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
NORTHERN CAPE DIVISION, KIMBERLEY
Case No: CA & R: 6/2025
Reportable: YES / NO
Circulate to Judges: YES / NO
Circulate to Magistrates: YES / NO
Circulate to Regional Magistrates: YES / NO
In the appeal of:
CLIVE NATHAN FERRIS Appellant
and
MAGISTRATE KHUMALO First Respondent
THE STATE Second Respondent
Heard on: 04 /02/2025
Delivered on: 07/02/2025
Summary: Magistrate refused bai l. Appeal against refusal. Schedule 6 -
Exceptional circumstances. Sec 60(11)(a) -Appellant bears onus - balance of
probabilities. No call on State to rebut appellant’s evidence. Appellant relied on
affidavit. Investigating officer testified. Appellant succeeded in discharg ing the onus .
_______________________________________________________________ ____
ORDER
________________________________________________________________
In the result the following order is made:
1. The appeal is upheld .
2 | P a g e
JUDGMENT : BAIL APPEAL
MAMOSEBO ADJP
[1] Magistrate Khumalo , of the Kimberley Magistrates Court , dismiss ed the
appellant’s bail application after being unable to find the existence of
exceptional circumstances justifying his release. He now approaches this
Court on appeal against such refusal .
[2] The appellant, Mr Clive Nathan Ferris, was arrested on 21 December 2024 .
His co -accused , his daughter , was arrested on 08 January 2025 , on the
following charges : (1) murder, (2) attempted murder, (3) assault with intent to
do grievous bodily harm, (4) possession of a firearm without a licence, permit
or authorisation issued in terms of the Act, and (5) unlawfully discharging a
firearm in a built -up area or public place.
[3] The appellant’s first appearance was supposed to be on 24 December 2024,
however, the State relying on s 50(1)(d)(ii) of the Criminal Procedure Act, 51
of 1977 (CPA)1 handed in the appellant’s medical certificate confirming that
he was hospitalised in substantiation for a remand in absentia to 03 January
2025. The appellant was unrepresented at that stage. A J7 detention warrant
was completed.
1 Section 50(1)(d)(ii) provides Procedure after arrest
(1)(a) Any person who is arrested with or without warrant for allegedly committing an offence, or for
any other reason, shall as soon as possible be brought to a police station or, in the case of an arrest
by warrant, to any other place which is expressly mentioned in the warrant.
(d) If the period of 48 hours expires -
(ii) or will expire at, or if the time at which such period is deemed to expire under subparagraph (i) or
(iii) is or will be, a time when the arrested person cannot, because of his or her physical illness or
other physical condition, be brought before a lower court, the court before which he or she would, but
for the illness or other condition, have been brought, may on the application of the prosecutor, which,
if not made before the expiration of the period of 48 hours, may be made at any time before, or on,
the next succeeding court day, and in which the circumstances relating to the illness or other
condition are set out, supported by a certificate of a medical practitioner, authorise that the arrested
person be detained at a place specified by the court and for such period as the court may deem
necessary so that he or she may recuperate and be brought before the court: Provided that the court
may, on an application as aforesaid, authorise that the arrested person be further detained at a place
specified by the court and for such period as the court may deem necessary;
3 | P a g e
[4] On 3 January 2025 the court explained the appellant’ s rights to legal
representation and that the State is opposing his admission to bail and
further that it is a Schedule 6 bail application .
[5] At the hearing of the bail application t he appellant , now duly legally
represented, sought to discharge the onus by producing an affidavit in
support of his application. The affidavit attached to the Notice of Appeal is
neither signed by him or his legal representative nor commissioned by a
commissioner of oaths. I was, however, persuaded by the record that the
original affidavit attached to the charge sheet as Annexure A was duly
signed and commissioned.2
[6] The following appear s in the appellant’ s affidavit for consideration as
relevant in the discharge of his onus.
He is a divorced 67 -year-old frail South African citizen. He resides in
Kimberley with his daughter and a 9 -year-old grandson. He has attained two
diplomas in Education. He is a pensioner but earns additional income
through leasing his second immovable property. His monthly income is R22
000. He sustained a dislocated shoulder and a skull fracture during the
fracas on 21 December 2024 and would undergo surgery upon his release
from detention. He possesses two immovable properties, two vehicles and
household furniture. He has no relatives outside South Africa and his
passport has expired. He has no previous convictions and no pending cases
against him. He would be able to post bail in an amount of R500.
[7] The appellant proffered the following explanation in as far as the merits are
concerned.
‘(a) On the 21st day of December 2024 at around 06:00 am or so, I was
awakened by my daughter’s strangely early phone call and she
(accused 2) was hysterical in the phone call, requesting that I come
to her home immediately and help her. At the time, I was at my home
at 3[...] C[...] Road in Kimberley.
