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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NUMBER: A168/24
In the matter between:
SIBABALO TWAISE Appellant
and
THE STATE Defendant
Date Heard: 27 August 2024
Delivered on: 03 September 2024
JUDGMENT
MATLHAPE, AJ
INTRODUCTION
1. This is a bail appeal in terms of the provisions of Section 65 (1) (a) of the
Criminal Procedure Act, Act 51 of 1977 as amended (“The Act”) against the decision
of the m agistrate for the refusal of bail on 18 July 2024 at the Bellville Magistrate’s
Court.
Contextual Background
2. The Appellant is arraigned on a charge of contravening the provisions of
Section 3 read with Sections 1, 56, 56A, 57, 58, 59, 60 and 61 of the Sexual
Offences and Related Matters Amendment Act 32 of 2007 read further with the
provisions of Section 51(1)/51(2)(b) of the Criminal Law Amendment Act 105 of 1997
and read further with the provisions of Section 256 and 261 of the Criminal
Procedure Act (“The Act”) in that it is alleged that on or about 9 July 2024 and at or
near 2 […] P[…] Street, Delft South, in the district of Bellville the A ppellant did
unlawfully and intentionally commit an act of penetration with the complainant
without her consent by penetrating her vaginally using his finger.
3. The complainant in this matter is an 8-year-old girl.
4. The Appellant’s first appearance at the court a quo was on 11 July 2024 and
the matter was postponed to 18 July 2024 for a formal bail application.
5. The application was conducted in terms of Section 60(11)(a) of the Act which
reads as follows:
“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 there are
exceptional circumstances, which in the interest of justice permit his
or her release on bail”.
The Appellant’s Case
6. The Appellant’s testimony was contained in an affidavit which was read into
the record. The Appellant’s testimony is that he is an unmarried father of two minor
children. He is gainfully employed at M […] Hospital in Mitchells Plain as a nurse. He
further contends that he does not know the witnesses that the state intends to call in
this matter. He does not have any previous convictions or pending cases. He
contends further that his release on bail will neither endanger the safety of the public
nor any particular person. His testimony is further that he will not disturb public order
or undermine public peace or security. He contends that should he be admitted to
bail, he shall not evade his trial but will attend court at every remand date and will
remain in attendance. He states that he will not interfere with the police
investigations or conceal evidence of any nature.
7. He further states that he will not influence or intimidate the witnesses in this
matter and that he is not a flight risk. His release on bail will not undermine or
jeopardies the proper functioning of the criminal justice system, including the bail
system.
8. The A ppellant’s testimony regarding exceptional circumstances is that he is
gainfully employed, he has two minor c hildren whom he supports financially, and he
also supports his mother. He contends that the state’s case against him is weak and
he denies the allegations against him stating that he knows nothing about them.
9. Regarding alternative place of accommodation, an affidavit of one Thand eka
Twaise was accepted by the s tate at the beginning of the hearing of the application
without any need for the verification of the address in question. Ms Twaise’s
testimony is that should the Appellant be admitted to bail, he would reside with her at
her home in Mitchells Plain.
Respondent’s Case
10. Constable Arnold, the investigating officer, submitted an affidavit opposing
bail, primarily because the appellant and the complainant live in the same premises,
being a block of flats. As far as the facts of the matter are concerned, her testimony
is that on the day in question, the A ppellant allegedly called the complainant to his
house to send her to the shop. When the complainant entered his house, the
Appellant told her to close the door, which she did. He then instructed her to take off
her clothes, which she refused. He proceeded to take her clothes off and inserted
his finger inside her vagina. No further evidence was led on behalf of the state.
11. After hearing and considering the matter, the Magistrate dismissed the
application and refused bail.
Applicable Principles
11. In approaching a bail appeal, the Court is guided by the provisions of Section
65(4) which states the following:
“65 Appeal to superior court with regard to bail
(4) “The court or judge hearing the appeal shall not set aside the
decision against which the appeal is brought, unless such court or
judge is satisfied that the decision was wrong, in which event the court
or judge shall give the decision w hich in its or his opinion the lower
court should have given”.
12. In S v Mbele and Another 1 the Court had this to say “this Court is required to
approach the appeal on the assumption that the decision of the Court below was
correct and not to interfere with that decision unless “satisfied” that it was wrong”.
13. In determining whether this court should interfere with the magistrate’s
exercise of her discretion, this Court should have regard to S v Barber2 wherein the
court had this to say:
“It is well known that the powers of this Court are largely limited where
the matter comes before it on appeal and not as a substantive
application for bail. 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
1 1996 (1) SACR at 221, para H
2 1979 (4) SA 218 (D) at 220 E to H
view for that of the magistrate because that would be an un fair
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 magistrate who had the
discretion to grant bail exercised that discretion wrongly.”
