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

Appeal case number: A 104/2025
Lower court c ase number: 16/740 /2024

In the matter between:

A[...] O[...] Appellant

and

THE STATE Respondent


JUDGMENT DELIVERED ON 30 JUNE 2025


VAN ZYL AJ :

Introductio n

1. This is an appeal against the refusal of bail.

2. The appellant was arrested on 30 November 2024 and appeared in Cape
Town Magistrates ’ Court on 2 December 2 024. He faced three charges ,
namely :

2.1. Count 1: Contravening section 5 of the Criminal Law (Sexual Offences
and Related Matters) Amendment Act 32 of 2007 (sexual assault of a
minor);

2.2. Count 2: Contravening section 3 of the Criminal Law (Sexual Offences
and Related Matters) Amendment Act 32 of 2007 (rape of a minor);
and

2.3. Count 3: Assault with the int ent to do grievous bodily harm.

3. His 14 -year old daughter was the complainant. The appellant had legal
representation, and it is common cause that the bail application f ell within the
purview of Schedule 6 to the Criminal Procedure Act 51 of 1977 (“CPA”) . The
appellant faces life imprisonment in respect of the rape charge.

4. At the hearing on 2 December 2024 the matter was postponed to 13
December 2025, to allow the State to verify the appellant’s "status" at the
Department of Home Affairs , to obtain an alternative address for him , and to
obtain the view of the compl ainant as regard s the appellant’s possible r elease .

5. On 13 December 2024 the State confirmed to the magistrates’ court that it
had obtained a "withdrawal" statement from the complainan t . It appears
from the record that the complainant had withdrawn her complaint by way of
an affidavit deposed to at the Milnerton Police Stat ion on 9 December 2024.
The affidavit was in the docket. There was nothing (in particular, no
statement in terms of section 212 of the CPA ) from the Department of Home
Affairs on the status of the appellant. The matter was postponed for a decision
to be m ade by the Senior Public Prosecutor in relation to the further conduct
of the matter .

. 6. On 20 December 2024 the State indicated it would not withdraw the charge s,
and the matter was postponed for a bail application. The bail application
commenced on 17 Jan uary 2025, with the appellant giving oral evidence .
After the conclusion of his evidence the matter was postponed to 21 February
2025.

7. On 23 January 2025 the complainant provided a handwritten note in which
she again withdrew her complaint , and apologized for her conduct.

8. The bail application proceeded in 21 February 2025, and the appellant gave
further viva voce evidence . He was also cross-examined by the prosecutor ,
and thereafter questioned by both the court and again by his legal
representative .

9. Following a postponement to 4 March 2025, the application proceeded . The
defence submitted a bundle of documents which was accepted into the
record. The bundle co mprised various documents totalling sixty pages, with
an index. On the same day the State commenced leading evidence by
reading the affi davit of the investigating officer in to the record . I may add that
the investigating officer’s affidavit opposing bail in this matter was singularly
unhelpful in the consideration of the relevant issues. It contained the bare
minimum of facts, and essentially consisted of a series of conclus ions
mirroring the content of section 60(4) of the CPA.

10. The State submitted documents which were received as exhibits , including
the appellant’s criminal profile ; the J88 medical report in respect of the
complainant ; the Form 7 medical report and assessment relating to the
complainant ;1 the Form 22 (the reporting of possible abuse) relating to the
complainant ;2 and the MCS enquiry form from the Department of Home
Affairs relating to the complainan t. There was no such for m in relation to the
appellant. On a consideration of the evidence on record, the appellant’s
evidence could not seriously be disputed.

1 Under the Children’s Act 38 of 2005.
2 Ditto. .

11. On 17 March 2025 the magistrates’ court heard argument and delivered
judgment, refusing the application. The court concluded:

"…. a disposition to violence in the past conduct of the applicant as is
evidence from his past conduct... you were arrested fo r assault.
… The court finds it quite strange. Number 1, it is proof that you do have a
company registered however, that being done without being legal in South
Africa …
… Your past shows you were arrested for intimidation and so, because of that
there is a greater possibility that (you might influence witnesses) …
… The court cannot find any exceptional circumstances …”

