THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Reportable

Case No: 195/2015

In the matter between:

ALLAN WAYNE BANGER

APPELLANT

and

THE STATE

RESPONDENT

Neutral Citation: Banger v S (195/2015) [2015] ZASCA 79 (28 May 2015).

Coram:
Cachalia and Mbha JJA and Van der Merwe AJA

Heard:
20 May 2015

Delivered:
28 May 2015

Summary:
No appeal lies against the refusal of bail by the High Court
sitting as a court of first instance without leave to appeal in terms of the
Superior Courts Act 10 of 2013.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from: Gauteng Division of the High Court, Pretoria (Fabricius and
Fourie JJ concurring, sitting as court of first instance):
The matter is struck from the roll.
______________________________________________________________

JUDGMENT
______________________________________________________________

Van der Merwe AJA (Cachalia and Mbha JJA concurring):

[1] This judgment considers the effect of the Superior Courts Act 10 of
20131 on an appeal against the refusal of bail by a High Court sitting as a
court of first instance.

[2] The appellant, Mr Allan Wayne Banger, was convicted in the regional
court on 331 counts of contravening s 6 of the Prevention of Organised Crime
Act 121 of 1998. The appellant admitted that during the period from 16
January 2003 to 17 November 2006, he received payments totalling
R2 034 146.73. The regional court found that the appellant ought reasonably
to have known that these monies represented the proceeds of unlawful
activities and sentenced him to 10 years’ imprisonment, five years of which
were suspended for a period of five years on condition that he is not convicted
of contravening s 6 of Act 121 of 1998, committed during the period of
suspension.

[3] The regional court granted leave to appeal against the convictions and
sentence. It also granted the appellant bail pending the outcome of the appeal
to the High Court. The appeal was heard by the North Gauteng Division,
Pretoria (Fabricius and Fourie JJ). It dismissed the appeal on 19 March 2015.
Counsel for the appellant indicated that an application would be made to this

1 The date of commencement of the Superior Courts Act for present purposes is 23 August
2013.

court for special leave to appeal against the dismissal of the appeal against
both conviction and sentence. In the light hereof, the appellant applied to the
High Court for bail pending the application for special leave to appeal on the
merits. The High Court dismissed the application. The appellant did not apply
to the High Court for leave to appeal against the refusal of bail, but noted an
appeal to this court in the belief that the appellant had an automatic right of
appeal.

[4] It is important to point out that the regional court had granted bail
pending the outcome of the appeal to the High Court. The bail had lapsed
when the appeal was dismissed. The application to the High Court to extend
the bail pending an application for leave to appeal to this court, was therefore
a fresh application. The High Court dealt with this application for bail sitting as
a court of first instance ─ albeit by two judges ─ and not as an appeal.

[5] There is no doubt that the appellant has the right to appeal against the
refusal of bail. That is provided for in s 35(3)(o) of the Constitution. What is in
issue is the procedure applicable to an appeal against the refusal of bail by
the High Court sitting as a court of first instance.2

[6] This question was first dealt with by this court in S v Botha.3 Prior to the
enactment of the Superior Courts Act, appeals from the High Court (then the
Supreme Court) were regulated by ss 20 and 21 of the Supreme Court Act 59
of 1959. The court held in Botha that as bail applications are criminal
proceedings, an appeal against the refusal of bail by a High Court sitting as a
court of first instance did not lie to it in terms of s 20 of the Supreme Court
Act, as the section regulated only appeals against a judgment or order of the
High Court in civil proceedings or on appeal to it.

[7] Section 21(1) of the Supreme Court Act provided:

2 The same procedure would be applicable to an appeal by an accused person against a
condition of bail imposed by the High Court as court of first instance.
3 S v Botha [2001] ZASCA 146; 2002 (1) SACR 222 (SCA).

‘In addition to any jurisdiction conferred upon it by this Act or any other law, the
appellate division shall, subject to the provisions of this section and any other law,
have jurisdiction to hear and determine an appeal from any decision of the court of a
provincial or local division.’
The court held that s 21 was sufficiently wide to include bail appeals from the
High Court sitting as a court of first instance, unless they were excluded by
any other law. It consequently had to consider whether such bail appeals
were excluded by the provisions of s 315(4) of the Criminal Procedure Act 51
of 1977. This section provides:
‘An appeal in terms of this Chapter shall lie only as provided in ss 316 to 319
inclusive, and not as of right.’

[8] The court further held in Botha that none of these sections were
applicable to bail appeals. It therefore concluded that s 21(1) of the Supreme
Court Act provided for a right of appeal directly to this court against the refusal
of bail by the High Court sitting as a court of first instance. As no provision
required leave to appeal in respect of such right of appeal, it became known
as an automatic right of appeal. In S v Masoanganye4 Harms AP lamented
the fact that the calls of this court to correct the legislative oversight that
resulted in the automatic right of appeal, had been ignored for more than two
decades.5

[9] In my view, the complaint has now been addressed in the Superior
Courts Act. The position currently is as follows: Chapter 5 of the Superior
Courts Act deals with appeals against any decision of the High Court as a
court of first instance or on appeal to it, except for appeals from the High
Court that are regulated in terms of the Criminal Procedure Act or in terms of
any other criminal procedural law.6 This is the result of the definition of
‘appeal’ in s 1 of the Superior Courts Act. The clear intention was to create a
regulatory scheme in respect of all appeals from the High Court. Subject to

4 S v Masoanganye [2011] ZASCA 119; 2012 (1) SACR 292 (SCA) para 15.
5 See also S v Viljoen [2002] ZASCA 81; 2002 (2) SACR 550 (SCA) para 26 and S v Kock
[2003] ZASCA 1; 2003 (2) SACR 5 (SCA) para 26. Further see E du Toit (ed) Du Toit:
Commentary on the Criminal Procedure Act (2014) at ch9-103 – ch9-104.
6 In terms of the Interpretation Act 33 of 1957 ‘law’, means any law, proclamation, ordinance,
Act of Parliament or other enactment having the force of law.

any other law, appeals from the High Court are regulated either in terms of the
Superior Courts Act or the Criminal Procedure Act.

