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

JUDGMENT

Not Reportable
Appeal case no: A122/2025
Lower court case no: B275/24

In the matter between:

A[…] M[…] APPELLANT

and

THE STATE RESPONDENT

Neutral citation:
Coram: COOKE AJ
Heard: 12 August 2025
Delivered: 15 August 2025

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Summary:


ORDER


[1] The appeal is dismissed.


JUDGMENT


[1] This is a n appeal against the judgment of the presiding Magistrate of the
Magistrate’s Court for the District of Mossel Bay, in which she refused to grant the
appellant bail on 20 June 2024 and 20 November 2024 respectively.

[2] The appellant is a 37 -year-old man who, until his incarceration, worked as a
fisherman in Mossel Bay. He has three children (not from his marriage to the
complainant). Two of these children live in Worcester with the appellant’s mother,
and the third is studying at university.

[3] On 18 May 2024 the appellant and the complainant celebrated their ninth wedding
anniversary with friends. However, the celebration did not end well. The appellant
allegedly accused the complainant of infidelity and proceeded to hit her with his
fists. It is alleged that he then told her to undress, whereafter she fell to the ground,
and he hit her with a hammer multiple times all over her body. During this attack she
broke her arm. The complainant then left the home and obtained assistance from
neighbours. The appellant was arrested and charged on 22 May 2024.

[4] The appellant stands accused of attempted murder. According to the charge sheet,
upon or about 18 May 2024 he attempted to kill his female partner by hitting her

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with a hammer and/or hitting her with a rock and/or hitting her with his fist and/or
stomping on her. The charge sheet provides further that the State will aver that life
imprisonment is applicable in that the victim was in a domestic relationship with the
appellant.

[5] The Magistrate found that there is a likelihood that if the appellant is released, he
will endanger the life of the complainant, and it is therefore not in the interest s of
justice that he be released.

[6] There is no indication in the record before me that the Magistrate considered the
imposition of suitable bail conditions. This constitutes, in my view, a material
irregularity.1

[7] In addition, the Magistrate found that according to the charge sheet there were
allegations that the appellant threatened to kill t he complainant. There is no
suggestion in the charge sheet that any such allegation was made. 2 Furthermore,
this allegation was not made by the investigating officers who testified at the bail
hearings. The reliance upon this allegation accordingly amounts to a further material
irregularity.

[8] Having regard to these irregularities, both individually and cumulatively, this Court is
at large to consider whether bail ought, in the particular circumstances to have been
granted or refused.3

[9] It is common cause that this bail application fell within the realm of schedule 5 of the
Criminal Procedure Act 51 of 1977 (‘the Act’), and therefore s 60(11)(b) of the Act is
of application.


1 See S v Branco 2002 (1) SACR 531 (W) at 537a-b.
2 Counsel for the respondent suggested that the allegation may have been contained in documents
recording the appearances, which were excluded from the record. In my view this is unlikely. In any
event, I can only decide the appeal based on the material included in the record.
3 Panayiotou v S [2015] ZAECGHC 73 (28 July 2015) para 27.

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[10] In the result , the appellant was burdened not merely with an onus to adduce
evidence, but a reverse onus in terms of which he was required to satisfy the court,
on a balance of probabilities, that the interests of justice permitted his release.4

[11] Section 60(4) of the Act lists five grounds where the interests of justice do not
permit the release from detention of an accused . These include where there is the
likelihood that the accused, if he or she were released on bail:

a. will endanger the person against whom the offence in question was
allegedly committed; or

b. will attempt to influence or intimidate witnesses.

[12] The question which thus arises is whether the appellant proved, on a balance of
probabilities, that none of the s 60(4) grounds are established . More pertinently –
was it shown that if he is released on bail, it is unlikely that he will endanger the
safety of the complainant or intimidate her?

[13] In support of this proposition the appellant adduced evidence that (a) there were no
pending matters or act ive warrants against him , (b) there were no previous
convictions, (c) he could stay at an alternative address, (d) he undertook to abide by
conditions not to contact the complainant, (e) as a fisherman employed by Seavuna
(a Mossel Bay-based company), he would be at sea most of the time , (f) he had not
contravened any protection orders , and (g) in the four days between the incident
and his arrest he di d not try and contact the complainant. The appellant also
indicated that he had no objection to an interim protection order being taken out by
the complainant against him.


4 J van der Berg Bail: A Practitioner ’s Guide 3 ed (2012) at 92. See also S v Tshabalala 1998 (2) SACR
259 (CPD) at 271gh.

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[14] As against that evidence, the State led evidence that the appellant had assaulted
the complainant, including by striking her with a hammer so hard that her arm was
broken. The medical evidence suggested that the injuries were life-threatening, and
photographs put up by the State revealed severe harm to the complainant ’s face
and body . Not only this, but evidence was led to show that the appellant had
previously assaulted the complainant, and that the complainant had been raped by
the appellant’s brother in the presence of the appellant and thereafter the appellant
had asked the complainant to withdraw charges against his brother. The State also
adduced evidence that the complainant is very afraid of the appellant.

