IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
CASE NO.: CA&R13/2024
In the matter between:
MUZI CELE APPELL ANT
and
STATE RESPONDENT
JUDGMENT
ZONO AJ:
Introduction
[1] This is a bail appeal emanating from Ntabankulu Magistrate ’s Court under
case number B66/2023 . This bail appeal concerns the decision of the
Ntabankulu Magistrate ’s Court refusing to admit the appellant to bail.
[2] The parties are “ ad idem” that the notice of appeal was filed out of time. The
appellant , in response to the late filing of the notice of appeal, lodge d an
application for condonation of the late filing of the notice of appeal. The
application for condonation is not opposed. During the hearing parties agreed
that the application for condon ation be granted by consent.
[3] The appellant was with his three co-accused when applying for bail in the
court a quo. The four bail applicants in the court a quo were legally
represented by the same legal representative . The bail application was
refused in respect of all the bail applicants in the court a quo. However, only
the appellant in these proceedings who seeks to impugn the decision of the
court a quo refusing to admit him to bail.
Factual Background
[4] The appellant , along with other accused persons are charged with two counts
of murder, unlawful possession of firearms , namely , a rifle , a 9 mm Pistol and
unlawful possession of ammunition , which offences were allegedly committed
on 27th March 2 023 in the district of Ntabankulu Eastern Cape . It did not
appear to be in dispute that the offences fall within the ambit of Schedule 6.
The appellant , like all other bail applicants gave viva voce evidence in support
of his bail application in the court a quo .
[5] The appellant testified that he is residing at Izingolweni in a place called Nkulu
in the South Coast of KwaZulu Natal. That is his home owned by his father .
That address was given to the police. At times he stays at his uncle’s place at
iNanda , and this a ddress too , was given to the police.
[6] The appellant testified that he was employed as a taxi driver , driving his
father’s taxi; earning a total salary of R4000.00 a month. He is an unmarried
major male with two children: One staying at his homestead , while the other
staying with the mother ’s family . The one staying with the appellant is doing
Grade 5. She attends school using private scholar transport. For that scholar
transport the appellant is paying R600. 00. He is paying R200.00 school fees
per annum. He stat ed that he is responsible for the support or maintenance of
the minor child. The child’s mother is busy with her education in
Johannesburg. There is a child support grant received by the mother in
respect of this child.
[7] The other child, as already stated , is staying with her mother at Mbeni under
Izingolweni; KwaZulu Natal . She is doing Grade 6. The appellant testified that
he is respons ible for her school fees which i s the sum of R300.00 per annum.
The appellant is paying R300 .00 per month in respect of school transport.
[8] With regard to his work, the appellant testified that the taxi he is driving is
stationery at home and his employment is at risk. Appellant ’s father depended
on him for taxi association ’s meeting as his younger sister sometimes goes to
Durban for job seeking. The appellant is selling his cattle to the bereaved
families for funeral s. At the time of bail application in the court a quo he had
14 herd of cattle . His cattle are at his home, but he does not know what is
happenin g with them now that he is in custody. With the money he is receiving
from the sale of cattle he is constructing his own homestead , or his house. He
was advised that when in custody there was a break -in or burglary and his
lights were stolen.
[9] The appellant has South African identity document. He does not have any
travel document. He does not know state witness es and is not going to
interfere with the state witnesses. He has no pending case nor previous
convictions. He is not going to evade tria l. When out on bail , he testified that ,
he is not going to commit other offences. He is not a danger to society. He is
not going to conceal nor destroy evidence. He testified that the state does not
have a strong case against him. He testified that he is n ot guilty.
[10] The appellant alluded to the fact that he was assaulted for him to make a
statement admitting that he committed murder of some people. In cross
examination he elected not to answer when a version by Mr Lembede , who
was the first bail applicant in the court a quo , was pu t to him to say that they
concocted a statement or a story to give to the police about assault. I n cross
examination a version was put to the appellant that he was assaulted by
members of the c ommunity and his first answer was that he does not know
that bu t he later denied it when it was put to him that his life is in danger.
[11] About the strength or weakness of either side ’s case, under cross
examination, the state put a version that firearms that were used at scene
were recovered at room number 15 of the B &B where they were booked in,
the B &B to which the Peugeot drove with the persons who were allegedly
committing the offences at the scene, the appellant answered as follows “ I do
not know that.”
