SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
APPEAL CASE NO: A 118/2024
LOWER COURT CASE NO: B1027/2023
In the matter between:
B[...] M[...] T[...] Appellant
and
THE STATE Respondent
Date of Hearing: 25 July 2024
Date of Judgment: 31 July 2024
JUDGMENT
ANDREWS, AJ
[1] This is an appeal in terms of Section 65(4) of the Criminal Procedure Act 1
(hereinafter referred to as the CPA) against the decision of the Presiding Magistrate
Mrs Belelie, on 11 April 2024 sitting at Goodwood Magistrate’s Court to refuse the
Appellant’s release on bail pursuant to the Appellants application for bail on the basis
of new facts.
Factual Background
1 Act 51 of 1977.
[2] The Appellant was arrested on 7 December 2023 , on charges of
contravention of Section 55(a) of the Criminal Law (Sexual Offences and Related
Matters Amendment Act, Act 32 of 2007 – attempt to commit a sexual act), assault
with the intent to commit grievous bodily harm, cont ravention of Section 120(6) (a) of
the Firearms Control Act, 60 of 2000 – pointing a firearm and robbery with
aggravating circumstances as intended in Section 1 of the CPA.
[3] The complainant, Ms C[...] T[...], is the ex-wife of the Appellant. The Appellant
and complainant are divorced. At the time of the incident the parties and the
complainant’s 2 minor children , were residing together at the erstwhile common
home in Goodwood. The allegations levelled against the Appellant is that the
complainant was in her son’s room on 27 November 2024. The Appellant stood at
the door of the room, with a cup in his hand and enquired from the complainant why
she did not ask him to take her to church. A physical altercation ensued between the
parties. It is alleged that t he Appellant grabbed the complainant by the arm and
began striking her with his fist against her head; flung her onto the bed and choked
her. It is also averred that the Appellant tried to pull down the complainant’s trousers,
but was unsuccessful. He then pulled down his own trousers and tried to insert his
penis into her mouth, which the complainant managed to divert. During this
encounter, the Appellant referr ed to the complainant in derogatory terms using vile
expletives.
[4] The complainant then left the room and went to her daughter’s room to ask
her to call 10111. A further physical altercation ensued when the Appellant tried to
take the complainant’s phone from her. During the course of events, t he Appellant
pulled the complainant by her neck, back into the room at some stage and got on top
of her again. It is averred that the Appellant took out a firearm a nd placed it in the
mouth of t he complainant, advising her not to tell anyone because no -one will
believe her.
[5] The Appellant then proceeded to pick up the shattered glass from the broken
cup. He placed the broken cup in the complainant’s hand and squashed it, causing
serious injury that required medical attention. It is also alleged that the Appellant
struck the complainant on numerous l occasions against her head. The complainant
then collected her clothing and proceeded to her vehicle. The Appellant blocked her
and instructed her to transfer all her money from her account under duress. She did
so in two tranches, each containing R7000 and R6 600 respectively , totalling R13
600 altogether.
[6] Subsequently the complainant’s sisters and police arrived. The complainant
left the house and applied for a third protection order. The Appellant was eventually
arrested on 7 December 2023 . A formal bail application was heard on 14 and 18
December 2023 respectively. Bail was denied on 19 December 2023.
[7] The State opposed bail for the following reasons:
(a) That the Appellant posed a danger to the safety of the complainant and
(b) the seriousness nature of the charges.
[8] Subsequently on 20 March 2024 t he Appellant launched another bail
application on new facts, which was also refused. The Appellant now approaches
this court to appeal the court a quo ’s decision in this regard.
Legal Framework
[9] Section 65(4) of the CPA provides for the test of a Superior Court to interfere
with a decision of the Lower Court to refuse bail.
‘The court or judge hearing the appeal shall not set aside the decision
against which the appeal is brought, unless such court/judge is
satisfied that the decision is wrong, in which event the court or judge
shall give the decision which in its opinion the lower court should have
given’
Grounds of Appeal
[10] The grounds of appeal as extracted from the Notice of Appeal are that:
(a) the Ma gistrate erred in concluding and finding that the Appellant had not
made out a proper case that exceptional circumstances exist, warranting his
release on bail.
(b) the Magistrate erred in finding that bail conditions cannot be monitored at all
times, and further that there is no guarantee that bail conditio ns would be
enforced, which finding was made without any factual evidential basis.
(c) the Magistrate erred in not considering, or properly considering, that the
implementation of bail conditions, inclusive of house arrest and daily reporting
at the closest po lice station, would achieve the result of avoiding contact
between the Appellant and the complainant as well as address concerns that
the Court had in respect of the complainant’s safety, and that these would
have the desired effect of ensuring authorities knew, at all material times, of
the whereabouts of the Appellant whilst awaiting trial.
(d) the Magistrate erred in emphasizing the complainant’s subjective say -so in
respect of the Appellant’s alleged contact with members of the South African
Police Services and the Traffic Department and that these would enable him
in not adhering to any bail conditions ordered.
(e) that the Magistrate erred in finding that bail conditions would be
unenforceable.
(f) that the Magistrate erred in making a quantum leap in the judgment on new
facts that the delay in arrest between the alleged incident on 27 November
2023 and the Appellant’s actual arrest, followed as a result of the influence
the Appellant had in the South African Police Services and/or traffic area in
the area in which he works and resides as there was no objective evidence
that the Appellant had played a role in delaying his arrest or that the delayed
arrest was as a result of anything the Appellant had instigated.
(g) that the Magistrate erred in concluding that the Appellant’s delayed arrest was
due to the fact that the Appellant w as a traffic officer. This conclusion was not
supported by any facts neither in the initial bail application nor in the bail
application based on new facts; apart from the c omplainant's subjective,
unsubstantiated evidence in this regard.
(h) that the Magistrate erred in over -emphasising the fact that the Appellant had
elected, at his initial bail hearing to remain silent, and his reasons therefore
and, consequently that this counted against him.
(i) that the Magistrate erred in not considering or properly considering the
Appellant’s version of events, inclusive of the fact that he had indicated that
he himself, had reported this to his divorce attorney.
(j) that the Magistrate erred by paying me re lip -service to the presumption of
innocence.
(k) that the Magistrate erred in overemphasising the fact that the Appellant did
not make mention of a second Protection Order in the bail application on new
facts;
(l) that the Magistrate erred by not considering th e evidence provided in the
report of a Clinical Psychologist, Renier Naud è, which report, confirmed that
the Appellant suffers major depression, complex emotional and cognitive
challenges, inclusive of potential cognitive impairment.
(m) that the Magistrate, erred in coming to the conclusion that the Appellant who
elected to provide a version in the second bail application on new facts, under
oath, was in order to try and explain or cover for the injuries that the
complainant had allegedly sustained, and in the process, totally ignored what
the Court had been informed at the commencement of the bail application on
new facts, namely that the Appellant had not consulted in depth with the
previous legal advisers and simply accepted their advices to remain silent.
(n) The Magistrate erred in finding that the Appellant had, in his application on
new facts, still failed to show that the State’s case is weak, on a balance of
probabilities and that he stands a chance of being acquitted. In doing so, the
Magistrate failed to deal with the Appellant’s injuries in the judgment which
were formally recorded as well as the communications between the Appellant
and his erstwhile divorce attorney about what had expired which is indicative
of the fact that on tria l, the Appellant’s version may be reasonably possibly
true.
