THE REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case. No.: A36/2024
Regional Court Case No.: SHG 03/2022
Hearing on 6 March 2024
Judgement on:11 March 2024
In the matter between:
ZUNAID VARDIEN Appellant
and
THE STATE
This judgment was handed down electronically b y email circulation to the parties’
legal representatives’ email addresses.
JUDGMENT
SLINGERS J
[1] On 4 April 2023 Zunaid Vardien, the appellant, was convicted of two counts of
rape and two counts of sexual assault. All four charges pertained to the same
complainant and were committed in 2013 when she was aged nine (9) years
old and the appellant was aged seventeen (17) years old. The appellant was
arrested on 19 May 2021 when he was twenty five (25) years old . When the
appellant was sentenced to an effective term of 8 years’ imprisonment on 6
2
October 2023 he was twenty seven (27) years old. The appellant has been in
custody since 10 October 2023.
[2] The court a quo refused the appellant leave to appeal against his conviction
and sentence. However, on petitioning this court the appellant was granted
leave to appeal against his conviction and sentence. Thereafter, the appellant
applied for bail pending his appeal. This was refused by the court a quo on 6
February 2024. The appellant now appeals against this refusal of bail
pending his appeal.
[3] The offences for which the appellant was convicted fell within the ambit of
schedule 6 and therefore, the appellant bore the onus to show the existence
of exceptional circumstances which showed that it was in the interests of
justice that he be released on bail.
[4] As stated in S v Masoanganye and Another 1 in an appeal against the refusal
of bail pending an appeal, it must be borne in mind that the decision to grant
bail is one entrusted to the trial judge as he/she ‘is the person best equipped
to deal with the issue, having been steeped in the atmosphere of the case.’
Furthermore, that the appeal court must defer to the trial court’s decision
unless it is shown that the trail court failed to bring an unbiase d judgment to
bear on the issue , did not act for substantial reasons, or exercised its
discretion capriciously or upon a wrong principle.2
1 2012 (1) SACR 292 (SCA)
2 See para [15]
3
[5] As the appellant has been convicted the presumption of innocence no longer
applies. As stated in Rhode v S 3 other considerations come to the fore
following the conviction of an accused. These considerations include an
increased risk of abandonment once a person has been convicted and
sentenced to a lengthy period of imprisonment and the severity of the
sentence imposed will be a decisive factor in the court’s discretion to grant
bail or not.
[6] The court went on to hold that the fact that the accused had been granted
leave to appeal was an important consideration, but in and of itself, was not a
sufficient ground to grant bail 4. The grant of leave to appeal does not
necessarily entitle an accused to be released on bail. 5 The accused had to
show that there was a real prospect of success in relation to the conviction
and that a non -custodial sentence m ight be imposed. Thus, any further
period of detention before the appeal is heard would be unjustified.
[7] Furthermore, the prospects of success, on its own, would not constitute
exceptional circumstances as the court must consider all the relevant factors
to determine whether individually or cumulatively, they constitute exceptional
circumstances which would justify the appellant’s release. 6 In assessing the
prospect of success, it does not fall to the court considering the bail appeal to
analyze the evidence extensively as it would not be appropriate to conduct a
dress rehearsal for the appeal to follow.7
3 2020 (1) SACR 329 (SCA) (18 December 2019)
4 Rhode v S at para [8] (this was the dissenting judgment)
5 S v Masoanganye and Another
6 S v Scott- Crossley 2007 (2) SACR 470 (SCA) at para [7]
7 ibid
4
[8] In Masoanganye v S the court found that the first appellant’s personal
circumstances indicated that he could hardly be considered a flight risk.
However, it went on to hold that other factors such as the seriousness of the
crime, the real prospects of success and the real prospect of receiving a non -
custodial sentence were factors that also enjoyed prominence when
considering an appeal against the refusal of bail.
[9] In considering this application , this court cannot ignore the fact that the
approach to bail pending appeal in respect of certain serious offences has
become less lenient and less liberty orientated.8
[10] The appellant argues that:
(i) there was a failure of justice in terms of the Child Justice Act, Act 75 of
2008 (‘CJA’) read with the Criminal Procedure Act, Act 51 of 1977
(‘CPA’);
(ii) the appellant was legally entitled to bail immediately or so soon as
reasonably possible after his sentencing as he had an automatic right
to appeal or review as he was a minor at the time the offences were
committed;
(iii) the prospects of success have increased since being granted leave to
appeal against conviction and sentence on petition to this court; and
(iv) the fact that the appellant’s father is working in Spain does not result in
him being a flight risk.