2 Record p 55 line 14 - 24
4 | P a g e
(b) At Mieniva Gardens, tensions ran high leading up to the ultimate loss
of life and sustained physical injuries. I sustained injuries as
demonstrated herein and was under police guard until my first court
appearance on 02 January 2025. I attach photos as CF1 – CF3.’
The appellant maintains t hat the State will not be able to prove the element
of intent in all the offences.
[8] The appellant contends that the cumulative effect of all the circumstances
rendered them ‘exceptional’ for purposes of his release on bail. He added
further that although he knows some of the state witnesses, he does not
know any other . He undertakes not to interfere with them . He is not a flight
risk because his family members are within the country. He will further not
disturb the public order or endanger the lives of others. His release would
not jeopardize the functioning of the criminal justice system. The appellant
closed his case without calling any witnesses.
[9] Sgt Modise Clive Moshotlha, the investigating officer, testified that he has
been a member of the South African Police Service (SAPS) for 20 years, of
which 11 was with the Kimberley Detective Unit: Serious and Violent Crimes.
The State alleges that the appellant assaulted accused 2’s boyfriend, Lucan,
who is the complainant in the attempted murder charge and shot and killed
Lucan’s mother. According to the investigating officer there are six eye -
witness statements in the docket and CCTV footage from a security camera
in the vicinity where the incident occurred. The investigations are ongoing as
they are awaiting forensic reports.
[10] The I/O explain ed that it has been established that the appellant is the owner
of the firearm that was discharged at the scene. Although an owner has to
renew the firearm licence every five years, the appellant’s firearm licence
was last renewed on 05 August 2011 . It was thus due for renewal in 2016.
This makes possession of his firearm unlawful. He is opposed to the
appellant being admitted to bail because not only will it cause an uproar
within the community, but he will also intimidate witnesses. His release will
5 | P a g e
jeopardize public confidence in the criminal justice system. According to the
investigating officer the appellant knows all the witnesses. The J88 confirms
a dislocated shoulder, multiple bruises and laceration on the skull which ,
according to the doctor , are not life threatening. The State case was closed .
[11] Notwithstanding the vehement protestation by Mr Mongala, for the appellant,
it cannot be gainsaid that the facts and circumstances presented and
outlined in the State case, if proven in a trial in due course, constitute a
Schedule 6 offence, if not offences, regard being had to the murder and
attempted murder charges. The claim by Mr Mongala that the State had an
ulterior motive to formulate the charges until accused 2 was added, in order
to introduce the element of common purpose lack s substance. It onl y has to
be mentioned to be dismissed.
[12] The attack on the previous judicial officers was fallacious. The fact that
Magistrate du Toit recused herself and later postponed the bail application to
another date and intimated that the application may be heard by a
Magistrate stationed outside the Kimberley Magistrates Court does not show
any prejudice . The determination not to admit the appellant to bail was made
by Magistrate Khumalo.
[13] Ms Engelbrecht, for the respondent, contended that the submission by the
appellant that he is a frail 67 -year-old man viewed against his conduct as
testified to by the investigating officer is untenable. The appellant assaulted
the complainant with fists, chased people and witnesses around wielding his
firearm, unlicenced for that matter, fired several shots, one of which killed the
deceased. This cannot be the behaviour of a frail person. The Concise
Oxford English dictionary describes the word ‘frail’ as 1. ‘weak and delicate’
2. ‘easily damaged or broken.’ I will return to this submission.
[14] The appellant’s application is to be determined in terms of Section 60(11)(a)
of the CPA which stipulates that:
‘Notwithstanding any provision of this Act, where an accused is charged with
an offence referred to in Schedule 6, the court shall order that the accused
6 | P a g e
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 …’
Based on this provision, the appellant must satisfy the Court that he should
be admitted to bail. This presupposes that he must discharge this onus on a
balance of probabilities. Given regard to the factors distilled at paras 18(a) –
(h) hereunder I am persuaded that the appellant has discharged such an
onus.
[15] The SCA in S v Viljoen3 emphasised two reservations in bail applications.
The first is that where an accused, having regard to what is already on
record, cannot even make out a prima facie case, there is no duty on the
State to adduce rebuttal evidence. The second, and more important, caveat
is that care must be taken to avoid turning every bail application into a
protracted trial before the criminal trial. Simply put, bail proceedings should
not be treated as a rehearsal for the trial.
[16] More significantly, the SCA i n S v Mathebula4, observ ed that in bail
applications which fell within the ambit of Schedule 6 of the CPA,
pronounced the following :
‘[12] But a State case supposed in advance to be frail m ay 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: S v
Botha en 'n Ander 2002 (1) SACR 222 (SCA) (2002 (2) SA 680;
[2002] 2 All SA 577) at 230h, 232c; S v Viljoen 2002 (2) SACR 550
(SCA) ([2002] 4 All SA 10) at 556c. That is no mean task, the more
especially as an innocent person cannot be expected to have insight
3 S v Viljoen 2002 (2) SACR 550 (SCA) para 25
4 Ibid para 12
7 | P a g e
into matters in which he was involved only on the periphery or
perhaps not at all. But the State is not obliged to show its hand in
advance, at least not before the time when the contents of the
docket must be made available to the defence; as to which see
Shabalala and Others v Attorney -General, Transvaal , and Another
1995 (2) SACR 761 (CC) (1996 (1) SA 725; 1995 (12) BCLR 1593).
