IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Appeal case number: A76/25
Magistrates Court case number: B103/25
In the matter between:
SIPHOSIHLE BUNU Applicant
and
THE STATE Respondent
Coram: Acting Justice T Sarkas
Heard: 13 June 2025
Delivered electronically: 29 July 2025
JUDGMENT
SARKAS AJ:
[1] This matter concerns an appeal against the decision of a magistrate refusing
the appellant’s release on bail.
BACKGROUND
[2] The appellant was arrested on 10 February 2025 and faces charges of
murder, and robbery with aggravating circumstances.
[3] The appellant appeared in the Atlantis Magistrates’ Court on 24 and 28
February 2025, and was legally represented during the bail proceedings.
[4] The appellant’s evidence in support of his bail application was on affidavit.
The affidavit sets out that:
4.1. He is 24 years old, and has lived with his family at the given address
for 12 years.
4.2. He has been employed for two years.
4.3. He has no dependants, and is not in possession of a passport.
4.4. He has no previous convictions, no pending cases, and no outstanding
warrants of arrest against him.
4.5. He will plead not guilty to the murder charge.
4.6. It is in the interests of justice to permit his release on bail because he is
not a flight risk, has a clean record, and has been employed for two
years
[5] The appellant also annexed a timesheet to his affidavit which shows that h e
was working:
5.1. from 17:44 on 6 February 2025 to 06:07 on 7 February 2025;
5.2. from 17:46 on 7 February 2025 to 06:02 on 8 February 2025.
[6] In this regard, a t the bail application hearing, the appellant’s legal
representative referred to the timesheet as showing that on the days
indicated, the accused was at work. In response, t he State argued that the
appellant was not at work during the day when the deceased went missing.
[7] The investigating officer, who gave viva voce evidence on behalf of the State
at the bail hearing in the court a quo, testified that:
7.1. On 9 February 2025 he was called out to the Old Darling Road (also
called the Mamre Road) , where the body of the deceased had been
found.
7.2. The deceased’s wife had informed the investigating officer that the
deceased, an Uber driver, had gone to work on the morning of 6
February 2025, and did not return.
7.3. The tracker for the vehicle driven by the deceased showed that o n 6
February 2025, the vehicle was stationary on Old Darling Road, where
the body was found, at 17:00, for about 15 minutes.
7.4. According to the appellant’s cousin, who has given a statement, on
7 February 2025 at about 14:00, the appellant arrived at his aunt’s
house driving the vehicle that was later identified as the vehicle that
had been driven by the deceased the day before. The appellant was
accompanied by two other male persons who were travelling in another
vehicle. The appellant informed his cousin that the appellant had
bought the vehicle and wanted to store the it there, out of sight, in order
to repair it . The appellant also asked his cousin not to tell anyone
because it was a surprise.
7.5. The owner of the vehicle had informed the investigating officer that on
8 February 2025, he had received a notification from the tracking
company that the tracker had been tampered with. The owner then
tracked the stolen vehicle to the appellant’s aunt’s house, and called
for police assistance.
7.6. When the police arrived there on 8 February 2025, the persons working
on the stolen vehicle fled. When the stolen vehicle was found, the VIN
numbers had been tampered with, and a false VIN number stamped on
the vehicle.
7.7. At the stage of the bail application, forensics and the post-mortem were
still outstanding, and the appellant is not directly linked to the murder.
7.8. However, the appellant had registration papers issued in his name on
13 January 2025 that containe d the false VIN number that ha d been
stamped on the stolen vehicle.
stamped on the stolen vehicle.
7.9. This indicated that the appellant had planned the offence, and it led to
the death of somebody . The deceased was brutally murdered for the
stolen vehicle. The persons who murdered the deceased were
dangerous, and it was not known if the appellant was connected to the
people that committed the murder.
7.10. The appellant refused to disclose how he came to be in possession of
the stolen vehicle.
7.11. The appellant and the witnesses were very well kn own to each and the
investigating officer believed that there would be interference with State
witnesses.
7.12. When the investigating officer interviewed the appellant’s cousin, the
witness indicated that the accused’s mother had told the witness not to
give a statement against her son, and that is evidence of indirect
interference with the State witness.
[8] On 28 February 2025, the magistrate delivered judgment, refusing the bail
application. The court observed tha t that the appellant had placed no
exceptional circumstances before the court, and that there is a likelihood that
the appellant would interfere with and intimidate witnesses.
THE LAW
[9] It is common cause that the bail application fell within the ambit of Schedule 6
to the Criminal Procedure Act 51 of 1977 (‘ CPA’). By virtue of s 60(11)(a) of
the CPA, the court was obliged to order that the appellant be detained in
custody until he was dealt with in accordance with the law, unless, having
been given a reasonable opp ortunity to do so, he adduced evidence which
satisfied the court that exceptional circumstances existed which in the
interests of justice permitted his release.
