S v Nichas and Another

• Jurisdiction: South Africa
• Citation: 1977 (1) SA 257 (C)

S v Nichas and Another
1977 (1) SA 257 (C)

1977 (1) SA p257

Citation	1977 (1) SA 257 (C)
Court	Cape Provincial Division
Judge	Diemont J, Theron J and Grosskopf J
Heard	September 3, 1976
Judgment	November 2, 1976

Flynote : Sleutelwoorde A

Criminal procedure — Bail — Appeal against refusal of by magistrate — Accused must proceed under sec. 97 of Act 56 of 1955 B — Right of accused and Attorney-General to file affidavits in such appeal — Attorney-General opposing bail — Weight to be attached thereto.

Headnote : Kopnota

Once an accused has elected to apply for bail in the magistrate's court he must, if aggrieved by the refusal of the magistrate to grant bail, proceed on appeal under section 97 of Act 56 of 1955 and not institute proceedings afresh in the C Supreme Court under section 98.

There is no justification for declaring that there would be no appeal to a Supreme Court in terms of section 97 of Act 56 of 1955 unless full information on oath had been placed before the magistrate. Nor is the State entitled to object to affidavits being placed before the Court on appeal - affidavits which contain information which was given informally in the lower court as well as supplementary information and new information D which may have come to light. It is desirable that the accused who seeks bail should place information before the magistrate on oath, but if he fails to do so and is aggrieved by the decision of the magistrate he may take the matter on appeal in terms of section 97. Since the word "appeal" is used in a wide sense in the section, the appellant may refer to matters outside the record and file affidavits relating to matters which were not stated on oath in the lower court. The E Attorney-General may also file affidavits in reply and may also refer to such additional or new matter which he thinks may assist the Court of appeal in coming to a just conclusion. Whether or not affidavits are filed, the magistrate must be given a reasonable opportunity of furnishing his reasons for the decision taken by him. It is of great importance to the Court that it should have the advantage of the magistrate's reasons and these will no doubt always be made available as expeditiously as possible.

In regard to the weight to be attached to the F Attorney-General's opposition to the grant of bail it is important to have regard to the stage in the proceedings at which the accused seeks bail. Where the application is made during the course of the trial or at the conclusion of the trial, the magistrate will know what the nature of the offence is and under what circumstances it was alleged to have been committed; he may have some knowledge of the accused's personality and background and he may be able to assess the G risk in granting bail. But where the application was made two days after the appellant's arrest, before any charge had been framed and while police investigations were still in an embryo stage, the magistrate could have had little or no knowledge of the matter. In such circumstances the Court must give great weight to the views of the Attorney-General, who may well be in possession of witness' statements, of confidential documents and of the accused's records.

Case Information

Appeals in terms of sec. 97 of Act 56 of 1955 against the H refusal of bail in a magistrate's court. The facts appear from the reasons for judgment.

R. M. Marais, S.C. (with him P. B. Hodes), for the appellants.

J. Slabbert, for the State.

[The Court dismissed the appeals on 3 September 1976 and filed the following reasons for judgment on 2 November 1976.]

1977 (1) SA p258

Judgment

Diemont, J.:

The two appellants in this case, Thomatos and Nichas, were arrested together with a third person, Raymond Kets, on 24 August 1976 in respect of alleged contravention of A the SA Exchange Control Regulations and fraud. The two appellants appeared in the magistrate's court, Cape Town, on 26 August 1976 when the prosecution applied for a remand to 24 September pending further investigations by the police.

At the hearing an application was made for bail. The attorney representing the two appellants stated that the appellants could report to the police if necessary and the State should B say why they should not be let out on bail. The prosecutor resisted the application and in support of his argument he drew attention to the fact that a country-wide investigation was taking place and that the amount of foreign exchange involved was about R4 million. There were indications that the scheme was being operated by a syndicate and the State was C apprehensive that if bail were granted the appellants would interfere with witnesses.

No evidence was led and after he had heard argument the magistrate refused the application for bail.

Urgent appeals in terms of sec. 97 of Act 56 of 1955 were brought before me and my Brother THERON on Tuesday, 31 August 1976, on behalf of each of the appellants. These were brought D by way of two applications on notice to the Registrar, the Attorney-General and the clerk of the criminal court, Cape Town - each application being supported by an affidavit by the appellant concerned. Mr. Slabbert, who appeared for the State, took the point in limine that the matters were not ripe for hearing as the appeal formalities had not been complied with. E In particular no notice of appeal setting forth in proper form the grounds of appeal had been filed and the magistrate had received no notification of the intention to appeal until 3.30 p.m. on the previous day, that is Monday, 30 August. He had then stated that he would be prepared to furnish his reasons when an appeal was lodged. We were satisfied that the objection was well taken and both matters were accordingly postponed sine F die in order to give the appellants the opportunity to file their grounds of appeal and to enable the magistrate to furnish reasons for his decision.

Both the notice of appeal and the reasons for judgment were subsequently filed, whereupon the matters were brought to a hearing before the Court reconstituted as a Full Bench - my G Brother GROSSKOPF having been brought in as the third Judge. After argument had been heard, a unanimous decision was reached that both appeals should be dismissed. This decision was duly announced in Court, but it was stated that our reasons for it would be filed later. These will now be set out.

The grounds of appeal which were drawn up on behalf of the appellants after the initial hearing by me and my Brother H THERON on 31 August 1976 read as follows:

"(1)

The magistrate had no justification on the information before him for a conclusion that the administration of justice might suffer if he granted bail.

(2)

Nothing was placed before him by the State to justify the ex parte statement that the release of the appellants may result in interference with witnesses.

(3)

Not only was there nothing put forward by the State to support

1977 (1) SA p259

Diemont J

a suggestion that the accused might abscond, it was not even suggested that they might do so.

(4)

The magistrate's decision was not...