SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case no.: A86/2025
Lower Court case no.: C405/2024
In the matter between:
PEZILE NOMAVILA Appellant
And
THE STATE Respondent
Coram: Pangarker J
Delivered: 14 October 2025 (delivered via email to the parties’ legal
representatives)
Summary: Bail – Appeal against refusal of bail – Accused charged with m ultiple
counts of extortion – Flight risk – More than one address for purposes of bail –
Likelihood of interference with witnesses – Strong prima facie case against accused
- Bail conditions and difficulty in monitoring accused if released on bail – Magistrate’s
finding correct – Appeal dismissed
___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from the Magistrates’ Court, Mossel Bay, the following is ordered:
The appeal against the refusal of bail is dismissed.
JUDGMENT
PANGARKER J
Introduction
[1] On 20 December 2024, the Mossel Bay Magistrates ’ Court refused bail in
respect of the appellant ’s bail application which was opposed by the State. This
appeal against the Magistrate’s decision is dealt with in terms of section 19 (a) of the
Superior Courts Act 10 of 2013, thus without the hearing of oral submissions.
[2] It is apparent from the record of proceedings in the Magistrates’ Court that the
appellant, accused 1 in th e matter, was legally represented throughout the bail
proceedings. I have had regard to the record, the Magistrate's judgment in the bail
application, the grounds of appeal as well as the legal representatives ’ written
submissions in the appeal in reaching the conclusion herein.
[3] The appellant is charged along with a co -accused, Lazola Perry Mtini
(accused 2), with 25 counts of extortion. The State alleges that on or about 14 June
2024, near Asla and Kwa Nonqaba, Mossel Bay, the accused acted with a common
purpose with persons known and unknown to the State and unlawfully an d
intentionally induced, threatened, subject ed to pressure or inspired fear in the minds
of shop owners and shop assistants at 25 shops, by demanding cash payments for
so-called protection. Furthermore , by means of these threats, inducements or
pressure, the accused unlawfully and intentionally obtained an advantage not due to
him in that he received R500 per shop totalling R12 500.
[4] The parties were agreed that the offence falls under Schedule 1 of the
Criminal Procedure Act 51 of 1977 (the CPA) and that section 60 (1) applied to the
bail proceedings in that an accused is entitled to be released on bail if the Court is
satisfied that the interest of justice permits it.
Grounds of appeal
[5] The grounds of appeal in relation to the Court a quo’s order are, in summary,
the following: (i) the Magistrate committed an error in finding that it was not in the
interests of justice to release the appellant on bail; (ii) the Magistrate erred in finding
that there was a likelihood that the appellan t would evade his trial and would
influence or intimidate witnesses; (iii) the Magistrate overlooked the fact that the
appellant resided permanently outside the Court’s jurisdiction thus suitable bail
conditions could have been fixed , and (iv) the Magistrate misdirected himself in
failing to consider granting bail coupled with the appropriate conditions as set out in
section 62 of the CPA. The State presented its case first in the bail application.
The State’s opposition to the granting of bail
[6] The State presented the testimony of Captain Carel Cornelius (Cornelius) who
also provided a detailed affidavit which included the reasons for opposing bail . At the
time of the application , Cornelius was a police officer of 39 years’ experience . He
testified that incidents of extortion were reported to have occurred amongst mainly
Ethiopian shop owners in KwaNonqaba and Da Gamaskop police precinct. Due to
their immense fear for their safety and that of their property, many of the foreign shop
owners were unwilling to come forward and report these cases to the police.
Consequently, various meetings were held between senior police officials and the
shop owners and eventually two complainants came forward.
[7] Cornelius testified that the police applied for a section 252A operation
authorization and this set in motion covert surveillance to crack the extortion
syndicate in the area. Pursuant to information received from the complainants that
the shops were visit ed every middle of the month, search and seizure warrants in
respect of the taxis were applied for. Thereafter, Cornelius and his colleagues
commenced surveillance at a guest house which was identified as a place where a
taxi, which stopped at the various spaza shops in the area , visited regularly. The
taxi’s registration details corresponded with information which the police had
obtained.
[8] The surveillance team decided to apprehend the occupants of the taxi and in
the police’s attempt to block the taxi on or about 14 Ju ne 2024, a chase ensued
which saw the taxi fleeing the police blockade . Eventually, the occupants of the taxi
were apprehended, with the result that the appellant, an occupant of the taxi, was
apprehended and arrested while the other occupants fled the scene. Later, another
suspect (also an occupant of the taxi) was arrested but released on the basis that he
would be utilised as a section 204 witness in the case against the appellant. This
would be utilised as a section 204 witness in the case against the appellant. This
witness also linked the appellant to multiple inst ances of collecting protection money
in his presence.
[9] The search and seizure warrant for the taxi yielded a notebook containing the
names of 41 spaza shops and its owners and it was noted that blue “ticks” appeared
next to 25 of these nam es, which corresponded with R500 (per shop) paid by 25
shop owners, totaling R12 500. Cornelius testified that the police seized R12 180 in
cash along with the notebook . Furthermore, it was confirmed that a VW Polo found
at the guesthouse was rented by the appellant and had travelled from Cape Town to
Mossel Bay. Cornelius emphasise d that the police investigation illustrated that the
appellant, his co-accused and other individuals were engaged in extortion activity as
part of a criminal enterprise. It was evident that a p attern emerged from the
collection dates of the extortion money in that it differed from area to are a, which
underscored the organised manner in which the offences were committed.