8 S v Scott- Crossley at para [6]
5
[11] The appellant argues that he was vested with an automatic right of appeal in
terms of section 84(2) of the CJA . Therefore, the fact that he applied for and
was refused leave to appeal amounted to a failure of justice.
[12] In support of this argument, the appellant relies upon the decision of S v P.M9
which held that a failure to transmit the matter on automatic review in terms of
section 84 of the CJA resulted in the failure to deal with the criminal trial in
terms of the CJA. This resulted in a serious miscarriage of justice which
impacted not only on the administration of justice but also failed the child
offender.
[13] Reliance is also placed on the case of S v SN and Another 10 wherein it was
held that where the offender was under 18 years of age when he committed
the offence, then his conduct falls to be judged within that context and that it
would make no sense to treat such an offender as an adult when sentencing
simply because the intervening passage of time resulted in the offender being
an adult when sentencing is imposed.
[14] In S v P. M the offender was 16 years old when he was arrested. In S v SN
and another both accused were arrested when they were 17 years old.11
[15] Section 84 of the CJA provides that:
‘84 Appeals
9 S v P.M (Review) (02/2023) [2023] ZANWHC 184; 2024 (1) SACR 1 (NWM) (5 October 2023)
10 S v SN and Another (SHE 59/14) [2015] ZAWCHC 5 (9 January 2015)
11 The appellant also relied on the case of J.A v S (20190063) [2019] ZAECGHC 64 (3 Jun3 2019).
As the accused was 16 years old at the time of the trial it cannot be disputed that the provisions of the
CJS would be applicable thereto. However, it does not further the appellant’s argument that the
provisions of the CJA were applicable to his trial proceedings.
6
(1) An appeal by a child against a conviction, sentence or order as
provided for in this Act must be noted and dealt with in terms of the
provisions of Chapters 30 and 31 of the Criminal Procedure Act:
Provided that if that child was, at the time of the commission of the
alleged offence-
(a) under the age of 16 years; or
(b) 16 years or older but under the age of 18 years and has been
sentenced to any form of imprisonment that was not wholly suspended,
he or she may note the appeal without having to apply for leave in terms
of section 309B of that Act in the case of an appeal from a lower court
and in terms of section 316 of that Act in the case of an appeal from a
High Court: Provided further that the provisions of section 302 (1) (b) of
that Act apply in respect of a child who duly notes an appeal against a
conviction, sentence or order as provided for in section 302 (1) (a) of that
Act.
(2) A child referred to in subsection (1) must be informed by the presiding
officer of his or her rights in respect of appeal and legal representation
and of the correct procedures to give effect to these rights.
[16] Section 84 of the CJA cannot be applied in a vacuum and must be read with
section 4 thereof which sets out unequivocally to whom it applies.
[17] Section 4 of the CJA provides that:
‘4 Application of Act
(1) Subject to subsection (2), this Act applies to any person in the
Republic who is alleged to have committed an offence and-
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(a)was under the age of 12 years at the time of the commission of the
alleged offence; or
(b)was 12 years or older but under the age of 18 years when he or she
was-
(i)handed a written notice in terms of section 18 or 22;
(ii)served with a summons in terms of section 19; or
(iii)arrested in terms of section 20,
for that offence.
(2) The Director of Public Prosecutions having jurisdiction may, in
accordance with directives issued by the National Director of Public
Prosecutions in terms of section 97(4)(a)(i)(aa), in the case of a person
who-
(a)is alleged to have committed an offence when he or she was under
the age of 18 years; and
(b)is 18 years or older but under the age of 21 years, at the time referred
to in subsection (1)(b),
direct that the matter be dealt with in terms of section 5 (2) to (4)’
[18] In S v S.N and Another and in S v P.M the accused were younger than 18
years old when they were arrested and tried. Thus, they fall squarely within
the ambit of section 4(1)(b) of the CJA rendering section 84 thereof
applicable.
[19] In this matter, the appellant was not younger than 12 years old when he
committed the offence nor was he under the age of 18 years when he was
arrested for the offences for which he was convicted. It is clear from section 4
of the CJA that as the appellant was 25 years old when he was arrested and
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appeared in court, the provisions of the CJA were not applicable to the
conduct of his criminal proceedings in the lower court and section 84 of the
CJA did not apply.
[20] During the hearing the appellant’s legal representative was repeatedly invited
to engage the court on the application of section 4 of the CJA to the facts of
the case. Regrettably, she refused and/or failed to do so.
[21] It is not disputed that the prescribed minimum sentence of life imprisonment
would have applied if the appellant had been sentenced as an adult.
However, as he was a minor at the time the offences were committed, the
prescribed minimum sentence w as not applicable and he was sentenced to 8
years’ direct imprisonment.
