S v Liebenberg

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: O'Brien AJ
• Judgment Date: 29 October 2021
• Court: Northern Cape Division
• Hearing Date: 07 October 2021
• Citation: 2022 (1) SACR 58 (NCK)
• Counsel: J Schreuder (with CF van Heerden) for the applicant. I Mphela (with L Setouto) for the state.
• Docket Number: CA&R 47/2020

O'Brien AJ:

[1] The applicant appeared in the regional court, Kimberley, on various charges of fraud, theft and uttering of a forged document. She initially pleaded not guilty to all the charges, but during the trial she made specific admissions in terms of s 220 of the Criminal Procedure Act 51 of 1977 (the CPA). Because of these admissions, the court convicted her of all the charges, except one. The charges were taken together for purposes of sentence, and it sentenced her to six years' imprisonment.

[2] She appealed both the conviction and sentence after being granted leave on petition by the Judge President of this division. After that, she applied for bail pending the outcome of the appeal. Her application was successful, and she was granted bail in the amount of R5000, coupled with certain conditions.

[3] Her appeal to the Kimberley High Court succeeded in part. On certain charges the High Court found there to be a duplication. It set aside the charges concerning forgery and uttering a forged document. The court reduced her sentence to four years' imprisonment. She now

O'Brien AJ

applies for bail pending a petition to the Supreme Court of Appeal (the SCA) against the conviction and sentence. It is unclear from the judgment on which charges the applicant's sentence was reduced. Also, whether the charges were taken together for purposes of sentence. More about that later.

Jurisdiction

[4] The issue in dispute is whether this court has jurisdiction to decide this application. Mr Mphela for the state relies on an unreported decision of this court in S v Kohlani NCK 974/21, delivered on 11 June 2021, and submitted that this court does not have jurisdiction to decide bail for lack of jurisdiction. In his view, the only court which could fix bail is the SCA.

[5] Mr Schreuder, on behalf of the applicant, submitted, with reference to S v Banger 2016 (1) SACR 115 (SCA) ([2015] ZASCA 79), that the court has jurisdiction to decide the question of bail pending the petition to the SCA.

[6] In Kohlani the learned judge relied on the decision of Van der Walt v Director of Public Prosecutions, Mpumalanga 2020 (2) SACR 132 (MM) in concluding that the applicant (Kohlani) should approach the SCA to consider the question of bail pending an intended application for special leave to appeal to the SCA. This necessitates a careful consideration and analysis of the statutory provisions, and the Van der Walt decision, in an application for bail pending an appeal to the SCA.

[7] The ratio in Van der Walt appears to be that a court under the new dispensation — the Superior Courts Act 10 of 2013 — has to take into consideration, when deciding the question of bail pending an application for special leave to the SCA, whether the applicant has a reasonable prospect of success on the merits of the case. Accordingly, so the argument goes, bail could only be determined by the SCA when special leave must be granted. Stated differently, it is only the SCA which could decide the question of bail.

[8] I am in respectful disagreement with the reasoning in Van der Walt and Kohlani. The court in Van der Walt proceeds from the premise that it is not entitled to determine an application for bail when the SCA must determine if an applicant has a reasonable prospect of success on the merits. But is the consideration of bail pending appeal and reasonable prospects of success on appeal conceptually the same? In my view not.

[9] In S v Egling [2003] JOL 11005 (W) Stegmann J dealt extensively with the difference between the...