S v Sethlo en 'n ander (13942002) [2004] ZAFSHC 38; [2005] 4 All SA 72 (EC) (18 May 2004)

S v Sethlo en 'n ander (13942002) [2004] ZAFSHC 38; [2005] 4 All SA 72 (EC) (18 May 2004)

The court held that the magistrate's refusal to hear the bail application pending appeal was based on a mistaken understanding of the law. The applicant, having been sentenced to imprisonment not wholly suspended, was entitled to an automatic right of appeal under section 309 of the Criminal Procedure Act, and did not require leave to appeal. The magistrate was therefore not functus officio and was obliged to consider the bail application on its merits. The High Court ordered the magistrate to hear and decide the bail application in accordance with the prescribed procedures, without making any finding on the merits of the bail application itself.

Citation
[2004] ZAFSHC 38
Parties
Applicant: Johannes Sethlo; Applicant: Schalk Andre van Rensburg; Respondent: The State
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
18 May 2004
Case Number
1392/2004
Procedural Posture
Urgent Application / Application for Bail Pending Appeal After Conviction and Sentence
Outcome
Application granted. The magistrate is ordered to hear and decide the bail application pending appeal.
Judges
Cillié, R
Legal Topics
Bail Pending Appeal, Magistrates Court Procedure, Right of Appeal, Function of Magistrate
Criminal Law Civil Procedure Bail Pending Appeal Magistrates Court Procedure Right of Appeal Function of Magistrate

Case Brief

Summary, issues, holding and outcome

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Parties

Johannes Sethlo

Applicant

Schalk Andre van Rensburg

Applicant

The State

Respondent

Procedural Posture

Urgent Application / Application for Bail Pending Appeal After Conviction and Sentence

Legal Issues

  1. 1 Whether the magistrate was functus officio and unable to hear the bail application pending appeal.
  2. 2 Whether the applicant required leave to appeal in terms of section 309 of the Criminal Procedure Act 51 of 1977.
  3. 3 Whether the magistrate was obliged to consider the bail application on its merits.

Ratio Decidendi

The court held that the magistrate's refusal to hear the bail application pending appeal was based on a mistaken understanding of the law. The applicant, having been sentenced to imprisonment not wholly suspended, was entitled to an automatic right of appeal under section 309 of the Criminal Procedure Act, and did not require leave to appeal. The magistrate was therefore not functus officio and was obliged to consider the bail application on its merits. The High Court ordered the magistrate to hear and decide the bail application in accordance with the prescribed procedures, without making any finding on the merits of the bail application itself.

Court Disposition

Application granted. The magistrate is ordered to hear and decide the bail application pending appeal.

Orders

  • The magistrate in S v Johannes Sethlo and Schalk Andre van Rensburg, case number 9/01, Petrusburg, is ordered to hear accused 2 (Schalk Andre van Rensburg)'s application for bail pending appeal, to consider it on its merits, and to decide the application.