Court a quo
[12] The court a quo found that there is no evidence pointing out to the innocence
of the applicants, appellant included . There is no explanation as to why they
were in Ntabankulu on the day in question. It concluded that the allegations
against the applicants are serious and found that no exceptional
circumstances exist that warrant the applicants to be released o n bail. The
nature and gravity of the case they are facing together with the possible
punishment in the event of conviction were taken into account.
[13] The court a quo further found that there are no emotional , family, community,
or occu pational ties between the accused and the place at which they will be
tried. The finding included the appellant. It is so because they reside outside
Ntabankulu. They have no fixed properties and their family do not even know
Ntabankulu . They stay in their family/ father ’s properties outside Ntabankulu .
In the final analysis the court a quo found that applicants’ life would not be
safe if released on bail . The court a quo refused bail.
Summary of appellant’s grounds of appeal
[14] The court a quo is criticised for alleged failure to properly evaluate the
evidence; alleged failure to attach due weight to the evidence adduced by the
appellant. The court a quo allegedly failed to attach due weight to the fact that
appellant ’s evidence relating to his fixed address where he resides and that
he will attend trial and abide by bail conditions that may be granted. The court
a quo allegedly failed to exercise circumspection to establish if there are
exceptional circumstances which in the interest s of justice permit the release
of the appellant on bail. The appellant complains about court a quo’s alleged
failure to attach du e weight to the insufficiency of investigating officer’s
version , which insufficiency allegedly did not allow appellant to comment.
[15] Grounds of appeal are pivotal. They must be clearly and succinctly set out in
clear and unambiguous terms , to enable the court and the respondent to be
fully informed of the case the appellant seeks to make out and w hich the
respondent is to meet in opposing the appeal. It does not help to marshal the
grounds of appeal over the bar, which have not been set out clearly and
succinctly in the notice of appeal1.
[16] It is axiomatic that the founding document in an appeal against the refusal of
bail application by the lower court is a notice of appeal2. For a proper appeal
to be prosecuted a proper notice of appeal must be duly filed3. A notice of
appeal under section 65 of the Criminal Procedure Act must be a proper
document from which the court can determine the grounds and merits of the
appeal. A shoddy practice will not be tolerated4. To underscore a point that a
notice of appeal is a necessary requirement of the process of appeal to
superior court with regard to bail, Hiemstrar5 states as follows:
“Procedure –The accused serves the notice of appeal on the
Magistrate or Regional Magistrate involved and on the DPP….”
Reference in section 65(3) of CPA to notice of appeal is reference to notice
with clear , succinct and unambiguous grounds in the notice of appeal.
[17] A meaningful notice of appeal envisaged in section 65(3) of CPA serves a
very important purpose in the process of the appeal. It serves to fulfil
aspirations of section 34 of the Constitution which provides as follows:
1 AVBOB Funeral Services v Buzani (2810/2020) [2024] ZAECQBHC 28(17 April 2024) and the
cases referred to therein .
2 Section 65(3) of Criminal Procedure Act.
3 S v Maliwa 1986 (3) SA 721 (W) .
4 S v HO 1979 (3) SA 734 (W) .
5 Hiemstrar’s Criminal Procedure page 9 -22.
“Access to courts - everyone has the right to have any dispute that
can be resolved by the application of law decided in a fair public
hearing before a court or where appropriate, another independant
impartial tribunal or forum.”
[18] Section 34 fair hearing right affirms the rule of law, which is a founding value
of our constitution. The right to a fair hearing before court lies at the heart of
the rule of law. Courts in our country are obliged to ensure that the
proceedings before them are always fair6. It is a requirement of the rule of law
that when a person may be adversely affected by an exercise o f public power,
which is what the exercise of judicial power entails, such a person is entitled
to be heard7. It is the hearing that must be fair. Any hearing that has
semblance of , or tainted with unfairness is inevitably arbitrary. Notice of
appeal without meaningful grounds or grounds that are not clearly , succinctly
and unambiguously set out in the notice is antithetical to the rule of law and
would accordingly lead to unfair appeal proceedings.