(o) The Magistrate erred by failing to consider or properly consider at all the
Appellant’s version, yet reached the conclusion and findings indicating why
the complainant’s version was to be accepted above that of the Appellant.
(p) The Magistrate erred in finding that the fact that the Appellant had been
dismissed from his employment was a moot point and did not carry much
weight in deciding whether the Appellant should be granted bail.
(q) The Magistrate failed to consider that in order to refer his dismissal dispute to
the Bargaining Council or the CCMA, the Appellant has to be out on bail and
would not be able to manage these processes whilst in custody.
(r) The Magistrate erred in respect of not considering and/or properly considering
the evidence provided by the clinical psychologist, Renier Naudè as set out in
a second report, in response to the evidence provided under oath by the
investigating officer in this regard.
(s) The Magistrate erred by failing to consi der or properly consider the evidence
of Renier Naudè as to why the Appellant’s treatment in prison, given his
current diagnosis, was not satisfactory or sufficient and why the Applicant
requires proper medical and psychological intervention, which cannot be
provided to him whilst he is incarcerated.
(t) The Magistrate misdirected herself in failing to consider the purpose of bail,
which is concerned with the liberty of the Appellant, pending finalisation of the
merits, and focused solely on the complainant’s evidence, resulting in the
Magistrate ordering that the Appellant remain in custody.
(u) The Magistrate erred by incorrectly finding that no exceptional circumstances
were present, given the totality of the evidence, and given that the only
grounds for opposing bail by the State were the issues of the complainant’s
safety and the seriousness of the alleged offences.
Legal Principles
[11] Section 60 (11) of the CPA provides that; where an accused is charged
with an offence referred to –
‘Notwithstanding any provision of this Act, where an accused is charged with an
offence referred to -
(a) in Schedule 6, the court shall order that the accused be detained in
custody until he or she is dealt with in accordance with the law,
unless the accused, having been given a reasonable opportunity to
do so, adduces evidence which satisfies the court that exceptional
circumstances exist which in the interests of justice permit his or her
release’
[12] It is trite that the functions and powers of the co urt or judge hearing the
appeal under Section 65 are similar to those in an appeal against conviction and
sentence. In S v Barber2, Hefer J remarked as follows:
‘It is well known that the powers of this Court are largely limited where
the matter come s before it on appeal and not as a substantive
application. This court has to be persuaded that the magistrate
exercised the discretion which he has wrongly. Accordingly, although
this Court may have a different view, it should not substitute its own
2 1979 (4) SA 218 (D) at 220E – H.
view fo r that of the magistrate because that would be an unfair
interference with the magistrate’s exercise of his discretion. I think it
should be stressed that, no matter what this Court’s own views are, the
real question is whether it can be said that the magi strate who had the
discretion to grant bail exercised that discretion wrongly...’3
[13] The matter of S v Petersen 4 sets out the approach to bail applications
on new facts as follows:
‘[57] When, as in the present case, the accused relies on new facts
which have come to the fore since the first, or previous, bail application, the
court must be satisfied, firstly, that such facts are indeed new and, secondly,
that they are relevant for purpose s of the new bail application. They must not
constitute simply a reshuffling of old evidence or an embroidering upon it. See
S v De Villiers 1996 (2) SACR (T) at 126e -f. The purpose of adducing new
facts is not to address problems encountered in the previo us application
or to fill gaps in the previously presented evidence.
[58] Where evidence was available to the applicant at the time of the
previous application but, for whatever reason, was not revealed, it cannot
be relied on in the later application as new evidence. See S v Le Roux en
Andere 1995 (2) SACR 613 (W) at 622a -b. If the evidence is adjudged to be
new and relevant, then it must be considered in conjunction with all the
facts placed before the court in previous applications, and not separately .
See S v Vermaas 1996 (1) SACR 528 (T) at 531e -g; S v Mpofana 1998 (1)
SACR 40 (Tk) at 44g -45a; S v Mohamed 1999 (2) SACR 507 (C) at 511a -d.’
(my emphasis)
The First Bail Hearing
[14] Whilst this matter concerns the decision of the court a quo regarding
the new facts bail application, it is apposite to deal with the findings of the court in
3 See also Killian v S [2021] ZAWCHC 100 (24 May 2021) at para 7.
4 2008 (2) SACR 366 (C) at paras 57 -58.
the first bail hearing as there are issues that are inter connected. In addition,
Petersen (supra) makes it clear that if the evidence is adjudged to be new and
relevant, then it must be considered in conjunction with all the facts placed before
the court in previous applications, and not separately.
[15] The Appellant, gave viva voce evidence at the bail hearing, but elected
not to testify about the merits of the case. The complainant and investigating officer’s
viva voce testimony were also heard. The reasons provided by the court a quo for
refusing bail were that:
(a) In terms of Section 60(4)(a) of the CPA, there was a likelihood that the
Appellant would endanger the safety of the complainant;
(b) In terms of Section 60(4)(c) of the CPA, there was a likelihood that the
Appellant may attempt to influence or intimidate the complainant and
(c) That the Appellant did not prove that exceptional circumstances existed
indicating that it was in the interest of justice that he be released on bail.
[16] It bears mentioning that Counsel on behalf of the Appellant, when
addressing the court, indicated that the Magistrate wasn’t wrong to hold the view in
the first application.
Bail Application on new facts
[17] The new facts bail application was predicated on Appellant’s current
mental status and/or condition as well as the imminent loss of his employment at the
time. It is not disputed that the Appellant has in fact been dismissed from his
employment a few days prior to the court a quo delivering judgment in the second
bail application on new facts.
[18] The Appellant , during his first bail application, seemingly upon legal
advice, elected to exercise his right to silence and did not provide the court with his
version of events. No version was put to the complainant at the trial. Subsequent to
the Applicant’s first bail application, he obtained new legal representation and was
then advised that given the nature, gravitas and scope of the proceedings before
Court, it was prudent to provide his version of events more particularly because of
the allegations of domestic violence. The Appellant’s version was then placed before
the court a quo in the form of an affidavit.
[19] The Appellant’s affidavit also addressed the new facts relating to his
then prospective loss of employment , his state of mental health and financial
situation. These aspects were suggested to be serious and having a detrimental
effect on the Appellant in respect of his feelings of depression and anxiety as well as
financially.
[20] Ms. Michelle Beukes, the Appellant’s attorney, in her affidavit
confirmed the commencement of disciplinary proceedings. A confirmatory affidavit by
Psychologist, Reinier Naudè was submitted to court to which affidavit was annexed a
medico-legal report. Mr Naudè also provided a supplementary report which dealt
with the averments made by the investigating officer in an answering affidavit, which
report was attached to a supplementary affidavit attested to by Ms Beukes.
Principal submissions on behalf of the Appellant.
[21] At the ou tset of Counsel’s address, it was placed on record that the
Appellant was not disputing the Schedule of the offence and neither that the offence
is serious. It was submitted that regard is to be had that the firearm that was
confiscated was a licensed fire arm and is currently booked into the SAP13. The
Appellant therefore has no access to it.
