall within the category of inherently urgent matters, in which the court is required to
act as the upper guardian of constitutional rights. Counsel emphasised that t he
applicants have no alternative effectiv e remedy and cannot obtain substantial
redress at a hearing in due course.
[18] I agree with the views expressed by the applicants’ counsel. Al l bail applications
and bail appeals are per se prima facie urgent. Where an accused or an appellant is
in custody because of the denial of bail, the appeal is, by virtue of that fact
alone, prima facie so urgent that it must be heard as quickly as is reasonably
possible. See Prokureur-General, Vrystaat v Ramokhosi 1997(1) SACR (O) at
p.143D-F. All the available machinery for the hearing of the matter, must be brought
into operation without delay. In Magistrate, Stutterheim v Mashiya 2003 (2) SACR
108 (SCA) para 16, the SCA stated:
‘[I]t is evident that finalising an application for bail is always a matter of
urgency. Though the accused may not be entitled to be released – since the
Constitution permits bail only if the interests of justice permit – he or she is certainly
entitled at first instance to a prompt decision one way or the other. And if bail is
refused, the decision can be appealed. The right to a prompt decision is thus a
procedural right independent of whether the right to liberty actually entitles the
accused to bail. (footnotes omitted)
[19] For these reasons , I am of the view that this matter is urgent . I now turn to
consider the applicants’ application on the merits.
(b) Bail after conviction but before sentence (the alleged lacuna)
[20] In considering the granting or the revocation of bail after conviction but before
sentencing, it is instructive for the court to consider the provisions of s 58 of the CPA,
sentencing, it is instructive for the court to consider the provisions of s 58 of the CPA,
which deals with the effect of bail and provides as follows:
‘The effect of bail granted in terms of the succeeding provisions is that an accused
who is in custody shall be released from custody upon payment of, or the furnishing
of a guarantee to pay, the sum of money determined for his bail, and that he shall
appear at the place and on the date and at the time appointed for his trial or to which
the proceedings relating to the offence in respect of which the accused is released on
bail are adjourned, and that the release shall, unless sooner terminated under the
said provisions, endure until a verdict is given by a court in respect of the charge to
which the offence in question relates, or, where sentence is not imposed forthwith
after verdict and the court in question extends bail, until sentence is imposed :
Provided that where a court convicts an accused of an offence contemplated in
Schedule 5 or 6, the court shall, in considering the question whether the accused’s
bail should be extended, apply the provisions of section 60(11) (a) or (b), as the case
may be, and the court shall take into account—
(a) the fact that the accused has been convicted of that offence; and
(b) the likely sentence which the court might impose.’(emphasis added)
[21] Section 58 of the CPA envisages that against the payment of the bail money or
provision of a guarantee, the accused shall be released from custody and must
appear before the trial court at the place, on the date, and at the time appointed for
his trial as directed by the court. Bail, or the release of an accused on warning,
endures until judgment has been given. Simply put, bail lapses by operation of law
upon conviction, unless the trial court extends it. In terms of s 58, an accused’s
release from custody lasts until a verdict is pronounced, and the bail granted lapses
ex lege at conviction.
[22] Should the sentence not immediately follow upon conviction; the court retains a
discretion whether to extend bail until sentence is passed. Such an extension does
discretion whether to extend bail until sentence is passed. Such an extension does
not follow automatic ally but must be requested from the trial court. Once bail is
extended after conviction, the presiding officer becomes functus officio for purposes
of bail until the bail lapses after the passing of sentence. See S v Maritz [2021] JOL
54965 (FB) paras 16 and 17. In other words, once extended, bail remains in effect
until a sentence is imposed, and the trial court cannot unilaterally revoke it. In
addition, when the presiding officer decides to revoke the bail or not to extend it, he
also become functus officio in relation to the bail aspect.
