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South Africa Judgment

North Gauteng High Court, Pretoria

Gwababa v S (CC104/13) [2018] ZAGPPHC 924 (10 December 2018)

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Source document

01

Holding and result

The court held that although the Supreme Court of Appeal granted leave to appeal to the applicant and his co-accused, this fact alone does not entitle the applicant to bail pending appeal. The judge considered all relevant factors pertaining to bail applications, including the interests of justice and the applicant's prospects of success on appeal. After reviewing the judgment and the reasons for granting leave, the court concluded that the applicant's prospects of success on appeal, as found by the Supreme Court of Appeal, do not justify his release on bail in the interests of justice. Accordingly, the application for bail was dismissed.

Court disposition

Application for bail pending appeal dismissed.

Orders

  • The application for bail pending appeal is dismissed.

02

Material facts

Parties

Lungisa Gwababa

Applicant

The State

Respondent

03

Procedural history

  1. Posture

    Bail Application / Application for Bail Pending Appeal

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant contends that being granted leave to appeal by the Supreme Court of Appeal demonstrates sufficient prospects of success to justify bail pending appeal. He relies on the fact that several co-accused were also granted leave and that the interests of justice favour his release.
Respondent
The State opposes the application, arguing that the mere granting of leave to appeal does not automatically entitle the applicant to bail. The State maintains that the interests of justice do not support release, and that the applicant's prospects of success are not sufficient to override the original conviction and sentence.

05

Court’s reasoning

  1. 01

    S Masoamganye and Another 2012(1) SACR 292 (SCA)

    The granting of leave to appeal does not automatically entitle an applicant to bail pending appeal; the interests of justice must be considered.

06

Ratio, limits and disposition

Ratio decidendi

The court held that although the Supreme Court of Appeal granted leave to appeal to the applicant and his co-accused, this fact alone does not entitle the applicant to bail pending appeal. The judge considered all relevant factors pertaining to bail applications, including the interests of justice and the applicant's prospects of success on appeal. After reviewing the judgment and the reasons for granting leave, the court concluded that the applicant's prospects of success on appeal, as found by the Supreme Court of Appeal, do not justify his release on bail in the interests of justice. Accordingly, the application for bail was dismissed.

Obiter and limits

  • This court has no right, and does not wish to express any sentiments regarding the Supreme Court of Appeal's reasons for granting leave to appeal.
  • The mere granting of leave to appeal does not mero motu entitle an applicant to bail pending appeal.

Court disposition

Application for bail pending appeal dismissed.

  • The application for bail pending appeal is dismissed.

Source and reliance status

North Gauteng High Court, Pretoria

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Judgment reading view

Judgment text

The complete available source text.

Source document

North Gauteng High Court, Pretoria

Judgment

[2018] ZAGPPHC 924

GAUTENG DIVISION, PRETORIA

CASE NUMBER : CC104/13

DATE 10/2/2018

In the bail application of:

LUNGISA

GWABABA

Applicant

and

THE STATE Respondent

JUDGMENT

BAM, J

1. The applicant applies for bail pending his appeal against his conviction on a charge of murder. The application is opposed by the State. On the 5 December 2018 the bail application was dismissed. The considerations follow.

2. On 25 August 2015 the applicant (accused ), and seven co-accused were convicted on a charge of murder, and on 11 November 2015 sentenced to 15 years imprisonment each. Leave on appeal was dismissed by this court.

3. On 25 August 2016 the applicant’s petition to the Supreme Court of Appeal for leave to appeal was dismissed. The petitions of several of the applicant’s co- accused were evenly dismissed, however ,some of the other accused were successful. Subsequently accused 1,2,4,5,7 and 8 were, upon re consideration by the Supreme Court of Appeal, granted leave to appeal to the Full Bench of the Gauteng Division. On 8 November 2018, applicant was also upon reconsideration by the Supreme Court of Appeal granted leave. Was however granted on 20 March 2018 upon petition to the Supreme Court of Appeal.

5 The applicant bases this bail application mainly upon his prospects of success on appeal, in view of having been granted leave. However, as conceded by the applicant in paragraph[16] of his supporting affidavit (with reference to S Masoamganye and Another 2012(1) SACR 292 SCA) the mere granting of leave to appeal does not mero motu entitle him to bail pending appeal.

6 I have read the judgement of the Supreme Court of Appeal stating why leave to appeal was granted to the applicant and his co-accused. It is duly respected. This court has no right, and does not wish to express any sentiments in that regard.

7 However, taking into consideration all relevant issues concerning bail applications, and after having re-read my judgment, I am of the opinion that the applicants prospects of success on appeal found by the Supreme Court of Appeal, do not, in the interests of justice, justify his release on bail.

AJ

BAM

JUDGE

OF THE HIGH COURT

10 DECEMBER 2018

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

S Masoamganye and Another 2012(1) SACR 292 (SCA)

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