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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: A312/2022
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/ NO
(3) REVISED: YES
DATE : 08/05/2025
SIGNATURE
In the matter between:
M[...] K[...] FIRST APPLICANT
M[...] K[...] SECOND APPLICANT
v
THE STATE RESPONDENT
JUDGMENT
MOSOPA J
INTRODUCTION
[1] This is an application for the applicants to be permitted to bail pending an
application of a reconsideration to the President of the Supreme Court of
Appeal, in terms of the provisions of section 17(2)(f) of Act 10 of 2013 read with
the provisions of section 316(3)(a) of Act 51 of 1977 , brought on an urgent
basis in terms of Rule 6(12) of the Uniform Rules of court.
[2] Ordinarily, bail applications are urgent matters which need to be considered on
an urgent basis. It is for that reason that a determination is made that the
matter is urgent. The bail application is opposed by the respondent.
BACKGROUND
[3] The applicants were convicted in the Regional court for the Regional Division of
Gauteng, Pretoria on the following charges;
3.1. First applicant
(a) Rape , and
(b) Sexual assault
3.2. Second applicant
(a) Rape
All the charges relate to the same complainant who was still a minor at the time
of their commission. The applicants were sentenced to 20 years imprisonment
as a sequel to their convictions.
[4] The matter served before Tshombe AJ and Mosopa J, as an appeal against
convictions and on the 30 October 2024 and the appeal against their
convictions was dismissed. It was further ordered that the applicants must
surrender themselves within 7 days of the order to start serving their sentence s.
[5] Applicants aggrieved by the appeal outcome further appealed to the Supreme
Court of Appeal (“SCA”) and on the 22 November 2024, Mosopa J, made an
order extending the bail of the applicants with ancillary conditions pending the
outcome of their appeal to the SCA. The applicants special leave to the SCA
was dismissed on the 19 March 2025.
[6] Aggrieved by such outcome, the applicants filed an application for the
reconsideration of such decision to the President of the SCA in terms of the
provisions of section 17(2)(f) of Act 10 of 2013 and such decision is still
pending . After the decision of the SCA, dismissing the special leave to appeal
application was handed down , the applicants handed themselves in to start
serving their sentence s at the Kgosi Mampuru II Correctional Centre, in
Pretoria. Application for reconsideration of the SCA decision is still pending.
PERSONAL CIRCUM STANCES OF THE APPLICANTS
[7] Both the applicants are twin brothers who are 50 years old. They are South
African citizens and both do not have valid South African passports, nor do they
intend to apply for such if released on bail. They do not have friends or family
members outside of the boarders of the Republic.
[8] The first applicant is residing at [...] J[...] Street, Vanderbijilpark, SE3 and the
second applicant resides at 1[...] W[...] R[...] , Bergtuin, Pretoria. The first
applicant has been residing at that address since 2022, meaning that he started
residing there after the commission of the offence he has been convicted of. It
is not clear as to whose property it is as the applicant is unemployed.
[9] The first applicant is not married but has one dependent, a daughter aged 10
years and is currently residing with her mother in Benoni. The second applicant
is married out of community of property and two daughters, namely M[...] , 17
years old and L[...] 13 years old , were born out of that marriage. They are both
attending school and are staying with both the second applicant and his wife.
[10] The first applicant is currently unemployed, and second applicant is employed
as an internal salesperson at Bearing Agent earning a net salary of R35 000,
00 and has been in such employment for the past 23 years. It is not clear as to
whether his employer will be willing to accept him back to his employment when
released on bail.
[11] They both have no previous convictions except for the current convictions and
no other pending cases against them. They have not defaulted on their bail
conditions set for their release, since during their trial matter up until their
appeal outcomes and even after learning of their unsuccessful appeal to the
Supreme Court of Appeal .
[12] They do not have the intentions to endanger the safety of the public and also
they do not have any contact with the complainant or her family. They
guarantee not to commit schedule 1 offence s whilst out on bail. They harbour
no resentment towards the court’s judgment and the sentence meted upon
them.
[13] The second applicant is responsible for the maintenance of his children . They
promise to adhere to any bail conditions set for their release. The interests of
justice, considerations of prejudice and the balancing of respective interests
favour their release on bail.