[10] Section 60(11)(a) ‘ imposes an onus on the applicant for bail to adduce
evidence to prove to the satisfaction of the court the existence of exceptional
circumstances justifying his release on bail. The court must also be satisfied
that the release of the accused is in the interests of justice. The standard of
proof is on a balance of probabilities.’ 1
[11] In Killian v S, the court pointed out that in cases where s 60(11) applies , and
there is consequently a true onus on the applicant to prove facts establishing
exceptional circumstances, an applicant would be well advised to give oral
evidence in supp ort of his application for bail , because the discharge of the
onus is a central consideration in s 60(11) applications. 2
[12] As to the meaning of exceptional circumstances in s 60(11)(a) of the CPA, the
court in S v Petersen explained that:
‘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.’.3
[13] In S v Josephs the court held that:
‘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.’.4
[14] The approach to such an enquiry was addressed in S v H as follows:
‘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
1 Killian v S [2021] ZAWCHC 100 (24 May 2021) (Killian) at para 3, with reference to with reference
to S v Dlamini; S v Dladla; S v Joubert; S v Schietekat 1999 (4) SA 623 (CC) (Schietekat).
2 Killian at para 13.
3 S v Petersen 2008 (2) SACR 355 (C) at para 55.
4 S v Josephs 2001 (1) SACR 659 (C) at 668I.
established something out of the ordinary or unusual which entitles him to
relief under section 60(11)(a).’ 5
[15] The court in S v Branco highlighted that:
‘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 be 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; subje ct to reasonable conditions'.) The fundamental objective of the
institution of bail in a democratic society based on freedom is to maximise
personal liberty.’ 6
[16] Finally, i n S v Dlamini; S v Dladla; S v Joubert; S v Schietekat , the
Constitutional Court stated that ‘[a] n applicant is given broad scope to
establish the requisite circumstances, whether they relate to the nature of the
crime, the personal circumstances of the applicant, or anything else that is
particularly cogent.’ 7
[17] Section 60(4) of the CPA provides that t he interests of justice do not permit
the release from detention of an accused where one or more of the specified
grounds are established.
[18] The courts must look to the five broad considerations mentioned in
subsections 60(4)(a) –(e), and then weigh up the factors for and
against bail as required by sections (9) and (10). 8
5 S v H 1999 (1) SACR 72 (W) at 77E–F.
6 S v Branco 2002 (1) SACR 531 (W) at 532i - 533a.
7 Schietekat at para 75.
8 Krejcir v S [2015] JOL 33670 (GSJ) at para 10, with reference to S v Schietekat 1999 (4) SA 623
(CC) (Schietekat).
[19] Section 60(7) of the CPA sets out the considerations which may be taken into
account when considering whether there is the likelihood that the accused, if
he or she were released on bail, will attempt to influence or intimidate
witnesses or to conceal or destroy evidence. These include:
19.1. the fact that the accused is familiar with the identity of witnesses and
with the evidence which they may bring against him;
19.2. whether the witnesses have already made statements and agreed to
testify;
19.3. whether the investigation against the accused has already been
completed;
19.4. the rela tionship of the accused with the various witnesses and the
extent to which they could be influenced or intimidated;
19.5. how effective and enforceable bail conditions prohibiting
communication between the accused and witnesses are likely to be.
[20] Section 60(9) of the CPA goes on to provide that in considering the question,
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 suff er if he or she were to be detained in
custody, taking into account, where applicable, the listed factors.
[21] Section 60(10) of the CPA sets out the court’s duty, contemplated in
subsection (9), to weigh up the personal interests of the accused against the
interests of justice: Provided that the interests of justice should be interpreted
to include, but not be limited to, the safety of any person against whom the
offence in question has allegedly been committed.
[22] This appeal lies in terms of s 65 of the CPA . Section 65(4) of the CPA
provides that: ‘ The court or judge hearing the appeal shall not set aside the
decision against which the appeal is brought, unles s 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’.
[23] The appeal court’s powers to consider an appeal against the refusal of bail in
where s 60(11)(a) of the CPA is implicated is addressed in Porthen and others
v S as follows:
23.1. ‘In determining whether or not a bail applicant has established the
existence of “extraordinary circumstances” within the meaning of
section 60(11)(a) of the CPA, the court has to make a decision on the
facts judged within the context of the particular case. Facts which might
be sufficient in one case, might not be enough to warrant the grant of
the bail application in the peculiar context of ano ther matter .’ The
exercise required of the court entails the making of a ‘value judgment’
as to whether the proven circumstances are of such a nature as to be
‘exceptional’. 9
23.2. ‘…in a case like the present where the magistrate refused bail because
he found that the appellants had not discharged the onus on them in
terms of s 60(11)(a) of the CPA, if this court, on its assessment of the
evidence, comes to the conclusion that the app licants for bail did
discharge the burden of proof, it must follow (i) that the lower court
decision was “wrong” within the meaning of s 65(4) and (ii) that this
court can substitute its own decision in the matter.’10
23.3. ‘…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
deprivation 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”.’ 11
[24] Accordingly, each case must be decided on its own peculiar facts , with
reference to the principles set out above.