[10] Section 65 of the Criminal Procedure Act provides for an appeal to the
High Court against the refusal of bail or the imposition of a condition of bail by
a lower court. In terms of s 65A(1), the Director of Public Prosecutions (DPP)
may appeal to the High Court against a decision of a lower court to release an
accused person on bail or against the imposition of a condition of bail. The
DPP may in terms of s 65A(2) appeal to this court against the decision of the
High Court to release an accused person on bail. The provisions of s 316 of
the Criminal Procedure Act apply mutatis mutandis to such a case.7  It follows
that the DPP must obtain leave to appeal from the High Court or, if refused by
that court, by this court on petition to it in terms of s 316(8). It is important to
note that s 316 of the Criminal Procedure Act does not provide for an appeal
in respect of bail by an accused person.8  Sections 315 and 316 deal only with
appeals that originate from a conviction or sentence by a single judge of the
High Court. Section 316(1) provides that any accused convicted of any
offence by a High Court may apply to that court for leave to appeal against
such conviction or against any resultant sentence or order. If an application
for leave to appeal is granted, the appeal must, in terms of s 315(2)(a), be
heard either by a full court of the relevant Division of the High Court or this
court, depending on whether the appeal requires its attention. If such appeal
is heard by a full court, a further appeal to this court is possible with the
special leave of this court on petition to it, in terms of s 316(3). The Criminal
Procedure Act does not, however, provide for an appeal against the refusal of
bail by the High Court sitting as a court of first instance.9  It is also not
provided for in any other criminal procedural law. It follows that such appeal is
regulated by the Superior Courts Act.

[11] Section 16(1) of the Superior Courts Act provides:
‘Subject to section 15(1), the Constitution and any other law─

7 See s 65A(2)(b) of the Criminal Procedure Act.
8 S v Botha para 11.
9 S v Botha para 3.

(a)
an appeal against any decision of a Division as a court of first instance lies,
upon leave having been granted─
(i)
if the court consisted of a single judge, either to the Supreme Court of Appeal
or to a full court of that Division, depending on the direction issued in terms of section
17(6); or
(ii)
if the court consisted of more than one judge, to the Supreme Court of
Appeal.’

[12] Thus, it is clear that in respect of all appeals against the refusal of bail
by the High Court sitting as a court of first instance, application for leave to
appeal must be made to that court. If that court refuses leave to appeal, it may
be granted by this court in terms of s 17(2)(b) of the Superior Courts Act. If the
High Court consisted of a single judge, the appeal lies to a full court, unless a
direction is given in terms of s 17(6) that the matter requires the attention of
this court. If, as is the case here, the High Court of first instance consisted of
more than one judge, the appeal lies directly to this court.

[13] The appellant did not apply for leave to appeal to the High Court
against its dismissal of his bail application. This court therefore has no
jurisdiction to entertain the matter and it should be struck from the roll.

[14] Bail appeals are inherently urgent in nature. An accused person should
not be deprived of his or her constitutional rights to freedom and to freedom of
movement for longer than is reasonably necessary. The majority of appeals
against the refusal of bail by the High Court as a court of first instance, will
arise from a court that consists of a single judge and will not require the
attention of this court. In these matters application for leave to appeal should
generally be made immediately after the refusal of bail and, upon leave to
appeal having been granted, a full court of that Division of the High Court
should generally dispose of these appeals more expeditiously and cost-
effectively than was the position before the advent of the Superior Courts Act.

[15] The matter is struck from the roll.

_______________________
C H G VAN DER MERWE
ACTING JUDGE OF APPEAL

APPEARANCES:
For Appellant:

F van As
Instructed by:

Justice Centre, Pretoria
Justice Centre, Bloemfontein

For Respondent:

Ms P Vorster
Instructed by:
Director of Public Prosecutions, Pretoria
Director of Public Prosecutions, Bloemfontein

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From: The Registrar, Supreme Court of Appeal
Date: 28 May 2015
Status: Immediate
ALLAN WAYNE BANGER v THE STATE
Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal

1.
The appellant was convicted and sentenced in the regional court. He obtained leave to
appeal to the High Court against conviction and sentence and was released on bail pending
the outcome of the appeal. Upon dismissal of this appeal, the appellant applied to the High
Court for bail pending an application for special leave to appeal to the Supreme Court of
Appeal (SCA) against the dismissal of the appeal against conviction and sentence.

2.
The appellant did not apply to the High Court for leave to appeal against the refusal
of bail but noted an appeal to the SCA in the belief that he had an automatic right of appeal.
Today the SCA held that no appeal against the refusal of bail by a High Court sitting as a
court of first instance lies without leave to appeal in terms of the Superior Courts Act 10 of
2013. It accordingly struck the matter from the roll.

--ends--