[22] It is not in dispute that the Appellant currently has no previous
convictions, pending cases or outstanding warrants of arrest. The Appellant’s
employment has been terminated. It was submitted that the Appellant’s ultimate
dismissal ought to be regarded as a new fact given the reason for the dismissal was
directly linked to his incarceration. It was argued that the Appellant’s release would
be critical insofar as the prospects of success of reinstatement procedures are
concerned.
[23] The dismissal of the Appellant has a direct bearing on the Appellant’s
financial affairs as he no longer receives a salary. The most recent salary was
received on 27 December 2023. In this regard, it was contended that the Appellant’s
funds have been exhau sted and his family is unable to service the bond and as a
result, he may be at risk of losing his property.
[24] The Western Cape Traffic Department had commenced disciplinary
proceedings and it ha s progressed to the procedural stage. Despite representations
made by his legal representatives, the Appellant has been dismissed from his
employment due to his continued absence. As a consequence of the Appellant’s
dismissal, he is desirous to commence reinstatement procedures against his
dismissal, which would be difficult , with little prospects of success should he remain
in custody. It was contended that the only way for the Appellant to attempt
reinstatement is to pursue the route of conciliation and arbitration, which procedural
step can only be embarked upon if the Appellant is released on bail.
[25] The deterioration of the Appellant’s mental health was a new fact
placed before the court, which was corroborated by Mr Naudè. Mr Naudè confirmed
in his medico -legal report that the Appellant had suff ered from suicidal ideation,
which prompted three sessions with a prison psychologist , Mr Terrence Townsend.
In spite of the Appellant receiving the three therapy sessions, Mr Naudè opined that
the Appellant’s treatment was limited due to the prioritization of emergencies
amongst awaiting trial prisoners.5 A diagnosis of major depression was confirmed by
both Mr Naudè and Mr Townsend. According to Mr Naude, the Appellant’s
5 Supplementary Index: Forensic Report, Naudè, Annexure “RN1”, pages 5 – 6 ‘Given reports of
suicidal thought, Mr. T[...] underwent three sessions with Prison Psychologist Terrence Townsend.
This is in line with his history of depression following his father ’s passing. He received antidepressant
medication for six months at that time. Using the Zung Scale, Mr. T[...] scored 79, indicating a
significant degree of depressive symptoms that require ongoing monitoring and treatment.
Despite receiving three therapy sessions from Mr. Terrence Townsend, the prison psychologist, Mr.
T[...]’s treatment was limited due to the prioritization of emergencies among awaiting trial prisoners.
Mr. Townsend concurred with the diagnosis of major depression but has concluded contra ctual
obligations with the Department of Correctional Services. Another psychologist will assume Mr. T[...]’s
care. Mr. B[...] T[...]’s evaluation highlights complex emotional cognitive challenges, including major
depression and potential cognitive impairment . The limited therapeutic interventions received within
the prison environment underscore the need for ongoing comprehensive mental health support and
medication management. It is recommended that Mr. T[...] be provided with intensive psychotherapy
and appr opriate medication under psychiatric care, possibly necessitating hospitalization in a
psychiatric facility.’
evaluation highlights complex emotional and cognitive challenges, including major
depression and potential cognitive impairment, and the limited therapeutic
interventions received within the prison enviro nment underscore the need for
ongoing comprehensive mental health support and medication management. Mr
Naudè in reference to the Diagnostic Manual 6, recommended that the Appellant be
provided with intensive psychotherapy and appropriate medication under psychiatric
care, possibly necessitating hospitalisation in a psychiatric facility. He concluded that
the Appellant does meet the criteria for major depression as he presents with six of
seven depressive symptoms set out in the DSM -5, and four additional c riteria
required for diagnosis is also present.
[26] It was further contended that this medical condition is most likely as a
result of the traumatic effects of being incarcerated, given that for a period of
eighteen years as a traffic officer, he had been inv olved in law enforcement and now
finds himself in a s ituation where he is surrounded by criminals. This, it was
contended must be overwhelmingly traumatic experience for the Appellant .
Consequently, the rapid and abrupt deterioration of his mental health warrants
urgent intervention. The Investigating Officer, in his opposing affidavit addressed this
aspect which necessitated that an addendum report from Mr Naudè be filed which
was attached to the supplementary affidavit of Ms Beukes, the Appellant’s legal
representative.
[27] The Appellant submitted that these factors, viewed within the totality of
the evidence, amount to new facts which are exceptional in nature.
Respondent’s grounds for opposing bail and principal submissions
[28] The Respondent opposes the appeal on the grounds:
(a) That there is a likelihood that should Appellant be released on bail he:
(i) Would be a danger to the safety of the complainant and
6 DSM – 5 – TRT.
(ii) He may attempt to influence or intimidate her.
(b) That the trial court was correct in finding that some of the new facts on which
the application is based:
(i) do not amount to new facts;
(ii) that the cumulative effect thereof does not outweigh the interest of the
State and
(iii) that the issues raised can be addressed in other ways.
[29] It was s ubmitted that the application for bail based on new facts does
not address the court a quo ’s findings in the original refusal of bail that there is a
likelihood that the Appellant would be a danger to the safety of the complainant and
a likelihood that he may attempt to influence or intimidate her should he be released
on bail. In light thereof, it was contended that those finding ought to stand.
[30] The Respondent emphasised that the court a quo found that, based on
the viva voce evidence of the complainant, which stood undisputed by election of the
Appellant not to testify on the merits of the matter, showed a history of violent,
abusive and manipulative behaviour, exhibited by the Appellant towards the
complainant. It was submit ted that the presence of the complainant’s children and
her mother, prior to being deceased, could deter the Appellant from such behaviour.
[31] It was emphasised that the complainant expressed her apprehension
regarding the prospect of the Appellant being released on bail , even under strict
conditions such as house -arrest. In this regard, the complainant articulated that she
would not feel secure based on the Appellant’s past conduct and his position as a
member of law enforcement , which includes the connections he had in this field by
virtue of his reputation. In further augmentation, the complainant’s reservation is
borne out by the manner in which members of SAPS dealt with the complaint when
they attend at the erstwhile common home. This, is evidenced by:
(a) The fact that the SAPS members sat in the lounge with the Appellant, while
she was in the room packing up her belongings.
(b) It was only when the complainant requested to speak to a SAPS member in
private that she was free to indicate that she was desirous for the Appellant to
be arrested.
(c) The Appellant was not arrested immediately, but some 3 days later,
seemingly only after the complainant was discharged from hospital.
(d) The parties were asked who would be making a compromise in leaving the
property.
[32] The evidence on record indicates that the Appellant has persuaded the
complainant to withdraw 2 previous protection orders by using her feelings of guilt
against her. It was emphasi sed that the Appellant had previously also asked the
complainant not to let anyone know about his firearm. His firearm was also never
kept locked in a safe and was easily accessible as it was kept in a draw. This was
demonstrated by the fact that he had allegedly instructed the complainant’s 12 -year-
old son to fetch it. Subsequent to the Appellant’s arrest he was found to be in
possession of 30 rounds of ammunition.
