IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL DIVISION, DURBAN

Case no: A2025-091731
In the matter between:

SHIRWIN NOWTHAM APPELLANT

and

THE STATE RESPONDENT


Coram: Mossop J
Heard: 7 August 2025
Delivered: 7 August 2025


ORDER


The following order is granted:
The appeal against the judgment of the Verulam Magistrate’s Court , delivered on 14
March 2025 , refusing to admit the appellant into bail based upon new facts is
dismissed.


JUDGMENT


MOSSOP J:

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[1] This an ex-tempore judgment.

[2] This is an appeal against the refusal by an additional magistrate of Verulam ,
a Ms Badal (the magistrate) , to admit the appellant into bail based on the alleged
existence of new facts.

[3] The appellant had previously applied for bail before the magistrate. On 4
October 2024 that application was refused. The appellant did not challenge that
decision by appealing it, but elected, rather, to later renew his application for bail based
upon the alleged existence of new facts. Judgment in that application was de livered
on 14 March 2025, and the appellant’s application was again unsuccessful, hence this
appeal.

[4] The appellant has been charged with a count of murder and a count of
attempted murder, both of which offences are alleged to have occurred on 29 August
2024.1 It is not in dispute that the count of murder falls within the ambit of schedule 6
of the Criminal Procedure Act 51 of 1977 (the Act) and it thus follows that the appellant
was required to establish exceptional circumstances that would justify his release from
custody.2

[5] The State alleges that the appellant murdered a former employee of his (the
deceased), and shot a second former employee, who fortuitously survived his shooting
(the survivor). The instrument used in the murder, and the attempted murder, was a
shotgun. Prior to the shooting, the survivor explained in a statement that he made that
he and the deceased had been picked up by the appellant and a person described by
him as being ‘Stephen,’ who were travelling in a grey Polo motor vehicle. The survivor
explained that he and the deceased had previously worked for the appellant and
Stephen selling drugs and that they had agreed to get into the motor vehicle as:

1 The appellant was also at one stage charged with corruption and there was, at the very least, a
prospect that he would be charged with obstructing the course of justice. But I was advised from the

bar by both counsel that both these charges have subsequently been withdrawn.
2 See s 60(11)(a) of the Act, which 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 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 interest
of justice permit his or her release.’

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‘… they promised us another job.’

[6] They were made at a certain point to get out of the motor vehicle and:
‘Sherwan (sic) then took the firearm which was inside the vehicle and shot at us both.’

[7] Based upon the initial statement of the survivor regarding who had shot him
and the deceased, and presumably also other evidence that it had at its disposal, the
appellant was tracked down by the South African Police Services (SAPS) and taken
into custody on 14 September 2024, where he has remained ever since.

[8] I need not go into any detail about the initial refusal of bail. That decision was
not taken on appeal and must therefore be regarded as being correct. The appellant
chose to proceed, rather, on the basis of new facts.

[9] Three new facts were alleged to exist: the continued illness of the appellant’s
son; the appellant’s on -going hypertension , and the survivor’s recanting of his
allegation that the appellant is the person who shot and killed the deceased and shot
and wounded him. These facts were not given in oral evidence by the appellant but
were presented by way of an affidavit placed before the court by his legal
representatives.

[10] The most significant of the new facts alleged to exist appears to be the last
one just mentioned, namely that the survivor had recanted his allegations against the
appellant. It is important for a proper understanding of the competing allegations that
surround the alleged recanting by the survivor of his statement to consi der the
chronology of relevant events, as I now do:
(a) The survivor’s written statement implicating the appellant as the shooter was
deposed to by him on 11 September 2024;
(b) On 15 November 2024, the appellant’s erstwhile attorney , a Mr Gounden,
referred in court to an affidavit deposed to by the survivor in which he alleged ly
recanted his statement that the appellant was the shooter. That document was alleged
exhibited to the public prosecutor on a cellular telephone by the attorney, but has never

exhibited to the public prosecutor on a cellular telephone by the attorney, but has never
been submitted to the court and is not part of the appeal record;

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(c) On 18 November 2024, presumably in response to the previously mentioned
document on the attorney’s cellular telephone, the survivor deposed to an other
affidavit in w hich he confirmed that he had been shot by the appellant and that the
appellant had telephoned him from prison in which conversation the appellant told him
to:
‘… change my statement, that I was shot by Stephen and he promised me an amount of R5
000 which he will send through his friend by the name of Lunga.’
He confirmed that he had received the promised payment of R5 000 from Lunga and
that he was promised a further R20 000 if he went to court on 27 November 2024 and
withdrew the charges against the appellant. He indicated that he did not wish to do so,
and indicated that:
‘The person who shot at us was Shirwan (sic) with big gun black in colour.’
The witness statement and the statement dealing with the offering of a bribe were
manuscript statements made to a SAPS official.
(d) On 25 November 2024, an attorney by the name of Mr Mondli Mthethwa (Mr
Mthethwa) deposed to an affidavit in which he stated that the survivor approached him
in the company of two other males and indicated that he wanted to make a statement
to him that the appellant was not the person that had shot him. The survivor explained
that he had approached Mr Mthethwa after he had first approached the SAPS and had
been told that they did not want to take his statement. Mr Mthethwa then took down
the statement and sent the survivor to court to have it commissioned. That statement,
like the previously referred to telephone statement, has never been seen again and is
also not part of the appeal record;
(e) On 20 January 2025, the survivor consulted with another attorney, namely a
Ms Ivy Mukweka (Ms Mukweka). She took down another statement from him in which
he stated that:
‘I confirm that the acc used Mr. Sherwin Nowtham did not do anything to hurt me , or commit
any acts that are unlawful against me.’

