Case Review: Criminal Procedure

• Jurisdiction: South Africa
• Citation: (2005) 18 SACJ 353
• Author: Michael Cowling
• Published date: 16 August 2019
• Pages: 353-376
• Date: 16 August 2019

Case reviews 353

Criminal Procedure

MICHAEL COWLING

University of KwaZulu-Natal

Appeal

Appeal- bail application

Section 65 of the Criminal Procedure Act 1977 allows any accused refused

bail in a lower court to appeal against that decision, and goes on to

stipulate how the appeal court should exercise its discretion. The appeal

judge must be satisf‌i ed that the decision to refuse bail was wrong. It is

only once this has been established that the appeal judge is empowered

to substitute that decision with one which he or she is of the opinion the

lower court should have given.

In S v Barber 1979 (4) SA 218 (D) 565 was interpreted in a manner

that resulted in a distinction been drawn between an appeal against a

bail application as opposed to a substantive bail application. The court in

Barber’s case concluded that an appeal court’s powers were more limited

in the case of an appeal as the court needed to be satisf‌i ed that the lower

court had exercised its discretion ‘wrongly’ (at 220E). The court held that

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’ (at 220F). It is

not the function of an appeal court to ascertain whether the refusal of bail

was correct but rather to satisfy itself that the decision was not wrong.

This aspect was further considered in S v Porthen 2004 (2) SACR 242

(C) where the court adopted a more general approach that was not

limited to appeals against bail applications but the broader perspective

concerning appeals against any exercise of discretion by a lower court.

In this regard the court drew a distinction between ‘wide’ and ‘narrow’

(or strict) discretion. In the case of exercising a wide discretion a court

of appeal is entitled to substitute its view for that of the lower court.

(2005) 18 SACJ 353

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354 SACJ • (2005) 3

In exercising a discretion in the wide sense, a court of appeal is not

‘hamstrung by the traditional grounds of whether the court exercised its

discretion capriciously or upon a wrong principle, or that it did not bring

its unbiased judgment to bear on the question or that it acted without

substantial reasons’ (Ndlovu v Ngcobo 2003 (1) SA 113 (SCA) at 124).

On the other hand, the exercise of discretion in the narrow sense by a

court means that the question on appeal is not whether the lower court

has arrived at a correct decision but whether it has exercised its discretion

properly. Consequently, the power of an appeal court to interfere is

more limited. This means that an appeal court is not entitled to upset

the exercise of discretion in the narrow sense by a lower court merely

because it would have come to a different conclusion.

However, it is at this stage that the court seemed to abandon this

distinction by remarking 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 f‌i rst instance

is vested 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 f‌i rst instance was wrong’ (at 24 c-d). Thereafter the court

went on to hold that the exercise of discretion in the narrow sense is the

equivalent of making a ‘value judgment’. Examples given by the court of

of such judgments are the determination of an amount of general damages

and the imposition of a sentence. But the court then held that this concept

is a value judgment that ‘... goes not so much to the question of whether

the power entailed in its making is discretionary in the wide or narrow

sense of the word, but rather to exercise the f‌l exibility that is available in

the exercise of the power ...’ (at 248i).

Turning to the issue of appeal against a refusal of bail the court remarked

that since the accused in the case had been charged with armed robbery

(a Schedule 6 offence) they should be refused bail unless they could satisfy

the court that exceptional circumstances exist which in the interests of

justice would permit their release. (In terms of s 60(11)(a) of the Criminal

Procedure Act 1977). From this the court concluded that there is a ‘formal

onus’ of proof placed upon the accused (at 249b). Here the court revived

the distinction between a wide and a narrow exercise of discretion

because it found that the making of a determination whether the onus of

proof has been discharged entails exercising a discretionary power ‘in the

wide sense of the discretion’ (at 249d). This means that an appeal court is

entitled to interfere with a lower court’s decision on a bail application if it

is satisf‌i ed that the lower court’s decision was wrong.

It is diff‌i cult to ascertain precisely what is being said by the court in

regard to appeals against decisions in bail applications made by lower

courts. It is not clear whether the court is attempting to circumscribe

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