[19] In sum , notice of appeal to superior court with regard to bail should comply
with all the peremptory requirements of notice of appeal and serve the
important purpose of all the notices of appeal of informing the other party and
the court of grounds in clear, succinct and unambiguous terms of the case the
appellant seeks to make out. The words “ clear, succinct and unambiguous ”
used in many cases under this subject, must be understood to mean that
grounds of appeal must be comprehensi ble and sufficiently particularised. To
suggest otherwise would defeat the very purpose of informing the resp ondent
of the case the appellant seeks to make out and which the respondent is to
meet in opposing the appeal.
[20] In Casu the notice of appeal is replete with unsubstantiated conclusions which
do not bear reference to any pieces of evidence. It is simply not clear how the
6 De Beers No v North - Central Local Council and South Central Council and others
(Umhlatuzana Civil Association intervening) 2002(1) SA 429 (CC) Para 11; Twee Jonga
Gazellen (Pty) Ltd and another v Land & Agricultural Development Bank of South Africa t/the
land Bank and Another 2011 (3) SA (1) (CC) Para 56
7 Samuels v South Africa n Legal Practice Council (Formally Law Society of the Northern
Provinces) (1112/2021) [2022] ZASCA 175 (7 December 2022) Para 66 .
court a quo has failed to properly evaluate the evidence and how it has “failed
to attach due to weight to the evidence” . No specificity about the court a quo’s
failure to attach due weight on investigating officer’ s insufficient version to
allow t he appellant to comment on the relevant aspects thereof . No reference
is made to the aspects of investigating officer ’s evidence which was perceived
to be insufficient to enable the appellant to comment thereon . That practi ce is
regrettably unacceptable and do not accord with the imperative requirement of
a notice appeal.
[21] The appellant in his notice of appeal dismally fails to show in any detail how
the court a quo failed to exercise “ exceptional circumspection ” to est ablish if
there are exceptional circumstances which in the interest s of justice permit the
release of the appellant on bail. Similarly , courts a quo’s alleged failure to
attach due weight on the fact that the appellant has a fixed address is not at
all explained. It is not clear if the complaint or ground is about the fact that the
fact that appellant has a fixed add ress was not taken into account; or it means
that it should have been accepted and taken into account as a sole point to
release the appellant on bail. The vagueness and ambiguity of the ground is
inimical to the established principles enunciated above.
[22] In conclusion on this aspect and topic , it is inevitable and i nescapable that
appellant’s notice of appeal is invariably defective. It is unfortunately
irreparable. The invariable consequence of this current notice of appeal is that
any argument that may be advanced may not flow from the notice of appeal
which should serve as a guiding document in the process of the appeal.
Argument itself should not encroach beyond the limits of the notice of appeal .
Accordingly, there cannot be any successful appeal based on a defective
notice of appeal. In the premises this appeal must face only one fate, a fate
of dismissal on this ground.
[23] Even if I am wrong on the finding I made above, this appeal is destined to fail
on other grounds . For the sake of completion and in the alternative, I deal
hereafter with other grounds for dismissal of the appea l and relevant legal
principles.
The legal framework and relevant facts
[24] Section 65 (4) of the Criminal Procedure Act 51 of 1977, as amended
provides:
“(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 wh ich event the court or judge
shall give the decision which in its or his opinion the lower court should
have given.”
[25] In determining whether or not the onus of proof on the applicant for bail under
section 60(11)(a) has been discharged, the court exercises a discretionary
power. The appeal court does not have a free hand to do nor will it readily
interfere with the discretion of the court of first instance8. The function s and
powers o f a court of appeal hearing bail appeal is similar to those in an appeal
against conviction and sentence. This court has to be persuaded that the
court a quo exercised the dis cretion which he has wrongly. Although this court
may have a different view, it should not substitute its own view for that of the
court a quo because that would be an unfair interference with the Magistrate ’s
exercise of his discretion.
[26] Incidences of onus are uppermost to guide the court hearing the appeal. This
takes me to the provisions of section 60(11) (a) of CPA. Section 60(11)(a) of
CPA provides follows:
“11. 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
8 S V Porthen and others 2004 (2) SACR 242 (C) SACR 242 Paras 11, 14 and 19 .
accordance with the law, unless the accu sed, 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 ;”
It is common cause that offence s with which the appellant is charged along
with other accused persons fall within the ambit of schedule 6.