[22] The appellant further argues that the court a quo erred when it imposed a
custodial sentence of 8 years’ direct imprisonment as the CJA limited the
custodial sentence which could be imposed to a period of 5 years.
[23] Sections 77(3) and (4) of the CJA provide that:
‘(3) A child who is 14 years or older at the time of being sentenced for the
offence may only be sentenced to imprisonment, if the child is convicted
of an offence referred to in-
(a)Schedule 3;
(b)Schedule 2, if substantial and compelling reasons exist for imposing a
sentence of imprisonment;
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(c)Schedule 1, if the child has a record of relevant previous convictions
and substantial and compelling reasons exist for imposing a sentence of
imprisonment.
(4) A child referred to in subsection (3) may be sentenced to a sentence
of imprisonment-
(a) for a period not exceeding 25 years; or
(b) envisaged in section 276 (1)(i)of the Criminal Procedure Act.
[24] The offences of sexual assault and rape are contained in schedule 3.
Therefore, the court a quo, even if it was sentencing the appellant as a minor,
could have imposed a custodial sentence for a period not exceeding 25 years.
The appellant’s legal representative was invited to provide legal authority for
the supposition that the maximum custodial sentence which could be imposed
was 5 years. The court was referred to the Child Justice Amendment Act, Act
28 of 2019. Act 28 of 2019 does not amend section 77(4)(a) of the CJA to
limit the maximum custodial period which could impose to 5 years. Therefore,
it does not assist the appellant’s case.
[25] In the circumstances, I find that there is no merit in the argument that there
was a miscarriage of justice as a result of the failure to apply the provisions of
the CJA to the criminal proceedings in the lower court, more particularly that
the appellant was not afforded an automatic right of appeal in terms of section
84 of the CPA and that he was sentenced to a custodial sentence in excess of
5 years.
[26] The court a quo dealt extensively with the aspect of the appellant being a
flight risk. In this excursion, the court a quo stated that the appellant failed to
10
deal with the fact that his father lives in Spain and that the father -son
relationship has been maintained. The court a quo also recorded that the
appellant and his family rejected the allegations of the complainant and the
findings of the court. These were also the observations of this court. The
court a quo also found that the appellant had no assets in the country and that
he did not really have anything to keep him in the country.
[27] During the hearing great emphasis was placed on the close bond the
appellant had with his mother, who was ill. As correctly pointed out by the
state, no evidence was placed before the court detailing the nature and extent
of the appellant’s mother’s illness. In the judgment convicting the appellant it
is noted that the appellant’s mother was willing to do anything to help her son.
Subsequent to the hearing of the matter, the appellant produced affidavits
which were not before the court a quo. There was also no application to place
new evidence before the appeal court. In the circumstance, this court could
not have regard to evidence which was not before the court a quo.
[28] In light of the above, it cannot be said that the court a quo erred in respect of
its finding that the appellant was a flight risk. In any event, a s stated in S v
Masoanganye and Another even if the appellant was not considered a flight
risk that would not be the end of the matter and the seriousness of the offence
and the possible length of incarceration must also be considered.
[29] As stated above, the appellant was convicted of 2 counts of rape and 2 counts
of sexual assault. The seriousness of these offences cannot be disputed.
Similarly, it cannot be disputed that the appropriate sentence imposed in
respect of these offences would be a substantial period of incarceration.
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[30] In turning to the merits of the conviction much is made of the fact that the
complainant allegedly did not voluntarily complain of the rape. However, i t is
apparent from the record that the complain ant freely and voluntarily and
without any duress or pressure applied to her reported the rape. The
hesitancy in identifying the perpetrator , which is understandable in the
circumstances, is not the same as reporting the rape.
[31] It is not disputed that the complainant was raped, this is also corroborated by
the medical evidence. However, the appellant denies that he was the person
who raped the complainant. In the trial proceedings there seems to be a
suggestion that the complainant had a crush on the appellant and this was the
reason she falsely accused him of rape.
[32] In convicting the appellant , the court a quo evaluated and addressed all the
evidence that was presented. The court a quo also made credibility findings
and found the complainant to be a credible and believable witness. No legal
basis has been presented for this court to interfere with those credibility
findings.
[33] In the circumstances, it cannot be said that the court a quo was biased in
judging the bail application, that it did not act for substantial reasons or that it
exercised its discretion capriciously or upon an incorrect principle.
[34] Therefore, this court may not interfere with the court a quo’s decision, on the
contrary it must defer to it. In the circumstances, the appeal against the
refusal of bail pending appeal is refused.
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H Slingers
11 March 2024