[15] In assessing the evidence, I have also had regard to the fact that the appellant
initially indicated that he only had R300 available for bail money. However, when
the second renewed bail application was made, he deposed to an affidavit which
stated that th e complainant had made multiple withdrawals from his bank account,
and he had been intending to use that money to assist his eldest child who is
currently in university. In the same affidavit he repeated that he can only afford the
amount of R300 for bail money. It is difficult to reconcile the evidence of an inability
to pay bail of more than R300, with the protest that the complainant had
subsequently withdrawn money from the appellant’s bank account (presumably in a
total amount of more than R300 ). In these circumstances there is a question mark
regarding the credibility of the appellant.

[16] On the prospects of acquittal, it is instructive that the appellant did not adduce any
evidence at the first bail hearing regarding the incident, notwithstandi ng the grave
allegations made against him and the evidence adduced by the investigating officer
in respect of the serious assault on his wife. At the second hearing the appellant

in respect of the serious assault on his wife. At the second hearing the appellant
denied the charges and claimed that he caught his wife in bed with another pe rson.
However, the appellant provide d no explanation whatsoever for the very serious
injuries sustained by his wife. In these circumstances I do not consider that the

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appellant has discharged the onus of proving his future a cquittal on a balance of
probability. Certainly, no convincing evidence of his innocence was adduced.5

[17] With reference to the case mounted by the appellant:

a. In circumstances where there is evidence of previous assault, albeit that it
was not reported, as well as the encouragement to not report a rape, I do
not find the evidence regarding a lack of pending matters, active warrants,
previous convictions , breaches of protection orders and so forth
persuasive.

b. Even if the appellant stays at an alternative address, and even if he is
restricted to Worcester (where his parents reside) , there will still be a risk
that he will interact with the complainant, especially if he resumes his job
with Seavuna.

c. Furthermore, e ven if the appellant can secure employment as a
fisherman, entailing that he is at sea for long periods of time, he will still be
ashore for significant periods of time, creating opportunities for interac tion
with the complainant.

d. I am also not persuaded that his restraint between the incident and his
arrest – at a time when he had not been charged - provides comfort that
he will stay away from the complainant until the trial is heard.

e. Finally, having regard to all the evidence , I am not confident that t he
appellant will comply with undertakings.


5 See S v Mathebula 2010 (1) SACR 55 (SCA) para 12; Panayiotou v S [2015] ZAECGHC 73 (28 July
2015) para 57.

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[18] In the result I find that the appellant has not proven on a balance of probabilities that
none of the s 60(4) grounds are established. In pa rticular, he has not satisfied me
that if he is released on bail, it is unlikely that he will endanger the safety of the
complainant or intimidate her.

[19] In reaching this conclusion I have had regard to the factors listed in s 60(5) of the
Act, and specifically the degree of violence towards others implicit in the charge
against the accused , the disposition to violence on the part of the accused, as is
evident from his past conduct , and the prevalence of gender-based violence in
South Africa.

[20] I am not satisfied that the appellant has adduced sufficient evidence to show that he
is not likely to act in terms of the propensity to violence that his past behaviour
illustrates.6

[21] I have considered the possibility of imposing bail conditions, but I am not convinced
that bail conditions would sufficiently reduce the risk of harm to the complainant.

[22] I have also considered the factors set out in s 60( 9) of the Act , and particularly the
possible impact of the appellant’s incarceration on his children. In this regard I take
note that the appellant testified that he sends about R2 500 to R3 000 per month to
his mother to support his children. I agree with counsel for the respondent that the
appellant has failed to adduce adequate evidence regarding the financial impact of
his incarceration. For instance, he has not shown that if he is released on bail that
his previous employer (Seavuna) will re -employ him. Nor has any evidence been
put up regarding the arrangements that are presently being made to maintain his
children while he is imprisoned, and how those arrangements would be different if
he were not incarcerated.


6 Compare S v Rudolph 2010 (1) SACR 262 (SCA) para 13.

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[23] Regarding the period for which the appellant has been in custody, I understand from
counsel that the trial is set down for 7 November 2025. Although the appellant has
been incarcerated for a lengthy period, there is now only three months until the trial.

[24] Evidence was put up in the second bail hearing to show that the complainant had
withdrawn monies fr om the appellant’s bank account . This in circumstances where
the complainant is not employed and is married in community of property to the
appellant. To my mind th is does not constitute a gr ound to release the appellant on
bail. It was not shown that the appellant cannot take steps from jail to limit access to
his bank account. Furthermore, as contended by counsel for the respondent, the
financial grievances may increase the risk of the compl ainant being harmed if the
appellant is released.

[25] It was also contended at the second hearing that the initial investigating officer was
biased as he had been in a relationship with the complainant’s sister. No evidence
was adduced to support this conten tion, and the conduct of the investigating officer
does not support an allegation of bias against the appellant.

[26] On a conspectus of all the evidence , and applying a value judgment, I do not
consider that the appellant discharged the onus resting upon him. It follows that I do
not consider that the Magistrate’s decision was wrong, as contemplated by s 65(4)
of the Act. In the result the appeal is dismissed.


_______________________
DJ COOKE
ACTING JUDGE OF THE HIGH COURT


Appearances:

9
For the Appellant: W Calitz

For the State: L Snyman