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[2003] ZACC 21
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S v Van Der Westhuizen (CCT60/03) [2003] ZACC 21; 2004 (2) BCLR 117 (CC) (24 November 2003)
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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Â
Case
CCT 60/03
LOUIS BENJAMIN VAN DER WESTHUIZENÂ Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â
Applicant
                                                                                                                                        Â
versus
THE STATEÂ Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â
Respondent
Decided on    :          24 November 2003
JUDGMENT
THE COURT:
[1]
The applicant approached this Court for bail.Â
He was convicted in the Regional Court at George of an offence and sentenced to
imprisonment. The applicant does not indicate the offence of which he was
convicted, the sentence, or when he was convicted and
sentenced. What appears
from the application, is that the applicant applied unsuccessfully to the High
Court in Cape Town to
re-open the proceedings in the Regional Court to enable
it to take into account facts and circumstances which had arisen subsequent
to
the imposition of sentence. That application was dismissed by the High Court.Â
An application for leave to appeal against
the decision of the High Court was
subsequently dismissed by the Supreme Court of Appeal (âthe SCAâ). The
applicant contends
that the SCA, in dismissing his application for leave to
appeal, did so prematurely and without regard to averments made by him
in a
replying affidavit, which was lodged timeously but after the order had been
made.
[2]
The applicant, though represented by an
attorney, has paid no regard to the rules of this Court. The application is in
substance
one for direct access to this Court for the grant of bail. The
applicant requires the leave of this Court to bring such an application
and the
procedure that has to be followed is described in rule 17. Rule 17(2) provides
that an application for direct access
shall set out â
â(a)Â Â Â Â Â Â Â Â Â Â Â the grounds on which it is contended that it is in
the interests of justice that an order for direct
access be granted;
(b)
the nature of the relief sought and the grounds upon which such
relief is based;
(c)
whether the matter can be dealt with by the Court without the
hearing of oral evidence and, if it cannot,
(d)
how such evidence should be adduced and conflicts of fact resolved.â
[3]
Direct access will ordinarily be granted only in
exceptional cases where it is in the interests of justice to do so.
[1]
 None of the provisions of rule
17 has been observed. The applicant says that he is seeking legal advice and
is uncertain as
to what remedy he has. He may have none. The judges who made
the order dismissing the application for leave to appeal reconsidered
the
matter after the replying affidavit had been filed and concluded that there was
no reason to recall their order. Â Nothing
has been placed before this Court to
suggest that the decision to refuse the application for leave to appeal was in
substance incorrect,
or that the applicant has any prospect of persuading a
court that the sentence imposed upon him by the Regional Court at George
could
or should be varied, because of facts and circumstances which have arisen since
the date of the conviction and sentence.
[2]
Â
On the basis of the averments made in the application, there is no reason why
this Court or any other court should grant him
bail.
[4]
The applicant has therefore failed to establish
that it is in the interests of justice to grant him direct access to this Court
for the purpose of granting him bail. Â The application for direct access is
therefore refused.
Chaskalson CJ, Langa DCJ, Ackermann
J, Madala J, Mokgoro J, Moseneke J, Ngcobo J, OâRegan J, Sachs J and Yacoob J.
[1]
See
Bruce and Another v Fleecytex Johannesburg CC and Others
[1998] ZACC 3
;
1998 (2) SA 1143
(CC);
1998 (4) BCLR 415
(CC) para 9,
Christian Education
South Africa v Minister of Education
1999 (2) SA 83
(CC);
1998 (12) BCLR
1449
(CC) para 4,
Dormehl v Minister of Justice and Others
2000 (2) SA
987
(CC);
2000 (5) BCLR 471
(CC) para 5,
National Gambling Board v Premier,
KwaZulu-Natal and Others
[2001] ZACC 8
;
2002 (2) SA 715
(CC);
2002 (2) BCLR 156
(CC) para
29,
Van der Spuy v General Council of the Bar of South Africa (Minister of
Justice and Constitutional Development, Advocates for Transformation
and Law
Society of South Africa intervening)
[2002] ZACC 17
;
2002 (5) SA 392
(CC);
2002 (10) BCLR
1092
(CC) para 7,
Satchwell v President of the Republic of South Africa and Another
[2003] ZACC 2
;
2003 (4) SA 266
(CC) para 6.
[2]
See
R v Verster
1952 (2) SA 231
(A) at 236A-C;
R v Hobson
1953 (4) SA 464
(A) at 466A