In the High Court of South Africa
(Western Cape Division, Cape Town)
Case No: A195/2024
In the matter between:
ASHLEY BERGSTEDT Appellant
and
THE STATE Respondent
Matter Heard: 19 November 2024
Judgment Delivered: 21 November 2024
This judgment was handed down electronically by circulation to the parties’ legal
representatives by email publication and release to SAFLII. The date and time for
hand-down is deemed to be 11h00 or soon thereafter on 21 November 2024.
JUDGMENT
MANTAME, J
OFF ICE OF T H E C HIEF JUST ICE
REPUBLI C OF SOU TH A FRICA
[1] The appellant lodged this bail appeal after the Magistrate in Cape Town
refused bail on 19 August 2024 . The appellant was a rrested on 27 June 2024 and
charged with various counts including dealing in drugs, possession of firearms and
possession of ammunition. Subsequent to his arrest he commenced with a bail
application. The bail application fell within the confines on Schedul e 5 of the Criminal
Procedure Act 51 of 1977 (the CPA).
[2] The bail application was opposed by the respondent on the basis that there is
a strong prima facie case against the appellant; that if released on bail there is a
likelihood that the appellant would endanger the safety of the public or commit a
Schedule 1 offence; that if released on bail, there is a likelihood that the appellant
will attempt to evade his trial; and that if released on bail there is a likelihood that the
appellant will attempt to influence or intimidate witnesses.
[3] The appellant states that he was arrested after he took a car for a test drive
as he is in the business of buying and selling vehicles. No proof was furnished by the
appellant insofar as this business is concerned. According to the appellant, w hen he
was arrest ed, he was in Cape Town to fetch someone . He was requested by the
family of a certain Mr. Mishack Adams (Mishack) to buy this VW Polo Sedan 2010
model or find a buyer for an amo unt of R120 000.00. As stated by the app ellant,
while driving in Darling Street, Cape Town and next to KFC, he was pointed at with
firearms by two gentlemen and was boxed in by an unmarked BMW 1 series vehicle.
One gentleman went into the passenger seat in front and another went into the back
seat both pointing firearms at him. At that time, he was under the impression that he
was being hijacked. However, he learnt later on that these were policemen and he
was asked to drive to the Parade. The police commenced with searching the vehicle.
He did not know that there was anything illegal found in the vehicle.
[4] However, he learnt later on that after the police conducted a search of the
vehicle, they advised him that they found firearms and drugs in a secret
compartment. He advised the police that the vehicle did not belong to him, it was in
his possession as he was merely test driving it to ascertain if it was roadworthy and
find a buyer for it. The appellant denied having knowledge or control of illegal
substances or firearms that were found in the vehicle.
[5] Warrant Officer Witbooi the investigating officer in the matter confirmed that
the arresting officer found drugs (street value R250 000.00), firearms and cash
(R205 540.00) in possession of the appellant. In his testimony, he stated that there is
a suspicion that the cash that was found in the vehicle is the proceeds of dealing in
drugs. Further, the appellant is the leader of the Ghetto Gang in Hanover Park. Due
to the position he held, he was responsible for the safeguard of the proceeds of
crime. Similarly, when Warrant Officer Witbooi pulled out the appellant’s profile, he
found that the appellant at the age of 17 years old, whilst driving a BMW vehicle, was
stopped by the Metro Police Dog Unit officials and they found a hidden compartment
in that vehicle with drugs. However, that matter was withdrawn on 24 May 2016
since there was no complainant in that case. Although the appellant advised him that
he is a salesman, he could not ascertain nor confirm that information.
[6] On 19 August 202 4, the magistrate dismissed the appellant’s application for
bail on the basis that the state had made out a strong prima facie case against the
appellant. There is a likelihood that if the appellant is released on bail, he would
endanger the safety of the public or commit a Schedule 1 offence. There is a
likelihood that the appellant, if released on bail will attempt to evade trial; there is a
likelihood that if the appellant is released on bail he will attempt to influence or
intimidate witnesses.
[7] In bri nging this appeal, the appellant contended that the magistrate
misdirected itself in making factual findings based on unsubstantiated conjecture
rather than evidence; it misdirected itself in finding that the appellant is a flight risk in
circumstances where the state conceded he was not; it erroneously found that the
appellant would interfere with witnesses when evidence did not demonstrate so; it
ignored the appellant’s presumption of innocence and thereby constructively
convicting him of the charges and did not appreciate that the state’s case was weak
and it misdirected itself in elevating the onus against the appellant to be in the
confines of Schedule 6 rather than Schedule 5.
[8] This appeal serves before this Court in terms of s65 (4) of the Crim inal
Procedure Act 51 of 1977 and it reads as follows:
‘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 satisfie d
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’.
[9] In addition thereto, it is therefore settled law that a court hearing a bail appeal
should be at liber ty to undertake its own analysis of the evidence in considering
whether the appellant has discharged the onus resting upon him or her i n terms of
s60(11) (a) of the CPA. This therefore means that the appellant has an onus to prove
facts establishing exceptional circumstances that he should be released on bail.
