IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN

Appeal Case : A 212/24
Regional Court Case No: BD2/584/23

In the matter between:

SEBENZILE DYASI APPELLANT

AND

THE STATE RESPONDENT

Coram: Siyo AJ

Delivered: This Judgment was handed down electronically by circulation to the legal
representatives by email. The date and time for hand -down is deemed to be 10h00
on 4 February 2025.


ORDER

On appeal from: The Regional Court, Blue Downs, Cape Town, Western Cape
Regional Division (Regional Magistrate Mrs. Appelgryn siting as court of first
instance):

1. The appeal is dismissed.

JUDGMENT

1. On 16 June 2023 the appellant was arrested and subsequently charged together
with four others with assault, kidnapping and murder read together with the
provisions of section 51 (1) and Part I of Schedule 2 of the Criminal Law
Amendment Act 105 of 1997 (“CLAA”) in that the murder was premeditated and
committed in the execution or furthe rance of a common purpose or conspiracy.

2. It is alleged by the State that on 15 June 202 3 the appellant and four others
descended on the deceased’s home , which is situated at the Bosasa Temporal
Houses, armed with an assortment of sticks, hockey sticks, go lf club’s and
various other weapons. The State further allege d that the deceased, who was
home at the time of the attack , was assaulted and stabbed on the head and neck
with various sharp weapons by the appellant and four others.

3. According to the State’s version, the assault took place in front of the deceased’s
family whose desperate plea’s for clemency were ignored. The deceased was
subsequently hauled by the appellant and four others to a nearby bush.
Concerned, the deceased’s family followed th e appellant and four others as they
moved towards a nearby bush with the deceased . This was however thwarted by
death threats that were directed to them by the appellant and four others.

4. Perturbed by what was unfolding , it was also alleged that the deceas ed’s family
returned home and called the South African Police Service. The deceased was
later found buried in a shallow grave not far from his place of residence.

5. On 22 June 2023 the appellant applied for bail before the Regional Court, Blue
Downs, Cape Town, Western Cape Regional Division (“court a quo ”). Bail was
denied by the court a quo on the basis that the appellant had failed to prove, on a
balance of probabi lities, that exceptional circumstances exist which justify his
release. Dissatisfied, the appellant appealed against this decision .

Grounds of Appeal

6. This bail appeal comes before this court in terms of section 65 of the Criminal
Procedure Act 51 of 1997 (“Criminal Procedure Act”).

7. The first ground of appeal outlined in the notice of appeal is that the court a quo
misdirected itself in finding that the appellant failed to prove on a balance of
probabilities that there were exceptional circumstances which justified his release
on bail.

8. In advancing this ground of appeal , the appellant sought to place reliance on
circumstances such as that: (i) he has a fixed address and is not a flight risk; (ii)
he has no previous convictions; (iii) there is no evidence to the effect that he
would not comply with the bail conditions or that he has ever breached them
before; (iv) he is currently unemployed but is looking for a job and that he has no
dependants; (v) he does n ot pose any threat to State witnesses or is unlikely to
interfere with investigations ; (vi) the State’s case is weak as it only relies on a
single witness in which the cautionary rule may apply.

9. Furthermore, the second ground of appeal advanced in the not ice of appeal is
that the court a quo misdirected itself in denying bail on the grounds that the state
has made out a prima facie case against the appellant. According to the
appellant, this was seen as some form of anticipatory punishment. In his view,
bail cannot be used as some form of anticipatory punishment.

10. Moreover, the third ground of appeal advanced in the notice of appea l is that the
court a quo misdirected itself in treating the appellant in the same manner with
which it would have dealt with someone who has previous convictions or pending
matters. T he fourth and last ground of appeal advanced in the notice of appeal is
that the court a quo misdirected itself by not exploring the option of attaching
reasonable conditions as an alternative to the denial of bail.

11. Although the appellant had initially advanced these four grounds in his notice of
appeal, in oral argument and in the heads of argument filed by his legal
representatives, he firmly nailed his colours to the mast of the exceptionality
requirement in section 60(11)(a) of the Criminal Procedure Act. In other words,
the appellant sought to assail the court a quo’s decision on bail only on the basis
that the court erred in finding that he failed to prove that there were exceptional
circumstances which justified his release on bail.