[27] Both the provisions of section 60( 11)(a) and section 65 of the CPA require
harmonious construction for purposes of bail appeal . They must be given a meaning
that accords with the acceptable principles of interpretation. Wallis JA9 said the
following about the interpretation:
“18 …..Interpretation is the process of attributing meaning to the
words used in a document, be it legislation, some other statutory
instrument, or contract, having regard to the context provided by
reading the particular provision or provisions in the light of t he
document as a whole and the circumstances attendant upon its
coming into existence. Whatever the nature of the document,
consideration must be given to the language used in the light of
the ordinary rules of grammar and syntax; the context in which
the provision appears; the apparent purpose to which it is
directed and the material known to those responsible for its
production. Where more than one meaning is possible each
possibility must be weighed in the light of all these factors. The
process is objec tive not subjective…..”
[29] In Cools Ideas10 the Constitutional Court held that:
“28. A fundamental tenet of s tatutory interpretation is that the words
in a statute must be given their ordinary grammatical meaning,
9 Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 Para 18
10 Cools Ideas 1186 CC v Hubbard and another 2014 (4) SA 474 (CC) Para 28
unless to do so would result in an absurdity. There are three
important interrelated riders to this general principle, namely:
(a) that statutory pro visions should always be interpreted
purposively;
(b) the relevant statutory provision must be properly
contextualised; and
(c) all statutes must be construed consistently with the
Constitution, that is, where reasonably possible,
legislative provisions ought to be interpreted to preserve
their constitutional validity. This proviso to the general
principle is closely related to th e purposive approach
referred to in (a)”.
[30] The default position is that an accused person charged with a schedule 6
offence must be detained in custody. The accus ed person can only be
released i f, after having been given an opportunity, adduces eviden ce which
satisfies the court that exceptional circumstances exist, which in the interest s
of justice permit his or her release. It flows from this statutor y prescript that the
bail applicant bears the onus of proof. The onus of proof must be discharged
on a balance of probabilities11.
[31] The onus of proof to be discharged by the bail applicant entails dual
responsibility under section 60 (11)(a) of CPA12. Firstly, he is legislatively
enjoined to satisfy the court that exceptional circumstances do exist; secondly ;
it must be shown by the bail applicant that exceptional circumstances
demonstrate that the interests of justice permit his release on bail. The two
requisites of bail application under section 60(11)(a) of CPA must
contemporaneously or conjunctively be present or exist , to wit, exceptional
circumstances and int erest s in justice for a successful bail application.
11 S v Yanta 2006 (1) SACR 737 (TK) .
12 Lategan v S (CA&E 193/2023) [2023] ZAEC(M)KHC 125 (19 November 2024) Para 43 .
Absence of one requirement may result in the bail applicant being not
admitted to bail.
[32] By way of an example, bail applicant may succeed in demonstrating that
interest s of justice permit his release, but fail to establish that exceptional
circumstances do exist for his release on bail under section 60( 11) (a) of CPA.
The outcome of the lack of that cr ucial requirement may not avail the applicant
to bail. Exceptional circumstances must coexist with the interest s of justice
which permit the release of bail applicant on bail.
[33] It is the contemporaneous existence of the two requisites that distinguis hes
bail proceedings arising from the offences listed in schedule 5 governed by
section 60(11)(b) of CPA and bail proceedings arising from the offences listed
in schedule 6 governed by section 60(11)(a) of CPA. Were it not for the co -
existence of two requi rement s in schedule 6 bail proceedings under section
60(11)(a) of CPA, there would not be any difference between section 60(11)(a)
and section 60(11 )(b) of CPA. Bail applications for applicants charged with
schedule 5 offences would not be different from ba il applications for applicants
charged with schedule 6 offences. In schedule 6 bail applications, e xceptional
circumstances must be shown to exist in addition to the requirement of the
interest s of just ice. In schedule 5 bail application only interest s of justice need
to be proved by the applicant for successful bail application.
[34] For the sake of completion , section 60 (11)(b) of CPA provides a s follows:
“(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 sa tisfies the court that the
interests of justice permit his or her release ”.
