IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)

In the matter between:

and

JUDGMENT 
		Application for Leave to Appeal

THRING. J:

The second respondent, however, seeks leave to appeal, as we understand the position, essentially because he finds unpalatable our declaratory order that the first applicant may, in a fresh application for bail, call certain witnesses notwithstanding that they may possibly be called later for the prosecution at the first applicant's trial. The second respondent fears the creation of a precedent in that respect However, that issue is, in our view, now of academic interest only in view of what has happened since we decided the review. The second respondent does not require to have our order set aside on appeal in order to prevent the first applicant from calling these witnesses. It will never happen anyway.

"For the reasons given I am of the view that this Court may, in the circumstances of the present case, consider the facts that have arisen since the release of the respondent on bail for the purpose of deciding whether the appeal will have any practical effect or result. Furthermore, it is proper to conclude, particularly in view of the appellant's own concessions in this regard, that the appeal will not have such a result."

In that matter the respondent had unsuccessfully applied for bail in a regional court. He appealed to the Free State Provincial Division against the magistrate's refusal to grant him bail. His appeal was successful and he was ordered by the Provincial Division to be released on bail. His trial then proceeded in the regional court. In the meantime the Attorney-General appealed to the Supreme Court of Appeal against the respondent's release on bail. In the Supreme Court of Appeal it was conceded by the appellant, the Attorney-General, that even if the appeal were to succeed, the respondent would, as a matter of strong probability, be released on bail again pursuant to a fresh application for bail because of his observance of all of the conditions of his bail hitherto. The decision of the Supreme Court of Appeal turned on whether or not, if the appellant were to be successful, the judgment of the Supreme Court of Appeal would have any practical result or effect. It was held that it would not and the appeal was dismissed for that reason. At 593F-G the Court said:

"Counsel for the Attorney-General was in fact constrained to concede that no practical benefit would accrue to the appellant if the merits of the appeal were argued. He submitted only that a decision on the merits may be used as a precedent in other bail applications. This submission merely reinforces the view that the outcome of the appeal will not affect the rights of the parties in a practical manner."

For these reasons the proposed appeal does not, in my view, enjoy reasonable prospects of success, and leave to appeal must accordingly be refused.

I agree.