any acts that are unlawful against me.’
He went on to state that the person that had shot him was ‘Stefon’ and that the
appellant was entirely innocent.

[11] This change of version of the survivor, so the appellant alleged, has brought
about the ruin of the State’s case against him, and he confidently stated in his affidavit
in the renewed bail application that the consequence:

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‘… would be the end of the State’s case;’

[12] Thus, the appellant reasoned that this development constituted a new fact that
was in its very nature compelling and exceptional and would entitle him to be granted
his liberty pending his trial if the tr ial was even able to proceed in the light of the
survivor’s final revelations.

[13] There can be no doubt that there is substantial uncertainty concerning what
the survivor’s definitive version is. But, as Mr Singh, who appears for the State argued,
that is not the end of the matter, despite what the appellant’s legal representatives
believe the position to be. There are other facts that the appellant chooses not to focus
upon that point to his involvement in the events in question.

[14] The first is that the deceased did not die immediately upon being shot . He
lingered in this world sufficiently long enough before slipping away to give a description
of who shot him to those who came to his assistance at the scene as he lay dying. The
deceased indicated that the person who shot him was the appellant.

[15] It was suggested by Mr Khan SC, who appears for the appellant, that there is
something unsatisfactory about the introduction of this dying declaration. The defence
were apparently told that the State possessed the evidence of a dying declaration. The
defence assumed that to relate to the survivor and not the deceased. I am not sure
how that conclusion could have been entertained, for the survivor did not die. Anything
that he said was, therefore, not a dying declaration. The deceased did die and what
he said was therefore a dying declaration. That dying declaration was heard by a
security guard (the security guard) who, alerted by the sound of the shooting,
proceeded to the scene where he found the injured survivor and the dying deceased.
Mr Khan suggested this was plucked out of the ether by the State and had only been
mentioned in closing argument at the renewed bail application, but Mr Singh

mentioned in closing argument at the renewed bail application, but Mr Singh
conclusively established that this was incorrect by referring to the following extract
from the investigating officer’s affidavit delivered in the renewed bail application:
‘The deceased made a dying declaration to the security officer who arrived on the scene…’

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The admissibility of that evidence may later be contested at trial, but it is evidence that
the magistrate was entitled to consider when determining the outcome of the
appellant’s renewed bail application.

[16] There is other evidence that links the appellant with the crime. He had recently
purchased a grey Polo motor vehicle that had ‘CY’ registration plate s affixed to it.
According to the survivor, t hat motor vehicle was used to convey him and the
deceased to the place where they were shot. That allegation has not been recanted
by the survivor. The security guard apparently stated that he had observed a grey Polo
motor vehicle with CY registration plates leaving the scen e. Immediately after the
shootings, the motor vehicle was returned to the dealer who had sold it to the
appellant, and it was apparently swapped for another motor vehicle. Why this strange
turn of events occurred was not explained by the appellant.

[17] In addition to this, t he State apparent ly also has evidence from cellular
telephone transmission towers that places the appellant ’s cellular telephone in the
vicinity of the place at which the shootings occurred.

[18] Following upon a consideration of all these facts, the magistrate concluded
that the application for bail based on the so-called new facts should fail.

[19] The issue of an appeal against a refusal of bail by a lower court is governed
by s 65 of the Act. Section 65(5)(1)(a) reads as follows:
‘An accused who considers himself aggrieved by the refusal by a lower court to admit him to
bail or by the imposition by such court of a condition of bail, including a condition relating to
the amount of bail money and including an amendment or supplementation of a condition of
bail, may appeal against such refusal or the imposition of such condition to the superior court
having jurisdiction or to any judge of that court if the court is not then sitting.’

[20] Section 65(4) of the Act provides that:

[20] Section 65(4) of the Act provides 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 or judge shall give the decision which in its or his opinion the lower court should have
given.’

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[21] When considering an application for bail, a lower court is introduced to certain
competing facts, which it is required to assess and evaluate, and it then attempts to
divine what may occur in the future . In doing so, the lower court is faced with the
challenging task of balancing the applica nt’s right to liberty against the interests of
justice. If it believes there will be no risk to the administration of justice, it may decide
to release an accused person from custody. If it concludes that the interests of justice
will be imperilled by the release of the applicant, it will decline to order the accused
person’s release. In coming to that decision, the lower court unquestionably exercises
a discretion.

