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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION , CAPE TOWN )

Appeal Case No.: A74/2024
Lower Court Case No: A 618/2024

In the matter between:

R[...] B[...] First Appellant

G[...] L[...] B[...] Second Appellant

and

THE S TATE Respondent

Coram: MAPOMA AJ
Heard: 14 May 2025
Electronically Delivered: 23 May 2025


JUDGMENT
_____________ ______________________________________________________

MAPOMA AJ

Introduction

[1] This is a bail appeal against the decision of the Magistrate, Atlantis (the court a
quo), refus ing to grant after pending trial . The appellants are a married couple . The
husband and wife aged 4 7 and 3 8 respectively . They are facing 15 charges at the
magistrate’s court ranging from kidnapping, trafficking in persons for the pur pose of
exploitation , sexual assault, assault , rape, possession of drugs , attempted murder
and unlawful possession of ammunition.

[2] These offences are alleged to have been perpetrated on the 26-years old
woman (the complainant ), and to the appellants’ own biological 5-years old child . At
the relevant time, the complainant was the employee of the appellants . The charges
involve certain offences that fall under Schedule 6 of the Criminal Procedure Act 55
of 1977 ( the Act), and as such, the bail hearing was one to be conducted under
section 60(11) of the A ct. Section 60(11) of the Act provides that in schedule 6
offences the court shall order that the accused be detained in custody until he or she
is dealt with in accordance with the law, unless t he accused , having been given a
reasonable opportunity to do so, adduces evidence which satisfies the court that
exceptional circumstances exist which , in the interest s of justice , permit his or her
release.

[3] The bail appeal was opposed by the respondent on the grounds that there are
no exceptional circumstances which in the interest of justice permit the release of the
appellants o n bail.

Relevant Background Facts

[4] The appellants were arrested on 31 October 2024 at their place of residence in
Melkbosstrand , Cape Town on the strength of the allegations of inter alia kidnapping,
trafficking, sexual exploitation , physical and emotional abuse levelled by the
complainant against them . The complainant’s allegations are also that she witnessed
the second appellant committing sexual abuse of her own 5 -years old child by
inserting a finger on her anus. These allegations are denied by the appellants.

[5] Pursuant to the arrest of the appellants , their two biological children, namely, a
5-years old girl and a 4 months ’ old breast -feeding baby boy, were take n away from
the appellants and placed in the care of the officials of the Department of Social
Development . The minor children were in turn taken to the Thuthuzela Care Centre
at Victoria Hospital in Wynberg, where they were medically examined. No physical
injuries were found on the baby boy. The examining medical practitioner made
clinical findings on the minor girl to the effect that there was partial transection at 4
o’clock of the hymen and tear in anal orifice which healed as a scar at 11 o’clock ,
which according to the doctor, were in keeping with possible blunt force penetration
of anal and genital s. The doctor further reported that healing had taken place and
that these would be older injuries.

[6] Having heard the oral evidence of the appellants, which was foreshadowed by
their respective affidavits with annexures , and further having considered the affidavit
with annexures, of Lieutenant Colonel Speed of the Directorate of Priority Crim e
Investigation ( DPCI) of the South African Police Servi ces (SAPS) , on 21 February
2025, the magistrate refused bail.

[7] In refusing bail, t he magistrate held that the appellants had been afforded more
than enough reasonable opportunity to present their case but failed to d ischarge
their onus of proving that exceptional circumstances exist , which in the interests of
justice , permit the ir release on bail. The court a quo rejected the appellant’s
subm ission that the complainant was voluntarily traveling across the borders of
South African during the course and scope of her employment. The court a quo took
a view that the complainant was not travelling on her own steam but had been
recruited , transported and harboured against her will . The court also rejected the
appellants argument with regards to the rape charge, that the sexual intercourse
between the complainant and the first respondent was consensual, backed by the
so-called ‘sex contract ’ that was concluded between the appellants and the
complainant on 30 June 2024.