[33] In addition, i t was submitted that the Appellant ’s manipulative
behaviour, cements the court a quo ’s findings in this regard in respect of the bail
application on new facts:
(a) That the Appellant chose to disclose his version by way of affidavit and not by
way of viva voce evidence;
(b) the denial of the presence of the children during the incident on 27 November
2023 and that the complainant had 2 protection orders against him prior to the
incident;
(c) the manner i n which the Appellant introduced who he is regarding his
employment, standing in the community and character.7
[34] It was revealed that significant focus, in the affidavit in support of the
new facts bail application, was directed to attack the character of the complainant by
claiming that she was untruthful and that she was the cause of the difficulties in the
marriage. The Respondent argued that the court a quo was correct in finding that
despite the Appellant’s election not to testify about the merits of the matter, that this
should not have prevented him from disclosing some of the information relating to
the character of the complainant. The Respondent further more contended that the
Appellant did not take the court into his confidence as to why he was not arrested on
the day of the incident.
[35] It was argued that the Appellants opinion about himself as he
articulated his identity during his testimony , serves to corroborate the complainant’s
view of him that he is highly competitive and that everything centred around him. The
Respondent averred that the cumulative effect of the circumstances of the matter as
per the testimony of the complainant, remains relevant in that the Appellant is still
intent on trying to manipulate the bail system to circumvent his having to testify on
the merits, by opting to make submissions by way of an affidavit.
[36] In addition, it was highlighted that the Appellant knows where the
complainant resides and works. The court a quo had regard to options of bail
conditions but found that same would not ensure the safety of the complainant or
prevent interference with the State’s case. The Respondent submitted that the court
a quo cannot be faulted for making these findings.
Considerations by the court a quo
[37] The bail application on new facts was informed by the following
summarised factors, as extracted from the court's judgement: the onus that the
7 “I am a traffic officer residing in the Goodwood area. I am very well known in the traffic fraternity, as
well as in sporting circles and in the community itself. People know my character as a person that I
am, B[...] M[...] T[...]. My character exceeds the allegations made against me and I just feel that I am
being treated unfairly…”
Appellant was obligated to bear, the history of the matter in relation to the Appellant's
initial bail hearing, t he court's findings, and the State's opposition to bail . Other
factors included, the applicable legal principles to be considered in Schedule 6 bail
applications; whether bail conditions would protect the interest of the state ; the
history of the relationship between the Appellant and the complainant; the nature and
seriousness of the charges . In addition, the court a quo considered the evidence of
the complainant insofar as it pertained to the history of the domestic abuse (physical,
verbal and emotional abuse) which culminated the complainant having obtain ed two
prior protection orders, with particular reference to the anecdotes of certain specific
incidences (home, church and work) as orated by the complain ant. The reasons for
the withdrawals of these protection orders were also contemplated. The court a quo
concluded that the two previous protection orders indicated that there was a real
likelihood of past abuse.
[38] Further considerations included t hat the presence of the complainant’s
late mother, who resided with the parties and the children did not deter the Appellant.
Additionally, the court a quo considered the impact the domestic violence had on the
children.
[39] The court a quo determined that the complainant was hospitalised for
three days due to the incident. It also had regard to the fact that there was a delay in
the arrest of the Appellant and that the Appellant’s firearm was confiscated .
Subsequent to the confiscation of t he Appellant’s firearm, he was found in
possession of ammunition . The court a quo expressed concern that despite the
serious nature of the assault that the Appellant, after speaking to the police on the
day of the incident was not arrested. The court a quo concluded that this was
indicative of “the kind of influence the accused in fact has in the area in, which he
works and resides.”8
[40] In relation to the new facts bail hearing , the court a quo had regard to
the affidavit attested to by the Appellant as well as the complainant’s views regarding
the Appellant’s release on bail and imposition of bail conditions . Consideration was
8 Judgment, page 67.
given to the Appellants version on the merit s, however, the court a quo pointed out
that the complainant ’s evidence pertaining to the incident was not tested under
cross-examination by the Appellant’s erstwhile attor ney in that for example it was
never put to the complainant that the Appellant had been assaulted , or that he had
photographs of his injuries . In this regard, the court a quo indicated that the
complainant’s undisputed evidence was that she had fought back . The court a quo
also found that the evidence on a balance of probabilities favoured the complain ant
on her account of a past history of abuse.
[41] The court a quo remarked that the Appellant’s conduct on the day of
the incident is indicative that he was a real danger as it stood unchallenged. The
court identified the relevant paragraphs in the Appellant’s affidavit which was
regarded as an attack on the complainant’s character, reaching the conclusion that
reference to the past conduct of the complainant was not new evidence as this was
confirmed by the complainant herself when she testified. 9 The court held the view
that the accused had sufficient opportunity to raise these issues in open court in the
presence of the complainant. The court a quo found that the Appellant failed to show
that that the state’s case is weak, on a balance of probabil ities. The court a quo
found that there was a strong prima facie case against the Appellant.
[42] The court a quo referred to the clarification that was needed pertaining
previous protections orders in light of the Appellant’s instruction that there was no
other protection order before the one issued in the year he wished to travel to
Australia. The court a quo also referred to other factors that the court a quo deemed
important that that were omitted from the affidavit of the Appellant such as that the
Appellant in his first bail application had made no mention of his past history of
depression.
[43] The court, having regard to the aforementioned factors, the Appellant’s
right to be presumed innocent and his personal circumstances , which included his
employment status, financial position, medical condition; concluded that in
considering the application on new facts, the evidence and reasons for refusal of bail
9 Judgment, page 72, lines 10 – 20.
in the original application remained relevant. The court a quo found that that there
were no exceptional circumstances that was placed before the court and that the
interest of justice did not permit the Appellant’s release more particularly:
(i) that there was a real likelihood that the Appellant would endanger the
safety of a particular person (the complainant and her children);
(ii) that there was a real likelihood that the accused would either influence
or intimidate the complainant regarding the case before court.
Discussion
[44] It is common cause that the Appellant has been arraigned on charges
listed under Schedule 6. A Schedule 6 bail application, given the nature and
seriousness of the offences for which it has been introduced, placed the onus on the
Appellant by virtue of section 60(11)(a) of the CPA to prove on a balance of
probabilities, that exceptional circumstances warranted his release on bail.
[45] The effect of s ection 60(11)(a) was exhaustively discussed and
elucidated in the Constitutional Court’s seminal judgment in S v Dlamini; S v
Dladla; S v Joubert; S v Schietekat 10. It imposes an onus on the applicant for bail
to adduce evidence to prove to the satisfaction of the court the existence of
exceptional circumstances justifying his release on bail. The court must also be
satisfied that the release of the accused is in the interests of justice. Section 60(4) of
the CPA, sets out a list of circumstances in which it wou ld be in the interest of justice
to grant bail. The standard of proof is on a balance of probabilities.
[46] There is an abundance of case law dealing with the considerations
taken by courts in determining what exceptional circumstances may be. In S v
Mohammed 11 the Court held that "exceptional" circumstances had two shades or
degrees; either meaning unusual or different, or markedly unusual or especially
10 [1999] ZACC 8 (3 June 1999); 1999 (2) SACR 51(CC).
11 1999 (2) SACR 507 (C), page 515.
different. Comrie J placed the emphasis on the degree of deviation from the usual as
it appears from a statement:
‘So the true enquiry, it seems to me, is whether the proven circumstances are
sufficiently unusual or different in any particular case as to warrant the
Applicant's release. And "sufficiently" will vary from case to case.’
[47] In Mazibuko v S 12 the court stated:
‘[18] ...With respect, I am of the view that the emphasis should be placed on the
degree to which any circumstance is present...
