Lobel and Another v Claassen, NO

• Jurisdiction: South Africa
• Judge: Ramsbottom J
• Judgment Date: 23 December 1955
• Hearing Date: 23 December 1955
• Court: Witwatersrand Local Division

Ramsbottom, J.:

The two applicants have been arrested and a preparatory H examination has been opened against them. Meanwhile they have been remanded in custody until January the 10th. They applied to the magistrate for bail and the application was refused; they have now applied to this Court.

The section of the Criminal Code under which the application to the magistrate was made is sec. 87 (1) which reads:

Ramsbottom J

'No accused against whom a preparatory examination has been instituted shall before the issue of the warrant for his committal for trial or sentence be entitled to be released on bail: Provided that the magistrate may in his discretion, except where the offence is treason or murder, release the accused on bail before the preparatory examination is concluded'.

A That means that a person who has been arrested is not entitled to be released on bail until after the preparatory examination has been concluded and if he wishes to be released he must make application and the question of whether he should be released or not is then taken into consideration. That is the law as laid down by the Act. Sec. 98 provides that

B 'A superior court having jurisdiction in respect of any offence may at any stage of any proceedings taken in any court in respect of that offence, release the accused on bail, whether the offence is or is not one of the offences referred to in sec. 88.'

This Court therefore has power to release, but this Court too must C exercise its discretion. The accused has no right to be released, and this Court, although it has the power to release him, must, like the magistrate, exercise its discretion.

It has been argued that there is a difference between the decision of this Court and the decision of the magistrate's court in that this Court can impose conditions for release on bail whereas it is said that the magistrate has no power to impose conditions.

D The application before the magistrate having been dismissed this application is made to this Court for the Court to exercise its powers under sec. 98. The applicants say that they will submit to any conditions which the Crown may wish to have imposed, they are prepared E to go away to Port Elizabeth or any other place that the Court may order, they are prepared to give an undertaking not to communicate with any Crown witnesses and are prepared to submit to cancellation of the bail if they should commit any breach of any such conditions, and it has...