Appellants case for bail

[8] In summary , the appellants’ testimony as contained in the respective affidavits
read into the record and supp orted by their oral evidence , is that they are a married
couple residing at the property owned by the first appellant, situated at [...] A[...]
Way, Atlantic Beach Estate, Melkbosstrand, Cape Town. The first appellant has
another immovable property at Potchefstroom , Gauteng provi nce.

[9] The first appellant is a South African citizen, who has been in steady
employment in the management of M[...] C[...] , which is owned by a management
company called B[...]. Although he spends a fair amount of time working abroad in
Qatar, Dubai and United Arab Emirates (UAE) , he regards South Africa as his
permanent home and domicilium , where he raises his children. The second app ellant
is a British citizen , who is in the pro cess of applying for renewal of her Visa and
permanent residence in South Africa . She resides with the first appellant at the
abovementioned address in South Africa . She owns an events management
company R[...] E[...] that is registered in Qatar , which she operates remotely whilst in
South Africa.

[10] Both app ellants have no previous convictions, n o pending cases against them
and no outstanding warrants of arrest . They deny all the allegations made by the
complainant against them and intend pleading not guilty to all the charges . In their
testimony in the court a quo , the appell ants mounted a detailed account on the
presented facts in denial of the allegations in an endeavour to illustrate that the
complainant is not telling the t ruth. The appellants contend that the allegations are
false , and that the allegation s were made by a complainant whose credibility is
wanting . On this basis, they contend that the respondent’s case is so weak that there
are no reasonable prosects of successful prosecution , and that this on its own
constitutes exceptional circumstances, which in the interests of justice , justify their
release on bail.

[10] The first appellant testified that they are a close -knit nuclear family with two
biological minor children aged 5 years and 4 months old . He also has another adult
daughter from previous marriage. He also testified that on or about 16 October 2024,
while he wa s at work in Dubai, the second appellant and the ir two minor children
were taken by the social workers to the West fluer Thuthuzela Care Centre for
medical examination of the children upon allegations made that the second app ellant
had sexually abused her 5 years old daughter as mentioned above . After the second
appellant and children were subjected to medical checkup and permitted to ret urn
home, the second appellant contacted t he first appellant and told him that s he had
been informed by the social workers that the complainant had laid criminal charges
against them . The first appellant took the earliest possible flight from Dubai on 25
October 2024 and returned to South Africa.

[11] On 31 October 202 4, the appellants w ere arrested at their home . After the
appellants ’ arrest , their two minor children were taken from home and placed in t he
care of the officials of the Department of Social Services , who took them to the
Thuthuzela Care Centre, Victoria Hospital, Wynberg for another medical examination
as mentioned earlier in this judgment . Regarding the injuries reported on the child,
their explanation is that sometime earlier, they discovered that the ch ild was abused
by a certain Mr Bulbul whose access to the child was their helper whom they
dismissed as a result of that act. No criminal charges were pressed against the said
Mr Bulbul.

[12] Both appellants deny that they are flight risks. In this regard, the first appellant
argues that , whilst he has residence permit in countries outside South Africa, he
came to South Africa upon being notified that the comp lainant has laid criminal
charges against them notwithstanding that he could have remained abroad and
evade arrest . In addition to this the app ellants committed themselves to accept and
abide by bail conditions, no matte r how stringent such conditions are . In this regard,
they urged the court to consi der as one of the conditions of bail that the property they
use as common home in Melkobosstrand be used a s security against bail.

Respondents case

[13] The state opposed bail mainly on the grounds that the appellants had failed to
prove exceptional circumstances , which in the interest of justice, permit their release.
The state contend ed that the appellants are closely linked to the charges and that
they face possible life imprisonment given the serious nature of the charges they
face. The state further contended that the interests of justice militate against the
release on bail , in that, the appellants are have international travel and permanent
residence status abroad and as such are a flight risk; that the y face a possible life
senten ce which would deter them not to stand trial; that the re is likelihood that they
would enda nger the compla inant; and that their release is not in the public interests
in that the public will lose confidence in the ju stice system interest .