DISCUSSION
[14] The offences which the applicants have been convicted and sentenced for, still
resorts under Schedule 6. Section 60(11)(a) of Act 51 of 1977, makes the
following provision;
“60(11)(a) 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 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 .”
[15] Section 321 (1)(b) of Act 51 of 1977 makes the following provision,
“321 (1) The execution of the sentence of a superior court shall not be
suspended by reason of any appeal against a conviction or by reason
of any question of law having been reserved for consideration by the
court of appeal, unless -
(b) the superior court from which the appeal is made or by
which the question is reserved thinks fit to order that the
accused be released on bail or that he be treated as an
unconvicted prisoner until the appeal or the question reserved
has been heard and decided .”
[16] In essence, section 321 provides that an appeal against conviction does not
automatically suspend the execution of the sentence imposed following the
conviction. The above also enjoins the court to consider the bail application of
the convicted person, if court think fit to order the release of such person.
However , what is important in addition to other factors the court may consider
in releasing the convicted person on bail is to consider whether that person is a
flight risk especially when he knows that he is convicted and sentenced and
also facing the prospect of a long prison stay.
[17] The wording of s ection 60(11)(a) may suggest that, is only applicable to
accused who are not convicted but in essence it is applicable to bail applicants
who are convicted and sentenced pending the finalisation of their appeal
matters. The above is confirmed in the matter of S v Bruintjies 2003 (2) SACR
575 (SCA) at paragraph 6 , when Shongwe AJA (as he was then) observed
that,
“[6] The main thrust of the appellant's counsel's submissions before us
was that the grant of leave to appeal on the merits presupposed the
existence of a reasonable prospect of success in the appeal. Such a
prospect, said counsel, of itself constituted an exceptional
circumstance within the meaning of the section. If that were so,
however, the great majority of persons facing charges involving
Schedule 6 offences would have to be released on bail pending their
trial without regard to other important consi derations, such as, for
example, the public safety. The mere fact that the trial court considers
that the appellant has a reasonable prospect of succeeding on appeal
does not of itself amount to an exceptional circumstance. What is
required is that the court consider all relevant factors and determine
whether individually or cumulatively they warrant a finding that
circumstances of an exceptional nature exist which justify his or her
release. What is exceptional cannot be defined in isolation from the
relev ant facts, save to say that the Legislature clearly had in mind
circumstances which remove the applicant from the ordinary run and
which serve at least to mitigate the serious limitation of freedom which
the Legislature has attached to the commission of a Schedule 6
offence. The prospect of success may be such a circumstance,
particularly if the conviction is demonstrably suspect. It may, however,
be insufficient to surmount the threshold if, for example, there are other
facts which persuade the court that society will probably be
endangered by the appellant's release or there is clear evidence of an
intention to avoid the grasp of the law. The court will also take into
account the increased risk of abscondment which may attach to a
convicted person who faces the known prospect of a long sentence.
Such matters, together with all other negative factors, will be cast into
the scale with factors favourable to the accused, such as stable home
and work circumstances, strict adherence to bail conditions over a long
period, a previously clear record and so on. If, upon an overall
assessment, the court is satisfied that circumstances sufficiently out of
the ordinary to be deemed exceptional have been established by the
appellant and which, consistent with the interests of justice, warrant his
release, the appellant must be granted bail. ”
[18] The fact that the applicants have been convicted and sentenced, their appeal
was unsuccessful in the High Court and their special leave to the SCA was
dismissed, i s a clear indication that the circumstances of the applicants had
changed and they need to place new facts, which must be deemed to be
exceptional circumstances , before this court can release them on bail. (see S
v Yanta 2000 (1) SACR 237 (TK) ).
[19] The onus is on the applicants on the balance of probabilities to show that they
meet the requirements set by section 60(11)(a) and 60(4)(a) -(e) of Act 51 of
1977. Most importantly the court considering a bail application is enjoined by
section 60(10) to weigh up the personal interests of the bail applicant against
the interests of the justice. The interests of justice should be interpreted to
include the safety of a person against whom the offence in question has
allegedly been co mmitted .