[10] The appellant did not address viva voce evidence during the bail application
before the magistrate. His evidence was contained in an affidavit. In his evidence,
the appellant explained that the veh icle belonged to a certai n Mishack Adams .
Mishack requested him to sell the vehicle on his behalf. In turn the said Mishack fi led
an affidavit stating that at the arrest of the appellant, he was incarcerated. During his
incarceration various friends used t he vehicle and advised that they will sell the
vehicle on his behalf . He wanted to use the proceeds from the vehicle sale to pay
legal fees and a possible appeal to this Court. On 27 June 2024 the appellant took
the vehicle for purposes of sale.
[11] It is not clear from Mishack as to how he knew that the car was in possession
of the appellant on that date as he was in prison. In the same affidavit he stated that
the vehicle was driven by various friends who promised to sell it. Further, it is not
stated by both the appellant and Mishack how the drugs, firear ms and money ended
up in the vehicle that was driven by the appellant. Most importantly, no evidence was
led on behalf of the appellant from any of Mishac k’s family that presumably hand ed
the vehicle to h im on how it was handed over , in what state it was handed over and
what was inside the vehicle when the appellant took possession of it.
[12] In my view, the appellant di d not take the court below in hi s confidence. He
did not put a compelling case for his r elease on bail. The fact that the appellant did
not see it proper to bring relevant evidence before the bail court points to the fact
that he is not playing open cards with the court.
[13] It might be so that the appellant has a clean criminal record. However, that
does not mean that this Court should turn a blind eye to the fa ct that he was once
arrested on similar charges to the present matter and the charges were withdrawn in
2016 due to the fact that there was no complainant before Court. With the evidence
that was put by the respondent before Court, m ere denial of his involvement in this
crime is not enough for this Court to find in his favour. I am of the strong view that to
simply release him on bail would be reckless as investigations are still being
conducted.
[14] In fact, I am convinced that the respondent has a strong case against the
appellant. The fact that he omitted to bring evidence of Mishack’s family who
released the car to him points to the fact that he is capable of influencing their
evidence or that of the state witnesses should he be released on bail.
[15] Section 60 (11) (b) of the CPA is clear that ‘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, adduce s evidence which satisfies the c ourt that the
interests of justice permits his or her release ’. The interest s of justice do not permit
the accused’s release on bail if the grounds referred to in s60 (4) (a) to (e) of the
CPA are present.
[16] In circumstances where the appellant has failed to discharge the onus that he
is entitled to be released on bail, it is not for this Court to exercise its discretion
carelessly. In Killian v S1 , this Court stated that:
1 [2021] ZAWCHC 100 (24 May 2021) para 8 and 13
‘… [8] certainly in respect of bail applications governed by s 60(11) 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.
…
[13] But in cases where s 60 (11) applies and there is consequently a true
onus on the applicant to prove facts establishing exceptional ci rcumstances,
an applicant would be well advised to give oral evidence in supp ort of his
application for bail …the discharge of the onus is a central consideration in s
60 (11) applications. If the facts are to be determined on paper, the state’s
version mus t be accepted where there is a conflict, unles s the version
appears improper.’
[17] In evaluating the evidence that was adduced before the magistrate, it appears
that the threshold with regard to onus of proof is higher than what the appellant has
argued before this Court. It is not enough for him to simply deny his involvement in a
crime without proffering a prima facie version that will prove that he will be acquitted
at the end of the trial. T he appellant’s evidence , that served before the magistrate
was adduced on affidavit . I n my view, it is detrimentally short of the true onus. In
light thereof, the respondent has adduced a strong case before the magistrate that
convinced her not to grant bail.
[18] As this Court held in Conradie v S2 - ‘… a mere denial by an applicant for bail
affected by s60 (11) (a) of the probability of any of the considerations in s60 (4) (a) to
(e) pertaining would be insufficient to show exceptional circumstances. More is
required; the applicant is required to adduce convinc ing factual evidence to support
any contention by him or her that the considerations do not apply in the
circumstances.’
[19] In this matter , the charges faced by the appellant are serious. The offences
that he is charged with are prevalent in this divis ion. In my view, the interests of
2 (A248/2020) [2020] ZAWCHC 177 at para 18
society which ought to be protected from these crimes far outweighs the liberty of the
appellant. Despite the fact that the appellant is not a flight risk, the magistrate
correctly refused bail as the investigations are ongoing. Since he did not call relevant
witnesses who according to him released the vehicle to him , he is therefore capable
of influencing and or intimidating such witnesses . Moreover, it was said that he was
previously charged of a similar crime, if release d on bail there is no guarantee that
he will not commit a similar offence or a Schedule 1 offence for that matter.
[20] For these reasons, I make the following order:
20.1 The appellant’s bail appeal is dismissed.
___________________
MANTAME J
WESTERN CAPE HIGH COURT
COUNSEL FOR THE APPELLANT: ADV ROSS McKERNAN
INSTRUCTED BY: BRUCE HENDRICKS
COUNSEL FOR RESPONDENT: ADVOCATE DU PREEZ
INSTRUCETD BY : NPA