12. I address this ground of appeal below.

Court a quo’s judgment

13. Mindful that the appellant had been charged with an offence referred to in
Schedule 6 of the Criminal Procedure Act, the court a quo commenced its
judgment by highlighting that the appellant carried the onus of convincing the
court, on a balance of probabilities, that exceptional circumstances exist which in
the interests of justice permit his release on bail.

14. The court a quo found th at “there is nothing out of the ordinary ” in the appellants
personal circumstances. Relying on Ali vs State1, the court a quo held that
financial loss is an inevitable consequence of the incarceration of any gainfully
employed person. I pause to mention t hat a ccording to that case, what might
meet the exceptionality requirement in section 60(11)(a) of the Criminal
Procedure Act , depending on the circumstances, is evidence that the app ellant’s
dependants will starve if he is not released to fend for them. The a ppellant did not
attempt to make out such a case.

15. In considering the interests of justice, the court a quo found that more than one of
the risk factors identified in section 60 (4) of the Criminal Procedure Act had been
established. In coming to this conclusion, the court a quo considered that when
the deceased’s relatives tried to intervene by stopping the assailants (including
the appellant) from assaulting the deceased, they were threatened with death.
Furthermore, the court a quo also place d reliance on the fact that the appellant

1 Ali vs State 2011 (1) SACR 34 para 20.
knew the witnesses and where they live owing to that they all hail from the
Bosasa Temporal Houses .

16. The court a quo concluded by stating that these risk factors weigh more than the
appellants right to freedom and the prejudice he is likely to suffer from being
incarcerated whilst awaiting trial. In conclusion, the court a quo held that the
appellants release on bail wo uld undermine the public’s confidence in the criminal
justice system.

Evaluation of the Appeal

17. Section 65 (4) of the Criminal Procedure Act, which provides a statutory context
for determining bail appeals, provides that “the court or judge hearing the appe al
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 which in its or his opinion the lower court should
have given.”

18. In S v Barber , the court held the following in determining appeal s in accordance
with section 65 (4) of the Criminal Procedure Act:

“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 view for th at 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 magistra te who had the discretion to grant bail
exercised that discretion wrongly.”2


2 S v Barber 1979 (4) SA 218 (D) at 220 E – H.
19. Furthermore, citing established authority on the test for interfering with a
Magistrates judgment, the Court in Panayiotou v S3, held that:

“In order to interfere on appeal it is accordingly necessary to find that the
magistrate misdirected himself or her self in some material way in relation to
either fact or law (see Ali v State 2011 (1) SACR 34 (E) at para 14; cf. also S v
M 2007 (2) SACR 133 (E)). If such misdirection is established, the appeal court
is at large to consider whether bail ought, in the particular circumstances to have
been granted or refused. In the absence of a finding that the magistrate
misdirect ed him or herself the appeal must fail (cf. S v Porthen and others 2004
(2) SACR 242 (C) at par [11]).”

20. While it was common cause that the offenc es for which the appellant had been
charged fell under the ambit of Schedule 6 of the Criminal Procedure Act, it was
submitted that the court a quo misdirected itself in finding that the appellant had
failed to prove that there were exceptional circumstanc es which justified his
release on bail.

21. It was argued by Mr Mondleki, who appeared for the appellant, that none of the
factors enumerated in section 60 (4) of the Criminal Procedure Act were present
in this case. According to Mr Mondleki, no evidence had been adduced in this
regard by the State before the court a quo . The cumulative effect of this, so the
argument went, was that this could lead to a finding that exceptional
circumstances exist which justify the appellants release.

22. On the othe r hand, Ms Thaiteng, who appeared for the State , submitted that the
factors advanced by the appellant in support of his bail application were ordinary
and c ould not be regarded as exceptional. It was further argued by Ms Thaiteng
that mere personal circums tances that are general and commonplace do not
constitute exceptional circumstances.


3 Panayiotou v S (CA&R 06 /2015) [2015] ZAECGHC 73 para 27; S v Ali 2011 (1) SACR 34 (E) at
para 14; S v M 2007 (2) SACR 133 (E); S v Porthen & Others 2004 (2) SACR 242 (C) at par [11].
23. Section 60(11) of the Criminal Procedure Act provides that: “ Notwithstanding any
provision of this Act, where an accused is charged with an offence referred to - (a)
in Sc hedule 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 excep tional circumstances exist which in the interests of justice
permit his or her release.”

