IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO: A87/2025
In the matter between:
CHUMANI THYULU First Appellant
BONGO VULA Second Appellant
and
THE STATE Respondent
Coram: JONKER AJ
Heard: 2 September 2025
Delivered: Electronically on 2 September 2025
JUDGMENT
JONKER AJ:
Introduction
[1] This appeal is against the magistrate’s refusal of bail to two young men
charged with serious violent crimes. The young appellants, aged 21 and 22
respectively, were arrested on 22 February 2025 and face charges of robbery with
aggravating circumstances (count 1), unlawful possession of a firear m (count 2),
and, in respect of the first appellant, unlawful possession of 13 rounds of ammunition
(count 3).
[2] Following their arrest, the appellants applied for bail before the magistrate's
court, Khayelitsha. On 19 March 2025, the learned magistrate ref used the
application, finding that the appellants had failed to discharge their burden under
section 60(11)(a) of the Criminal Procedure Act 51 of 1977 ("the Act"). Specifically,
the magistrate held that they had not established the exceptional circumstanc es
required for bail in a schedule 6 matter.
[3] The legislative framework is clear and uncompromising: section 60(11)(a)
mandates that where an accused faces a schedule 6 offence, bail shall not be
granted unless the accused adduces evidence satisfying the c ourt that exceptional
circumstances exist which, in the interests of justice, permit release.
The appellants case
[4] The appellants placed their personal and other relevant circumstances before
the court by means of an affidavit. The affidavits of the appellants mention their
personal circumstances: they are 21 and 22 years of age respectively, both without
previous convictions or pending cases. The first appellant is employed, and the
second appellant is a student. They assert they have fixed addresses, are in
relationships, and contribute to family support. Both appellants are young adults
without criminal records or pending charges.
[5] They submit that their continued detention will prejudice their employment and
studies, that prison conditions are harsh and overcrowded, and that they are not
flight risks. They deny ownership or possession of the firearms allegedly found and
flight risks. They deny ownership or possession of the firearms allegedly found and
maintain that they were attacked by members of the community before their arre st.
They also dispute that they will be identified by the community members, pointing out
that no identity parade was conducted and that the arrest took place in an
overpopulated area where the alleged offence occurred.
[6] They argue further that the case against them is weak, relying on the single
evidence of the complainant in the robbery. They stress that there is no risk of
interference with witnesses, most of whom are police officers, and that no strong
opposition has come from the community regar ding their release. Most significantly,
the appellants fundamentally challenge the State's case. They deny any involvement
in the alleged robbery and dispute ownership of the recovered firearms. They
question the reliability of the identification evidence, noting the absence of a formal
identity parade and the chaotic circumstances of their arrest in a densely populated
area.
[7] Counsel for the appellants submitted that the magistrate misdirected himself
by failing to place sufficient emphasis on the appellants age, their impressionable
nature, and the fact that this was their first encounter with the law, while also
underestimating the weakness of the state’s case, as no stolen goods or firearms
were found in their possession. Counsel further submitted that strict bail conditions
could be imposed to mitigate any concerns, thereby ensuring that the interests of
justice are upheld.
The state’s case
[8] In response to the aforesaid affidavits filed on behalf of the appellants before
the magistrate, the state presented an affidavit deposed to by the investigating
officer on the basis of the seriousness of the charges, the alleged use of firearms,
and the danger posed to the community. The complainant was robbed at gunpoint
and positively identified the appellants. Two firearms were recovered in
circumstances linking them to the appellants, though a third firearm remains missing.
This missing firearm presents an ongoing threat to community safety and suggests
that there is a possibility of evidence being destroyed and/or concealed.
that there is a possibility of evidence being destroyed and/or concealed.
[9] The magistrate in the court a quo correctly, so the state submits, dismissed
their application, finding that the appellants had failed to discharge the onus under
section 60(11)(a). The magistrate emphasised the danger to the community, the
seemingly easy access to firearms by the appellan ts, the possession by the
appellants of firearms and the risk that evidence may be destroyed or concealed.
The state submitted that the Magistrate was correct in the determination of the
circumstances and even more so to deny bail.
Applicable Legal Principles
[10] Section 60(11)(a) of the Act provides that in respect of schedule 6 offences,
bail shall not be granted unless the accused adduces evidence which satisfies the
court that exceptional circumstances exist which, in the interests of justice, permit
their release.
[11] In addition, because this matter comes before this Court as an appeal, section
65(4) of the Act is applicable. It provides:
“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.”
(My underlining)
[12] The powers of the appeal court are limited, and the court must be persuaded
that the magistrate wrongly exercised his discretion. Even if the appeal court shares
a different view, it cannot substitute its own view for that of the magistrate as that
would be tantamount to an unfair interference with the magistrate’s discretion. The
overriding consideration is whether the magistrate exercised his or her discretion
wrongly.
[13] In Barber1, Hefer J held:
1 S v Barber 1979 (4) SA 218 (D) at 220 E – H.
“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. A ccordingly, although this Court may have a different
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, n o 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.”
[14] The abovementioned approach has been approved in a number of decisions.
In Porthen2, Bins-Ward J held that:
“It is clear that 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”.
