Mabogole v S (CA & R 37/2022) [2023] ZANCHC 1 (13 January 2023)

Mabogole v S (CA & R 37/2022) [2023] ZANCHC 1 (13 January 2023)

The court found that the Regional Magistrate erred in failing to appoint assessors at the commencement of the murder trial, as required by section 93ter(1) of the Magistrates’ Court Act and confirmed in S v Gayiya. This omission was a material procedural irregularity, rendering the trial court improperly constituted. As a result, the appellants had reasonable prospects of success on appeal. The court further held that exceptional circumstances existed, justifying the granting of bail pending appeal. The previous order dismissing the bail application was set aside and replaced with an order granting bail to the appellants, subject to strict conditions to ensure their attendance and prevent...

Citation
[2023] ZANCHC 1
Parties
Appellant: Simon Kenneth Mabogole; Respondent: The State; Appellant: Lesedi Virginia Motshwarakgole; Appellant: Boitshepo Motshwarakgole
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
13 January 2023
Case Number
CA & R 37/2022
Procedural Posture
Bail Appeal / Appeal Against Refusal of Bail Pending Appeal
Outcome
Bail appeal upheld; previous order refusing bail set aside; bail granted to appellants subject to conditions.
Judges
Mamosebo
Legal Topics
Bail Pending Appeal, Prospects of Success on Appeal, Exceptional Circumstances, Composition of Court, Appointment of Assessors
Criminal Law Civil Procedure Bail Pending Appeal Prospects of Success on Appeal Exceptional Circumstances Composition of Court Appointment of Assessors

Case Brief

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Parties

Simon Kenneth Mabogole

Appellant

The State

Respondent

Lesedi Virginia Motshwarakgole

Appellant

Boitshepo Motshwarakgole

Appellant

Procedural Posture

Bail Appeal / Appeal Against Refusal of Bail Pending Appeal

Legal Issues

  1. 1 Whether the Regional Magistrate erred in finding that there are no reasonable prospects of success on appeal regarding the convictions.
  2. 2 Whether the Regional Magistrate erred in not finding that there are exceptional circumstances warranting the release of the appellants on bail pending the outcome of the appeal.
  3. 3 Whether the failure to appoint assessors in the murder trial constituted a procedural irregularity justifying bail.

Ratio Decidendi

The court found that the Regional Magistrate erred in failing to appoint assessors at the commencement of the murder trial, as required by section 93ter(1) of the Magistrates’ Court Act and confirmed in S v Gayiya. This omission was a material procedural irregularity, rendering the trial court improperly constituted. As a result, the appellants had reasonable prospects of success on appeal. The court further held that exceptional circumstances existed, justifying the granting of bail pending appeal. The previous order dismissing the bail application was set aside and replaced with an order granting bail to the appellants, subject to strict conditions to ensure their attendance and prevent...

Court Disposition

Bail appeal upheld; previous order refusing bail set aside; bail granted to appellants subject to conditions.

Orders

  • The order of 07 September 2021 by the Regional Court Magistrate in Mothibistad, Case Number RC22/2018, dismissing the appellants’ bail application pending the outcome of their appeal against conviction and sentence, is set aside.
  • Bail is granted to the appellants in the amount of R2000.00 each, subject to the following conditions: (a) No contact with trial witnesses; (b) Not to leave the district of ZF Mgcawu without informing the investigating officer; (c) If appeal is dismissed, report within 72 hours to the nearest Correctional Services...