THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No: 877/12
Not reportable

In the matter between:

RAJIV SEWNARAIN

APPELLANT

and

THE STATE

RESPONDENT

Neutral citation:
Sewnarain v S (877/12) [2013] ZASCA 27 (25 March

2013)

Coram:

Malan and Theron JJA and Van der Merwe AJA

Heard:

25 March 2013

Delivered:

25 March 2013

Summary:

Appeal against refusal of bail ─ no exceptional
circumstance shown as required by s 60(11)(a) of Criminal Procedure
Act 51 of 1977 ─ appeal dismissed.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from:
Kwazulu-Natal High Court, Pietermaritzburg (Swain and
Henriques JJ sitting as court of first instance):

The appeal is dismissed.
______________________________________________________________

JUDGMENT
______________________________________________________________

VAN DER MERWE AJA (MALAN AND THERON JJA CONCURRING)

[1] This is an appeal against the refusal of bail by the Kwazulu-Natal High
Court, Pietermaritzburg (Swain and Henriques JJ).

[2] On 10 December 2010 the appellant’s wife was shot and killed. On 20
December 2010 the appellant confessed to a magistrate that he had arranged
for his wife to be killed by a hit man. On 22 December 2010 the appellant
pleaded guilty to the murder of his wife before another magistrate. On the
same date he was sentenced to life imprisonment.

[3] Approximately a year later, the appellant launched an application to
have the conviction and sentence reviewed and set aside. In the review
application he said that he was assaulted, threatened and unduly influenced
by the investigation officer, as a result of which neither the confession nor the
plea of guilty was made freely and voluntarily. He also said that the combined
effect of the intake of medication, exhaustion and bereavement because of
the loss of his wife, was that he was not in his sound and sober senses at the
relevant time. He therefore admitted to something that he had not done. The
appellant filed reports by expert witnesses in support of his case. In opposition
the respondent relied on the observations at the time of the two magistrates
and the appellant’s erstwhile attorney.

[4] On 18 September 2012 the court a quo referred the review application
for the hearing of oral evidence. The basis for this order was a finding ‘that a
real, genuine and bona fide dispute of fact arises on the papers, as to whether
the applicant was in his sound and sober senses, when he confessed and
pleaded guilty to the crime for which he was charged’. The court a quo
directed that the matter must be afforded preference

[5] The appellant subsequently applied to the court a quo for his release
on bail pending the outcome of the review application. This application was
dismissed on 23 October 2012, hence the present appeal.

[6] The appellant accepts that s 60(11)(a) of the Criminal Procedure Act
51 of 1977 is applicable. The appellant therefore had to satisfy the court a quo
that exceptional circumstances exist which in the interests of justice permit his
release on bail.

[7] The court a quo found that a reasonable prospect of success in the
review application is an ‘indispensible criterion’, that the appellant failed to
show that criterion and that in any event the appellant did not show
exceptional circumstances as contemplated in s 60(11)(a).

[8] It was never the appellant’s case that exceptional circumstances
consist of good prospects of success on review. I am prepared to assume,
however, that the appellant has a reasonable prospect of success with the
review application. This assumption seems to me to follow necessarily from
the referral of the review application for the hearing of oral evidence. For
obvious reasons it is undesirable for this court to say more on the subject of
the merits of the review. It also follows that it is unnecessary to express an
opinion on the question whether reasonable prospects of success on appeal
must in these circumstances necessarily always be shown by an applicant for
bail. It is trite that a reasonable prospect of success on appeal or review in
itself does not entitle an applicant to bail.

[9] The question therefore is whether the court a quo erred in finding that
the appellant did not prove exceptional circumstances. In this regard the only
circumstance relied upon by the appellant that could possibly be regarded as
exceptional, is the allegation that because his financial resources have been
exhausted he will only be able to retain his present legal team and expert
witnesses in order to conduct the review application properly, if he is allowed
to recommence his bus building and repair business in order to generate
income and that he would be able to do so almost immediately after his
release.

[10] However, the allegation lacks a factual foundation. First, even in the
best of circumstances it will probably take several months to re-establish the
business as a profitable concern. The business was closed down in
December 2010. It will have to be re-established at different premises with
newly recruited employees. In order to do so at least a totally enclosed
spraybooth large enough to accommodate a bus will have to be constructed
and fitted with suitable extraction systems, at an estimated cost of in excess
of R70 000.00. Only after completion hereof could permission to operate the
business be considered by the local municipality. On the evidence the
indication is that the process of consideration of an application for a trade
permit for this type of business will take at least two months. Second, on his
own showing the appellant is possessed of sufficient assets to enable him to
fund the litigation. He says that an amount of approximately R500 000.00 is
owed to him by debtors of the business and that if released on bail he would
be able to recover that amount. Clearly this amount could be recovered by his
attorney whilst the appellant is incarcerated. And the appellant says that
equipment and stock of the business presently stored are worth R150 000.00
and R700 000.00 respectively.

[11] In the result the appeal is dismissed.

_______________
C H G VAN DER MERWE
ACTING JUDGE OF APPEAL

APPEARANCES:
For Appellant:

V Moodley
Instructed by:
Logan Chetty Attorneys, Pietermaritzburg
Symington & De Kok, Bloemfontein

For Respondent:

A Truter
Instructed by:
The Director of Public Prosecutions,
Pietermaritzburg
The Director of Public Prosecutions,
Bloemfontein