S v Hlongwane and Others (AR507/13) [2015] ZAKZPHC 1 (28 January 2015)

S v Hlongwane and Others (AR507/13) [2015] ZAKZPHC 1 (28 January 2015)

The High Court held that the provisions of section 309(4)(b) of the Criminal Procedure Act come into operation as soon as an application for leave to appeal and the grounds thereof have been orally noted before the trial magistrate after sentencing, or, if not orally noted, as soon as the grounds of appeal have been filed. These provisions remain in operation where the trial court refuses leave to appeal and the petitioner formally records or files notice of intent to petition the Judge President for leave to appeal. The appeal remains pending during the petition process, and the trial magistrate retains jurisdiction to consider bail applications pending the final outcome of the appeal...

Citation
[2015] ZAKZPHC 1
Parties
Applicant: The State; Respondent: Mfanafuthi Hezekia Hlongwane; Respondent: Phillip Lucky Vilakazi; Respondent: Ntombizodwa Hlongwane
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
28 January 2015
Case Number
AR507/13
Procedural Posture
Review Application / Special Review From Regional Magistrate
Outcome
Declaratory order issued clarifying the operation of section 309(4)(b) of the Criminal Procedure Act regarding bail applications pending petition for leave to appeal.
Judges
Van Zyl, Seegobin
Legal Topics
Bail Pending Appeal, Leave to Appeal, Criminal Procedure Act, Constitutional Rights, Statutory Interpretation
Criminal Law Civil Procedure Bail Pending Appeal Leave to Appeal Criminal Procedure Act Constitutional Rights Statutory Interpretation

Case Brief

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Parties

The State

Applicant

Mfanafuthi Hezekia Hlongwane

Respondent

Phillip Lucky Vilakazi

Respondent

Ntombizodwa Hlongwane

Respondent

Procedural Posture

Review Application / Special Review From Regional Magistrate

Legal Issues

  1. 1 Does the regional magistrate's court have jurisdiction to consider bail for a convicted offender after refusing leave to appeal and pending petition to the Judge President for leave to appeal.
  2. 2 At what point do the provisions of section 309(4)(b) of the Criminal Procedure Act come into operation regarding bail applications.
  3. 3 Is there a constitutional imperative to interpret the Criminal Procedure Act to avoid depriving convicted offenders of the right to apply for bail pending petition.

Ratio Decidendi

The High Court held that the provisions of section 309(4)(b) of the Criminal Procedure Act come into operation as soon as an application for leave to appeal and the grounds thereof have been orally noted before the trial magistrate after sentencing, or, if not orally noted, as soon as the grounds of appeal have been filed. These provisions remain in operation where the trial court refuses leave to appeal and the petitioner formally records or files notice of intent to petition the Judge President for leave to appeal. The appeal remains pending during the petition process, and the trial magistrate retains jurisdiction to consider bail applications pending the final outcome of the appeal...

Court Disposition

Declaratory order issued clarifying the operation of section 309(4)(b) of the Criminal Procedure Act regarding bail applications pending petition for leave to appeal.

Orders

  • It is declared that section 309(4)(b) of the Criminal Procedure Act comes into operation as soon as an application for leave to appeal and the grounds thereof have been orally noted before the trial magistrate after sentencing, or as soon as the grounds of appeal have been filed.
  • The provisions remain in operation where the trial court refuses leave to appeal and the petitioner formally records or files notice of intent to petition the Judge President for leave to appeal.