Grounds of Appeal

[14] On appeal , the broad stroke of the appellants ’ case is that the magistrate
misdirected herself in several res pects including that she:

i) incorrectly applied the burden of proof in respect of this exceptional
circumstances ;
ii) failed to appreciate the weaknesses in the state case;
iii) incorrectly a pplied the legal principles and f acts relat ing to the assessment of
flight risk and therefore , erroneously held that the app ellants were flight risk s;
iv) failed to properly consider and assess the appe llants' personal circumstances ;
v) failed to consider the fact that the appellant s test ified under oath, were cross
examined and therefore their evidence carried more weight th an that of the
state witness whose e vidence was tendered by way of affidavit .
vi) failed to consider bail conditions that included the undertaking by the first
appellant to give up his property as security for him to attend trial.

[15] According to the appe llants, each of the contended misdirection s, taken
separately or cumulati vely, justify that this court set aside the decision of the court a
quo and admit the appellants to bail.

Applicable Legal Principles

[16] In determining a bail appeal, the Court is g overned by the provisions of Section
65 of the A ct. Section 65 (4) provide s that 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 which event the court o r judge shall
give the decision which , in its or his opinion , the lower court should have given.

[17] The court i n S v Barber 1979(4) SA 218(D) outlined the guiding principle
regarding the approach the Appeal Court should adopt in determining when to
interfere with the decision of the court a quo as follows:

“It is well known that the powers of this Court are largely limited where the
matter comes before it on appeal and not as a substantive application for bail.
This Court has to be persuaded that the magistrate exercised the discretion
which he has wrongly. Accordingly, although this Court may have a different
view, it should n ot substitute its own view for that of the magistrate because
that would be an unfair interference with the magistrate’s exercise of his
discretion. I think it should be stressed, that no matter what this Court’s own
views are, the real question is whether it can be said that the magistrate who
had the discr etion to grant bail exercised that discretion wrongly .”

[18] Applying the principle in the Barber decision, in S v Mbele and Another 1996 (1)
SACR at 221, para H, the court held that a court considering the appeal is required
to approach the appeal on the assumption that the decision of the Court below was
correct and not to interfere with that decision unless “satisfied” that it was wrong.

[19] The o nus in schedule 6 bail application is on the appellant to prove , on the
balance of probabilities , that exceptional circumstances exist which , in the interest of
justice , permit h is release on bail.

Analysis

Exceptional Circumstances

[20] It is tri te that the app licant for bail bears the onus to prove , on a balance of
probabilities the exceptional circumstances exist , which in the interest s of justice ,
permit that she or he be released on bail . (See S v Yanta 2006 (1) SACR 737 (Tk ;
See also S v Botha and Another 2002 (1) SACR 222 (SCA ). Exceptional
circumstances do not have a standard definition . In essence , depending on the facts
of each case , the court is expected to exercise value judgement in accordance with
all the relevant facts and circum stances and with reference to all the applicable legal
criteria . (S v Peterson 2008(2) SACR 355 (C) at para [55].

[21] In determining whether exceptional circumstances exist, during bail
proceedings, the court is not required to make any findings, even on a provisional
basis , about the applicant’s guilt or any amendment to the bail conditions. All that a
court must do is weigh the prima facie strength or weakness of the state’s case, and
such a decision ought not to be made regarding credibility findings so that bail
proceedings do not become a dress rehearsal for the trial itself . (See S v Viljoen
2002 (2) SACR 550 (SCA) at para 25) .

[22] In casu , the exceptional circumstances relied upon by the ap pellants are mainly
that the state case is exceptionally weak on the merits of the charges against them.
It is further contended that the cumulative weight of factors under section 60( 4) of the
Act, read with subsection (5) to (8A) ; subsection (9) and (10) favour the appellants ’
release on bail.

[23] Without overlooking the other relevant issues, t he central issue to be
determine d in this bail appeal is whether the magistrate failed to properly consider
that the weakness or otherwise of the state case , as to whether it is so weak that
there are no reasonable prospects of successful prosecution . Further , whether this
on its own constitute exceptional circumstances, which in the interests of justice,
permit that the appellants be released on bail.