[15] The Magistrate must have misdirected himself in some material manner in
relation to either fact or law and, in event of this being established, the appeal court
can consider whether bail ought to have been refused or granted. In the absence
hereof, the appeal must fail.
[16] It follows that the function of this Court is not to reconsider the bail application
afresh, but to determine whether the magistrate’s refusal of bail was wrong. Only if
that is established may this Court interfere.
[17] It is settled law that the concept of exceptional circumstances is not defined,
however, in S v H3, it was observed that:
"Exceptional circumstances must be circumstances which are not found in
the ordinary bail application but pertain peculiarly ... to a n accused person's
specific application. What a court is called upon to do is examine al l the
2S v Pohthen & others 2004 (2) SACR 242 (C).
3 S v H 1999 (2) SACR 72 (W) at 77 E-F.
relevant considerations... as a whole, in deciding whether an accused person
has established, something out of the ordinary or unusual which entitles him
relief under section 60(11)."
[18] The courts have consistently held , and so the respondent argued, that
circumstances such as youth, absence of prior convictions, employment, fixed
residence, or family responsibilities are ordinary in natur e and do not, without more,
constitute exceptional circumstances.
[19] Exceptional circumstances must be circumstances which are not found in the
ordinary bail application but pertain peculiarly to an accused person’s specific
application. What a court is called upon to do is to examine all the relevant
considerations as a whole in deciding whether an accused has established
something out of the ordinary or unusual which entitles him to a relief under section
60(11)(a) of CPA.
[20] In Peterson4 an attempt to define exceptional circumstances was made in the
following words:
“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. This depends on t heir context and
on the particular circumstances of the case under consideration.”
Evaluation
[21] The appellants are young, with clean criminal records. Their employment and
studies would indeed suffer prejudice through continued incarceration. These are
relevant factors, but they are not unusual in bail applications and cannot, without
more, be elevated to “exceptional circumstances”.
4 S v Peterson 2008 (2) SACR 355 (C) Para 55
[22] The charges are grave. Robbery with aggravating circumstances, particularly
with firearms, remains one of the most serious crimes confronting the courts. The
presence of multiple firearms , in the vicinity of the appellants, and the re covery of
ammunition intensifies the seriousness. The magistrate correctly noted that a third
firearm remains unaccounted for , and a risk remains that it can be disposed of or
tampered with.
[23] The appellants also seek to rely on the alleged weakness of the state’s case,
pointing to disputed identification and the absence of an identity parade as an
exceptional circumstance. While the merits of the state’s evidence will ultimately be
tested at trial, at this stage , the complainant maintains that the one appellant called
him by name before the robbery , his version that the appellants robbed him with
firearms, together with the recovery of firearms in close proximity to where the
appellants were arrested, cannot be reg arded as insubstantial. The existence of
disputed evidence does not in itself amount to exceptional circumstances.
[24] While the magistrate incorrectly determined that the accused had actual
possession of the firearm rather than mere proximity to it, this factual error does not
constitute a material misdirection that would undermine the judgment. The legal
distinction between physical possession and immediate proximity, though technically
significant, is not determinative in the present circumstances. This error represents a
minor factual inaccuracy that neither materially impacts the overall assessment of
the evidence nor compromises the soundness of the magistrate's reasoning.
[25] The appellants themselves concede in their warning statements that they
were together at the relevant time and location of the incident, which is consistent
with the complainant's version of events. The discovery by the two arresting officers
of firearms, in close proximity to where the appellants were apprehended , provides
of firearms, in close proximity to where the appellants were apprehended , provides
corroboration for the complainant's account as an eyewitness. This evidence, viewed
cumulatively, supports the complainant's testimony regarding the circumstances of
the alleged robbery involving the appellants and the presence of firearms at the
scene.
[26] The appellants contend that they are not flight risks and could be subjected to
strict bail conditions. While such measures may, in certain cases, reduce the risk of
flight, they do not displace the statutory threshold set by section 60(11)(a). In matters
involving schedule 6 offences, appellants must establish the existence of exceptional
circumstances, and cannot rely solely on the absence of risk factors or on personal
hardship. On the contrary, as the state argued, the appellants are young and without
strong ties binding them to remain and stand trial. They present a potential threat to
the complainant and to members of the community, and there is a real risk of witness
intimidation. Their release would undermine public confidence in the administration
of justice.
[27] The magistrate's decision reflects a proper understanding of both the legal
requirements and the competing interests at stake. The magistrate’s emphasis on
community safety, the gravity of the charges, and the adequacy of the evidence
demonstrates sound reasoning . While this Court is not insensitive to the personal
hardships faced by the appellants, the law requires that their individual
circumstances be weighed against broader societal interests especially in matters
involving alleged armed violence.
Conclusion
[28] The appellants have failed to demonstrate exceptional circumstances which,
in the interests of justice, permit their release on bail. The magistrate cannot be
faulted. Their appeal accordingly cannot succeed.
Order
[29] The appeal is dismissed and bail is refused.
__________________________________
E JONKER
ACTING JUDGE OF THE HIGH COURT
Appearances:
For Appellants: Adv A Paries
For Respondent: Adv H van As