Mazibuko v Attorney-General, Transvaal

• Jurisdiction: South Africa
• Citation: 1963 (2) SA 118 (T)

Mazibuko v Attorney-General, Transvaal
1963 (2) SA 118 (T)

1963 (2) SA p118

Citation	1963 (2) SA 118 (T)
Court	Transvaal Provincial Division
Judge	Dowling J
Heard	January 7, 1963
Judgment	January 7, 1963

Flynote : Sleutelwoorde A

Criminal procedure — Bail — Refusal of by magistrate — Appeal under sec. 97 of Act 56 of 1955 — Order which Court entitled to make.

Headnote : Kopnota

B In an appeal under section 97 of Act 56 of 1955 from an order in a magistrate's court refusing an application for bail the Court is not entitled to make any order which the magistrate was not competent to make. C

Case Information

Application to set aside a magistrate's refusal to grant bail pending an appeal. The facts appear from the reasons for judgment.

J. Els, for the Attorney-General, argued in limine that the application was not properly before the Court.

C. C. Schabort, for the applicant: The application is properly before D the Court by virtue of sec. 97 of Act 56 of 1955. See S v Kathrada, 1961 (3) SA 593; S v Berg, 1962 (4) SA 111. Although the word 'appeal' is used in sec. 97, the word must not be given a restricted meaning, see the cases cited supra. This is not an appeal in the narrow and restricted sense of the word. The ordinary rules that apply to an appeal do not apply to this case. No procedure has been prescribed as to E how an appeal in terms of sec. 97 is to be proceeded with. As to the test whether bail should be granted, see Koning v The Attorney-General, 1915 T.P.D. at p. 224; R v Omar, 1930 CPD 70; Ex parte Chetty, 1933 W.L.D. 319; R v Fourie, 1947 (2) SA 574; Leibman v The Attorney-General, 1950 (1) SA 607; Lobel and Another v Claassen, F N.O., 1956 (1) SA 531; R v Milne and Erleigh, 1950 (4) SA 601. This Court is at large to make such order as it considers just, see the cases of Kathrada and Berg, supra.

Judgment

Dowling, J.:

The applicant in this case, a native woman, was charged G jointly with a male, the first accused, with a contravention of sec. 61 (1) (c) of Act 13 of 1928, as amended, in that they had in their possession a quantity of dagga, namely, 140 pounds, for purposes of sale. The first accused was acquitted. The applicant was convicted and sentenced to pay a fine of R800 or in default of payment to undergo a sentence of imprisonment for four years. An appeal was immediately noted H against the conviction and sentence of the applicant, and thereafter an application for admission to bail was made to the magistrate. The magistrate dismissed the application and the applicant in these proceedings seeks to have the dismissal set aside.

The point was taken in limine by Mr. Els for the State that the application was not properly before the Court. He referred to secs. 97 and 98 of the Criminal Procedure Act, 56 of 1955. Sec. 97 provides:

'(1)

Whenever an accused considers himself aggrieved by the refusal of any magistrate or of an inferior court to release him on bail...