The State v Kathrada

• Judge: de Wet JP and Cillié J
• Judgment Date: 15 June 1961
• Citation: 1961 (3) SA 593 (T)
• Hearing Date: 12 June 1961
• Court: Transvaal Provincial Division

The State v Kathrada
1961 (3) SA 593 (T)

1961 (3) SA p593

Citation	1961 (3) SA 593 (T)
Court	Transvaal Provincial Division
Judge	de Wet JP and Cillié J
Heard	June 12, 1961
Judgment	June 15, 1961

Flynote : Sleutelwoorde

Criminal procedure — Bail — Act 56 of 1955, sec. 97. — F Applicability and scope of — 'Appeal.' — Meaning of in section.

Headnote : Kopnota

The only rights preserved when bail is refused by an inferior court are the rights to be found in section 97 of Act 56 of 1955.

The word 'appeal' in section 97 of Act 56 of 1955 must not be given a G restricted meaning.

Case Information

Application for bail. The facts appear from the reasons for judgment.

G. Lowen, Q.C., (with him D. Soggot), for the applicant.

H. J. Beyers, for the State.

H [The Court granted the application and filed the following reasons on June 15th.]

Judgment

de Wet, J.P.:

The applicant, Kathrada, was arrested on a charge of contravening sec. 10 of Act 44 of 1950. Shortly after his arrest an application was made to a magistrate for his release on bail. This application was refused on the production of a certificate by the Attorney-General

1961 (3) SA p594

de Wet JP

issued in terms of sec. 108 bis of Act 56 of 1955, as amended by Act 39 of 1961, authorising the applicant's detention for 12 days without bail. Thereafter, on the 1st June, the application was renewed, but bail was A refused by the magistrate. On the 12th June this Court authorised the applicant's release on bail. The reasons for this order follow.

The relevant provisions in Act 56 of 1955 relating to the release of an accused on bail during the course of a trial in an inferior court are the following.

B '95. (1) When a criminal trial before an inferior court is adjourned or postponed and the accused remanded in custody, the court may, in its discretion release the accused on bail in the manner hereinafter provided.

97. (1) Whenever an accused considers himself aggrieved by the refusal of any magistrate or of an inferior court to release him on bail or by such magistrate or court having required excessive bail or having imposed unreasonable conditions, he may appeal to the superior court C having jurisdiction, or, in case such court is not then sitting, to any Judge thereof against such refusal or excessive bail.

(2) The superior court to which or Judge to whom an appeal is made under sub-sec. (1) may make such order on the appeal as to it or him in the circumstances of the case seems just.

98. 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 D one of the offences referred to in sec. 88.'

It was contended by Mr. Lowen, on behalf of the applicant, in the first place that the Court has power to entertain the application by virtue of the provisions of sec. 98 which give the Court wide powers to admit an accused person to bail at any stage in the proceedings.

I do not agree that this section can be invoked in the present E proceedings. I do not think that the provisions of sec. 97 can be discarded as surplusage, but are intended to apply whenever an inferior court has refused bail. An indication which supports this view is found in sec. 88, which makes provision for bail to be granted after a person has been committed for trial, and provides that the magistrate may F refuse bail under certain circumstances. In both sub-secs. (a) and (b) such refusal is stated to...