9 Porthen and others v S [2003] 3 All SA 725 (C) (Porthen) at paras 12-13.
10 Porthen at para 5.
11 Porthen at paras 16-17.
THE GROUNDS OF APPEAL
[25] The grounds for appeal are that the magistrate erred:
25.1. In refusing bail notwithstanding that none of the factors set out in s
60(4) of the CPA were established by the State.
25.2. By placing emphasis on the seriousness of the offence when the
appellant has a clean record and there is no likelihood that were he to
be released on bail, he would commit offences.
25.3. In not considering that the docket is in the possession and care of the
investigating officer and therefore the appellant will not have the means
to access and destroy any evidence in the docket.
25.4. In not considering that there was no evidence to prove any likelihood
that the appellant had attempted to indirectly influence the witnesses.
25.5. In not exercising her discretion to ‘ restrict the physical presence of the
accused outside of Khayelitsha to an alternative address away from the
State witnesses’.
[26] Having considered the application, the record, and the magistrate’s judgment,
the following observations are made:
26.1. The magistrate determined the bail application with reference to
various authorities dealing with the interests of justice, the weight to be
attributed to evidence tendered by affidavit where viva voce evidence is
adduced, and what constitutes exceptional circumstances
26.2. The magistrate had due regard to the appellant’s affidavit , noting that
nowhere in the affidavit is it indicated what the court should regard as
exceptional circumstances, nor does the affidavit stipulate that the
court should take into consideration the appellant’s ordinary
circumstances as grounds for exceptional circumstances.
26.3. With reference to the timesheet annexed to the appellant’s affidavit, the
magistrate explained that because of the timeframes in evidence, the
worksheet did not substantiate an alibi.
26.4. The magistrate concluded that no exceptional circumstances were
placed before the court, and that , based on the testimony of the
investigation officer, the State had a strong case against the appellant.
26.5. The magistrate further concluded that the State had provided sufficient
evidence that there could be further tampering with the witness should
the appellant be released on bail. In this regard, th e magistrate
explained that the appellant’s mere statements on affidavit that he
would not do so could not be tested under cross -examination, and
more weight was given to the investigating officer’s testimony.
[27] I am respectfully in agreement with the magis trate’s findings, which are
consonant with the Supreme Court of Appeal’s approach in Mathebula v S ,
where it was held that:
‘In the present instance the appellant’s tilt at the state case was blunted in
several respects : first, he founded the attempt upon affidavit evidence not
open to test by cross-examination and, therefore, less persuasive: …; second,
both the denial of comp licity and the alibi defence rested solely on his say -so
with neither witnesses nor objective probabilities to strengthen them. …
… a state case supposed in advance to be frail may nevertheless sustain
proof beyond a reasonable doubt when put to the test. In order successfully to
challenge the merits of such a case in bail proceedings an applicant needs to
go further: he must prove on a balance of probability that he will be acquitted
of the charge …Nor is an attack on the prosecution case at all necessary t o
discharge the onus; the applicant who chooses to follow that route must make
his own way and not expect to have it cleared before him.….
… The remainder of the personal factors urged on us, are neither unusual or
such as singly or together warrant release of the appellant in the interest of
justice. Parroting the terms of subsec (4) of s 60, as he did, does
not establish any of those grounds, without the addition of facts that add
not establish any of those grounds, without the addition of facts that add
weight to his ipse dixit.’. 12
12 Mathebula v S 2010 (1) SACR 55 (SCA) at paras 11-15.
[28] I am therefore not persuaded that the magistrate was wrong in h er refusal of
the app ellant’s bail application. The appellant’s bald enumeration of his
personal circumstances , the strength of the prima facie State case against
him, and the substantial risk of interference with State witnesses should bail
be granted, constituted cogent reasons for the refusal of bail, particularly
since the onus was on the appellant.
ORDER
[29] I accordingly make the following order:
1. The appeal against the refusal of the magistrate to grant bail to the
appellant is dismissed.
__________________________
ACTING JUDGE T SARKAS
For appellant: Adv S Nosilela
Instructed by: Ralawe Attorneys
For respondent: Adv C Blankenberg
Instructed by: Directorate of Public Prosecutions, Western Cape