Lund v S and Others (2023-093107) [2023] ZAGPJHC 1120; 2025 (1) SACR 480 (GJ) (6 October 2023)

Lund v S and Others (2023-093107) [2023] ZAGPJHC 1120; 2025 (1) SACR 480 (GJ) (6 October 2023)

The court held that while the applicant raised arguable grounds for rescission—namely, lack of opportunity to be heard and possible lack of jurisdiction—the matter should not be decided by a single Judge where the original order was made by two Judges of the same Division. The proper course is to refer the rescission application to a Full Court to avoid technical and substantive difficulties regarding binding authority and jurisdiction. Pending the Full Court's determination, the suspension of the order detaining the applicant remains in place to prevent irreparable harm.

Citation
[2023] ZAGPJHC 1120
Parties
Applicant: Willem Lund; Respondent: The State; Respondent: Regional Court President Modibedi Djaje; Respondent: Regional Court Magistrate Bertie Roux; Respondent: Minister of Justice
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
6 October 2023
Case Number
2023-093107
Procedural Posture
Urgent Application / Application for Rescission of Order; Referral to Full Court
Outcome
The rescission application is referred to a Full Court; the suspension of the order detaining the applicant remains in place until final determination; costs are reserved.
Judges
S D J Wilson
Legal Topics
Bail Pending Appeal, Rescission of Order, Jurisdiction of Review, Right to Be Heard
Criminal Law Civil Procedure Bail Pending Appeal Rescission of Order Jurisdiction of Review Right to Be Heard

Case Brief

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Parties

Willem Lund

Applicant

The State

Respondent

Regional Court President Modibedi Djaje

Respondent

Regional Court Magistrate Bertie Roux

Respondent

Minister of Justice

Respondent

Procedural Posture

Urgent Application / Application for Rescission of Order; Referral to Full Court

Legal Issues

  1. 1 Whether the applicant was denied an opportunity to be heard before the review decision was made.
  2. 2 Whether the High Court had jurisdiction under section 304(4) of the Criminal Procedure Act to set aside the grant of bail.
  3. 3 Whether a single Judge may rescind an order granted by two Judges of the same Division.

Ratio Decidendi

The court held that while the applicant raised arguable grounds for rescission—namely, lack of opportunity to be heard and possible lack of jurisdiction—the matter should not be decided by a single Judge where the original order was made by two Judges of the same Division. The proper course is to refer the rescission application to a Full Court to avoid technical and substantive difficulties regarding binding authority and jurisdiction. Pending the Full Court's determination, the suspension of the order detaining the applicant remains in place to prevent irreparable harm.

Court Disposition

The rescission application is referred to a Full Court; the suspension of the order detaining the applicant remains in place until final determination; costs are reserved.

Orders

  • The rescission application is referred to the Full Court of this Division.
  • Paragraphs 1 and 2 of the order of Moosa J and Africa AJ under case number R14/2023 remain suspended until the rescission application is finally determined.