IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
APPEAL CASE NO: A163/2024
LOWER COURT CASE NO: BDSH3/44/2022
In the matter between:
IMTIYAAZ SOLOMONS Appellant
and
THE STATE Respondent
Date of argument: 08 October 2024
Date of judgment: 10 October 2024
Judgment
Andrews, AJ
Introduction
[1] This is an appeal in terms of Section 65(4) of the Criminal Procedure Act
1(hereinafter refer red to as the CPA ), against the decision of the Presiding
Magistrate Mr Siyabonga Mazibuko on 20 November 2023 in the Regional Court in
Blue Downs to refuse the Appellant’s release on bail.
[2] The Appellant is arraigned on one count of attempted murder and one count
of possession of a firearm, calibre unknown to the state, without having a valid
licence to possess the firearm, in contravention of the Firearms Control Act 2. It is not
disputed that the Appellant has been charged with offences that fall under Schedule
5 of the CPA. The Appellant brought an application to be released on bail on 7
November 2023, which was opposed. The court a quo refused the Appellant’s
application for bail on 20 November 2023.
[3] The Appellant appeals the decision of the court a quo on the grounds that the
Appellant had not established on a balance of probabilities that it would be in the
interest of justice to permit his release on bail. The Respondent opposed the
application.
Legislative framework
[4] Section 65(4) of the Act 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 was wrong, in which event the court or judge
shall give the decision which in its or his opinion the lower court should
have given’
[5] Section 60(11)(b) of the Act sets forth how bail applications that fall within the
prescripts of Schedule 5, should be dealt with in this regard, the Act states:
1 Act 51 of 1977.
2 Act 60 of 2000.
‘(11) Notwithstanding any provision of this Act, where an accused is
charged with an offence referred to-
(a) …
(b) In Schedule 5, but not 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 the interest of justice permit his or
her release…’
[6] The seminal Constitutional Court judgment of S v Dlamini, S v Dladla and
Others; S v Joubert; S v Schietekat3 are apposite in respect of section 60(11)(b) of
the CPA as it crystallises the Court’s approach to interest of justice considerations:
‘This view is strengthened by a consideration of s 60(11)(b). That subsection
stipulates that an accused must satisfy a magistrate that the “interests of
justice” permit his or her release. It clearly places an onus upon the accused to
adduce evidence. However, apart from that, the exercise to determine whether
bail should be granted is no different to that prov ided for in sub-ss 60(4) - (9) or
required by s 35(1)(f). It is clear that an accused on a sch 5 offence will be
granted bail if he or she can show, merely, that the interests of justice permit
such grant.’
The evidence
[7] The Appellant adduced evidence by way of affidavit and a further affidavit of
Gail Arendse. The Respondent adduced evidence by way of affidavit s from the
Investigating Officer , Detective Sergeant Karel Jooste (“D/S Jooste”). and the
affidavits of the complainant, Mr Philip Bailey (“the complainant”), an eye witness, Ms
3 (CCT21/98, CCT22/98, CCT2/99, CCT4/99) [1999] ZACC 8; 1999 (4) SA 623; 1999 (7) BCLR 771
(3 June 1999), para 65.
Caitlin Bailey (“Ms Bailey”) and Constable Krige who attended at the scene of the
crime.
The allegations on the merits
[8] D/S Jooste summarised the salient allegations against the Appellant in his
affidavit in opposition to the Appellant’s release on bail. In this regard it is alleged
that on Wednesday 6 October 2021 at about 23h 00, the complainant and family
members were watching television at their house in Wesbank. The compl ainant was
about to lock the door of the house. As he approached the door he heard a knock at
the door. The complainant opened the door and saw an unknown male, whom he
remembers as having walked around with the Appellant, who wanted to sell a cell-
phone to the victim. The victim observed the shadow of another person standing
next to the front door. The victim heard a gunshot and felt bullets penetrating his
body.
[9] The sister of the complainant who was in the bedroom at the time heard the
voices of people talking in front of the house. When she looked through the window,
she saw the Appellant taking out something from in front of his waist. The Appellant
pointed it to the house and fired one shot. She saw something like flames coming out
of the gun.
[10] She took shelter and then heard more gunshots. After the gunshots stopped
she heard the victim shout to his mother that he was shot. Thereafter the
complainant was taken to Tygerberg Hospital for medical treatment.
[11] The affidavit of the complainant, Mr Bailey, explained that when he asked his
mother about the cellphone, she said she did not want stolen property. He could see
the shadow of a person next to the house. As he was about to close the door he
heard gunshots and felt the bullets going though his body. He sustained a gunshot
wound through the neck.