Appellant’s grounds for appeal
14. In view of the legal principles enunciated herein above, it of importance that
the court should have regard to the A ppellant’s grounds of appeal. The grounds of
appeal raised mainly focus on the following issues:
a. That the magistrate erred in refusing bail even though the state did not
oppose the alternative address provided by the appellant;
b. The state’s main reason for opposing bail is that the A ppellant and the
complainant resides in the same premises;
c. No evidence was adduced by the s tate proving that the grounds laid
down in Section 60(4) of the Act are present;
d. The m agistrate failed to take into account the fact that the s tate
conceded that its case against the Appellant is weak even after the
Public Prosecutor, submitted that:
“Your Worship, and when the charges are initiated it is at that
point still a ‘he say’, she say’ aspect. I can agree with my
learned colleague that at this stage, the strength of the State’s
case is questionable.”; and
e. That the magistrate failed to take into account the Appellant’s personal
circumstances together with the facts of the case which, cumulatively ,
dictated that exceptional circumstances exists which in the interests of
justice, permitted the release of the appellant on bail.
15. These grounds will be addressed herein below by weighing the evidence that
was presented before the court a quo, against the legal prescripts relevant to this
application.
Application of the law to the facts
16. As stated herein above, one of the grounds of appeal relates to the fact that
the bail was refused even though the grounds listed in Section 60(4) (a) to (e) of the
Act are not present and further the accused’s circumstances were not weighed
against these grounds.
17. Section 60(4)(a) of the Act states as follows:
(a) where there is the likelihood that the accused if he or she were released
on bail, will endanger the safety of the public or any particular person or
will commit a schedule 1 offence.
18. The Appellant’s contention is that there is no evidence before the court a quo
to the effect that should he be released on bail, he will endanger public safety or any
particular person or will commit a Schedule 1 offence.
19. In S v Diale and Another3, the following was said:
A court cannot find that the refusal of bail is in the interest of justice merely
because there is a risk or possibility that one or more of the consequences
mentioned in Section 60 (4) will result. The court must not grope in the dark
and speculate; a finding on the probabilities must be made. Unless it can b e
found that one or more of the consequences will probably occur, detention
of the accused is not in the interest of justice, and the accused should be
released.”
3 2013 (2) SACR 88 para 14
20. Given the investigating officer’s testimony, there is no evidence to support the
likelihood t hat the Appellant, if released on bail; would endanger public safety or
commit a Schedule 1 offence. Following the reasoning in Diale above, the
magistrate misdirected herself in refusing bail.
21. Another ground of appeal is that the Appellant argues that he provided the
State with an alternative residential address, which the s tate accepted without
verification. As far as this ground is concerned one will have to look at Section
60(4)(b) which reads as follows:
“Where there is the likelihood that the accused, if he or she were
released on bail, will attempt to evade his or her trial.”
22. At the hearing of the application the court a quo asked whether the s tate is
satisfied with the affidavit of Ms Twaise, and even went further t o provide some
guidance to the s tate by saying “ or you can say I want to hear it from her on the
record under oath or you can say -well, I am not satisfied I do not want an affidavit, I
want this. I want the investigating off icer to go out to that address, which is it?”. To
which the Public Prosecutor answered “State would be satisfied with the sworn
affidavit, Your Worship”
23. The a bove evinces the fact that the s tate did not consider the Appellant a
flight risk or someone likely to evade his trial. As a result, the court a quo misdirected
itself by not considering this factor.
24. The Appellant also contends that he does not know the witnesses that the
State intends to call in this matter. In this aspect, regard is to be had to the
provisions of Section 60(4)(c) which reads as follows:
“Where there is the likelihood that the accused , if he or she were
released on bail, will attempt to influence or intimidate witnesses or to
conceal or destroy evidence”.
25. No evidence was presented before the court a quo to suggest that the
Appellant if released on bail would intimidate state witnesses. The court a quo did
not address this issue in weighing the evidence against the interests of justice.
Absent any evidence to the effect that the Appellant, if release d on bail, will
intimidate witnesses or conceal evidence, I am of the view, that the court a quo
misdirected itself in not taking this factor into account.