24. What are exceptional circumstances? This question has been the subject of
many judicial pronouncements. In S v Petersen4 the full bench interpreted
exceptional circumstances as follows:

"Generally speaking "exceptional" is indicative of something unusual,
extraordinary, remarkable, peculiar or simply different ... This may, of course,
mean different things to different people so that allowance should be made for a
certain measure of flexi bility in the judicial approach to the question... In essence
the court will be exercising a value judgement in accordance with all the relevant
facts and circumstances, and with reference to all the applicable criteria"

25. The bail application was brought by way of affidavit whose content was read into
the record before the court a quo . Apart from outlining his personal circumstances
and declaring that he neither has any previous convictions nor pending criminal
cases agains t him, the appellants affidavit outlined that he is a 47 year old
unemployed man who wished to look for work in order to assist his father who
was supporting him financially.

26. On the other hand, the investigating officer deposed to an affidavit in which h e
opposed bail broadly on the grounds outlined in section 60 (4) of the Criminal
Procedure Act, including that (i) there is the likelihood that the appellant will
endanger the safety of the public or any particular person or will commit a
Schedule 1 offenc e if he is released on bail ; (ii) there is a likelihood that the
appellant will attempt to evade his or her trial if he is released on bail ; (iii) there is

4 S v Petersen 2008 (2) SACR 355 (C) at 55.
a likelihood that the accused will attempt to influence or intimidate witnesses or to
conceal or des troy evidence if he is released on bail ; (iv) there is the likelihood
that the accused will undermine or jeopardise the objectives or the proper
functioning of the criminal justice system, including the bail system, if he is
released on bail.

27. Faced with t his evidence, in my view the court a quo correctly devoted time to
analysing and evaluating the appellants and States evidence. The court a quo
went to some length in considering the five broad considerations mentioned in
paragraphs (a) to (e) of subsection (4) of section 60 of the Criminal Procedure
Act. This was weighed against the appellants right to his personal freedom and in
particular the prejudice he is likely to suffer if he were to be detained in custody
as provided as provided in subsect ion (9).

28. Furthermore the court a quo weighed up the appellants personal interest s against
the interest of justice. In weighing up the relevant factors, the court a quo
exercised a value judgment.

29. I respectfully disagree with the appellants submission th at none of the factors
enumerated in section 60 (4) of the Criminal Procedure Act are present in this
case. The States version that the deceased’s relatives were threatened with
death by the assailants (including the appellant) when they tried to intervene by
stopping them from assaulting the deceased could not be gainsaid by the
appellant.

30. Indeed, the appellant was linked to the offence by a witness who identified him. In
my view, this gives credence to the court a quo’s finding that the appellant knew
the witness and where they live owing to that they all hail from the Bosasa
Temporal Houses .

31. The high watermark of appellants evidence in establishing the existence of
exceptional circumstances is that he wished to look for wor k in order to assist his
father who financially support ed him. In my view, the court a quo correctly found
that “ there is nothing out of the ordinary ” in the appellants personal
circumstances. The circumstances proffered by the appellant are general,
common place and do not constitute exceptional circumstances. As held by the
Supreme Court of Appeal in Mathebula v S , “parroting the terms of subsec (4)
of s 60, as he did, does not establish any of those grounds, without the addition
of facts that add weight to his ipse dixit .”5

Conclusion

32. The appellant was called upon to prove two things , on a balance of probabilities ,
in order to discharge the onus on him in the context of a Schedule 6 offence.
First, the existence of exceptional circumstances; and, second, that those
exceptional circumstances permit his release on bail in the interests of just ice.6

33. In my view t he appellant failed to prove, on a balance of probabilities, that
exceptional circumstances exist which warrant his release on bail. For these
reasons, I am of the view that the court a quo’s decision to refuse bail was
correct.

Order

34. It is accordingly ordered as follows:

34.1. The appeal is dismissed.


________________________________
LK SIYO , AJ


APPEARANCES

Counsel for the appellant : Mr. Mondleki

5 Mathebula v S 2010 (1) SACR 55 (SCA) para 15.
6 Barense and Another v S [2023] 3 All SA 381 (WCC) para 141.
Instructed by : Xalushe Incorporated
Counsel for the Respondent : Ms. PA Thaiteng
Instructed by : Director of Public Prosecutions
Cape Town
Date Heard : 1 November 2024
Date Handed Down : 4 February 2025