[19] For the circumstance to qualify as sufficiently exceptional to justify the
accused’s release on bail it must be one which weig hs exceptionally heavily in
favour of the accused, thereby rendering the case for release on bail
exceptionally strong or compelling. The case to be made out must be stronger
than that required by subsection (11) (b), but precisely how strong, it is
impossible to say. More precise than that one cannot be.’
[48] In S v Mokgoje 13, the court was of the view that the concept referred
to circumstances that were unique, unusual, and particular. In S v Scott - Crossley
14it was held that:
‘Personal circumstances which are really ‘commonplace’ can obviously not
constitute exceptional circumstances for purposes of section 60(11) (a).’
[49] In S v Petersen 15 the Court determined that ‘“exceptional” is indicative
of something unusual, extraordinary, remarkable, peculiar or simply different. In
12 2010 (1) SACR 433 (KZP) (19 November 2009) at pars 18 - 19.
13 1999 (1) SACR 233 (NC).
14 2007 (2) SACR 470 (SCA) at para 12.
15 2008 (2) SACR 355 (C) par 55.
Director of Public Prosecutions v Nkalweni 16 the word was given the meaning of
“unique, unusual, rare and peculiar”. In S v Ntoni and others 17the Court held that:
‘Generally speaking what may constitute exceptional circumstances in any
given case depend s on the discretion of the presiding officer and the facts
peculiar to a particular matter. In the context of the provision of s60 (11) (a), the
exceptionality of the circumstances must be such as to persuade the court that
it would be in the interests of justice to order the release of the accused person.
It requires the court to exercise a value judgment in accordance with all the
relevant facts and circumstances.’
[50] It is trite that a court determining a bail application affected by Section
60(11) of the CPA, is required to consider the mosaic of evidence and decide on
whether it is sufficient to persuade the court that an exception should be made to the
default posit ion. Caution has been expressed in S v Yanta 18 where De Wet AJ,
remarked:
‘The right of an unsuccessful bail applicant to an opportunity to present new
facts in order to secure their release on bail must always be carefully weighed
against the principle t hat renewed bail applications, where old and previously
known facts are simply restructured and no real new facts exist, amounts to an
abuse of process.’
[51] Numerous aspects of the court's findings are called into question by the
Appellant in casu. The court a qu o expressed concern that the Appellant had not
been arrested on the day of the incident and determined that this was indicative of
the extent of the Appellant's influence in the area where he resides and works. In this
context, it was contended that this conclusion lacks a factual basis. In addition, it was
suggested that the court a quo erred in overly relying on the complainant’s subjective
say-so in respect of the Appellants “alleged” contact with the members of the South
16 2009(2) SACC 343 (Tk).
17 (5646/2018P) [2018] ZAKZPHC 26 (22 June 2018) at par 32.
18 2023 (2) SACR 387 (WC) at para 1.
African Police Services and the Traffic Department and that these will enable him not
to adhere to any bail conditions ordered.
[52] It was argued that although the evidence in this regard by the
complainant was tendered at the first bail application, the Magistrate referred to this
aspect in her judgment again in respect of new facts in the process of determining
that bail conditions would be unenforceable. It was also argued that the Magistrate
went to great lengths in her judgment, pertaining to new facts, to reiterate the fa ct
that the Applicant had not provided a version of events during the first application,
yet chose to do so during the second bail application on new facts, in circumstances
where the complainant was unable to respond.
[53] As previously stated, i t is trite that the court is enjoined to consider the
new facts in conjunction with all the facts placed before it in previous applications
and not separately as set out in the guidelines in Petersen (supra) that:
(a) The purpose of adducing new facts is not to address problems encountered in
the previous application or to fill gaps in the previously presented evidence;
(b) Where evidence was available to the applicant at the time of the previous
application but, for whatever reason, was not revealed, it cannot be rel ied on
in the later application as new evidence.
(c) If the evidence is adjudged to be new and relevant, then it must be considered
in conjunction with all the facts placed before the court in previous
applications, and not separately.
[54] The matter of Petersen (supra) demonstrates that the purpose of
adducing new facts is not to address problems encountered in the previous
application or to fill the void in the previously presented evidence. This , therefore,
poses the question as to wheth er the Appellant’s legal advice during the first bail
hearing, not to testify on the merits would fall into this category. It is clear, that the
evidence was available to the Appellant at the time of the previous application but,
was not reveale d, seemingl y on incorrect advice . Petersen (supra) makes it clear
that such evidence cannot be relied on in the later application as new evidence.
[55] Notwithstanding, the court a quo had regard to all the evidence as will
be later dealt with in this judgment. The Appellant however , holds the view that the
court a quo , went to great lengths to discard the veracity and probabilities on the
Appellant’s version, and in so doing, it was argued, usurped the Trial Court’s
function, paying mere lip service to the presumption of innocent. In this regard, the
Appellant is in effect being punished as opposed to properly considering what the
purpose and scope of bail and bail conditions are. I will return to these aspects later
in this judgment.
[56] In S v Porthen & others19, Binns-Ward AJ (as he then was), remarked
that ‘there could be no quarrel with the correctness of the observations of Hefer J as
a general position’. Notwithstanding, Binns-Ward considered it necessary to point out
that a court hearing a bail application (i.e. the court a quo ), exercises a wide as
opposed to a narrow (or strict) discretion. Binns -Ward also observed that it remains
necessary to:
‘be mindful that a bail appeal, goes to the question of deprivation of
personal liberty. In my view, that consideration is a further factor
confirming that s 65(4) of the CPA should be construed in a manner
which does not unduly restrict the ambit of an appeal court’s
competence to decide that the lower court’s decision to refuse bail was
“wrong” …’20
[57] Binns-Ward J in Killian v S 21 restated the nature of the discretion
wherein he stated:
‘As I pointed out in S v Porthen and Others 2004 (2) SACR 242 (C),
however, certainly in respe ct of bail applications governed by s 60(11),
19 2004 (2) SACR 242 (C) at para 7.
20 At para 17.
21 [2021] ZAWCHC 100 (24 May), para 8.
in which the bail applicant bears a formal onus of proof, the nature of
the discretion exercised by the court of first instance is of the wide
character that more readily permits of interference on appeal than
when a true or narrow discretion is involved. I concluded (at para 15)
“Accordingly, in a case like the present where the magistrate refused
bail because he found that the appellants had not discharged the onus
on them in terms of s 60(11)(a) of the CPA, i f this court, on its
assessment of the evidence, comes to the conclusion that the
applicants for bail did discharge the burden of proof, it must follow (i)
that the lower court decision was ‘wrong’ within the meaning of s 65(4)
and (ii) that this court can substitute its own decision in the matter”.
That analysis was most recently endorsed in a decision of the full court
of Gauteng (Johannesburg) Division of the High Court in S v Zondi
2020 (2) SACR 436 (GJ) at para 11-13.’
[58] It was contended that the court a quo made, what was referred to as a
“quantum leap” in her judgment on new facts , implying that the delay in arrest
between the alleged incident on 27 November 2023 and the date on which the
Appellant was arrested a few days later was as a result of influence the Appellant
had in the South African police Services and/or the Traffic Department wh ich is an
aspect not borne out by factual proof.
[59] Even if the court a quo made a proverbial quantum leap regarding the
reasons why the Appellant was not immediately arrested. This factor, viewed
cumulatively with all the other considerations, would not, i n my view have tipped the
scales in favour of the Appellant.