26. The Appellant contends further that, there is no evidence before the court a
quo suggesting that there is a likelihood that if he is released on bail, he will
undermine the proper functioning of the criminal justice system, including the bail
system. In considering the above the court ha s to look at the provisions of Section
60(4)(d) which reads as follows:
“Where there is the likelihood that the accused, if he or she were
released on bail, will undermine or jeopardise the objectives or the
proper functioning of the criminal justice system, including the bail
system.”
27. The investigating officer's eviden ce does not support any contention that
there is any likelihood that, should the Appellant be released on bail, he will
undermine or jeopardise the proper functioning of the criminal justice system,
including the bail system. The court a quo is also silent on this issue.
28. Counsel for the s tate argued that the court a quo primarily focused on what it
considered as the Appell ant’s failure to prove exceptional circumstances and once
the Court was so satisfied, it did not to deal with the grounds laid down in Section 60
(4) to (9). In support of this contention, counsel for the s tate went on to submit that
the magistrate failed to do so because the lower courts are exceptionally busy.
29. I agree with counsel for the state regarding the fact that once the court a quo
convinced itself that no exceptional circumstances exist, the Court then dismissed
the application and refused bail without any due regard to the grounds as referred to
herein above. In fact, what the court a quo did was to only mention that it is enjoined
to weigh up the grounds set out in Section (60)(4)(e) read with Section 60(8A) (a) to
(f) and left it at that. Neither did the court a quo consider nor weigh up any of those
factors.
30. In Nteleki v S4, the court held that:
“Where the facts in sections 60(4) and 60(9) of the CPA are relied
upon in a bail application, they are relevant and cannot be ignored. In
deciding the issue in question the court is obliged to have regard to,
inter alia, the period the bail applicant has already spent in cus tody
since his arrest as well as any financial loss which he may suffer as a
result of his detention”.
31. In view of the above, I find that the court a quo erred in failing to consider the
facts that the Appellant raised in su pport of the grounds listed in Section 60(4) ,
therefore, in my considered view, the magistrate exercised his discretion wrongly by
failing to consider the grounds listed in Section 60(4)-(9) of the Act.
32. Section 60(4)(e) enjoins the court, in exceptional circumstances, to go further
and determine whether:
“There is the likelihood that the release of the accused will disturb the public
order or undermine their public peace or security”.
34. Similarly, the court in assessing whether the above is present, is enjoined to
consider the following:
“Section 60(8A)5
In considering whether the ground in subsection 4(e) has been established,
the court may, wher e applicable, take into account , the following factors,
namely:
4 (A156/2016) [2016] ZAFSHC 156 (19 August 2016)at para 12
5 Criminal Procedure Act, 51 of 1977
(a) whether the nature of the offence or the circumstances under which the
offence was committed it's likely to induce a sense of shock or outrage in the
community where the offence was committed;
(b) whether the shock or outrage of the community might lead to public disorder if
the accused is released;
(c) whether the safety of the accused might be jeopardised by his or her release;
(d) whether the sense of peace and security amongst members of the public will
be undermined or jeopardized by the release of the accused;
(e) whether the release of the accused will undermine or jeopardize the public
confidence in the criminal justice system; or
(f) any other factor which in the opinion of the court should be taken into
account”.
35. The above is best determined by having regard to the Appellant’s ground s of
appeal regarding his contention that the court a quo incorrectly held that he failed to
discharge the onus resting upon him to adduce evidence of exceptional
circumstances which in the interest of j ustice, permits his release on bail. In support
of this contention, counsel for the Appellant argued that in arriving at this finding, the
magistrate simply dismissed factors submitted by the Appellant which he relies upon
as exceptional circumstances as common place circumstances.
36. In her judgment, the magistrate states that “ exceptional circumstances must
be something out of the ordinary. Something that is not commonplace.”
37. In S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 6 the
Constitutional Court, per Kriegler J, had the following to say regarding what
constitutes “exceptional circumstances”:
6 1999 (4) SA 669 at para 75 and 76
[75] “In this regard, I am not persuaded that there is any validity in the
complaint raised in argument that the term ‘exceptional circumstance’
is so vague that an applicant for bail does not know what it is that has
to be established. An applicant is given broad scope to establish the
requisite circumstances, whether they relate to the nature of the crime,
the personal circumstances of the applicant, or anything else that is
particularly cogent. The contention was moreover that if one adds that
those circumstances must ‘in the interests of justice permit . . .
release’, the subsection becomes an insurmountable obstacle i n the
way of bail. In my view the contrary is true. Inasmuch as we are not
dealing with the obstacle itself but with ways of bypassing it, the wider
the avenue, the more advantageous it is to freedom. A related
objection that the requirement is constitutio nally bad for vagueness
falls to be rejected for basically the same reason. In any event, one
can hardly expect the lawgiver to circumscribe that which is inherently
incapable of delineation. If something can be imagined and outlined in
advance, it is probably because it is not exceptional”.