The Appellant’s case
[12] The affidavit of the Appellant was read into the record which set out his
personal circumstances and previous convictions . He disclosed the basis of his
defence which in brief, amounted to a bare denial. H e stated that at the time of the
alleged incident, he was far away and not involved in any way in the comm ission of
the offence. A further affidavit of Gail Arendse was produced to confirm an
alternative address where the Appellant would be able to reside should the court
have been minded to release the Appellant on bail.
The grounds of appeal
[13] The Appellant’s grounds of appeal as per the Notice of Appeal are
encapsulated as follows:
(a) The Magistrate erred and misdirected himself by not carefully evaluating the
totality of the evidence submitted but only chose to select the evidence
submitted against the Appellant;
(b) The Magistrate’s approach in failure to properly assess and evaluate the
totality of the evidence submitted falls short of the approach required by
section 60(9) of the CPA;
(c) Had the Magistrate properly evaluated the totality of the evidence submitted
both for and against the Appellant, he would have noticed that:
(i) The Appellant correctly disclosed all his previous convictions;
(ii) The Appellant attended all his Court appearances in previous cases
and thereby demonstrated that he was unlikely to evade his trial;
(iii) The Appellant abided by the judgment of the court in matters where he
previously convicted;
(iv) The suspended portion of sentences imposed in respect of his previous
convictions had lapsed;
(v) The Magistrate referred to 4 previous convictions; but according to the
affidavit of the D/S Jooste, he has 5 previous convictions;
(vi) The Magistrate should have noticed that the Appellant’s previous
convictions does not include murder;
(vii) The D/S Jooste alleged that the Appellant has a previous conviction for
a double murder which was not accurate;
(viii) That the Appellant does not have a conviction for the supply of false
information on oath as alleged by the D/S Jooste and
(ix) In respect of the alleged robbery referred to by the D/S Jooste , the
Appellant was not found guilty of any wrongdoing.
(d) The Magistrate erred in finding that the interest of justice does not permit his
release on bail;
(e) The Magistrate erred in not considering the Appellants release on bail subject
to strict bail conditions;
(f) The Magistrate erred and misdirected himself in arriving at the conclusion that
if the Appellant were released on bail the Appellant is likely to commit a
schedule 1 offence based on his previous convictions;
(g) The case against the Appellant is not strong and;
(h) There was an unreasonable delay in finalising the trial which infringes his
constitutional right to a fair trial.
Grounds of opposition
[14] The Respondent opposes the Appeal on the basis that the court a quo
correctly refused bail for the appellant as the interest of justice would not permit his
release.
Interest of Justice Considerations
[15] Section 60(4) of the CPA sets out the interest of justice considerations:
‘The interest of justice do not permit the release from detention of an
accused where one or more of the following grounds have been
established.
(a) Where there is a 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; or
(b) Where there is a likelihood that the accused, if he or she were
released on bail will attempt to evade his trial; or
(c) Where there is a 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; or
(d) Where there is a likelihood that the accused, if he or she would be
released on bail will undermine or jeopardise the objectives or the
proper functioning of the criminal justice system, including the bail
system;
(e) Where in exceptional circumstances there is a likelihood that the
release of the accused will disturb the public order or undermine the
public peace or security’
Legal Principles
[16] It is trite that the functions and powers of the court or judge hearing the appeal
under Section 65 are similar to those in an appeal against conviction and sentence.
In S v Barber4, Hefer J remarked as follows:
‘It is well known that the powers of this C ourt are largely limited where
the matter come s 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
view for 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 magistrate who had the
discretion to grant bail exercised that discretion wrongly.’5
Considerations by the Court a quo
Personal circumstances
[17] The court a quo took the Appellant’s personal circumstances as outlined in his
affidavit into consideration which included that his was 25 years old and left school in
grade 8 and that he has 2 minor children. At the time of the Appellant’s arrest, he
was employed at a construc tion company earning approximately R2000 every
fortnight; that such employment was still available should he be released on bail.
Likelihood of committing Schedule 1 offences
[18] It was submitted that the court a quo failed to take into account that the
Appellant’s previous offences were committed about 5 – 7 years ago.
[19] The court a quo considered the Appellant’s previous convictions and the
concomitant risk factor of the likelihood that if the Appellant was to b e released on
4 1979 (4) SA 218 (D) at 220E – H.