[60] It is trite that a court hearing a bail application is cloaked with a wide
discretion. The court in Yanta (supra)22 has succinctly summarised certain general
principles for consideration: 23
22 At para 15.
23 See Criminal Justice Review, No 2 of 2017, “New facts” for purposes of a renewed bail application:
Principles, issues and procedures by Steph van der Meer.
‘…
15.1 Whether the facts came to light after the bail was refused. Such
facts can include circumstances which have changed since the first bail
application was brought such as the period that an accused had been
incarcerated;24
15.2 Whether the facts are ‘sufficiently different in character’ from the
facts presented at the earlier unsuccessful bail application in the sense that it
should not simply be a “reshuffling of old evidence”;25
15.3 Whether the alleged new fact(s) are relevant in the sense that if
received by the court, it would per se or together with other facts already before
the court from the initial bail application, assist the court to consider the release
of an accused afresh;
15.4 A court hearing an application based on alle ged new facts, must
determine, with reference to the evidence previously presented in the
unsuccessful bail application, whether such facts are indeed new. 26 In S v
Mpofana 1998 (1) SACR 40 (Tk) at 44 g-45 a Mbenenge AJ (as he then was)
explained that “whi lst the new application is not merely an extension of the
initial one, the court which entertains the new application should come to a
conclusion after considering whether, viewed in the light of the facts that were
placed before court in the initial appli cation, there are new facts warranting the
granting of the bail application”; and
24 In S v Mousse 2015 (3) NR 800 (HC) at para 7 the court held that the passage of considerable time
coupled with the state’s failure to make progress with the investigation of the case can be qualified as
a new fact. Also see in this regard S v Hitschmann 2007 (2) SACR 110(ZH) at 113b
25 See S v Mohamed 1999 (2) SACR 507 (C) at 512 and S v Petersen 2008 (2) SACR 355 (C) at [5 7]
26 See S v Vermaas 1 996 (1) SACR 528(T) at 531e-g where Van Dijkhorst J reiterated the principles
set out in S v Acheson 1991 (2) SA 805 (NmHC) 821 F -H, as “Obviously an accused cannot be
allowed to repeat the same application for bail based on the same facts week after week. It would be
an abuse of the proceedings. Should there be nothing new to be said the application should not be
repeated and the court will not entertain it. But it is non sequitur to argue on that basis that where
there is some new matter the whole application is not open for reconsideration but only the new facts.
I frankly cannot see how this can be done. Once the application is entertained the court should
consider all facts before it, ne w and old, and on the totality come to a conclusion”.
15.5 Where evidence was known and available to a bail applicant but not
presented by him at the time of his earlier application, such evidence can
generally not be relied upon for purposes of a renewed bail application as ‘new
facts’. In this regard it was expl ained in S v Le Roux en andere 1 995 (2) SACR
613 (W) at 622 that in the absence of such a rule, there could be an abuse of
process leading to unnecessary and repeated bail applications and that an
accused should not be permitted to seek bail on several suc cessive occasions
by relying on the piecemeal presentation of evidence. I agree with the opinion
of Van der Meer27 that this rule should not be an absolute or inflexible one and
that a court should be willing to consider why relevant and available informat ion
was not place before the court in the initial application.’28
[61] The duty on the State in a bail application as described in S v Maja
and Other 29 requires that:
‘The State cannot simply hand up the charge sheet to show that the accused
had been charged with a Schedule 6 listed offence and then rely on the
accused's inability to show exceptional circumstances. This, in effect, is what
happened in the Applicant's ca se. The magistrate was wrong in finding that the
State had proved a prima facie case against the Applicant simply upon the
State's tendering of the charge sheet in which the offences were dealt with.
This cannot be the law.
…
Unchallenged, these averments , to my mind, constituted exceptional
circumstances which justified the magistrate to consider the merits of the
Applicant's bail application.’
[62] It is therefore incumbent for the State to put forth valid reasons why bail
should not be granted to the Appellant. Once the proverbial scale has been tilted into
the State’s favour through the presentation of evidence, the onus displaces to the
Defence to tilt the scales heavily in their favour ; that is where the exceptional
27 Criminal Justice Review (supra)
28 See S v Nwabunwanne 2017(2) SACR 124(NCK) where it was held at para 27, that a court “should
not lightly” deny a bail applicant the opportunity to present new facts.
29 1998 (2) SACR 673, at 678e-679c.
circumstances come in on a balance of probabilities. Inasmuch as “ the State cannot
simply hand up the charge sheet ” to prove its case (as quoted in Maja supra), it is
implied that the D efence cannot simply criticise the State’s case without providing
some form of rebutting proof for their allegations in order to prove their case on a
balance of probabilities.
[63] It was submitted that the court a quo did not properly consider the
Appellant’s version of events. In this regard, it was argued that little or no regard was
had to the fact that the Appellant was assaulted and that he had reported such
assault to his previous divorce attorney. It was also argued that the court a quo
ignored the submission that the Appellant had not c onsulted in depth with his
previous legal advisors and accepted their advice to remain silent.
[64] From the judgment of the court a quo, the court had regard to the fact
that the Appellant was injured. This was not placed in dispute as the complainant’s
evidence served to corroborate same. It must however be emphasised that the
burden of proof at a bail hearing is not proof beyond reasonable doubt, but whether a
prima facie case has been established by the State. The matter of S v Branco 30
reinforces the position that a bail application is not a trial.
‘The prosecution is not required to close every loophole at this stage of the
proceedings. However, a factor favouring bail is whether the Appellant has
established a defence which has a reasonable prospect of success at the trial.’
[65] The court a quo had the benefit of the viva voce evidence of the
complainant and the Investigating O fficer and only had the version of the
complainant at the first bail hearing. The strength of the State’s case on a balance of
probabilities was considered. In addition, although the children did not see the
incidents, they were present in the house and will be able to provide collateral
evidence to strengthen the State’s case against the Appellant. It was placed on
record that statements were already obtained from the children.
30 2002 (1) SACR 531 (W).
[66] As previously mentioned, the consideration is whether the state has
made out a prima facie case against the Appellant. This is to be weighed up against
whether the Appellant has a valid defence which show on a balance of probabilities
that he will be acquitted of the charge as stated in S v Mathebula 31:
‘…but a State case suppos ed in advance to be frail may nevertheless sustain
proof beyond a reasonable doubt when put to the test. In order successfully to
challenge the merits of such a case in bail proceedings an applicant needs to
go further: he must prove on a balance of probability that he will be acquitted of
the charge…’
[67] In my opinion, the court's rationale for reaching its conclusions does
not constitute a misdirection in the light of the fact that this information was
accessible during the initial bail hearing, bearing in mind that the bail court is imbued
with a wide discretion. There are a number of factors as earlier mentioned that a
court must consider at a bail hearing. It requires of the court to ultimately make a
value judgment on evidence placed before it.
[68] In my opinion, the emphasis placed on previous protection orders was
not misplaced. It was contended that the Appellant's severe depression should have
been taken into account. This would imply that complex cognitive, emotional, and
behavioural challenges wo uld be the standard, including the possibility of cognitive
impairment.
