CCT30/03A

2007 (3) SA 582 (CC)

2005 (12) BCLR 1192 (CC)

2007 (1) SACR 566 (CC)

The Court

9 September 2005

http://hdl.handle.net/20.500.12144/2183

Application for leave to appeal against a judgment of the SCA, reported as S v Basson 2004 (1) SA 246 (SCA). Preliminary hearing in respect of this application for leave to appeal was held in November 2003 after which the CC handed down a judgment reported as S v Basson 2005 (1) SA 171 (CC) ; 2004 (6) BCLR 620 (CC). See also the judgment on the application for admission as amicus curiae by the Institute for Security Studies: Institute for Security Studies in re: S v Basson (as yet unreported CC judgment). See also the previous judgments of the Transvaal Provincial Division : S v Basson unreported judgment on the admissibility of the record of bail proceedings CC32/99 15 November 1999 ; S v Basson [2000] 1 All SA 430 (T) (judgment on exception) ; S v Basson [2000] 3 All SA 59 (T) (recusal judgment).

Application for leave to appeal against judgment of the SCA. On the acquittal of the respondent on criminal charges in the High Court, the state had unsuccessfully applied to the SCA to have certain questions of law reserved for that court's consideration. The Court held that although the SCA refused leave to appeal, its judgment traversed constitutional issues. The appeal in these circumstances lay properly against the SCA and not the judgment of the High Court. The judgment of the Court considered three issues. The state argued, first, that the trial judge in the High Court had been biased in favour of the respondent. The Court held that although some of the judge's remarks and behavior could be considered inappropriate, it could not be said to give rise to a reasonable apprehension of bias. Secondly, the state argued that the High Court had been wrong to exclude the bail record as evidence. The Court held that the decision to admit or exclude evidence is a discretionary one best made by the trial court. In the absence of injudicious exercise of the discretion or a misdirection on principles of law, a court of appeal is not at large to interfere in the exercise of this discretion. Thirdly, the state argued that the trial court had incorrectly quashed six of the charges of conspiracy to commit murder, as a result of a mistaken interpretation of the Riotous Assemblies Act, 17 of 1956. The Court agreed, holding that although the crimes had allegedly taken place outside the border of the Republic, the Riotous Assemblies Act nevertheless applied to the conspiracy formed in South Africa to carry out the crimes. The order of the High Court setting aside the six charges was itself set aside, allowing the state to re-indict the respondent on those charges if it so chose.