• CRIMINAL LAW

The Supreme Court of Appeal of South Africa

Andries Joe Masoanganye and Tlaleng Alina Mhelkwa Vs. The State R (Decided on 07.07.2011)

Application for Bail - Rejection of - North West High Court convicted the First and Second Appellant for theft of Funds from the Guardian Fund - Appellants have applied to the trial court for leave to appeal to this court and for an extension of their bail pending the finalisation of their appeal - Learned judge below granted them leave to appeal against conviction and sentence but refused there Bail Application - Hence this appeal

Held, decision whether or not to grant bail is one entrusted to the trial judge because that is the person best equipped to deal with the issue having been steeped in the atmosphere of the case. But there is a limit to what this court may do. It has to defer to the exercise of the trial court's decision unless that court failed to bring an unbiased judgment to bear on the issue, did not act for substantial reasons, exercised its discretion capriciously or upon a wrong principle. The problem is that the trial judge, contrary to established practice, failed to give reasons for granting leave to appeal. In addition, although the Appellants have filed full affidavits and heads, they did not deal with the merits of the appeal. Further, court below intimated that it had other reasons for refusing bail which it was prepared to disclose if approached. Such an approach was not made. It would appear that the trial judge was under the impression that the application for bail could be renewed because she said that she was not satisfied that the Appellants could be released on bail 'at this stage'. The proper route to have followed would have been to allow the matter to stand down . However, what the court failed to consider is that the personal circumstances of an accused - much more than assets - determine whether the accused is a flight risk. The court knew that the second Appellant had three children, one of 18 months, that her husband lives and work in the country and that she is still employed in some or other position in a master's office. These facts, if taken into account, would have satisfied that she was not a flight risk. Although not as strong a case could be made out for the first Appellant, his personal circumstances are such that he, too, could hardly be seen as a flight risk. Hence appeal of the first Appellant is dismissed and appeal of the second Appellant is upheld.

• FAMILY LAW

SUPREME COURT OF CANADA

Susan Wilma Schreyer Vs. Anthony Leonard Schreyer (Decided on 14.07.2011)

Valuation of family Assets - Bankruptcy and insolvency - Spouses agreeing upon separation to valuation of assets under the Manitoba Family Property Act - Husband making an assignment in bankruptcy and obtaining discharge before valuation of assets - Valuation subsequently confirming that wife entitled to equalization payment - Whether equalization claim provable in bankruptcy and Whether husband released from equalization claim by discharge from bankruptcy

Held, manitoba is an equalization jurisdiction, not a division of property jurisdiction. The equalization scheme is based on a principle of equal division of the value of family assets after a process of accounting and valuation. The accounting process results in a value that is divided between the spouses, and any amount payable must be paid to the creditor spouse. A debtor spouse retains the property he or she owns, but must pay a sum of money to the creditor spouse. The wife's equalization claim was provable in the husband's bankruptcy. Section 121 of the Bankruptcy and Insolvency Act ("BIA") contains a broad definition of a provable claim, which includes all debts and liabilities that exist at the time of the bankruptcy or that arise out of obligations incurred before the day on which the bankrupt went into bankruptcy. In the instant case, given the nature of Manitoba's equalization scheme, the wife's claim was provable. A right to payment existed from the time of separation of the spouses, and hence existed at the time of the bankruptcy. All that remained was to determine the quantum by applying a clear formula that left little scope for judicial discretion. In such circumstances, the claim could not be considered so uncertain that s. 135 BIA could not apply. The husband was released from the equalization claim by the bankruptcy and his discharge. The wife's claim was neither a proprietary claim, nor was it exempt from the effect of a discharge as a claim for support or maintenance under s. 178(1)(b) or (c) BIA. In its current form, the BIA offers limited remedies to a spouse in the wife's position. In this regard, family law may provide them with other forms of remedies after the bankrupt has been discharged, more particularly through spousal support. Appeal Dismissed