[69] The emphasis on this aspect, when considered on a conspectus of the
evidence, is relevant as the factual matrix and tumultuous history suggested
previous incidents of domestic violence which culminated in protection orders being
obtained. The failure by the Appellant to be forthright about the second protection
order was in my view a relevant consideration, given that that there were allegations
of manipulation that informed the withdrawal of those protection orders.
31 2010 (1) SACR at para 12.
[70] Whilst it may be so that the diagnosis and findings of the clinical
psychologist, Mr Naudè was not disputed, the App ellants Counsel placed factors on
record, that provides cold comfort to this court concerning the Appellant’s state of
mind. To argue that the Appellant has “complex emotional and cognitive
challenges”32, leaves concerns as to what will trigger the Appellant given the history
between the parties.
[71] In the matter of S v Mpofana 33, whilst distinguishable on the merits as
it deals with a detainee’s ill-health due to the prison conditions, the court held:
‘Upon a proper construction of s 35(2)(e) and ( f) of the said Constitution, one
whose detention has been pronounced lawful and in the interest of justice
cannot simply resort to a further bail application merely because he has been
detained under inhumane and degrading conditions or on the ground that his
right to consult with a doctor of his own choice has been infringed. It is
however, available to such person firstly to apply to the prison authorities
concerned and call upon them to remedy whatever complaints he/she has with
regard to the conditions of his/her detention. Should the prison authorities fail to
remedy such complaints, it is available to the detainee concerned either to
challenge the detention before a court of law as being unconstitutional or obtain
a court interdict to force the prison authorities to comply with the law. In any
event, in hoc casu, the magistrate has, quite correctly in my view, ordered that
the prisons officials should afford appellant the right to consult with a medical
practitioner of his choice and Appellant’s concern in this regard should be laid
to rest.’
[72] During the initial bail hearing, the Appellant's history of depression was
not raised. The Appellant's depressive condition was exacerbated by his
incarceration, as explained by Counsel in his address to the court. It was further
submitted that the treatment at Goodwood prison is substandard and that the
Appellant needs urgent medical intervention. Mr Naudè who has the requisite
experience in the prison environment, expressed that the Appellant was not in a
32 Appellants Heads of Argument, page 12. Para 39.
33 1998(1) SACR 40 (TK).
good space. It was placed on record that it would be submitted at the Appellant’s
pre-trial hearing that he would not be fit to stand trial.
[73] The Appellant has been able to consult with Mr Naudè whilst
incarcerated. It is evident from the court a quo ’s judgment that the Appellant’s
medical condition was considered. The Magistrate had regard to the fact that he had
a previous depressive episode and that he has been diagnosed as major depressive,
which the court acknowledged is a serious condition. The court a quo, indicated that
there was no report from Mr Townsend. The court held the view that nothing bars Mr
Naudè from prescribing the necessary medication , which is an issue that could be
further pursued with the medical section of the prison. The court further indicated
that the Appellant was not without recourse. The court a quo ultimately found that the
Appellant’s medical state did not constitute an exceptional circumstance.
[74] It is manifest that the Magistrate exercised her discretion, and had
regard to the medical evidence and submissions regarding the Appellant’s medical
condition. I can find no misdirection by the court a quo in this regard. This court is not
called upon to consider that Appellant’s fitness to stand trial. The Appellant’s fitness
to stand trial may be addressed at the pre-trial hearing in due course.
[75] It was argued that the court a quo failed to properly consider that the
Appellant has to be out on bail in order to challe nge his dismissal. The court a quo,
considered that that the Appellant was going to challenge the dismissal with the
Bargaining Council or CCMA. In this regard, the court indicated that the Appellant
may possibly be successful in his application for reinst atement which was not
conclusive or guaranteed and it was for those reasons that the court could not attach
the same weight to it as when “he was employed”.34
[76] The consequences of the Appellants dismissal were considered . In this
regard, the court a quo stated:
34 Judgment, pages 78 – 79 of the record.
‘Now since the previous application and before the conclusion of these
proceedings the City of Cape Town has in any event moved forward as I have
said with the process and has dismissed the accused. The accused at this
stage is therefore now no longer employed. The concern that he will not have
employment is therefore moot at this stage. The accused is going to challenge
the dismissal with the Bargaining Coun cil or CCMA. He may therefore possibly
be successful for reinstatement but it is not something that is conclusive or
guaranteed and therefore the court cannot attach the same weight to it as when
he was employed…’35 (my emphasis)
[77] It is evident f rom the judgment that the reference to “mootness” was
expressed as being the de facto situation at the time of delivering the judgment as
the Magistrate qualified what it meant by adding “at this stage”. This factor was
considered in conjunction with other factors. The Magistrate emphatically stated that
even if the Appellant’s employment status hadn’t changed, this factor would not have
tipped the scales in his favour as she had considered whether bail conditions would
be effective. In contemplation, t he c ourt a quo had regard to the fact that the
Appellant “worked at the same environment as the complainant . That he had the
habit of following the complainant and the court was therefore satisfied that bail
conditions would not be effective”.36
[78] Although the Appellant and complainant are alleged to live at a
considerable distance from one another, the Magistrate's apprehension is not without
merit, as the parties have a contentious history that is beyond dispute . Counsel for
the Appellant argued t hat stringent bail conditions could allay the court’s concerns,
however, from a logical perspective, and given the nature of the Appellant’s
employment, it would, in my view prove difficult to monitor the Appellant whilst he is
at work. House arrest could be monitored effectively, but in view of the Appellant’s
intention to challenge his dismissal, it is evident that he is desirous to resume his
employment if he were to be released on bail.
35 Judgement page 79 or the record.
36 Judgment record, page 79, lines 7 -10.
[79] Regarding the Appellant’s financial position being a moot point. This
aspect is interwoven with the Appellant employment status. The court had regard to
the impact his incarceration has on his ability to meet his financial obligation. The
court held the view, that alternative arrangements could be made. It is trite that the
court a quo is imbued with a wide discretion when deciding on an accused’s release
on bail. In my view, I can find no misdirection with regard to the Magistrate’s findings
in this regard.
[80] The court a quo was alive to the fact that it was enjoined to consider
the Appellant’s circumstances and the prejudice he may suffer if incarcerated. These
are factors that cannot be analysed in isolation; rather, they should be incorporated
into the overall co ntext of the situation. These considerations included various
factors which included the acrimonious relationship between the parties; the
existences of previous protection orders and reasons for subsequent withdrawals
thereof; the escalation of the Appell ant’s aggression over time , on the complainant’s
version, to the point that the Appellant wielded his firearm and then put it in the
mouth of the complainant instructing her not to tell anyone. In addition, t hat the
Appellant would stalk the complainant at her place of work and at times confront her
at her workplace and the manipulation and influence of the Appellant.
[81] Regarding the court, a quo’s finding that the bail conditions would not
be effective , I am satisfied that the court a quo anchored its findings which was
predicated on the previous conduct of the Appellant to go the complainant’s work
environment. The court also found the bail conditions cannot be monitored at all
times and that there was no guarantee that it will be enforced. This conclusion was
reached to ensure the protection of “the state’s interest”.37
[82] Lastly, it behoves me to deal with the Appellant’s right to be presumed
innocent. The Appellant argued that a refusal of bail should never be used as a
punitive measure. In this regard, reference was made to the matter of S v C 38 where
the court held:
37 Judgment, page 80, line 19.
38 1998 (2) SACR 721 (C) at 723h.
