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FORM A

FILING SHEET FOR EASTERN CAPE HIGH COURT, GRAHAMSTOWN JUDGMENT

ECJ:

PARTIES: BEREND STEPHANUS SMITH

And

THE STATE

• Registrar: CA&R 150/0

• Magistrate:

• High Court: EASTERN CAPE HIGH COURT, GRAHAMSTOWN

DATE HEARD: 12/08/09

DATE DELIVERED: 18/08/09

JUDGE(S): JONES J

LEGAL REPRESENTATIVES –

Appearances:

1. for the Applicant(s): ADV: T.N. Price

2. for the Respondent(s): ADV: Z. Mdolomba

Instructing attorneys:

1. for the Applicant(s): NETTELTONS ATTORNEYS

2. for the Respondent(s): DIRECTOR OF PUBLIC PROSECUTION

CASE INFORMATION -

1. Nature of proceedings : BAIL APPEAL

Not reportable

THE HIGH COURT OF SOUTH AFRICA

In the Eastern Cape High Court

Grahamstown CA&R 150/09

In the matter between

BEREND STEPHANUS SMITH Applicant

and

THE STATE Respondent

Summary Bail appeal – the magistrate had dismissed an application for bail pending a petition for leave to appeal against conviction, leave to appeal against conviction having been refused, but leave having been granted to appeal on sentence – appeal allowed and bail fixed pending the outcome of the petition.

JUDGMENT

JONES J

[1] On 17 July 2008 the appellant was convicted in the regional court, East London of two counts, (a) an indecent assault upon a 15 year old girl and (b) kidnapping her, which were both committed on 11 January 2005. He was sentenced on 6 May 2009 to 7 years’ imprisonment, both counts being taken as one for the purpose of sentence. On 8 May 2009, he applied for leave to appeal against both conviction and sentence. The magistrate dismissed the application in respect of conviction, but granted leave to appeal on sentence. On the same date the magistrate refused bail pending a petition to the Judge President for leave to appeal on conviction. This is an appeal against that decision. The appeal is confined. As put in counsel’s heads, the appeal is against the refusal of bail pending the outcome of an application for leave to appeal on the merits by way of petition. That was the only issue before the magistrate, and it is the only issue before me on appeal. The applicant has now prepared and lodged his petition with the registrar of this Court. The petition is pending.

[2] All bail applications are governed by the same principles, but there are differences in emphasis in cases of bail pending an appeal from cases of bail prior to conviction. For example, the presumption of innocence no longer plays a role, the prospects of success on appeal involve a different test, the risk of absconding assumes different importance, and issues of interference with witnesses or with the investigation are ordinarily no longer relevant. It seems to me that the overriding consideration remains always the right of an accused person in terms of section 25(2)(d) of the Constitution to be released on bail unless the interests of justice require otherwise. Frequently, the interests of justice require otherwise. Thus, in S v Beer 1986 (2) SA 307 (SE) Smalberger J (as he then was) remarked (310B) that despite freedom of the individual being an important consideration, and despite there being little or no prospects of the applicant absconding or posing a threat to society, where the appeal is only on sentence the healthy and effective administrative of justice requires the expeditious serving of a criminal sentence, and there are no logical, juridical or moral reasons to delay carrying out a sentence in a case where the appeal on sentence has no reasonable prospects of success. This consideration weighed with the magistrate in refusing bail. Although he granted leave to appeal on sentence, he did not think that there was any real prospect of a non-custodial sentence being imposed, and was of the view that there were no reasonable prospects of an appeal on conviction succeeding.

[3] In considering an application for bail pending a petition for leave to appeal on conviction, the magistrate was obliged to balance the liberty of the individual against the interests of the good administration of justice, and in doing so, to consider the prospects of success on appeal. Counsel were agreed that this test is not as exacting in a bail application as in an application for leave to appeal. The test in a bail application has been variously stated – whether the appeal is free from predictable failure; whether the appeal is arguable or hopeless; whether there is a possibility that the appeal may be allowed; whether or not the appeal is manifestly doomed to failure. See the following authorities: S v Hudson 1996 (1) SACR 431, 434; S v Naidoo 1996 (2) SACR 250; S v Anderson 1991 (1) SACR 525 (C) 527f; S v Williams 1981 (1) SA 1170 (ZA) 1171H-1172B; S v De Abreu 1980 (4) SA 94 (W); Van den Berg, Bail, A Practitioner’s Guide 2^nd ed 169/171. Here, the magistrate applied the same test as in an application for leave to appeal. That test led him to conclude, in effect, that a court of appeal would not depart from his finding that certain untruths and other unsatisfactory features were not destructive of the credibility of the witness although she was a child witness and a single witness. But the fact that her evidence was the subject of legitimate criticism (though not necessarily decisive criticism) makes it difficult to conclude that an attack on her credibility on appeal must be regarded as hopeless or manifestly doomed to failure. Without in any way second guessing the opinion of the judges who will in due course consider the petition in the light of a different test of prospects of success, it seems to me that for the purposes of a bail application the applicant has satisfied the test of showing that his appeal on the merits is at least arguable.

[4] The magistrate’s reasons for denying bail were confined to the prospects of success. He held that this is not a case where the applicant will pose a threat to society if he is released on bail. He also considered that there is no prospect of the applicant absconding. His family and personal circumstances make this so unlikely that it can be ignored. Mr Price for the applicant also relied on the balance of prejudice. The applicant will suffer irreparable harm if bail is denied and an appeal on the merits should ultimately succeed. The State will not suffer prejudice if bail is granted but the appeal should ultimately fail, other than the avoidance of delay in carrying out the sentences of the courts.

[5] In the light of the aforegoing I conclude that this is not a case where the interests of justice require that the applicant should be denied bail. The appeal must succeed. The order of the magistrate refusing bail pending the outcome of the petition to the Judge President for leave to appeal is set aside, and will be replaced with an order

3. admitting the applicant to bail in the sum of R2000-00 pending the outcome of his petition to the Judge President for leave to appeal against his conviction;

4. directing the applicant to submit himself to the prison authorities at the prison where he is presently incarcerated within 7 days of the date of the refusal of his petition for leave to appeal.

RJW JONES

Judge of the High Court

17 August 2009

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