Vellem v S (CA&R06/2014) [2014] ZAECPEHC 57 (19 August 2014)

Vellem v S (CA&R06/2014) [2014] ZAECPEHC 57 (19 August 2014)

The court found that although there were discrepancies between the oral and written sentences, these did not amount to a gross irregularity sufficient to vitiate the proceedings. The appellant did not raise any misunderstanding of the sentence at any relevant stage, and the alleged irregularity was only raised years after sentencing, at which point the magistrate was functus officio and could not amend the sentence. The court held that the review application was unlikely to succeed in setting aside the proceedings or sentence, and at most, the written sentence could be corrected to accord with the oral pronouncement. Therefore, there was no misdirection by the magistrate in refusing bail...

Citation
[2014] ZAECPEHC 57
Parties
Appellant: Pelisa Lwazikazi Vellem; Respondent: The State
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
19 August 2014
Case Number
CA&R 06/2014
Procedural Posture
Criminal Appeal / Appeal Against Refusal of Bail Pending Review
Outcome
Appeal against refusal of bail pending review dismissed.
Judges
N G Beshe
Legal Topics
Bail Pending Review, Gross Irregularity, Sentencing Discrepancy, Correctional Supervision, Suspended Sentence
Criminal Law Civil Procedure Bail Pending Review Gross Irregularity Sentencing Discrepancy Correctional Supervision Suspended Sentence

Case Brief

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Parties

Pelisa Lwazikazi Vellem

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Refusal of Bail Pending Review

Legal Issues

  1. 1 Whether the discrepancies between the oral and written sentences amount to a gross irregularity justifying bail pending review.
  2. 2 Whether the appellant is entitled to bail pending the outcome of the review application.
  3. 3 Whether the failure of the magistrate to comply with Rule 53(1)(b) of the Uniform Rules prejudices the applicant.

Ratio Decidendi

The court found that although there were discrepancies between the oral and written sentences, these did not amount to a gross irregularity sufficient to vitiate the proceedings. The appellant did not raise any misunderstanding of the sentence at any relevant stage, and the alleged irregularity was only raised years after sentencing, at which point the magistrate was functus officio and could not amend the sentence. The court held that the review application was unlikely to succeed in setting aside the proceedings or sentence, and at most, the written sentence could be corrected to accord with the oral pronouncement. Therefore, there was no misdirection by the magistrate in refusing bail...

Court Disposition

Appeal against refusal of bail pending review dismissed.

Orders

  • The appeal against the refusal by the Magistrate to admit appellant to bail is dismissed.
  • The first respondent in the review application is ordered to comply with Rule 5(1)(a) and (b) of the Uniform Rules of this court within ten (10) days of this order.