5 See also Killian v S [2021] ZAWCHC 100 (24 May 2021) at para 7.
bail he will commit a schedule 1 offence. In this regard, the past conduct of the
Appellant was a factor that was taken into account. The court a quo was alive to the
fact that the previous convictions were “old for almost five years”. The court a quo
found that if the Appellant were to be released on bail there is a likelihood that he will
commit a schedule 1 offence.
[20] It is therefore evident that the Appellant’s contention in this regard is therefore
inaccurate.
Flight Risk
[21] The affidavit of the D/S Jooste in terms of which mention was made that the
Appellant had changed his names when he was arrested on another matter . The
court a quo further considered that the Appellant was born and raised in South Africa
and that he has no family outside of the Republic. The court a quo found that there is
a likelihood that the accused would evade his trial as the offence occurred on 6
October 2021. He was identified by the sister of the complainant, and arrested on 29
October 2021, 23 days after the date of the incident. The court a quo had regard to
the content of the D/S Jooste ’s affidavit wherein he indicated that it was difficult for
him to trac e the Appellant as he was running from the police and not sleeping at
home.
[22] The Appellant contended that the empirical evidence shows that the Appellant
attended all his previous court appearances until his matters were finalised in
matters where he was cleared of and that he had abided by the judgment imposed
on him. In addition, it was submitted that the conclusion reached by the court a quo
that the Appellant would evade his tr ial is not grounded on any factual material basis
as it was invented or manufactured by the D/S Jooste.
[23] The D/S Jooste indicated that he had trouble tracing the Appellant. The
incident occurred on 6 October 2021. The Appellant was arrested on 29 Octo ber
2021, after a period of 23 days had lapsed. It was argued that no reason was
proffered by the Appellant for this time lapse. During argument Mr Ngonzo, the
Appellant’s legal representative, submitted that the Appellant was not aware that the
police w ere looking for him and that he was arrested whilst walking from his
girlfriend’s place. This information was not placed before the court a quo when the
bail application was heard.
[24] The Respondent contended that the Appellant did not dispute the evidence
that he used a false name when he was arrested for under Delft CAS 425/08/2021. It
was argued that the Appellant was never charged for “falsification of name”. It was
submitted that i n light of the fact that there was no rebuttal to the allegation, the
finding by the court a quo that the Appellant will evade his trial is not wrong.
[25] Section 60(6) of the CPA sets out the considerations which are to be taken
into account when considering whether an accused will abscond which states as
follows:
‘(6) In considering whether the ground in subsection (4) (b) has been
established, the court may, where applicable, take into account the
following factors namely –
(a) The emotional, family , community or occupational ties of the
accused to the place at which he or she is to be tried;
(b) The assets held by the accused and where such assets are
situated;
(c) the means, and travel documents held by the accused, which may
enable him or her to leave the country;
(d) The extent, if any to which the accused can afford to forfeit the
amount of bail which may be set;
(e) The question whether the extradition of the accused could readily
be effected should be or she flee across the borders of the Republic
in an attempt to evade his or her trial;
(f) The nature and the gravity of the charge on which the accused is to
be tried;
(g) The strength of the case against the accused and the incentive that
he or she may in consequence have to attempt to evade his or her
trial;
(h) The natu re and gravity of the punishment which is likely to be
imposed should the accused be convicted of the charges against
him or her;
(i) The binding effect and enforceability of bail conditions which may
be imposed and the ease with which such conditions could be
breached; or any other factor which in the opinion of the court
should be taken into account.’
[26] Section 60(6)(j) 6 allows the court to consider any other factor. There is
therefore no numerous clausus of factors which a court should consider in assessing
the likelihood that a bail applicant would attempt to evade trial.
Interfere with witnesses
[27] The Appellant provided a further affidavit confirming he had an alternative
address, however the court a quo was not persuaded that this would deter the
Appellant from interfering with witnesses as he provided no evidence in this regard.
Neither did he deal with the aspects of the likelihood that he would evade trial and
that he will commit Schedule 1 offence if released on bail.
Strength of the State’s case
6 ’60(6) In considering whether the ground in subsection (4)(b) has been established, the court may,
where applicable, take into account the following factors –
(j) any other factor opinion of the court should be taken into account.’
