S v Botha en 'n Ander (336/01) [2001] ZASCA 146; [2002] 2 All SA 577 (A); 2002 (2) SA 680 (SCA); 2002 (1) SACR 222 (SCA) (30 November 2001)

S v Botha en 'n Ander (336/01) [2001] ZASCA 146; [2002] 2 All SA 577 (A); 2002 (2) SA 680 (SCA); 2002 (1) SACR 222 (SCA) (30 November 2001)

The Supreme Court of Appeal held that bail proceedings for purposes of sections 20 and 21 of the Supreme Court Act are criminal in nature, not civil. The limitation on appeals in criminal cases under section 315(4) of the Criminal Procedure Act applies only to appeals provided for in Chapter 31 and does not exclude other criminal appeals under section 21(1) of the Supreme Court Act. Therefore, an accused may appeal to the Supreme Court of Appeal against the refusal of bail by a higher court as court of first instance without prior leave. On the merits, the court found that the formulation of the charge in the indictment is decisive for the application of section 60(11)(a), and that the...

Citation
[2001] ZASCA 146
Parties
Appellant: Riaan Botha; Appellant: Benjamin Korff; Respondent: The State
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
30 November 2001
Case Number
336/01
Procedural Posture
Criminal Appeal / Appeal Against Refusal of Bail by a Higher Court as Court of First Instance
Outcome
The appeals of both accused are dismissed.
Judges
Vivier, Olivier, Scott, Streicher, Mthiyane
Legal Topics
Bail Application, Exceptional Circumstances, Appeal Jurisdiction, Burden of Proof, Schedule 6 Offence
Criminal Law Civil Procedure Bail Application Exceptional Circumstances Appeal Jurisdiction Burden of Proof Schedule 6 Offence

Case Brief

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Parties

Riaan Botha

Appellant

Benjamin Korff

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Refusal of Bail by a Higher Court as Court of First Instance

Legal Issues

  1. 1 Is an accused entitled to appeal to the Supreme Court of Appeal against the refusal of bail by a higher court as court of first instance.
  2. 2 Are bail proceedings for purposes of sections 20 and 21 of the Supreme Court Act to be regarded as criminal or civil proceedings.
  3. 3 What constitutes 'exceptional circumstances' under section 60(11)(a) of the Criminal Procedure Act for the granting of bail in Schedule 6 offences.

Ratio Decidendi

The Supreme Court of Appeal held that bail proceedings for purposes of sections 20 and 21 of the Supreme Court Act are criminal in nature, not civil. The limitation on appeals in criminal cases under section 315(4) of the Criminal Procedure Act applies only to appeals provided for in Chapter 31 and does not exclude other criminal appeals under section 21(1) of the Supreme Court Act. Therefore, an accused may appeal to the Supreme Court of Appeal against the refusal of bail by a higher court as court of first instance without prior leave. On the merits, the court found that the formulation of the charge in the indictment is decisive for the application of section 60(11)(a), and that the...

Court Disposition

The appeals of both accused are dismissed.

Orders

  • The appeals of accused 1 and 3 against the refusal of bail are dismissed.