[20] The complainant was violated by the applicants when she was very young
and was a friend of the second applicant’s child. She viewed the applicants as
her parents as she enjoyed being in the company of the second applicant
more than with her own parents . At that stage, even though the first applicant
was not residing there, he used to visit there often and is also known to the
complainant. She sha red deep “ secrets ” with the wife of the second
applicant , and this shows exactly how close the complainant was to the
applicants, more especially to the second applicant. She would alter nate
going to spend a weekend at the second applicant’s place of residence ,
though with the approval of her parents as they used to be their neighbour
before she relocated to a new address .
[21] One must bear in mind that it has now been approximately 4 years since the
applicants have been convicted and sentence d, the commission of the
offences was in 2018. Despite the fact that appl icant avers in their affidavits
that they do not harbour any resentment against the complainant, the
sentence has a serious effect and/or impact in their daily lives , without the
applicants expressing that, it had a negative impact on the marriage of the
second applicant. Their standing in the community has changed, even if it is
not born out of the record, but it is common sense.
[22] It is for the above reason s that the safety of the complainant ought to be
guaranteed.
[23] Ms Cronje on behalf of the respondent contended that the applicant since they
handed themselves to start serving sentence, they have tasted prison life and
as such this can encourage the m to abscond in the event their application s to
petition the President of their SCA is not successful and they are therefore a
flight risk. It is plain that the applicants have not been in prison since their arrest
as they were granted bail after their arrest. This was the position until they
recently handed themselves over to start serving their sentence s.
[24] It is also common that the prison conditions in South African prisons are not
pleasant. There is an issue of overcrowding and related ills that are prevalent in
our prisons. Having tasted this kind of prison life, this will not encourage the
applicants to return to prison if their applications in terms of section 17(2)(f) is
not successful. I fully agree with the contention by Ms Cronje.
[25] The first applicant is not employed and is not a primary caregiver to his child.
The child is currently in the care of her mother in Benoni, who is also
responsible for her maintenance looking at the fact that the first applicant does
not have any financial income. The second applicant is gainfully employed and
responsible for the maintenance of his children. It is not the second applicant’s
contention that he is a sole breadwinner in his family.
[26] Nothing much is said with regards to the wife of the second applicant, whether
she is employed or not and her part of contribution towards the maintenance of
the second applicant’s children.
[27] As stated in Bruintjies (supra ), the reasonable prospects of success in the
appeal does not constitute exceptional circumstances as intended by section
60(11)(a) , but that aspect must be considered together with other relevant
factors. The approach adopted by the applicant in not addressing this court on
the reasonable prospects of success and merits in more detail is applaudable
considering the fact that I do not consider the applicant succeeding in his
further appeal to the SCA.
[28] The fact that , for a period of 4 years the applicants never defaulted on their bail
condition s is considered , but it cannot be used as a factor that can lean towards
the applicants being released on bail at this stage. They never committed any
schedule 1 offence s whilst out on bail, but this again cannot be used to grant
the applicants’ bail. It is for these reasons that bail applications should be
refused. It is to be noted that the applicants have been convicted of very
serious offences , which entail violating the privacy of the complainant, and the
prospects of facing lengthy sentences if their applications to the SCA do not
succeed is real. The applicants failed to show the existence of exceptional
circumstances that can permit them to be released on bail. It is for this reason
that the bail applications cannot succeed.
ORDER
[29] In the result the following order is made;
1. Application for the release of the applicants on bail pending the
finalisation of the application for a consideration to the President of the
Supreme Court of Appeal, in terms of section 17(2)(f) of Act 10 of
2013, is hereby refused.
M.J. MOSOPA
JUDGE OF THE HIGH COURT,
PRETORIA
APPEARANCES
FOR THE APPLICANTS : ADVOCATE JANSE VAN RENSBURG
INSTRUCTED BY : HAMAN AND BOTHA ATTORNEYS
FOR THE RESPONDENT : ADVOCATE CRONJE
INSTRUCTED BY : DIRECTOR OF PUBLIC PROSECUTIONS,
PRETORIA
Date of hearing: 09 April 2025
Date of judgment: 08 May 2025