[35] In conclusion in this regard the contextual and purposive reading of the two
provisions demonstrate that they are textually, contextually and purposively
different. The opening words of section 60(11) (b) of CPA “ in schedule 5 but
not in schedule 6” are not tautologous13. Those words underscore the
difference between the two provisions14. They must be given a meaning. They
cannot be treated as if they do not exist. No word in a provision should be
ignored15. This now takes me to the argument that was canvassed on behalf
of the appellant.
[36] During hearin g of this matter, the issues narrow themselves down to the fact
that th e appellant is the father of two minor children. However, the appellant’s
argument sharply focused on one child who is allegedly staying with the
appellant at his homestead . It was argued that the appellant i s responsible for
the maintenance of the minor child . School necessit ies and clothing were part
of his argument. I was asked to understand those facts as constituting
exceptional circumstances under section 60(11)(a) of CPA.
[37] There are multiple difficulties not only with these facts, but also with the fact
that they constitute exceptional circumstances. Firstly , there is no ground of
appeal dealing with the facts relating to appellant ’s minor children
foreshadowed i n the notice of appeal16. It is impermissible to marshal
grounds of appeal over the bar which have not be en set out clearly and
succinctly in the notice of appeal, no matter how meritorious those might be17.
This point must fail on this point alone.
13 Ndaba v Ndaba 2017 (1) SA 342 (SCA) Para 54 .
14 Section 60(11)(a) and Section 60(11)(b) of C riminal Procedure Act.
15 African Product (Pty) Ltd v AIG South Africa Ltd 2009 (3) SA 473 (SCA) Para 13; National
Credit Regulator v Opperman and others 2013 (2) SA (1) SA (CC) Para 99 .
16 McLoggan v State 2013 (!) SACR 267 (ECG) Para 5 -10.
17 Municipality of Thabazimbi v Badenhorst (66933/2011) [2024] ZAGPPHC 195 (26 February
2024) Para 12 -15.
[38] Even if it were to be accepted that the appellant may raise a ground from the
bar and argue same by ambush to the other party, I would still find that it does
not constitute exceptional circumstances.
[39] Whilst the court a quo correctly found that the appellant has no property of his
own, he stays at his father’s house, the appellant adduced evidence that the
child is also staying at his home. Appellant’s father is also staying in the same
house or property. It has not been su ggested that appellant’s father is unable
to take care of the minor child. Appellant’s father is the gran dfather of the
same minor child who has been providing shelter and accommodation to both
the appellant and the minor child. Nothing at all is sugges tive of the fact that
the appellant is responsible for the clothing and groceries for this minor child.
On a balance of probabilities appellant’s father who is the child’s grandfather
is responsible for those necessities. The substantial part of child’s life is taken
care of by the grandfather and there is no reason why he cannot undertake
the remaining responsibilities. It worths mentioning that only R600.00 per
month is paid for school trans port for the minor child and a paltry sum of
R200.00 per annum in re spect of school fees. No suggestion that the
grandfather c annot afford these two amounts , nor that he i s unwilling to pay
them.
[40] No strong argument was made in respect of the other child. She is staying
with her maternal family. She is the recipient of the child support grant . The
appellant alleges to be paying R300.00 per annum for school fees and
R300.00 per month for scholar transport. Nothing more is said about the child.
No suggestion that these two pal try amounts cannot be paid by the maternal
family which is responsible for the greater part of the child’s life, including
child’s health, school uniform, clothing, groceries , shelter and/or
accommodation.
[41] On the basis of the evidence and lack thereof, I find on a balance of
probabilities that the two minor children can be well and properly looked after
without the appellant. The appellant did not adduce evid ence that his cattle
cannot be s old while he is in custody for children’s school fees and transport.
[42] I find no fault i n court a quo ’s finding that the appellant had no family,
community or occupational ties to the place to which he is to be tried , which is
Ntabankulu .18 No fi xed property is alleged to be in the name of the appellant
as he has expressly testified that he is staying at his father’s house19.
[43] Save to state that the state has no strong case against him, the appellant
placed no version or basis of his defence in his evidence in chief. Even during
the cross ex amination, the appellant content ed himself with bare denials. In
many instances when a ve rsion is put , the appellant would proffer answers in
the following forms:
“I do not know or I do not remember”. No meaningful answers were
given to establish i f state ’s case is weak against hi m. In this regard the
nature and gravity of the charge20, the strength of the state’s case
against the appellant21, and the nature and gravity of the punishment
which is likely to be imposed against the appellant becomes very
important22. I find no fault in court a quo’s finding that all of these may
cumulatively serve as a n incentive and a motivation for the appellant to
attempt to evade trial.
