THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Not Reportable
Case no:   439/2007

In the matter between:

JEWELL CROSSBERG

Appellant

and

THE STATE

Respondent
_____________________________________________________________

Coram:
Navsa, Heher, Jafta, Ponnan JJA et Malan AJA

Date of hearing: 22 August 2007
Date of delivery: 22 August 2007

Summary:
Bail ─ after conviction and sentence trial judge refusing bail pending an application
for leave to appeal to this court on the basis that there were no prospects of success on the merits ─
this court granting leave to appeal ─ in the interests of justice that bail be granted pending
finalisation of appeal.

Neutral citation:
This judgment may be referred to as Crossberg v S [2007] SCA 93
(RSA).
_____________________________________________________________

THE COURT

THE COURT:

[1] This is an appeal against the refusal of bail accompanied by an application for
condonation for its late filing. The background is set out hereafter.

The background

[2] On 5 April 2007 the appellant Mr Jewell Crossberg was convicted in the Transvaal
Provincial Division on a charge of murder and on four counts of attempted murder. The
State was held to have proved its case, namely that the appellant had shot and killed Mr
Jealous Dube and had fired shots at four other persons with the same weapon with the
intention of killing them.

[3] The appellant was sentenced to 20 years’ imprisonment on the charge of murder
and five years’ imprisonment on each of the four counts of attempted murder. The trial
court ordered that the sentences run concurrently. Thus the appellant was sentenced to an
effective sentence of 20 years’ imprisonment.

[4] After the appellant had been sentenced he applied for leave to appeal to this court
against the convictions. This was refused by the trial court. He applied for bail pending his
application for leave to appeal to this court. That application was also refused by the trial
court.

[5] In refusing bail the trial court said the following:
‘The general attitude of a court is that when an accused person is still awaiting trial and where there is no
indication that the interests of justice might be prejudiced that such an accused person should be released
on bail on suitable conditions pending his trial. The notion is underpinned by the presumption of innocence
against any accused person, which exists in our law. However, once an accused person has been convicted
and sentenced, the position changes radically, because the presumption of innocence against the accused is
no longer applicable and the court now knows for a fact that an accused person has in fact been convicted. .
.
[T]he pivotal and decisive consideration in such an application is the reasonable prospect of success on
appeal as it would serve no purpose to release an accused on bail pending an appeal which is doomed to
fail.’

[6] The trial court concluded as follows:
‘Suffice to say that having given this matter careful consideration I am not satisfied that there is a reasonable
prospect that the Supreme Court of Appeal will grant the petition for leave to appeal.’

[7] On 11 June 2007 this court granted the appellant leave to appeal the convictions
referred to earlier. Counsel for the State was approached by the appellant’s legal
representatives to ascertain the State’s attitude in the light of this new development.
According to the affidavit of the appellant, which the State did not controvert, counsel for
the State agreed that since the very basis of the refusal of bail had fallen away the State
would not oppose a fresh application for bail. Indeed, according to the appellant the State
agreed bail conditions subject to approval by the court.

[8] An approach by appellant’s counsel (accompanied by counsel for the State) to the
trial judge to arrange the hearing of a fresh application for bail was unsuccessful. Another
judge was appointed by the Deputy Judge-President to hear the application. The problem
was that the judgments in terms of which the appellant was convicted and sentenced, as
well as the judgments refusing the application for leave to appeal and the bail application,
had not been revised and signed by the trial judge. Repeated attempts to have the
judgments finally revised and signed failed.

[9] In his affidavit the appellant refers to a number of conversations between his legal
representatives and the trial judge, as well as with the judge appointed to hear the fresh
application. It is not necessary for present purposes to explore this aspect any further,
save to record that it is not disputed that months elapsed without the fresh application
being finalised.

[10] This frustrating state of affairs led the appellant’s legal representatives to advise the
appellant to proceed with this appeal against the initial refusal by the trial judge to grant
bail pending an application for leave to appeal his convictions to this court. I record that the
fresh application for bail has in any event recently been withdrawn.

[11] The State filed heads of argument but no affidavit denying any of the material facts
upon which the appellant relied. At the commencement of the hearing before us counsel
for the State conceded that he had no basis upon which to oppose the present appeal.

The law

[12] The appellant was convicted of murder and attempted murder, which in the ordinary
course attract heavy sentences.

