Shirwin Nowtham v The State
Case No: A2025-091731 — High Court of South Africa, KwaZulu-Natal Local Division, Durban
[2025] ZAKZLD 15 (7 August 2025)
This judgment is reportable because it clarifies the approach a High Court must adopt when hearing an appeal against the refusal of bail on so-called “new facts” under section 60(11)(a) of the Criminal Procedure Act 51 of 1977. It is significant in that it re-states the stringent threshold for “exceptional circumstances” in Schedule 6 offences, emphasises the limited scope of a bail appeal, and confirms the evidential weight that may be attached to a dying declaration even at the bail stage. The case therefore provides authoritative guidance to magistrates and practitioners dealing with renewed bail applications in serious violent-crime matters.
• S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999 (2) SACR 51 (CC)
• S v Mathebula 2010 (1) SACR 55 (SCA)
• Criminal Procedure Act 51 of 1977 — particularly section 60(11)(a) and Schedule 6
No specific Rules of Court were referred to in the judgment.
The appellant, charged with Schedule 6 offences of murder and attempted murder, appealed to the Durban Local Division against a magistrate’s refusal to admit him to bail on the basis of “new facts”. The alleged new facts were (a) his minor son’s continuing illness, (b) his own hypertension, and (c) the complainant-survivor’s alleged recantation of the original statement implicating him. Mossop J held that none of these facts, individually or cumulatively, satisfied the stringent requirement of “exceptional circumstances” that would justify the appellant’s release. Particular weight was placed on a corroborating dying declaration by the deceased, the chronology of contradictory statements by the survivor, and the appellant’s failure to challenge the original refusal of bail.
The court found that the magistrate exercised her discretion properly and that the interests of justice demanded the appellant’s continued detention. The appeal was accordingly dismissed.
The court considered whether the tendered “new facts” were indeed new, whether they constituted exceptional circumstances under section 60(11)(a), and what evidential value could be ascribed to a recanted statement in light of a contemporaneous dying declaration and other objective indicators of the appellant’s involvement.
The High Court held that the supposed new facts did not meet the threshold of exceptional circumstances; the magistrate had correctly refused bail; and the appeal had no merit. The order of the Verulam Magistrate’s Court was confirmed and the appellant remained in custody.
The appellant was arrested on 14 September 2024 for the fatal shooting of a former employee and the wounding of another on 29 August 2024. The murder falls within Schedule 6 of the Criminal Procedure Act, placing the onus squarely on the accused to prove exceptional circumstances justifying release.
An initial bail application was refused on 4 October 2024. The appellant did not appeal that decision but later lodged a renewed application, alleging three new facts: his son’s serious illness, his own hypertension, and the complainant-survivor’s repudiation of his original statement. The magistrate dismissed this application on 14 March 2025.
On appeal the appellant relied heavily on the survivor’s shifting versions, contending that the State’s case had “collapsed”. The State countered with, inter alia, a dying declaration from the deceased naming the appellant, the chronology of contradictory statements suggesting tampering, and the appellant’s alleged attempt to bribe the survivor with R25 000.
First, the court had to determine whether the matters relied upon were in truth new and had arisen after the original bail refusal. Second, it had to decide whether, even if new, the facts were of such weight that they constituted exceptional circumstances that made it in the interests of justice to release the appellant. Third, the court was required to assess the reliability of the survivor’s alleged recantation in light of the deceased’s dying declaration and other corroborative material.
A subsidiary issue concerned the permissible scope of appellate interference: whether the magistrate had misdirected herself or exercised her discretion unreasonably when refusing bail.
Mossop J began by re-affirming that an appeal court may interfere with a bail decision only if the lower court committed a material misdirection or the decision was plainly wrong. An initial refusal that is never appealed stands as correct; the appellant must therefore demonstrate genuinely new circumstances.
Turning to the alleged new facts, the judge accepted that a child’s illness and a chronic medical condition may be compassionate considerations, but neither was new: both existed during the first application. Moreover, the appellant’s hypertension could be managed in custody, and no evidence showed that the son’s condition had deteriorated to a life-threatening stage requiring paternal presence.
The survivor’s changing statements were scrutinised in chronological order. The court noted that the first recantation was never formally placed before the magistrate; the second was contradicted days later by a sworn statement describing a bribe; and the third surfaced only in January 2025. Against this unstable history stood the deceased’s spontaneous dying declaration identifying the appellant as the shooter, a form of evidence long recognised as inherently reliable. The court found that the oscillating narratives of the survivor were more consistent with intimidation or inducement than with innocence.
Finally, the seriousness of the offence, the strength of the State’s case, and the risk of witness interference weighed heavily against release. Accordingly, the magistrate had been correct in concluding that the interests of justice demanded continued detention.
The court dismissed the appeal. The order of the Verulam Magistrate’s Court dated 14 March 2025 refusing bail on the renewed application was confirmed. No order as to costs was made, the matter being criminal in nature.
The judgment reiterates that in Schedule 6 offences an accused must place before the court credible evidence of exceptional circumstances; ordinary personal hardships or routine medical conditions will seldom suffice.
It confirms that an appellate court’s role in bail matters is circumscribed: it will not substitute its discretion for that of the magistrate absent misdirection or manifest unreasonableness.
The decision underscores the evidential potency of a dying declaration at the bail stage and warns that late-emerging contradictory statements by witnesses, especially when linked to allegations of bribery, will be viewed with circumspection and will not readily break the State’s case.