[44] Mere denial of factual allegations by the bail applicant is not sufficient. More is
required. He i s required to adduce evi dence to support any contention by him.
Howeve r, I make no finding on the guilt or otherwise of the appellant. I
address myself only on the aspect of rivalling evidence that was canvassed
for consideration by both parties about the strength and weakness of the
state’s case against the appellant. The ultimate point I am mak ing in that
regard is simple that , appellant has not discharged the onus rested on his
shoulders to show that exceptional circumstances exist which in the interest s
of justice permit the r elease of the appellant on bail . Proof by the appellant
18 Section 60(6)(a) of Criminal Procedure Act.
19 Section 60(6)(b) of Criminal Procedure Act.
20 Secti on 60(6)(f) of Criminal Procedure Act.
21 Section 60(6)(g) of Criminal Procedure Act.
22 Section 60(6)(h) of Criminal Procedure Act.
that he would probably be acquitted can serve as an exceptional
circumstance. The strength of the state’s case is accordingly relevant to the
existence of exceptional circumst ances23.
[45] I, therefore , conclude that I am not satisfied that exceptional circumstances
exist which in the interests of justice permit appellants re lease on bail . Section
60(11)(a) and(b) read with schedule 5 and 6 respectively, represent the
gravamen of the legislatures intensified battle against serious crimes. Bail
applicants who are charged with offences mentioned in t hese schedules have
an uphill battle particularly those to whom schedule 6 applies24.
[46] In Peterson25an attempt to define the word exceptional circumstance s was
made in the following words:
“55…. Generally speaking “exceptional” is indicative of something
unusual, extraordinary, remarkable, peculiar or simply different. There
are, of course, varying degrees of exceptionality, unusualness,
extraordinariness, remarkableness, peculiarity or difference. This
depends on their context and on the particular circumstances of the
case under consideration.”26
[47] Whilst exceptionality of the circumstances are a very important consideration
in schedule 6 bail application, co ntext and p articular circumstances of the
case under consideration are too important considerations. Exceptional
circumstances, context and part icular circumstances of the case feed of each
other. Context in law is everything.27 I have briefly outlined above the fac ts of
this case, and came to a conclusion that they do not constitute exceptional
circumstances contemplated by section 60(11) (a) of CPA.
23 W v Minister of P olice 2015 ( 1) ALL SA 68 (SCA); 2015(1) SACR 409 (SCA) Para 3; S v Jonas
1998 (2) SACR 677 (SE) at 678 .
24 Hiemstra’s Criminal Procedure Page 9 -12
25 S v Peterson 2008 (2) SACR 355 (C) Para 55
26 Mtengwana v S (CA&R 91/2023) [2023] ZAECMHC 68 (12December 2023)
27 Minister of Home Affairs and others v Scalabrini Centre Cape Town and others 2013 (6) SA
421 (SCA) Para 89 .
[48] Exceptional circumstances must be circumstances which are not found in the
ordinary bail application but pertain peculiarly to an accused person’s specific
application . What a court is called upon to do is to examine all the relevant
considerations as a w hole in deciding whether an accused has established
something out of the ordinary or unusual which entitles him to a relief under
section 60(11)(a) of CPA.28
[49] In a different context, the concept of exceptional circumstances was subject of
discussion. Zondi JA29 had this to say:
“14. The concept of exceptional circumst ances is not defined in the Act.
In my view the concept is sufficiently flexible to be considered on a
case by case basis, since circumstances that may be regarded as
‘ordinary ’ in one case, may be treated as ‘exceptional ’ in another. This
may explain the r eason for the reluctance by the courts to lay down a
general rule”. In Liesching and Others v The State [2018] ZACC 25;
2019(4) SA 219 (CC) the Constitutional Court in considering the
concept of ‘exceptional circumstances ’ within the context of S17(2) (f)
of the Act referred to MV Ais Mamas Seatrans Maritime v Owners, MV
Ais Mamas and Others 2002 (6) SA 150 (C) Thing J distilled the
principles that emerged from the su rvey of case law relating to the
meaning of the concept of ‘exceptional circumstances’ at 156E -157C:
1. What is ordinarily contemplated by the words ‘exceptional
circumstances ’ is something out of ordinary and of an
unusual nature; something which is exceptional in the
sense that the general rule does not apply to it; something
uncommon, rare or different : besonder, seldsaam;”
uisonder lik’ (sic) or in hoe mate ingewoon.”