12. The appellant delivered a notice of appeal against the magistrates’ court’s
refusal of bail on 20 May 2025.

13. I proceed to set out the relevant legal principles, and to discuss the facts of
the present matter thereafter.

The proper approach in bail appeals such as the present

14. In relation to Schedule 6 offences, section 60(11) of the CPA provides that:

“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 o r 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 rel ease. ”

15. In S v Schietekat3 the Court held that bail proceedings are “… sui generis.
The application may be brought soon after arrest. At that stage all that may

3 1998 (2) SACR 707 (C) at 713 H -J.
exist is a complaint which is still to be investigated. The State is thus not
obliged in its t urn to produce evidence in the true sense. It is not bound by the
same formality. The court may take account of whatever information is placed
before it in order to form what is essentially an opinion or value judgment of
what an uncertain future holds. It must prognosticate. To do this it must
necessarily have regard to whatever is put up by the State in order to decide
whether the accused has discharged the onus of showing that 'exceptional
circumstances exist which in the interests of justice permit his release' .”4

16. What are exceptional circumstances? In S v Petersen5 it was held as follows :
“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.’’6

17. In S v Josephs7 it was held: "Showing 'exceptional circumstances' for the
purposes of section 60(11) of the Criminal Procedure Act does not post a
standard which would render it impossible for an unexceptional, but deserving
Applicant to make out a case for bail." Personal circumstances that are
commonplace do not constitute exceptional circumsta nces for the purposes of
section 60(11)(a).8

18. Finally, in S v Acheson9 it was held that "[a]n accused person cannot be kept
in detention pending his trial as a form of anticipatory punishment."


4 Emphasis added.
5 2008 (2) SACR 355 (C) para 55.
6 See also S v H 1999 (1) SACR 72 (W) at 77E –F: “… Exceptional circumstances must be
circumstances which are not found in an ordinary bail application but pertain peculiarly ... to
an accused person's specific application. What a Court is called upon to do so is to examine
all the relevant considerations ... as a whole, in deciding whether an accused person has
established something out of the ordinary or unusual which entitles him to relief under section
60(11)(a)."
7 2001 (1) SACR at 659 (C) at 668I. The evidence against the applicant was purely
circu mstantial, and this was a factor which was taken in consideration by the Court in granting
the applicant bail.
8 S v Scott -Crossley 2007 (2) SACR 470 (SCA) para 12.
9 1991 (2) SA 805 (NmHC) at 822 A -B.
19. This sentiment was echoed in S v Branco:10

"It must however be borne in mind that any court seized with the problem of
whether or not to release a detainee on bail must approach the matter from
the perspective that freedom is a precious right protected by the Constitution.
Such freedom should only b e lawfully curtailed if 'the interests of justice so
require'. (See s 35(1) of the Constitution, which entitles any arrested or
detained person 'to be released from detention if the interests of justice
permit; subject to reasonable conditions'.) The funda mental objective of the
institution of bail in a democratic society based on freedom is to maximise
personal liberty. "

20. Section 65(4) of the CPA provides in relation to bail appeals that “ [t]he court
or judge hearing the appeal shall not set aside the deci sion against 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.”11

21. In S v Porthen and o thers ,12 this Court decided, with reference to S v Botha ,13
that the appeal court’s powers to consider an appeal against the refusal of bail
in terms of section 65(4) of the CPA are not constrained. The appeal court is
at liberty to consider its own analysis of the evidence in order to conclude
whether an accused p erson has discharged the onus on him as set out in
section 60(11)(a) of the CPA:

“Insofar as the quoted dictum in S v Barber … might be amenable to be
construed to suggest that the appellate Court's power to intervene in terms of
s 65(4) of the CPA is strictly confined, in the sense of permitting interference
only if the magistrate has misdirected him or herself in the exercise of his or
her discretion in the narrow sense, I consider that it would be incorrect to put
such a construction on the subsectio n; certainly in respect of appeals arising