[22] By virtue of th e existence of, and the exercise of, this discretion, an appeal
court has limited opportunities to intervene in the decision taken by the lower court
concerning bail. As was observed in this division in S v Barber:3
‘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 must be persuaded that
the magistrate exercised the discretion which he has wrongly. Accordingly, although this Court
may have a differe nt view, it should not 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 discretion to grant bail exercised that
discretion wrongly.’

[23] The magistrate gave a reasoned judgment. The payment allegedly made on
behalf of the appellant to the survivor to secure his co-operation featured prominently
in that judgment , as it rightly should. The magistrate mentioned, and the record
confirms this, that the appellant’s erstwhile attorney Mr Gounden had, indeed,

confirms this, that the appellant’s erstwhile attorney Mr Gounden had, indeed,
informed the court previously that a friend of the appellant:
‘… may have given him some money for food or medical attention or whatever, …’
It appears therefrom that the fact of the payment mentioned by the survivor is not
seriously in dispute, merely its intended purpose.


3 S v Barber 1979 (4) SA 218 (D) page 220E-F.

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[24] The magistrate correctly rejected the multiple allegations of alleged illness
advanced by the appellant as constituting new facts. Those conditions that he and his
son allegedly suffered from existed at the time of his initial , unsuccessful, bail
application. The only possible fact that may have been new was the sequence of
affidavits deposed to by the survivor.

[25] The magistrate, correctly in my view, found that the affidavits deposed to by
the survivor were ‘shrouded in controversy’ and concluded that the survivor may face
criticisms regarding his credibility at the trial, but that was also an issue for the trial
court to deal with. That may be so, but if it transpires that the appellant, in fact, offered
an inducement to the survivor to get him to recant his earlier identification of him, it will
place the appellant in an extremely difficult and invidious position.

[26] Objectively speaking, t he circumstances under which the affidavits that
purported to exonerate the appellant came into existence are extremely strange. The
survivor described himself in the affidavit drafted for him by Ms Mukweka as being an
adult unemployed and unmarried male. In addition, he was apparently a person who
had to be given a handout to purchase groceries, yet he was prepared to consult with
two different private attorneys to prepare two statements. Why did he consult private
attorneys? Where did he get the money to do this from? Why did he simply not report
what he wished to say to the inv estigating officer and thereby avoid the cost that he
must indubitably have incurred consulting with private attorneys? I do not accept, as
allegedly stated by the survivor and as previously mentioned, that the SA PS refused
to take his statement. The answers to these questions are not immediately obvious.

[27] The survivor’s statement that he had been contacted by the appellant from
prison to get him to change his version was an important piece of evidence that was

prison to get him to change his version was an important piece of evidence that was
never recanted by the survivor. All that he recanted related to the actual shooting. The
magistrate carefully considered that evidence.

[28] Because of her understandable misgivings with the new evidence , the
magistrate still considered the case against the appellant to be a strong one. The
magistrate also found that the uncertainty over what the true and definitive version of
the survivor was did not satisfy the obligation of the appellant to establish the existence

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of exceptional circumstances that would justify his release into bail. I am satisfied that
this was a correct conclusion.

[29] I am not persuaded that the magistrate has erred at all in coming to her
decision, and I am not able to find that the conclusion that she came to was the
incorrect one. The evidence of the s urvivor that the appellant was able to reach him
and influence him notwithstanding the appellant’s continued incarceration is
compelling evidence of his willingness to interfere with State witnesses, a conclusion
to which the magistrate correctly came. Indeed, this matter is suffused with the
insidious spectre of the manipulation of the survivor , which, naturally diminishes the
value of the final exculpatory affidavit to which he subscribed . Such interference is a
blight upon the administration of justice and cannot be permitted to repeat itself.

[30] Ultimately, despite all the controversy over the affidavits prepared by the
survivor, it may not matter who actually fired the shots that injured and killed if the
State charges the appellant with those crimes based upon the doctrine of common
purpose.

[31] The magistrate was required to scrupulously consider all the evidential
material placed before her , not just the new facts.4 She did so and explained and
justified the decision to which she came. I cannot find fault with the way she exercised
her discretion, nor can I fault the decision to which she came on the evidence before
her. In other words, she did not exercise her discretion wrongly. In the circumstances,
I am unable to interfere in her decision.

[32] I accordingly grant the following order:

The appeal against the judgment of the Verulam Magistrate’s Court, delivered on 14
March 2025, refusing to admit the appellant into bail based upon new facts is
dismissed.



4 S v Vermaas 1996 (1) SACR 528 (T) page 531f-g.

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_____________________________

MOSSOP J

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APPEARANCES


Counsel for the appellant: Mr M S Khan SC

Instructed by: T Ranjith Attorneys
Suite 4, First Floor
Temple Chambers
54 George Sewpersadh Street
Verulam

Counsel for the respondents: Mr K Singh

Instructed by: Director of Public Prosecutions
Durban