[24] Where a n accused adduces independent evidence of innocence and such
evidence is so strong that it can be said that there are reasonabl e prospects of
success at trial , he has established exceptional circumstances . See S v Mohammed
1999 (2) SACR 507 (C . However, i n order to successfully challenge the merits of
such a case in bail proceedings , an applicant must prove on a balance of
probabilit ies that he will be acquitted of the charge . See S v Botha 2002 (1) SACR
222 (SCA) at 230h, 232c; S v Viljoen (supra) at 556 .

[25] The record shows that i n an endeavour to discharge the onus , the appellants
led viva voce evidence and subjected themselves to cross -examination , more and
above the affidavits that they submitte d. They further introduced documentary
evidence in the form of whatsapp messages and picture s from the complainant’s
cellular phone, showing inter alia , the complainant’s happy moments with the first
appellant in Dubai and other countries in Europe that include Portugal and Spain to
demonstrate that the complainant was not kidnapped , and that her cellular phone
and laptop were with her and she had free access to internet and moved around at
will. It does not appear that these pictures were disputed. They also led evidence of
emplo yment contract with a salaried p ersonal assistant and operations manager
second appellant , and that the employment contract wa s terminated on 19
September 2024 . The appellants a lso submitted the so -called “sex contract ” that was
concluded with and signed by the complainant to illustrate that the complainant had
a consensual sex with the first appellant .

[26] The appellants submitted evidence to illustrate that the complainant travelled
on her own from the various countries abroad and to and from South Africa during
the course and scope of her employment , at the travel costs paid by the appellants.
One of such trips, as shown by the evidence , is when the complainant travelled from
Qatar to Cape Town , where she underwent breast augmentation s urgery paid for by
the appellants. Ironically, the affidavit of the Warrant Officer Speed states that the
comp lainant stayed at her home with her family and sometimes with her boyfriend
when she was in Cape Town .

[27] The app ellants also presented independent evidence in the form of affidavits
backed by documentary evidence deposed to by n ine (9) witnesses in an endeavour
to refute the state version that the complainant was held against her will. Part of that
evidence is the affidavit of t he complainant’s sister , who states that she stayed with
the compla inant and the appellant at the appellants’ place s both in South Africa and
abroad during the relevant period , that is, May 2024 . She d enies that her sister was
kidnapped , harboured or raped . The appellants contend that complainant is lying
because she is resentful of having lost her job. Another evidence the appellants
placed before court was an affidavit to the effect that the complainant was once
involved in a crime of impersonation of a jockey in 2023 while she was working in the
horse ra cing industry and is currently being sued for repayment of that money. The
appellants submitted that the state case is exceptionally weak , as it relies only on the
complainant as a single witness whom they illustrated as lacking in credibility . They
contend that they ha d have proved on a balance of probabilities that they will be
acquitted on trial.

[28] In dealing with th e contended weakness of th e state case , the magistrate did
not properly direct herself to the case placed by the bail appella nts before her,
namely , to determine whether the state case is weak . Instead, the magistrate took a
view that the evidence was irrelevant to those proceedings. Consequently, n owhere
in the judgment does that magistra te make an objective assessment of the evidence
mounted by the appellants in their attempt t o discharge their onus on a balance of
probability that they will be acquitted of the charge s. I consider t his a serious
misdirection in my view .

[29] The magistrate went at length to consider the allegations made by the state
against the a ppellants and gave no regard to the evidence placed by the appellant
before court to illustrate weakness in the state case. In pursuit of that route, she
erroneously made findings of fact on one of the very charges that are contested and
yet to be determined of trial, where she found as follows : “In the circumstances, the
court will accept that the complainant was hidden and or co ncealed by the applicants
for the p urposes of exploitation as evidence before the court suggests… (sic).”
Accordingly, I consider the magistrate to have misdirected herself and employed the
incorrect approach in this regard.

[30] It is my considered view that had the magistrate directed herself in determin ing
whether or not , based on the facts placed before her, the strength of the state case
is weak as to constitute exceptional circumstances , she would have found that the
state case at least at this stage , and to the extent that it s strength lies on the
allegations of the complainant alone, is weak to secure conviction . Naturally th is
would have count ed favourably to the appellants because proof by an accused that
she or he will probably be acquitted on trial can serve as exceptional circumstances .
As such , the strength of the state case is relevant to the determination of the
existence of exceptional circumstances. (See Woji v Minister of Police 2015(1 SACR
409 (SCA) at par a [3].

