Mashau v S (A11/2022) [2023] ZAGPJHC 731 (27 June 2023)

Mashau v S (A11/2022) [2023] ZAGPJHC 731 (27 June 2023)

The High Court found that although the applicant had been granted leave to appeal his conviction and sentence, the appeal had not yet been set down for hearing in the High Court due to the failure of officials to prepare the record of proceedings. As a result, the matter was not pending before the High Court, and the High Court lacked jurisdiction to entertain a new bail application on alleged new facts. The correct procedure is for the applicant to bring his bail application before the regional court, which remains seized with the matter until the appeal is formally set down in the High Court. Section 321 of the Criminal Procedure Act does not apply, as no question of law has been...

Citation
[2023] ZAGPJHC 731
Parties
Applicant: Khathutshelo Mashau; Respondent: The State
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
27 June 2023
Case Number
A11/2022
Procedural Posture
Leave to Appeal / Application for Bail Pending Appeal After Conviction and Sentence; Leave to Appeal Granted by Regional Court, Bail Refused, Further Application Before High Court
Outcome
Application dismissed; High Court lacks jurisdiction to hear bail application on new facts.
Judges
Thupaatlase
Legal Topics
Bail Pending Appeal, Jurisdiction of High Court, Criminal Procedure Act, Leave to Appeal, Record Preparation
Criminal Law Civil Procedure Bail Pending Appeal Jurisdiction of High Court Criminal Procedure Act Leave to Appeal Record Preparation

Case Brief

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Parties

Khathutshelo Mashau

Applicant

The State

Respondent

Procedural Posture

Leave to Appeal / Application for Bail Pending Appeal After Conviction and Sentence; Leave to Appeal Granted by Regional Court, Bail Refused, Further Application Before High Court

Legal Issues

  1. 1 Whether the applicant's appeal is pending before the High Court for purposes of bail application.
  2. 2 Whether the High Court has jurisdiction to entertain a new bail application on alleged new facts.
  3. 3 Whether the failure to prepare the record of proceedings affects the applicant's right to prosecute the appeal.

Ratio Decidendi

The High Court found that although the applicant had been granted leave to appeal his conviction and sentence, the appeal had not yet been set down for hearing in the High Court due to the failure of officials to prepare the record of proceedings. As a result, the matter was not pending before the High Court, and the High Court lacked jurisdiction to entertain a new bail application on alleged new facts. The correct procedure is for the applicant to bring his bail application before the regional court, which remains seized with the matter until the appeal is formally set down in the High Court. Section 321 of the Criminal Procedure Act does not apply, as no question of law has been...

Court Disposition

Application dismissed; High Court lacks jurisdiction to hear bail application on new facts.

Orders

  • The applicant’s appeal is not pending before the High Court.
  • The Boksburg regional court is ordered to hear the bail application.