Allan Wayne Banger v The State

Mr Allan Wayne Banger was convicted in the regional court on 331 counts of contravening section 6 of the Prevention of Organised Crime Act 121 of 1998. He admitted receiving payments totalling R2 034 146.73 between 16 January 2003 and 17 November 2006, which the court found he ought reasonably to have known represented proceeds of unlawful activities. He was sentenced to 10 years' imprisonment, with five years suspended for five years on condition he not be convicted of a similar offence during the period of suspension. The regional court granted leave to appeal and bail pending appeal. The North Gauteng Division dismissed the appeal on 19 March 2015, causing the bail to lapse. The appellant then applied to the High Court for bail pending an application for special leave to appeal to the Supreme Court of Appeal. The High Court, sitting as a court of first instance (consisting of two judges), dismissed the bail application. The appellant did not apply to the High Court for leave to appeal against this refusal but noted an appeal directly to the Supreme Court of Appeal, believing he had an automatic right of appeal.

• Whether an automatic right of appeal exists against the refusal of bail by the High Court sitting as a court of first instance
• What is the correct procedure for appealing against the refusal of bail by the High Court as a court of first instance under the Superior Courts Act 10 of 2013
• Whether the Superior Courts Act 10 of 2013 has altered the position established in S v Botha regarding automatic bail appeals
• Whether the Supreme Court of Appeal has jurisdiction to hear an appeal against the refusal of bail without leave to appeal having been granted

The matter was struck from the roll for want of jurisdiction, as the appellant had failed to obtain leave to appeal from the High Court as required by section 16(1) of the Superior Courts Act 10 of 2013.

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 section 16(1) of the Superior Courts Act 10 of 2013. The Superior Courts Act creates a comprehensive regulatory scheme for all appeals from the High Court that are not regulated by the Criminal Procedure Act or other criminal procedural law. Since the Criminal Procedure Act does not provide for appeals against the refusal of bail by the High Court as a court of first instance, such appeals are governed by the Superior Courts Act and require leave to appeal. Where the High Court refusing bail consisted of more than one judge, the appeal (if leave is granted) lies directly to the Supreme Court of Appeal. Where the High Court consisted of a single judge, the appeal lies to a full court unless a direction is given that the matter requires the attention of the Supreme Court of Appeal.

The court made several obiter observations: (1) Bail appeals are inherently urgent in nature and accused persons should not be deprived of their constitutional rights to freedom and freedom of movement for longer than is reasonably necessary. (2) The majority of appeals against the refusal of bail by the High Court as a court of first instance will arise from a court consisting of a single judge and will not require the attention of the Supreme Court of Appeal. (3) In these matters, application for leave to appeal should generally be made immediately after the refusal of bail. (4) Upon leave to appeal being 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. (5) The court noted that the legislative oversight that resulted in the automatic right of appeal had been lamented for more than two decades and had now been addressed by the Superior Courts Act.

This case is of fundamental importance in South African criminal procedure as it definitively establishes that the automatic right of appeal against the refusal of bail by the High Court sitting as a court of first instance (which existed under S v Botha) has been abolished by the Superior Courts Act 10 of 2013. The judgment clarifies that leave to appeal is now required in all such cases. The case also provides important guidance on the regulatory scheme for appeals from the High Court, distinguishing between appeals regulated by the Criminal Procedure Act and those regulated by the Superior Courts Act. It has significant practical implications for accused persons seeking to challenge bail refusals, requiring them to follow the proper procedure of first obtaining leave to appeal. The judgment also emphasizes the inherent urgency of bail appeals and notes that the new scheme may result in more expeditious and cost-effective disposal of such appeals through full courts of the relevant Division rather than automatic appeals to the Supreme Court of Appeal.