[23] Deciding whether to extend bail pending sentencing depends on the specific
circumstances at the time of conviction. In this enquiry, the court must weigh the
seriousness of the offence against the like ly sentence, while remaining mindful that
public confidence in the administration of justice is a double -edged sword. This
confidence is undermined not only when a court refuses to detain where it is justified,
but equally when it orders detention where it is not. Consequently, bail must not be
revoked unless specific facts clearly justify it. This ensures that a person's liberty is
not taken away without a valid legal cause.
[24] Axiomatically, t he court will also consider the likelihood of the accused
absconding. When a court has convicted an accused of an offence falling under
schedule 5 and 6 and considers whether the accused’s bail should be extended
pending the imposition of sentence, the court will apply the provisions of s 60(11)(a)
or (b) and sha ll take into account the proviso in s 58 namely; the fact that the
accused has been convicted of that offence; and the likely sentence which the court
might impose. See S v Doorewaard and Another (CAB33/2018) [2018] ZANWHC 87
(6 December 2018) para 16.
[25] Section 58 underscores the judicial necessity of balancing public interest and
social protection against the fundamental rights of the accused when considering the
revocation or extension of bail. In other words, s 58 regulates the consideration of
whether bail should be extended upon conviction and before sentence. Thus, s 58
serves as a vital procedural safety valve. It guarantees that any decision to revoke
bail is the result of a careful balance between the interests of justice and the
accused’s right to freedom. Evidently, the trial court is endowed with a discretion to
extend the bail or to allow the bail to lapse by the operation of law. Expressed
differently, the trial court seized with the trial, may after considering all the competing
differently, the trial court seized with the trial, may after considering all the competing
interests, decide whether to extend the bail that had lapsed ex lege upon conviction.
However, if the decision to r efuse bail is based on capricious grounds, an accused
person may impugn that decision in the High Court, which exercises supervisory
power over the conduct of proceedings in the magistrates' courts in both civil and
criminal matters.
[26] In my opinion, the applicants' argument regarding a perceived gap in the CPA
related to bail applications for convicted persons, specifically those whose bail has
been revoked or has lapsed automatically, as well as those seeking to apply for bail
for the first time after conviction while awaiting sentencing, lacks merit. I accept that
an application for bail is premised on the provisions of section 60(1)(a) of the CPA,
which provides:
‘An accused who is in custody in respect of an offence shall, subject to t he
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.
[27] It must be stressed that once an accused person is convicted , the presumption
of innocence falls away. Different considerations arise in granting bail after
conviction from those relevant to granting bail pending trial. The trial court retains the
discretion to extend the bail or where ne cessary, to grant bail in the interest of
justice. For instance, i n S v Engelbrecht 2003 (2) SACR 544 (W), the accused had
been convicted of the murder of her husband after pleading guilty. Sentencing was
postponed for three months to enable the defence to consult with and procure
reports from, inter alia, a psychiatrist or psychologist, probation officers or
correctional services officers. The accused had been in custody for 14 months when
the matter was heard. After conviction, t he accused applied for bail pending
sentencing. The court considered the accused’s application notwithstanding that she
was convicted of murder. The court dismissed the application as the accused was
facing an offence that attracted the minimum sentence as envisaged in the Criminal
Law Amendment Act 105 of 1997.
[28] In summary, the suggestion that there is a lacuna in the CPA cannot be correct.
The CPA addresses the relevant concerns effectively, leaving no room for the
The CPA addresses the relevant concerns effectively, leaving no room for the
alleged deficiency. Significantly, t he trial court seized with the matter and having
been steeped in the atmosphere of the case retains the di scretion to extend or to
grant bail pending the sentence proceedings where the interests of justice so
demands.
[29] Even if I err in my expression above, I believe that the concern raised by the
applicants is effectively addressed by the role of higher courts and appellate courts.
These courts help maintain 'quality control' within the magistrates' courts and even
within the High Courts. Furthermore, the High Court’s judicial supervision of the
lower courts is vital for reviewing and rectifying an y mistakes or injustice that may
occur. See S v Steyn 2001 (1) SACR 1146 paras 17 to 20. This conclusion is
demonstrated by the decision of the full court in S v Maritz [2021] JOL 54965 (FB), in
which the appeal court reinstated a bail of an accused person after conviction which
the trial court extended and subsequently revoked stating that it was revoked by the
operation of law.