[28] It was argued that the complainant does not identify the Appellant as his
assailant. In this regard, he informed the police officer who attended the scene of the
crime that he does not know who shot him and therefore the state does not have a
strong case against him. During argument , Mr Ngonzo, emphasised that the
complainant clearly indicated that he saw a male person who was unknown to the
Appellant, who was “walking up and down with Kadwasie and Charra”. It was pointed
out that the complainant said he could see “a shade of another person”, thus
implying that if it was the Appellant who shot him, the complainant would have
recognised him as they know each other. Mr Ngonzo, further emphasised that the
complainant who was possibly fearing that he was dying after being shot, would
surely have informed the police officer who att ended the scene that it was the
Appellant who shot him but instead; Constable Krige’s statement reflected that the
complainant reported that “the unknown one to him then pulled out the firearm as he
closed the door”. Constable Krige’s statement goes fu rther and recorded that “three
shots went off shooting him twice then Intiyaas (sic) Solomons “Kadawsie, Charra
and the third one unknown ran direction …”7
[29] Advocate Smit on behalf of t he Respondent submitted that the complainant
gave an honest account of his recollection of the events and contended that the
court is to have regard to the fact that the complainant was shot whilst he was in the
process of closing the door. Therefore, h e could not have seen his assailant.
Advocate Smit further contended that there is a compelling case against the
Appellant as there is an eye witness, the sister of the Appellant , who saw who had
fired the shots.
[30] On the complainant’s version, he only saw the shadow of a person and not
the assailant. The account appe ars to not be consistent with the version of
Constable Krige. Of significance is the fact that the Appellant is placed on the
scene. Whether he was the one who ultimately shot the complainant, or possibly
acted in common purpose with the one who may have actually shot the complainant,
will be for the trial court to decide . The test at the stage of a bail application is
whether there is a prima facie case against the Appellant. In my view, the presence
7 Appeal Record Bundle, Constable Krige statement, page 83.
of the Appellant together with the eye witness acc ount was sufficient to meet the
minimum threshold for the purposes of the bail application. Although it was placed on
record that the eye -witness is about to be cross -examined on this aspect, nothing
turns on this for the purposes of this bail appeal as th e Appellant is confined to the
four corners of his application.
[31] This is not a bail hearing on new facts. Even if these facts were to be taken
into account, the ultimate consideration for the purposes of this bail appeal is
whether the court a quo, in exercising its discretion to refuse bail did so wrongly.
Discussion
[32] The Appellant contended that the Magistrate erred on the facts by electing to
take into consideration the facts which were invented or manufactured with no
factual material basis, and ignored facts which have factual material basis that
should have been taken into consideration as set out in Section 60(11)(B)(a). In this
regard, it was submitted that the error of fact emanated when the Appellant tabulated
his previous convictions as confirmed by the SAP 69’s. In terms of the previous
convictions, the Appellant was never convicted of any double murder but the court a
quo took into consideration the assertion of the double murder as proffere d by the
D/S Jooste and ignored the SAP 69’s.
[33] D/S Jooste indicated as follows:
‘…the accused was wanted on Mfuleni CAS 553/07/2021, double murder and
he was arrested on Delft CAS 425/08/2021 were (sic) he gave a false name as
Ricardo Van Wyk.’
[34] The court a quo did not state that the Appellant was convicted of a double
murder. It was stated that “t he Appellant was also wanted on CAS 553/7/2021 for
double murder and he was arrested on CAS 425/8/2021 where he gave a false
name of Ricardo van Wyk.” The court a quo noted that the Appellant did not dispute
these allegations.
[35] Section 65(4) of the CPA is drafted in peremptory terms. The decision of the
Magistrate cannot be set aside unless it was wrong . The Appellant has placed an
inaccurate account of the court a quo’s findings before this court. It was argued that
it is not in the interest of justice to be denied bail on the basis of charges that he was
cleared on. Those matters are no longer pending. Mr Ngonzo furthermore submitted
that the Appellant was never charged and convicted with any falsification of his name
and there are no pending cases against him.
[36] Advocate Smit emphasised during argument that a clear likelihood that the
Appellant, if released on bail will commit other offence was established. In
augmentation, it was submitted that the Appellant was convicted on 29 June 2021 on
a charged of robbery which offence was committed on 4 August 2019. The offence in
casu is said to have been committed on 6 October 2021. This, it was argued, is
sufficient to demonstrate the conduct of the Appellant in support of the assertion that
there is a high probability that the Appellant will commit another schedule 1 offence if
he w ere to be released on bail. Mr Ngonzo argued that the threshold to establish
propensity has not been met if regard is had to the matter of R v Rudolph 8 . I
interpose to mention that reliance on Rudulph, by the Appellant is misplaced as the
facts in casu are not only distinguishable, the matter dealt with a different schedule.
If anything, Rudulph supports the findings of the court a quo pertaining to
unanswered allegations.
[37] In relation to the aspect of unreasonable delay, it was submitted that thi s
question has never been raised before , despite the matter serving before numerous
Presiding Officers. It is apparent that there was a Section 49G application as well.