10 2002 (1) SACR 531 (W) at 532i - 533a.
11 See Mafe v S [2022] ZAWCHC 108 (31 May 2022) para 95.
12 2004 (2) SACR 242 (C) paras 16 -17.
13 2002 (1) SACR 222 (SCA).
from bail applications made in terms of s 60(11)(a) of the CPA. I am fortified in
this conclusion by the manner in which the Supreme Court of Appeal dealt
with the bail appeal in Botha's case supra….
It is clear t hat the Appeal Court undertook its own analysis of the evidence
and came to its own conclusion that the appellants had not discharged the
onus on them in terms of s 60(11)(a) of the CPA . …Without in any way
detracting from the courts' duty to respect and g ive effect to the clear
legislative policy inherent in the provisions of s 60(11)(a) of the CPA (viz that
save in exceptional circumstances it is in the public interest that persons
charged with the class of particularly serious offences listed in Schedule 6 to
the CPA should forfeit their personal freedom pending the determination of
their guilt or innocence …), it is still necessary to be mindful that a bail appeal,
including one affected by the provisions of s 60(11)(a), goes to the question of
deprivati on of personal liberty. In my view, that consideration is a further factor
confirming that s 65(4) of the CPA should be construed in a manner which
does not unduly restrict the ambit of an appeal Court's competence to decide
that the lower court's decision to refuse bail was 'wrong' .”14

22. Thus, even if the Court finds that the magistrate was wrong, the Court must
then consider the facts before it afresh and determine whether the appellant
has discharged the onus as set out in section 60(11)(a) of the CPA.

The grounds of appeal in the present matter

23. I agree with counsel for the appellant that there are three core grounds of
appeal upon which this matter can be determined, and which justify
interference with the magistrates’ court’s decision .

24. The first is that the magistrates’ court failed to appreciate the impact of the
complainant’s deposing to an affidavit under oath to the effect that she had
lied in her initial complaint, and retracted her allegations. This constitutes an
exceptional circumstance.

14 Emphasis added.

25. Secondly, the magistrates’ court misdirected itself in concluding that the
appellant was "illegally" in the country, despite the absence of evidence to
sustain this. The appellant, in fact, furnished evidence to the effect that he had
applied for renewed per mission to remain in the country (his visa having
expired), but that he had not yet had a response from the Department of
Home Affairs.

26. The magistrates’ court erroneously found, thirdly, that the appellant's previous
arrests, which had been found not to w arrant the criteria required for a
prosecution, and had been withdrawn, indicated that the appellant had a
propensity to intimidate people.

27. The appellant ha ils from Nigeria. He has formally applied for a renewal of his
temporary residence visa, and is awaiting the outcome.

28. It is common cause that the appellant has a clean criminal record, with no
previous convictions or warrants of arrest outstanding . He has a fixed
addres s,15 and is self -employed with his own business. The appellant is the
sole-breadwinner for his three minor children , and his company employs
multiple people. The appellant had previously been arrested, but he
explained in his oral evidence that the charges w ere withdrawn at the police
station , and were no longer pending.

29. A consideration of the magistrates’ court’s judgment indicates that the
magistrate made no finding as to the likelihood of the appellant conceal ing or
destroy ing evidence if released on bail , or any finding to the effect that his
release on bail would disturb the public order or undermine the public peace
or security . There is in any event no evidence on record that would have
justified any such findings against the appellant.


15 Although the appellant’s family was evicted (due to the non -payment of rental following the
appellant’s arrest and detention) from the house in which they had lived at the time of the bail
application, they have been provided with new accommodation. The State is in possession of
the relevant information.
30. The magistrate did find, with reference to section 60(4)(a) of the CPA, that
there is a likelihood that the appellant would enda nger the “safety of the
public, any person against whom the offence in question was allegedly
committed, or any other particular person , or w ould commit a Schedule 1
offence ”. The magistrate found th at this factor existed for two reasons ,
namely the nature of the charge s, and the appellant’s previous arrests. The
magistrate was of the view that section 60(4)(c) of the CPA in relation to the
likely intimidation or influence of witnesses applied for the same reasons, in
particular the appellant’s previous arrests.

31. I am respectfully in disagreement with the mag istrates’ court’s findings on this
score. There is no denying that the natu re of the charge s does include
elements of violence , but that does not automatically attract the application of
this section. Such logic would mean that the section would be applic able to
every charge where violence is an element and thus that no-one c ould be
granted bail after such an arrest. The focus of the enquiry is , rather , on the
nature of the allegations , and the appellant’s version in relation to whether it
means the appellant will, in the future, endanger anyone.

