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THE REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Bail Appeal N o: A 03 / 2025
In the matter between
N[...] G[...] APPELLANT
and
THE STATE RESPONDENT
Coram: Wille, J
Heard: 19 March 2025
Delivered: 15 April 2025
______________________________________________________________________
JUDGMENT
WILLE, J
INTRODUCTION
[1] The appellant stands indicted on a single charge of rape, alternatively on a
charge of sexual assault as it is now broadly defined by way of legislative intervention.1
[2] The charge concerns an alleged incident between the appellant and the
appellant’s stepdaughter , which is said to have occurred about eleven (11) years ago.2
[3] It is not disputed that given the nature of the case and the charges as preferred
by the prosecution , the appellant was obliged to adduce evidence that satisfie d the
court that exceptional circumstances exist ed that permit ted his release from custody on
bail in the interests of justice .3
GROUNDS OF APPEAL
[4] The arguments raised in support of the appeal are that the trial court erred in
finding that:
(a) There was a likelihood that the appellant would evade his trial .
(b) There was a likelihood that the appellant would interfere with the state
witnesses .
(c) There was a likelihood that the appellant would interfere with the
investigation.
(d) There was a likelihood that the appellant would commit further crimes.
1 Section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, Act 32 of 2007 .
2 During 2014.
3 Section 60 (11) (a) of the Criminal Procedure Act, 51 of 1977 ( A “Schedule 6 ” offence).
(e) The respondent had a good case against the app ellant.
(f) The appellant failed to prove exceptional circumstances to secure his
release on bail.4
OVERVIEW
[5] The respondent placed evidence before the court in the first instance by using an
affidavit from the investigating officer . It was alleged that the appellant had committed
an act of digital (finger) penetration against his stepdaughter, who was fourteen (14)
years old at the time. It is further noted that the appellant ha d another pending matter
for allegedly committing another similar offence against the younger sister of the current
complainant.5
[6] The complainant did not report the matter at the time of the alleged incident.
However, when her younger sister reported that the appellant had allegedly committed
a similar act of digital penetration against her , this gave her the courage to report what
the appellant had allegedly done to her when she was a young child .6
[7] The appellant testified, and during his cross -examination , documentary evidence
was introduced concerning a medical examination of the complainant that may indeed
support her allegations regarding the type of sexual assault that she allegedly endured.
What I found of great significance was the evidence that emerged that the current w ife
of the appellant (the mother of both victims ) had allegedly influenced one of the victims
to withdraw a protection order , which was granted against the appellant in connection
with his alleged deviant conduct.7
4 This remains the ultimate consideration to be determined in the court of first instance.
5 The appellant is on bail in this matter.
6 This factual position was not disputed.
7 This factor weighed heavily with the judicial officer in the lower court.
CONSIDERATION
[8] Before I can determine whether bail should have been refused or granted to the
appellant, I must determine whether a misdirection occurred by the judicial officer in the
lower court . This misdirection, if it exists, must also have been material in relation to the
facts or the law, or I suppose in rare cases both.8
[9] The appellant ’s primary argument is that the lower court misdirected itself by
over-emphasizing the strength of the prosecution’s case against him. Ultimately, the
trial court must determine this after the conclu sion of the trial. This notwithstanding, it
remains only one of the factors that the court of first instance must consider when
deciding whether bail should or should not be granted.9
[10] What bears scrutiny is why the appellants advance that the prosecution has a
weak case against the appellant. The reasons advanced are these:
(a) There was a delay in reporting the matter to the police.
(b) There was some lack of clarity as to the precise nature of the offence .
(c) The app ellant ’s hypothesis of a motive for a false fabrication against
him.10
[11] The court of first instance had to, among other things, determine on a weighing
up of the available evidence before it whether it was legally entitled to conclude that th e
prosecution had a sufficient and adequate prima facie case against the appellant.11