(c) Did the trial court err in not extending the applicants’ bail
[30] The applicants contend ed that the trial court misdirected itself by failing to
extend their bail pending sentencing. The applicants also asserted that they attended
court without fail for 11 years and complied with all bail conditions. It is common
cause that the applicants were convicted of one count of money laundering upon
finalisation of their trial, and they no longer enjoy the presumption of innocence. The
presumption of innocence they enjoyed operated in their favour until the trial court
established their guilt. Accordingl y, as foreshadowed above, different considerations
arise in granting bail after conviction from those relevant to granting bail pending
trial. In S v Rohde 2020 (1) SACR 329 (SCA) para 5, Nicholls JA pointed out, in a
minority judgment, that in a bail application pending an appeal against conviction, the
appellant has a 'difficulty’ because of his 'changed status’: The stark reality is that the
presumption of innocence no longer operates in his favour. See also S v Zondi 2020
(2) SACR 436 (GJ) para 31.
[31] It is worth emphasising that the decision whether to grant bail is entrusted to the
[31] It is worth emphasising that the decision whether to grant bail is entrusted to the
trial court, as it is the person best equipped to deal with the issues, having been
steeped in the atmosphere of the case. See S v Masoaganye & another [2011] JOL
27516 (SCA) para 15. Therefore, there is a limit to what this court can do. This court
has to defer to the exercise of the trial court’s discretion unless that court failed to
bring an unbiased judgment to bear on the issue, did not act for substantial reasons,
exercised its discretion capriciously or upon a wrong principle. This principle was
aptly underscored in S v Barber 1979 (4) SA 218 (D) at 220E – F, where the court
stated:
'It is well known that the powers of this Court are largely limited where the matter
comes before it on appeal and not as a substantive application for bail. This Court
has to be persuaded that the magistrate exercised the discretion which he has
wrongly. Accordi ngly, although this Court may have a different view, it should not
substitute its own view for that of the magistrate because that would be an unfair
interference with the magistrate's exercise of his discretion. I think it should be
stressed that, no matter what this Court's own views are, the real question is whether
it can be said that the magistrate who had the discretion to grant bail exercised that
discretion wrongly.'
[32] In revoking the bail, the magistrate exercised a judicial discretion in the true
sense. In Trencon Construction (Pty) Ltd v Industrial Development Corporation of
South Africa Ltd and Another 2015 (5) SA 245 (CC) paras 8 3, (‘Trencon’) the
Constitutional Court observed that in order to decipher the standard of inte rference
that an appellate court is justified in applying, a distinction between two types of
discretion emerged in our case law. That distinction is now deeply rooted in the law
governing the relationship between appeal courts and courts of first instance . The
Court noted that the proper approach on appeal is for an appellate court to ascertain
whether the discretion exercised by the lower court was a discretion in the true
sense or whether it was a discretion in the loose sense. The distinction between the
two is made for the purposes of determining the extent of an appellate court’s power
to substitute its own determination for that of the court a quo where the decision in
point is accepted to have involved the exercise of ‘a discretion’. See S v Tafeni 2016
(2) SACR 720 (WCC) para 6.
(2) SACR 720 (WCC) para 6.
[33] In Media Workers Association of South Africa and Others v Press Corporation of
South Africa Ltd 1992 (4) SA 791 (A) at 800E, the Court defined a discretion in the
true sense as follows:
‘The essence of a discretion in [the true] sense is that, if the repository of the
power follows any one of the available courses, he would be acting within his
powers, and his exercise of power could not be set aside merely because a
Court would have preferred him to have followed a different course among
those available to him.’
[34] A discretion in the true sense is found where the lower court has a wide range of
equally permissible options available to it. See Trencon (supra) para 85. The lower
court has an election of which option it will apply, and any option can never be said
to b e wrong, as each is entirely permissible. In contrast, where a court has a
discretion in the loose sense, it does not necessarily have a choice between equally
permissible options. A discretion in the loose sense means no more than that the
court is entitl ed to have regard to a number of disparate and incommensurable
features in coming to a decision. See Knox D'Arcy Ltd and Others v Jamieson and
Others 1996 (4) SA 348 (A) at 361I.