The Respondent contended that there was no unreasonable delay as regard is to be
had to the cogent reasons for the adjournments some of which were at the instance
of the Appellant who had changed legal representatives.
[38] In argument, Mr Ngonzo placed on record that there has been a further delay
in that the witness(es) were not in attendance on at least 2 occasions and on one of
those occasions, the presiding officer and the witnesses(es) were not at court.
8 [2010] 2 All SA 178 (SCA) (30 September 2009).
Advocate Smit speculated that the witnesses could have been stopped because the
Magistrate was not available, however, Mr Ngonzo on behalf of the Appellant argued
that the Court threatened to close the state’s case if the witness(es) were not at court
on the following occasion.
[39] It was further contended that the delays in finalising the trial, infringes on his
Section 35 Constitutional rights and that the court is to have regard to the fact that
the eye witness’s evidence is not reliable based on the time she had to observe what
happened. In my view, these are all aspects that will be ventilated during the trial. As
earlier indicated, it is sufficient, for the purposes of a bail hearing that a prima facie
case is established. In my view, the subsequent commencement of the trial, renders
this ground moot for the purposes of this bail appeal. It might become a ground for a
bail application on new facts.
[40] Furthermore, it is my view that nothing turns on whether the investigating
officer was not accurate on the Appellant’s previous convictions. The court
recognised the disparity and stated as follows according to the record:
‘According to the accused affidavit he has four previous convictions however
according to the affidavit of the investigating officer it is five previous
convictions’
[41] The correct facts are reflected on the SAP 69. The test is not whether the
Investigating Officer was wrong, but whether the decision of the court a quo was
wrong. This error on the part of the Investigating Officer is not material if regard is
had to the reasons upon which the court a quo denied the Appellant’s release on
bail. It is evident that t he court a quo’s refusal of bail is not predicated on this factor
in isolation.
[42] Mr Ngonzo pleaded with the court to have mercy on the Appellant as his son
is growing up without his father as the Appellant has been in custody since 2019.
Conclusion
[43] There is an overabundance of authorities that reaffirms the limitations and
powers of a Court 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
bail is based on the relevant provisions of Section 60(11)(B) and the interest of
justice considerations encapsulated in Section 60(4) of the CPA.
[44] In addition, the court a quo considered the Appellant’s constitutional right to
freedom and the presumption of innocence. However, the court a quo concluded that
those rights are limited if the interest of justice demands so. It went on to say that
interest of justice considerations included those of the victims.
[45] It is trite that the court a quo is imbued with a wide discretion when deciding
on an accused’s release on bail. 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 accused to adduce evidence and persuade the court that his or her release
would be in the interest of justice.
[46] In considering the factors taken into account by the court a quo regarding why
it believed the Appellant, will commit a schedule 1 offence if released on bail and the
likelihood that he will not stand trial in light of the fact that he purportedly evaded
being arrested and used a false name in another matter which was not rebutted. I
can find no misdirection in the finding of the court a quo in this regard. The
observations and reasoning of Jones J in S v Mpulampula 9 is apt, and although
distinguishable to the facts of the current case, I echo certain sentiments expressed
therein:
‘…The conclusion is difficult to avoid that he had been deliberately
avoiding the police for a considerable time, …This in my view, reduce s
considerably one’s confidence that he will ultimately stand trial…’
9 2007 (2) SACR 133 (E) at 136f-i.
[47] I do not agree with Ms Ngonzo’s submissions that speculative issues become
none issues. The Appellant is reminded that for the purposes of bail, the onus rests
on the Appellant t o show that it would be in the interest of justice to permit his
release on bail. His contention that the that the Appellant will be deprived of his
freedom for a non-issue, is in my view misplaced and a misinterpretation of what the
threshold test was for the Appellant at the bail hearing.
[48] I am satisfied that the court a quo properly assessed and evaluated the totality
of the evidence; considered the objective facts and applicable legal principles and
correctly found that the interest of justice does not permit the Appellant’s release on
bail. Therefore, I agree with the findings of the court a quo that it would not be in the
interest of justice for the Appellant to be released on bail.
[49] Consequently, I am satisfied that the court a quo correctly denied the
Appellant’s application to be released on bail.
Order:
[50] In the r esult the Appellant ’s appeal against the order by the court a quo
refusing his application for bail is dismissed.
_________________________
P ANDREWS
ACTING JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel for the Appellant: Mr BK Ngonzo
Instructed by: BK Ngonzo Attorneys
Counsel for the Respondent: Advocate C Smit
Instructed by: Office of the Director of Public Prosecutions