Nor is an attack on the prosecution case at all necessary to
discharge the onus; the applicant who chooses to follow that route
must make his own way and not expect to have it cleared before
him. Thus it has been held that until an applicant has set up a prima
facie case of the prosecution failing there is no call on the State to
rebut his evidence to that effect: S v Viljoen at 561f - g.’
[17] The appellant’s evidence is founded on a n affidavit and was , obviously, not
tested by cross -examination . In S v Pienaar 5 the following remarks were
made by the court:
‘In my view therefore there is nothing in the Criminal Procedure Act that
renders the use of affidav its in bail applications impermissible. Obviously an
affidavit will have less probative value than oral evidence which is subject to
the test of cross -examination. At the same time an affidavit will carry more
weight than a mere statement from the Bar .’
[18] In my view the following factors redound in favour of the appellant, which the
Magistrate did not attach sufficient weight to:
(a) The appellant did not initiate the trouble. He was summoned to the
scene by his daughter, accused 2, who was seemingly in distress
and created the impression that she was in mortal danger.
(b) The firearm which was ostensibly used in perpetrating the alleged
offences and intimidation of some observers was indisputably
acquired lawfully and licensed until 2016, when the licence was not
renewed.
5 S v Pienaar 1992 (1) SACR 178 (W) at 180h - i
8 | P a g e
(c) This firearm has now been confiscated and may not be returned to
him (it would serve as an exhibit) until the case is disposed of, if at
all. In any event, if convicted, he will be declared to be unfit to
possess a firearm in terms of s 103 (1) of the Firearms Control Act 60
of 2000 . The danger posed by this firearm has abated. There was no
suggestion that he has other firearms.
(d) It is common cause that the appellant does not have any previous
convictions and no other cases pending against him. There is,
therefore, no history that he is possessed of a violent disposition.
(e) It was common cause at the hearing that the appellant was not a
flight risk. This presupposes that he would stand his trial, which is
what bail aims to achieve.
(f) At age 67 the appellant is not a ‘spring chicken’ but an aging man
who is somewhat discomforted by the shoulder and head injury
sustained during the fracas. That he, perhaps, called it upon himself
is neither here nor there. “Frail” is not his apt characterisation.
(g) The appellant undertook not to interfere with state witnesses. He has
been furnished with a list of them. If he does, he knows the
consequences, which could be attached to his bail conditions.
(h) The case is unlikely to be disposed of soon. Mention was made of
further investigation. This will be followed by a pre -trial conference.
Detention will also hamper his unimpeded proposed medical
treatment.
(i) Suitable bail conditions are an additional safeguard.
[19] It is worth mentioning that accused number 2, for different considerations,
has been admitted to bail in the amount of R5 000 on the following
conditions: that she may not have any contact, directly or indirectly, with the
9 | P a g e
state witnesses; that she may not, directly or indirectly, intimidate the state
witnesses; that she may not, directly or indirectly, interfere with the
investigations in this case; that she is to report to the Kimberley Police
Station once a month between 08:00 in the morning and 18:00 in the
afternoon until the case is finalised; that she attend court on the days
directed by the court and must remain in attendance until excused by the
court. Should she fail to adhere to these conditions, her bail will be cancelled
and she will be remanded in custody.
[20] For the aforegoing reasons I am satisfied that the Magistrate misdirected
himself and that it is in the interests of justice that the appellant be admitted
to bail. His decision accordingly stands to be set aside .
[21] The evidence shows that the accused has an income of R22 000 per month
derived from rental collected. I am of the view that he could afford an amount
of R10 000 for bail.
[22] In the result the following order is made:
1. The appeal is uphel d.
2. The appellant is admitted to bail in the amount of R10 000.
3. The appellant may not have any contact, directly or indirectly, with
the state witnesses.
4. The appellant may not, directly or indirectly, intimidate the state
witnesses .
5. The appellant may not, directly or indirectly, interfere with the
investigations in this case.
6. The appellant is to report to the Kimberley Police Station once a
month between 08:00 in the morning and 18:00 in the afternoon until
the case is finalised.
10 | P a g e
7. The appellant is to attend court on the days directed by the court and
must remain in attendance until excused by the court. The next court
date is 18 February 2025.
8. Should the appellant fail to adhere to the conditions, his bail will be
cancelled and he will be remanded in custody.
MC MAMOSEBO
ACTING DEPUTY JUDGE PRESIDENT
NORTHERN CAPE DIVISION
For the appellant Adv. JK Mongala
Instructed by: Moribe Attorneys
For the defendant s: Adv. MZC Engelbrecht
Instructed by: Office of the Director Public Prosecutions