[13] It is so that there is a different emphasis in respect of bail pending finalisation of a
trial as against bail pending finalisation of an appeal. The presumption of innocence
operates in favour of an accused person until his guilt has been established in court.1

[14] Section 60 of the Criminal Procedure Act 51 of 1977 regulates the granting of bail
pending finalisation of a trial. In respect of bail pending a petition to this court the High
Court has a common law power to release the would-be appellant. See in this regard S v
Hlongwane.2

[15] The prospects of success are very relevant in an assessment of whether to release
the appellant pending finalisation of an application for leave to appeal.3 As pointed out in
the Hlongwane case, a substantial number of applications for bail pending a further appeal
are launched as a dilatory tactic.4 That of course amounts to an abuse of court process.
On the other hand, there may be a number of such applications that are meritorious.

[16] Bail applications should in principle be heard as a matter of urgency. In Magistrate,
Stutterheim v Mashiya5, this court said the following:
‘It is evident that finalising an application for bail is always a matter of urgency. ... And if bail is refused, the
decision can be appealed. The right to a prompt decision is thus a procedural right independent of whether
the right to liberty actually entitles the accused to bail.’6

1 Section 35(1)(f) of the Constitution gives arrested persons a right to be released from prison if the interests
of justice permit, subject to reasonable conditions. This of course clearly deals with the position before
finalisation of a trial. In S v Acheson 1991 (2) SA 805 (Nm) Mahomed J said the following at 822A-C:
‘An accused person cannot be kept in detention pending his trial as a form of anticipatory punishment. The
presumption of the law is that he is innocent until his guilt has been established in Court. The Court will
therefore ordinarily grant bail to an accused person unless this is likely to prejudice the ends of justice.’
See also Du Toit et al Commentary on the Criminal Procedure Act in relation to pre-trial release at 9-2A to 9-
5.
2 1989 (4) SA 79 (T) at 102A-G
3 Hlongwane at 102D-G.
4 At 102E-G.
5 2003 (2) SACR 106 (SCA) at 113c-d.
6 See also Du Toit et al at 9-8.

[17] Over and above the procedural right is the Constitutional right to freedom and
security of the person as set out in s 12(1) of the Constitution. Our courts have always
treated matters of personal freedom as matters of importance and urgency.

[18] The appellant has the right to appeal the refusal of bail without prior leave of the
High Court. See in this regard S v Van Wyk 2005 (1) SACR 41 (SCA).

[19] It is important to note that the appellant was released on bail during the entire
period of his trial. It is not disputed that the State, recognising that bail had been refused
by the trial court on the narrow basis that there were no prospects of success, agreed not
to oppose a fresh application for bail and in fact agreed bail conditions subject to the
court’s approval. As noted earlier the State has not filed an affidavit in opposition and has
therefore not indicated that the appellant is a flight risk. Furthermore, there is no factual
basis on which one can conclude that it is not in the interests of justice for the appellant to
be released pending the finalisation of his appeal.

[20] Leave to appeal was granted by this court. The trial court’s emphatic view that there
were no prospects of success would therefore appear to have been without foundation.

[21] The amount and conditions of bail agreed by the State are reflected in the order that
is to follow. In our view, it is in the interest of justice that the appellant be released on bail
in the amount and on the conditions agreed by the State.

Condonation

[22] The appellant has explained that he was advised first to pursue an application for
leave to appeal before proceeding with the appeal against the refusal of bail by the trial
judge. Of course, in the event that the application for leave to appeal to this court against
the convictions failed, the appellant would not have proceeded with the appeal against the
refusal of bail.

[23] Furthermore, it is due to no fault of the appellant that he was unable to arrange the
hearing and finalisation of a fresh application for bail. Thus, the appellant has provided a
satisfactory explanation and is entitled to condonation.

[24] There is one further aspect that requires attention. It is regrettable that the State
has waited until the matter was called in open court to make known its attitude in respect
of the present appeal. The consequence has been inconvenience and for the appellant it
involved the costs of engaging two counsel.
[25] The following order is made:
(a)
The application for condonation is granted.
(b)
The appeal is upheld.
(c)
The order of the court below is set aside and substituted with the following:
‘The applicant is granted bail in an amount of R50 000.00 (Fifty Thousand Rand) pending the finalisation of
his appeal in the Supreme Court of Appeal on the following conditions:
(a)
Applicant is prohibited from obtaining any passport and/or any other travelling document whilst on
bail.
(b)
The Applicant is prohibited from visiting any International Airport or Harbour where access can be
obtained to any means of leaving the Republic of South Africa.
(c)
The Applicant is prohibited from leaving the Northern Province without the prior written consent of
the Investigating Officer in this matter.’

_________________
M S NAVSA
JUDGE OF APPEAL

_________________
J A HEHER
JUDGE OF APPEAL

_________________
C N JAFTA
JUDGE OF APPEAL

_________________
V M PONNAN
JUDGE OF APPEAL

_________________
F R MALAN
ACTING JUDGE OF APPEAL