Jewell Crossberg v The State

On 5 April 2007, the appellant Jewell Crossberg was convicted in the Transvaal Provincial Division on one charge of murder (shooting and killing Mr Jealous Dube) and four counts of attempted murder (firing shots at four other persons with the same weapon with intent to kill). He was sentenced to 20 years' imprisonment for murder and five years on each attempted murder count, running concurrently, for an effective sentence of 20 years. After sentencing, the appellant applied for leave to appeal to the Supreme Court of Appeal against the convictions, which was refused by the trial court. He also applied for bail pending his application for leave to appeal, which was also refused by the trial court on the basis that there were no reasonable prospects of success on appeal. On 11 June 2007, the Supreme Court of Appeal granted the appellant leave to appeal the convictions. The State then agreed not to oppose a fresh bail application and agreed to bail conditions. However, attempts to arrange a fresh bail hearing were unsuccessful because the trial judge had not revised and signed the judgments, despite repeated attempts. This led to the appellant proceeding with an appeal against the initial refusal of bail. The appellant had been released on bail during the entire period of his trial.

• Whether bail should be granted pending the finalisation of an appeal after the Supreme Court of Appeal had granted leave to appeal
• Whether the trial court's refusal of bail on the basis of no reasonable prospects of success on appeal was justified given that leave to appeal was subsequently granted
• The appropriate legal framework for bail pending appeal versus bail pending trial
• Whether condonation should be granted for the late filing of the bail appeal

The application for condonation was granted. The appeal was upheld. The order of the court below was set aside and substituted with an order granting bail in the amount of R50,000 pending finalisation of the appeal on the following conditions: (a) the applicant is prohibited from obtaining any passport or 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 South Africa; (c) the applicant is prohibited from leaving the Northern Province without prior written consent of the investigating officer.

Where a trial court has refused bail pending an application for leave to appeal solely on the basis that there are no reasonable prospects of success on appeal, and the Supreme Court of Appeal subsequently grants leave to appeal, that basis for refusing bail falls away and it may be in the interests of justice to grant bail pending finalisation of the appeal. The High Court has common law power to grant bail pending a petition to the Supreme Court of Appeal. Prospects of success on appeal are a relevant but not necessarily decisive consideration, particularly where leave to appeal has been granted. An appellant has the right to appeal the refusal of bail without prior leave of the High Court. Bail applications should be heard as a matter of urgency, reflecting both procedural rights and the Constitutional right to freedom and security of the person under s 12(1) of the Constitution.

The court made obiter observations about the State's conduct, noting it was regrettable that the State waited until the matter was called in open court to make known its attitude in respect of the appeal, causing inconvenience and costs for the appellant. The court also noted that while the presumption of innocence operates before conviction, and there is a different emphasis regarding bail pending trial versus bail pending appeal, the position changes radically after conviction because the presumption of innocence is no longer applicable. The court observed that a substantial number of applications for bail pending further appeal are launched as dilatory tactics, amounting to abuse of court process, though there may also be meritorious applications. The court referenced that matters of personal freedom have always been treated by South African courts as matters of importance and urgency.

This case clarifies the approach to bail pending appeal in South African law, particularly where leave to appeal has been granted by the Supreme Court of Appeal. It emphasizes that the Constitutional right to freedom and security of the person remains important even post-conviction, and that bail applications should be treated as urgent matters. The case demonstrates that where the sole basis for refusing bail (no prospects of success on appeal) has been undermined by the granting of leave to appeal, the interests of justice may require that bail be granted pending finalisation of the appeal. It also reinforces procedural rights related to bail and the importance of courts dealing with such matters expeditiously.