8 Panayiotou v S (CA&R 06 /2015) [2015] ZAECGHC 73 (28 July 2015) at paragraph [27].
9 This is not an issue that is easily determined at this stage of the proceedings.
10 These allegations were meticulously dealt with in the lower court.
11 The lower court did deal with these allegations.
[12] To assist the court of first instance in this weighing -up process, the appella nt was
required to adduce convincing evidence to establish that the case against him was weak
or that he was likely to be acquitted . The respondent submits that the appellant failed to
adduce any evidence to establish that the case by the prosecution against him was and
is a poor case.12
[13] As I have said, although this was an issue that was pursued by the appellant in
the court of first instance and again during these proceedings (and considered by the
presiding judicial officer), it is not a factor which is definitive to the outcome. 13
[14] Inextricably linked to this argument is the allegation by the appellant that the
complainant in the pending rape matter is falsely accusing him as she has a boyfriend
with whom she is in a sexual relationship. This bears scrutiny as these charges were
preferred against the appellant before this information surfaced.14
[15] These ‘fabrication ’ allegations must also be viewed against the canvass of the
valid admission of similar fact evidence in the court of first instance. As a general
proposition in b ail applications, the common -law rule excluding similar fact evidence or
the propensity to commit certain types of crime must be disregarded in light of the view
that during a bail enquiry, the appellant’s past conduct may be highly relevant as a
factor de termining risk, or as in this case, whether the appellant is likely to interfere with
any of the witnesses for the prosecution.15
[16] By legislative intervention, in this case, the appellant was compelled to inform the
court whether any charges were pending against him or her and whether he or she ha d
been released on bail regarding those charges.16
12 The appellant case was mainly based on speculation by him.
13 This decision is incredibly difficult (if not impossible) to make at this stage of the proceedings.
14 At best , this is speculative for the appellant.
15 S v Patel 1970 (3) SA 565 (W).
16 Section 60 (11B) of Act 51 of 1977 (as amended by Act 85 of 1997 ).
[17] In this case, the appellant is facing similar charges and has been released on bail
pending th e determination of those charges. Thus , in this case , the primary interest
which needs to be protected is the risk of interference with the witnesses for the
prosecution and how this is assessed, considering the elusive concept of the proper
administratio n of justice.17
[18] The appellant, in this case, allegedly persuaded his current wife (the mother of
both victims ) to influence one of the victims to withdraw a protection order , which was
granted against the appellant in connection with similar alleged d eviant conduct. Thus ,
the appellant has already allegedly interfered with the administration of justice.18
[19] In this case there exists, at the very least, a well -grounded fear of interference of
the witnesses for the prosecution by the appellant. I sa y this also because of the
familial relationship between the appellant and the complainant. Put in another way ,
there is a reasonable possibility that the appellant will continue to interfere with the
witnesses for the prosecution because the complainant is his stepdaughter.19
[20] The respondent submit ted that the appellant's circumstances did not
demonstrate anything unusual or exceptional . It was not shown that the appellant
would suffer any undue hardship if bail was not granted to him . The appellant ’s
circumstances were not exceptional in the legal sense to warrant his release on bail .20
[21] I say this because the appellant allege d that caring for his ex -wife was an
exceptional circumstance to his advantage. The respondent alleged that the appellant’s
ex-wife had recently passed away , and the appellant's legal representative confirmed
her passing . Besides, the appellant d id not allege that he was financially support ing his
ex-wife as she had received a disability grant .21
17 S v Vankathathnam 1972 (2) PH H139 (N).
18 R v Phasoane 1933 TPD 405.
19 R v Fourie 1947 (2) SA 574 (O).
20 The judicial officer in the lower court engaged with this issue.
21 The issue of the alleged financial support was not fully traversed by the appellant.
[22] Finally, turning to the often debated and undefinable term known as the interests
of justice. In the context of this species of bail application, it has been suggested that
the term ‘interests of justice’ should be read to mean the ‘interests of society’ as a
whole. This seems problematic as no judicial interpretation of the term ‘interests of
society’ would be capable of rendering it a ‘provision ’ that gives any guidance for legal
debate.22
[23] Instead, a court must weigh up the interests of the appellant against the interests
of society as prescribed by the provisions of the intervening legisla tion when dealing
with an application for the release under bail under these circumstances.23
[24] I say this also because bail applications are unique proceedings. A bail
application is not a trial. The appeal to this court must strictly follow the intervening
legislation dealing with applications of this nature, which provides as follows:
‘…The Court or Judge hearing the appeal shall not set aside the decision ag ainst
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…’24
[25] Put another way, it does not matter what my views are , as the only question is
whether it can be said that the judicial officer in the lower court who had the discretion to
grant bail exercised that discretion incorrectly. I cannot conclude that the lower court's
judicial officer was wrong when weighing up the appellant’s circumstances against the
seriousness of the charges against him and the interests of society . Thus, the finding
that the appellant did not provide any exceptional circumstances causing it to be in the
interests of justice to grant him bail was not wrong.25
22 R v Morales (1992) 777 CCC (3d) 91 (SCC). (Canadian Authority).
23 With reference section s 60(4), 60(9) and (10) of the Criminal Procedure Act, 51 of 1977.
24 Section 65(4) of the Crimi nal Procedure Act, 51 of 1977.
25 S v Barber 1979 (4) SA 218 (D) at 220 E -H.
[26] Finally, I am not permitted to interfer e with the judicial discretion exercised by the
lower court because this decision was correctly based on a cumulative analysis of the
evidence , which demonstrated that the a ppellant did not discharge the legal onus which
rested on him in the circumstances. Thus, the appeal must fail .
ORDER
[27] The appeal is dismissed.
__________
E.D. WILLE
(Cape Town )