[76] “Likewise I do not agree that, because of the wide variety of
‘ordinary circumstances’ enumerated in ss (4) to (9), it is virtually
impossible to imagine what would constitute ‘exceptional
circumstances’, and that the prospects of their existing are negligible.
In requiring that the circumstances proved be exceptional, the
subsection does not say they must be circumstances above and
beyond, and generically different from those enumerated. Un der the
subsection, for instance, an accused charged with a schedule 6
offence could establish the requirement by proving that there are
exceptional circumstances relating to his or her emotional condition
that render it in the interests of justice that re lease on bail be ordered
notwithstanding the gravity of the case. Other examples are readily to
hand in the small body of case law that has already been established
in the short period since the 1997 amendment came into operation on
1 August 1998. Thus, an otherwise dependable man charged with
consensual sexual intercourse with a fifteen -year-old girl, and who has
a minor previous conviction dating back many years, would technically
fall within the ambit of ss (11)(a). Yet a prudent judicial officer could
find those circumstances sufficiently exceptional to warrant bail,
provided there were no other factors adverse to the grant. Schietekat
on the other hand also falls under schedule 6 and ss (11)(a) (indecent
assault on a child under 16 and previous convict ions for the same
offence), but in his case the test for exceptional circumstances
produced the opposite answer. In the final analysis, the evaluation is to
be done judicially, which means that one looks at substance, not
formi.”
38. In S v Liesching and Others7 the court held that:
“The phrase is sufficiently flexible to be considered on a case -by-case
basis, since the circumstances that may be regarded as ‘ordinary’ in
one case may be treated as exceptional in another.”
39. In casu, the Appellant’s contention is that his personal circumstances coupled
with the fact that even the state conceded the fact that the s tate’s case against him
is questionable, should have been considered as exceptional circumstances. He
contends that he will deny the allegations against him at trial because he knows
nothing about them. It is in view of the above that the Appellant contends that the
magistrate misdirected herself in not c onsidering the weakness of the s tate’s case
against him as exceptional.
40. It is disconcerting that although the Appellant is charged with a serious
offence of rape, the state did not present any evidence in support thereof. No J88
report had been presented at the bail hearing. Furthermore, in her opposing affidavit,
the investigating officer states that the investigations are nearly complete and all that
is outstanding is the DNA Report. She makes no mention of a J88 Medical Report.
7 2019 (1) SACR 190 para 39
41. In Levy v S (A77/2021) [2021] ZAWGG 162 22 the Court had this to say:
The court a quo also found and correctly so in my view , that the duty of the
court in a bail application is to assess the prima facie strength of the State’s
case against the bail applicant as opposed to making a provisional finding on
the guilt or otherwise of such an applicant. The magistrate was alive to the
fact that b ail proceedings are not to be viewed as a full dress rehearsal for
trial.
42. Having regard to the above, I am of the view that the magistrate misdirected
herself materially by not taking into account the weakness of the state’s case against
the Appellant even in circumstance where the state conceded such. The magistrate
exercised her discr etion to refuse bail wrongly and in the circumstance, this Court
finds that the magistrate should have admitted the Appellant to bail.
43. Regarding the amount of bail that the Appellant can afford, c ounsel for the
Appellant submitted that the Appellant can only afford an amount of R2000.00.
Whilst it was submitted on behalf of the s tate that in light of the fact that the
Appellant faces a serious charge, bail should be set at an amount of R5000.00
44. I am mindful of the fact that the Court should not set an amount of bail which
is out of the Appellant’s reach as same would be tantamount to denial of bail.
45. In the result, it is ordered as follows:
45.1 The appeal is upheld and the magistrate’s refusal to grant bail is set
aside and substituted as follows:
a. The A ppellant is granted bail in the amount of R3000.00 with the
following conditions:
b. The A ppellant is to reside at number 8 W […] Court, M[…] Village,
Mitchells Plain, Cape Town;
c. The Appellant may not have any direct or indirect contact wit h the
complainant or any other state witness in this matter;
d. The Appellant is to attend court on all remand dates.
_________________________________
MATLHAPE B
ACTING JUDGE OF THE HIGH COURT
COUNSEL FOR THE APPLICANT: ADV MHLANGA
INSTRUCTED BY: DE KLERK AND VAN GEND
COUNSEL FOR THE RESPONDENT: ADV R UYS
INSTRUCTED BY: DPP