[35] In National Coalition for Gay and Lesbian Equality and Others v Minist er of
Home Affairs and Others 2000 (2) SA 1 (CC) para 11 , the Constitutional Court
emphasised that when a lower court exercises a discretion in the true sense, it would
ordinarily be inappropriate for an appellate court to interfere unless it is satisfied that
this discretion was not exercised judicially, or that it had been influenced by wrong
principles or a misdirection on the facts, or that it had reached a decision which in
the result could not reasonably have been made by a court properly di recting itself to
all the relevant facts and principles.
[36] As I see it, the decision of the court a quo is unimpeachable. It cannot be said
that the decision of the regional magistrate, in respect of the four accused, to refuse
to extend their bail, w as taken capriciously. It is apparent from the reasons she has
furnished that she has taken the relevant factors into account and given due
furnished that she has taken the relevant factors into account and given due
consideration to each. She considered that the said accused save for the second
applicant are foreigners, and that the likelihood of absconding is overwhelming. She
noted it as a fact that one of the accused ha s absconded. She considered that the
applicants had attended court regularly, but stated that they are now convicted. The
magistrate observed that the bad outweighs the good.
[37] In my view, this court ought to be slow to substitute its own decision solely
because it does not agree with the permissible option chosen by the lower court. In S
v Porthen and Others 2004 (2) SACR 242 (C) , Binns -Ward AJ, as he then was,
reminded us that even when a discretion in the wider sense is exercised by the court
a quo, an appellate court will give due deference and appropriate weight to the fact
that the court or tribunal of first instance is veste d with a discretion and will eschew
any inclination to substitute its own decision unless it is persuaded that the
determination of the court or tribunal of first instance was wrong. I agree with this
proposition.
[38] I am mindful that f rom the engagement of the trial court and the second
applicant’s legal representative, the court was informed that the second applicant
has a grade 10, a grade 5, and a five -year-old child. I am also cognisant of the fact
that the court was informed that t he second applicant is the children's primary
caregiver, after their father absconded. Her eldest child was born in 2006. Mr Liddell
argued that the court a quo did not consider who would look after the children in
second applicant’s absence. According to counsel, t he continued detention of the
second applicant, without a n inquiry into the welfare of her minor children, has
serious implications for her children.
[39] The paramountcy of the child's best interest s is well established in our law. It is
indeed true that the matter regarding the second applicant's minor children was
presented for consideration to the court a quo. In rejecting the second applicant's
request to extend bail, the court was alive to the plight of the second applicant’s
children. The fact that she does not specifically mention them in her judgment does
not mean that she did not consider their interests.
[40] I am fortified in thi s conclusion because, when the magistrate was addressed to
[40] I am fortified in thi s conclusion because, when the magistrate was addressed to
extend the second applicant’s bail , Mr Liddell mentioned that the applicant had two
children. It was the magistrate who pointed out to him that the documents in her
possession showed that the second applicant actually had more children. I also
hasten to add that the issue regarding the children will be addressed during the
sentencing proceedings. If indeed the second applicant is the primary caregiver of
her minor children, it is expected that the trial court will conduct the necessary inquiry
in terms of the guidance that the Constitutional Court provided in S v M (Center for
Child Law as Amicus Curiea) 2008 (2) SA 232 (CC).
Order
[41] Given all these considerations, I would propose the following order:
The applicants’ application is hereby dismissed.
_________________________
LEKHULENI JD
JUDGE OF THE HIGH COURT
I agree and it is so ordered:
__________________________
FORTUIN C
JUDGE OF THE HIGH COURT
APPEARANCES:
For the applicants: Adv Liddell
Instructed by: Mathewson Gess Inc
For the First respondent: No appearance
For the Second respondent: Adv Agulhas