32. The existence of previous arrests in the present matter cannot count against
the appellant. The fact that the NPA is not proceeding with these charges
(and has not indicated any intention to do so in the future) , indicate s that they
are effectively nothing more than previous allegation s of insufficient merit to
attract a prosecution. The appellant was clear in his explanation , in the
course of oral evi dence , of how the charges had arisen, and that they had
been fueled by a misunderstanding.

33. As to the possible intimidation of the complainant, it is common cause that
she is in the protection of the State at a place of safety. The appellant does
not know where this is.

34. The magistrate found that the factor referred to in section 60(4)(b) of the CPA
is present, namely that there is a likelihood that the appellant would attempt to
evade his trial , should he be released on bail. This was so principally by
reason of t he appellant’s being in the country “illegally” .

35. I agree with the submission by the appellant’s counsel that the m agistrate
committed a material error in labelling the appellant as illegal, and refusing
bail on that ground . The S tate is not pursuing charges in terms of section 49
of the Immigration Act 13 of 2002 against the appellant . No evidence has
been produced to prove that the appellant is undocumented. There is no
section 212 statement from the D epartment of Home Affairs in relation to the
appellant on record, despite a postponement having being sought to obtain it.
The appellant , on the other hand, has shown the existence of a registered
company, a bank account at F irst National Bank, and a VFS receipt for a
temporary resi dence visa application . It cannot be concluded that he is
illegal ly in the country .

36. As to exceptional circumstances, i t is common cause that the complainant has
recanted her complaint as a lie. There is speculation on record to the effect
that the complainant’s step-mother influenced her in this regard, but there is
no evidence at all to support this conjecture . The trial court will have to make
a credibility finding in this respect in due cour se. Whilst it appears that the
prosecutor had a consultation with the complainant, there has been no further
investigation into what exactly had given rise to the retraction .

37. I agree that the complainant’s retraction cons titutes an exceptional
circumstan ce in the present matter, notwithstanding the fact that the charges
are undoubtedly serious . The reality is that the denial of bail wil l result in the
appellant spending a considerable period of time in custody awaiting trial on
an allegation that has prima facie been recanted. No trial date has yet been
allocated.

Conclusion and order

38. I am thus of the view that the appellant has discharged the onus placed upon
him by section 60(11) of the CPA. It follows that the magistrates’ court’s
refusal to grant bail should be set aside.

39. In S v Branco16 the court held that a “ court should always consider suitable
conditions as an alternative to the denial of bail. Conversely, when no
consideration is given to the application of suitable conditions as an
alternative to incarceration, this may lead to a failure to exercise a proper
discretion. The a ppellant has stated on oath that he is prepared to report to
the police station. This was not challenged. ”

40. I consider that the conditions set out in the order below will serve to ensure
that the appellant stands trial in due course.

41. It is accordingly ord ered as follows:

1. The appeal is upheld and the magistrate’s refusal on 17 March 2025
to grant bail is set aside.

2. The appellant is granted bail in the amount of R10 000,00 [ten
thousand rand] .

3. If that amount is paid to the Clerk of the Court, the appellant shall be
released on bail, and warned to appear at the Cape Town
Magistrates’ Court on 9 July 2025 and all further dates upon which
the matter is to be dealt with .

4. Bail is granted subject to the following conditions:

(a) The appellant must surrender his passport and any other travel
documents in his possession to the investigating officer within 24
hours of being released on bail.

(b) The appellant may not apply for any passport or other travel
documents.

16 2002 (1) SACR 531 (W) at 537A -B.

(c) The appellant shall reside at Unit 2 [...], E[...]-o[...]-B[...], 1[...] B[...]
Street, Cape Town.

(d) The appellant may not change his address without the prior
written permission of the investigating officer.

(e) The appellant is to report to the Table View Police Station every
Monday, Wednesday, and Friday between the hours of 0 6:00 and
18:00.

(f) The appellant may not depart from the metropolitan area of the
City of Cape Town without informing the investigating officer in
writing .

(g) The appellant may not d irectly or indirectly have contact or
communicate with the complainant or any other State witnesses
or potential State witnesses whose names appear in the docket or
whose names are communicated to the appellant by the State.


____________________
P. S. VAN ZYL
Acting Judge of the High Court


Appearances:

For the appellant : Mr R. McKernan, instructed by Lundi Maki Attorneys
For the respondent : Mr M. Koti, Directorate of Public Prosecutions, Western Cape