Interests of justice

[31] Section 60(4) of the Act e numerates the grounds which , if one or more are
established , the interests of justice do not permit the release of the accused on bail .
This section has to be considered and a pplied conjuncti vely with section 60 (9) which
provides that, in considering the question in subsection (4), the court shall decide the
matter by weighing the interests of justice against the right of the accused to his or
her personal freedom , and in particular , the prejudice he or she is likely to suffer if he
or she were to be detained in custody taking into account , where applicable , a
number of factors . These factors include any other factor which , in the opinion of the
court , should be taken into account.

[32] In opposing the appeal, the respondent relied heavily on the contention of the
interests of justice as enumerated in the provision s of section 60(4). This subsection
provides that :

‘(4) The interests of justice do not permit the release from detention of an accused
where one or more of the following grounds are established:

(a) where there is the likelihood that the accused, if he or she were released
on bail, will endanger the safety of the public, or any particular person, or
will commit a Schedule 1 offence; or,
(b) where there is the likelihood that the accused, if he or she were released
on bail, will attempt to evade his or her trial; or,
(c) where there is the likelihood that the accused, if he or she were released
on bail, will attempt to influence or intimidate wit nesses, or to conceal, or
destroy evidence;
(d) where there is the likelihood that the accused, if he or she were released
on bail, will undermine or jeopardise the objectives or proper functioning
of the criminal justice system, including bail system;
(e) where in exceptional circumstances there is the likelihood that the release
of the accused will disturb the public peace or undermine the public peace
or security;”

[33] The state submitted that the appellants are a flight risk. In advancing this
contention the s tate argued that in terms of section 60(4)(b) there is a likelihood that
the appellants, if released, will attempt to evade trial based on their international
status that include having permanent residence in Qatar and UAE.

[34] The appellants testified tha t they own properties in Melkbosstrand, Cape Town
in which the appellants reside as a common home, and in Potchefstroom, Gauteng
in South Africa. In my view, the fact that the appellants have access to the
international world should not without more unduly deprive the bail appellant of their
constitutional right to liberty. In my view, objective facts , gleaned from the conduct of
the appellants , must show that they are a flight risk. In this case, the scale tilts to the
appellant’s favour. If the first appe llant was a flight risk, he would not have flown
back to South Africa after having been made aware that serious charges had been
laid against him. Same as the second appellant, she would not have remained in
South Africa with her VISA status , knowing that criminal charges have been laid
against her and her permanent residence was about to expire. The second appellant
knew days before they were arrested that the complainant has laid criminal charges
against them. As I stated above, that motiv ated the first appellant to take the first
available flight back home and face the charges .

[35] It was further submitted by t he state that in terms of section 60(4)(c) , there is
likelihood that the app ellants, if released , will attempt to influence or intimid ate
witnesses or to con ceal or destroy evidence. This argument is buttressed on the
contention inter alia , that because the appellants know the complainant and their
own daughter , they are likely to interfere with them and destroy evidence . It is also
argued that in terms of section 60 (4) there is the likelihood that the release of the
appellants will undermine public confidence in the criminal justice system.

[36] I have carefully considered the concerns raised by the state in opposing bail
appeal in this matter. This is more so with reference to the requisites set out in the
provisions of section 60 (4) (a) to (e) of the Act. In the consideration of the question
in section 60 (4) of the Act, due regard must be had that the Act requires the listed
criteria set out (a) to (e) to be established. I am not persuaded that the contended
“likelihoods ” advanced against the appellants are based on established facts as
required by the statute . Travesty of justice might arise if the application of the criteria
set out in section 60(4)( a) – (e) are based on sheer conjecture and speculation .