2. To be exceptional the circumstances concerned must arise
out of, or be incidental to, the particular case.
28 S v H 1999 (2) SA (SACR) 72 (W) at 77 E -F.
29 Premier for the Province of Gauteng v Democratic Alliance 2021 ALL SA 60 (SCA) Para 14 .
3. Whether or not exceptional circumstances exist is not a
decision which depends upon the exercise of a judicial
discretion: their existence or oth erwise is a matter of fact
which the court must decide accordingly.
4. Depending on the context in which it is used, the word
exceptional has two shades of meaning: the primary
meaning is unusual or different, the secondary meaning is
markedly unusual or specially different.
5. Where, in a statute, it is directed that a fixed rule shall be
departed fro m only under exceptional circumstances, effect
will, generally speaking, best be given to the intention of
the legislature by applying a strict rather than a literal
meaning to the phrase, and by carefully examining any
circumstances relied on as allegedly being exceptional.”30
[50] In Knoop NO31 the Supreme Court of appeal held that in the context
of S18(3)32exceptional circumstances:
“(a) must be something that is sufficiently out of the ordinary and of an
unusual nature to warrant a departure from the ordinary rule that the
effect of an application for leave to appeal or an appeal is to suspend
the operatio n of the judgment appealed from,
(b) must be a deviation from the norm.
(c) must arise from the facts and circumstances of the particular case. ”
30 Johannesburg Society of Advocates v Nthai 2021 (2) SA 343 (SCA) Para 102 .
31 Knoop NO v Gupta (Execution) 2021 (3) SA 135 (SCA) Para 46 .
32 Superior Court Act 10 of 2013 .
[51] it is decipherable from these authorities that the weight of judicial opinion
favours the view that the normal principle applicable to normal bail
application33 dealing only with the interest s of justice are i nsufficient in a
schedule 6 bail application contemplated in section 60(11) (a) of CPA .
[52] The words used in section 60(11) (a) of CPA that “ the accused …. adduces
evidence which satisfies the court that exceptional circumstances exist which
in the interest s of justice permit his or her release ” denote that subjective
jurisdictional fact must be established before the accused’ s release on bail .
This category of jurisdictional facts is roote d on the fact that the empowering
statute has entrusted the repository of the power with the function to
determine whether in its subjective view the prerequisite fact or state of affairs
existed or not. Expressions often used by legislature to express this intent are
e.g., “in his or her opinion or if he or she is satisfied the particular fact or
state of affairs exist.”34In the absence of such preconditions or jurisdictional
facts, the authority effectively has no power to act at all35. On the facts of the
case the court would permit the release of the appellant only if it is of the
subjective view that exceptional circumstances which in the interest s of justice
permit the release of the appellant on bail do exist. I have found that the
appellant has failed to satisfy this jurisdictional fact, and accordingly a power
to release him cannot be exercised. Accordingly, the appeal cannot succeed .
Order
[53] In the result I make the following order:
53.1 The appellant’s late filing of the notice of appeal is hereby
condoned.
53.2 The bail appeal is dismissed.
33 Section 60(4) and 60(11)(b) of CPA .
34 Kimberly Junior Senior Secondary School and another v Head of Northern Cape Education
Department and others 2010 (1) SA 217 (SCA) Para 13 .
35 Paola v Jeeva NO 2004 (1) SA 396 (SCA) Para 11, 14 and 16 .
___________________________________
A.S ZONO
ACTING JUDGE OF THE HIGH COURT
APPEARANCES :
For the Applicant : Mr Quluba
Instructed by : W QULUBA INCORPORATED
28 Sprigg Street
Dr Mbambisa Medical Centre
Mthatha
Cell :0719448454
EMAIL: quluba2016@gmail.com
For the RESPONDENT : Mr Bikitsha
Instructed by : Director of Public Prosecutions
94 Sission Street
Fortgale
MTHATHA
Matter heard on : 22 November 2024
Delivered on : 21 January 2025