‘As far as the current case is concerned, the problem with section 60(11) of the
Act is caused by the terms “exceptional circumstances”. In the Spirit of the
constitution and the common law, s60(11) may not be read as requiring more of
a person awaiting tr ial than to prove the ordinary circumstances mentioned
above. The moment more is required, it would be punitive. That would be
utterly and completely unacceptable. Accordingly, all the legislature in my view
stipulated in a clumsy fashion is that a court in dealing with schedule 6 offences
should exercise exceptional circumspection in considering ordinary
circumstances.’
[83] The Constitutional court remarked in S v Dlamini and Others;
Joubert en Schietekat (supra), that:
‘…There is widespread misunderstanding regarding the purpose and effect of
bail. Manifestly, much must still be done to instil in the community a proper
understanding of the presumption of innocence and the qualified right to
freedom pending under s 35(1)(f). The ugly fact remains, however, tha t public
peace and security are at times endangered by the release of persons charged
with offences that incite public outrage.’39
[84] The unanimous court decided that the right to be presumed innocent is
not a pre-trial right but a trial right. The court in Barense and Another v S 40 referred
with approval to the matter of Conradie v S41 where the following was stated:
“The appellant’s counsel also argued that the magistrate had failed to have
sufficient regard in her evaluation of the evidence to presumption of innocence.
In this regard counsel emphasised that the remark by Steyn J in S v Mbaleki
and Another 2013 (1) SA CR 165 (KZD) in para 14 that the Constitutional Court
had decided in Dlamini supra, that ‘the right to be presumed innocent is not a
pre-trial right but a trial right’ found no support in the text of the Dlamini
judgment. It appears to be correct that the Constitutional Court did not express
39 See also S v Miselo 2002 (1) SASV 649 (K) at para 23.
40 See Barense and Another v S (A01/2023) [2023] ZAWCHC 125; [2023] 3 All SA 381 (WCC) (22
May 2023) at para 25.
41 [2020] ZAWCHC 177 (11 December 2020) at paras [19]-[20].
itself in those terms. It is clear, however, that the Court considered that the
provision of the Constitution most pertinent to its treatment of bail applications
affected by s 60(11) of the Criminal Procedure Act was 3 5(1)(f), which provides
that ‘Everyone who is arrested for allegedly committing an offence has the right
- ... to be released from detention if the interests of justice permit subject to
reasonable conditions’. That is a qualified liberty right, not a fair trial right. The
presumption of innocence is indeed a peculiarly trial -related right as evidenced
by its entrenchment as one of the fair trial rights listed in s 35(3) of the
Constitution. I therefore agree with Steyn J’s stated view that the presumption
of innocence does not play an operative role in bail applications.
A court seized of a bail application fulfils a very different function from a trial
court. Its role is not to determine the guilt or innocence of the accused person.
The bail court’s concern with the interests of justice, in the sense of weighing in
the balance ‘the liberty interest of the accused and the interests of society in
denying the accused bail’, will however in most cases entail that it will have to
weigh, as best it can, the stre ngths or weaknesses of the state’s case against
the applicant for bail. A presumption in favour of the bail applicant’s innocence
plays no part in that exercise. The court will, of course, nevertheless bear in
mind the incidence of the onus in making any s uch assessment.” [Emphasis
added.]
[85] The court in Barense and Another v S 42 also referred with approval
to the matter of Mafe v S (supra) where Lekhuleni J remarked as follows regarding
the presumption of innocence:
“In summary, the presumption of innocence is one of the factors that must be
considered together with the strength of the State’s case. However, this right
does not automatically entitle an accused person to be released on bail. What
is expected is that in Schedule 6 offences the accused must be given an
opportunity, in terms of section 60(11)(a), to present evidence to prove that
there are exceptional circumstances which, in the interests of justice, permit
42 At para 26.
his release. The State, on the other hand, must show that, notwithstanding the
accused’s presumption of innocence, it has a prima facie case against the
accused. In reaching a value judgment in bail applications, the court must
weigh up the liberty interest of an accused person, who is presumed innocent,
against the legitimate interests of society. In doing so, the court must not over-
emphasise this right at the expense of the interests of society.” [Emphasis
added.]
[86] It is therefore pellucid that the presumption of innocence does not
automatically entitle an applicant for bail to be re leased. The presumption of
innocence is but one of the factors that must be considered . Whilst being forever
mindful of factors such as the purpose of bail and the deprivation of an accused
person’s liberty, the onus remains on the Appellant to adduce evidence and
persuade the court that exceptional circumstances exist that in the interest of justice
warrants his release on bail. It is incumbent upon a court to consider this right
together with the strength of the State’s evidence. I agree with the court in Barense
that “[I]f the right to be presumed innocent was overarching it would mean that every
bail applicant had to be released on the basis that he or she was presumed innocent.
That could not have been the intention of the legislature”.43
Conclusion
[87] There is a plethora of authorities that reaffirms the limitations and
powers of a Cour t of Appeal. The ultimate consideration is whether the Magistrate,
who had the discretion to grant bail, exercised such discretion wrongly. Only one of
the considerations set out in Section 60(4) of the CPA need be present to refuse bail.
In my view, the court a quo, cemented its decision to refuse bail on more than one of
the factors listed in Section 60(4). It is evident that the court a quo ’s refusal to grant
was premised on the following considerations:
‘…I am satisfied that at this stage even on the new facts placed before me, that
the accused has not discharged the onus in the Schedule 6 bail application.
43 At para 27.
There are no exceptional circumstances that he has provided to this court and I
still find that the grounds in section 64(a) (sic) still exist that he is likely to
endanger the safety of a particular person as well as the grounds in section
60(4) that he can influence and/or intimidate the complainant in this matter as
has been seen in his past history to either withdraw the protection order and/ or
to withdraw the charges due to manipulation from his side and his fear of
incarceration. I am therefore satisfied that the interest of justice do not permit
his release at this stage.’44
[88] The court a quo was astute to state that she had considered all
relevant factors , including the harm that could potentially be inflicted on the
complainant and the children, and concluded that even on the new facts the
Appellant did not discharge the onus.45
[89] In considering the factors considered by the court a quo, I can find no
misdirection. I am satisfied that the court a quo considered the objective facts and
applicable legal principles and correctly determined that the interest of justice does
not permit the Appellant’s release on bail. The Appellant’s personal circumstances
cannot outweigh interest of justice considerations. Moreover, I am not persuaded
that the fears expressed by the court a quo can be dealt with by way of stringent bail
conditions. Therefore, I agree with the findings of the court a quo that the interest of
justice far outweighed any prejudices that may be suffered by the Appellant.
Consequently, I am satisfied that the court a quo correctly denied the Appellant’s
application to be released on bail.
Order:
[90] In the result the Appellants appeal against the order by the court a quo
refusing his application for bail on new facts is dismissed.
_________________________
P ANDREWS, AJ
44 Judgment record, page 84, paras 10 -18.
45 Judgment record, page 84, lines 4 -10.
Acting Judge of the High Court
APPEARANCES
Counsel for the Appellant: Advocate C Bisschoff (pro bono)
Instructed by: Van der Scholtz Attorneys
Attorney instructed: Ms. M Beukes
Counsel for the Respondent: Advocate S M Galloway
Instructed by: Office of the Director of Public
Prosecutions
State Advocate