[37] Bearing that in mind the not so strong merits of the state case against the
appellants , and the provisions of section 60(9) which require that in considering the
requisites set out in section 60(4) the interest of justice have to be weighed against
the right of the appellants to their personal freedom, and particularly prejudice they
are likely to suffer if they remain in custody, my view i s that the interests of justice
are tilted in favour of the release of the a ppellants on bail. In order to safeguard the
interests of justice, particularly the contentions by the state, it is appropriate that the
court grant bail with stringent conditions.

[38] My view is fortified by the provisions of section 60(9)(g) of the Act which
require the court to, in considering the question of the interests of justice weigh same
against the rights of the accused person’s personal freedom and, in particular,
prejudice he or she is likely to suffer if detention in custody were to continue , taking
into account inter alia , any other factor that in the opinion of the court should be
taken into account. In my view , one such factor, which in the opin ion of the court
should be considered are the interests of the appellants’ minor children and the ir
mother in this case .

[39] Section 28 (1)(b) of the Constitution guarantees every child the right to family
care or parental care , or alternative care when removed from the family environment.
Sub-section (2) of this section provides that the child ’s best interests are of
paramount importance in every matter concerning the child. While the issue has not
been raised as a ground of appeal , this court as an upper guardian of the minors is
charged with constitutional obligation to ensure that in a matter like the present , the
court considers as paramount what is in the best interest of the child ren. In
particular, the court is obliged to consider whether the facts justify incarceration that
results in the children be ing separated from parental care due to such incarceration.

[40] On the facts placed before this C ourt the children were medica lly examined .
There was nothing medically untoward found concerning the 4 month ’s old child as
to warrant her removal from its mother. On the medical findings on the five-year old ,
the doctor reported that healing had taken place in her genitalia and anal region and
that the scars would be older injuries . The evidence of the appellants regarding the
injuries on their child was that sometime earlier, they discovered that the child was
abuse d by a certain Mr Bulbul whose access to the child was through their helper
whom they dismissed as a result of that act. It does not appear that this evidence
was challenged.

[41] In my view, the present situation , where children as young as 4 months and fi ve
years are being removed from their mother in circumstances of this case , carries
weight as exceptional circumstances that should have been considered . This is more
so on the strength of the allegations made only by the complainant .

[42] In conclusion, having regards to the totality of the evidence and the relevant
factors , I am satisfied that the appellant s have succeeded in discharging their onus
and have proved on a balance of probabilities that exceptional circumstances exist,
which in the interests of justice, permit their release on bail. Such release w ill be best
suited if it is qualified with bail conditions as is the requirement in terms of Section 35
(1) (f) of the Constitution .

Order

In the result , I make the following order :

1. The app eal is upheld , and the magistrate ’s refusal to grant bail is set aside and
substituted as follows:

1.1. The first and second appellants are granted bail in the amount of R 50 000
each , with the following conditions :

1.1.1. The first appellant , as registered owner of the immovable property
known as Erf 4[...], City of Cape Town, located at [...] A[...] Way,
Atlantic Beach Estate , Melkbosstrand , Cape Town shall submit
this property for a caveat to be registered against the property as
security for bail ;

1.1.2. The appellant s shall reside at [...] A[...] Way, Atlantic Beach
Estate, Melkbosstrand , Cape Town during the period of op eration
of these bail conditions ;

1.1.3. The appellant shall not leave the magisterial district of Cape Town
without the permission of the magistrate in this case;

1.1.4. The appellants shall report to the Investigating Officer in this case
on every Monday and Friday of each week , between 8 h00 and
12h00 until the trial is finalised ;

1.1.5. The appellants may not have direct or indirect contact with the
complainant or any other witness for the state in this matt er;

1.1.6. The appellants shall attend court for trial and on all remand dates ,
unless excused by court for any other reasons including medical
reasons ;

1.1.7. The appellants international passports shall be handed in and or/
retained to the respondent for safekeeping until the finalisation of
trial.



MAPOMA AJ
Acting Judge of the High Court


Appea rances:

Counsel f or the First Appe llant : Adv R Liddell
Counsel for the Second Appellant : Adv Van der Berg
Instructed by : Liddell Weeber & Van der Merwe , Cape Town

Counsel f or the Responde nt : Adv Kortje
Instructed by : Director of Public Prosecutions