[10] According to Cornelius, the appellant was linked to the offences in that he was
pointed out in photographs as being the person who c ollected the money from the
spaza shops. The police investigation illustrated that the appellant, his co -accused
and other individuals were engaged in an enterprise as a group who collected
protection money.
[11] In respect of the appellant’s address, Cornelius testified that the appellant
provided 5[…] N[…] Street, Khayelitsha as his residential address. He requested the
appellant to show him the address on Google Maps but was informed that […] N[…]
Street was one and the same address. The information was checked on Google
Maps and was followed up : it was found that one Bulelani Somlenzi was found to
occupy 5[…] N[…] Street, that he knew th e appellant but that he and his girlfriend
occupied the property for several months at the time the police attended the address.
Somlenzi advised that the appellant did not occupy the premises.
[12] The police were also provided with the appellant's girlfriend’s address, 2 […]
[12] The police were also provided with the appellant's girlfriend’s address, 2 […]
M[…] Street, Eerste River. It is noted that the record of the bail proceedings indicates
several variations on the name of the street but nothing much turns on this
uncertainty and confusion. The aforementioned address was followed up by Warrant
Officer Williams, who se feedback was that on visiting the address, the police found
an Eddie Rose who was residing at the property for 16 years and did not know the
appellant. A further follow-up by the police led them to the landlady , and it turned out
that the landlady (who knew the appellant but not his girlfriend) indicated that the
appellant paid the rent.
[13] As for the section 62(f) report, the address supplied by the appellant was
occupied by tenants for several months who rented from the appellant . Cornelius
was concerned that as nobody was home when the police attended the premises ,
the verification of the address was therefore questionable. Furthermore, he testified
that the appellant’s taxis and business documents were registered on another
address, 5[…] N[…] Street, Kuyasa.
[14] Having regard to these factors, C ornelius regarded the appellant as a flight
risk due to inconsistencies with his address(es). Th us, the likelihood existed that
should he abscond from attending Court, it would be difficult for the police to monitor
him should bail be granted and tracing him would be problematic. It was also unclear
to the police where in the Eastern Cape the appellant’s family resided.
[15] Cornelius testified that there was a J50 Bench warrant circulatin g for the
appellant in a 2014 Khayelitsha matter. Cornelius feared that there was a likelihood
that if bail w ere fixed, the appellant would re -connect with the other suspects in the
taxi as he had all the information in the matter. He also feared the likelihood that the
appellant, if bail were fixed, would commit other crimes.
[16] In cross -examination, Cornelius confirmed that there were in total, 11
complainants (shop owners) and others were prepared to come forward but awaited
the outcome of the bail application. He testified that the individual shops were known
or identified by the appellant even though the police had deliberately withheld the
identities of the complainants/shop owners.
[17] Cornelius conceded that there were measures in place to protect witnesses
including the section 204 witness and that it was possible , but not likely , that the
appellant would retu rn to the Mossel Bay area if bail were granted. Cornelius
admitted that the police did not know why the J50 warrant was circulated when the
Khayelitsha matter was withdrawn against the appellant 1. He confirmed that in a
previous Blue Downs matter, bail was refused and the appellant was held in custody
awaiting trial.
[18] Insofar as the appellant’s address issue was concerned, Cornelius testified
that he was given two notes containing address details for 2 […] M[…] Street and the
reference to a Rosetta Martins as the appellant’s girlfriend. These notes were
attached to his affidavit opposing the granting of bail. A follow-up on the address
indicated on the note brought the police to a landlady, Noloyiso, who did not know a
Ms Martins, but referred to 1 […] M[…] Street (not 2 […] M[…] Street) and when
prompted, indicated that she knew the appellant and his girlfriend.
[19] Cornelius did not know that Busisi we Sikili was the appellant’s girlfriend and
only became aware of her at the bail proceedings . It was put to the State’s witness
that the appellant’s version would be that 1 […] M[…] Street was the appellant's
alternative address where he lived with his g irlfriend, Ms Sikili, and that he rented
from the landlady, Noloyiso.
[20] From his further testimony, it was clear that Cornelius had an issue that yet
another address was used, 5 […] N[…] Street, Kuyasa , for the hired Polo. He was
concerned that this address was not the one provided at the time of arrest, but he
agreed that it was the address on the section 62(f) report and used in the paperwork
related to the appellant’s taxis. The appellant had three t axis registered in his name
and no further extortion activity occurred while he was in custody.
and no further extortion activity occurred while he was in custody.
1 It is unclear from the testimony whether the Khayelitsha matter was withdrawn in 2017
[21] In re -examination and in response to the Court’s questions, the witness
confirmed that the appellant used the N[…] Street address for his other cases. He
could not confirm that the handwriting on the notes handed into Court belonged to
the appellant. This concluded the State’s case in the bail application.
[22] The appellant called Ms Sikili to testify in his application. It seems from an
exchange bet ween the prosecutor and Ms Sikili, that despite a request by the
defence that she remains outside the Courtroom during the State’s case, she failed
to heed the request and was present during Cornelius’ testimony. Ms Sikili testified
that she and the appell ant resided at 1 […] M[…] Street, she was seven months
pregnant at the time of testifying and her testimony regarding the landlady Noloyiso ,
who was contacted by the police regarding the appellant’s girlfriend , mirrors the
testimony of Cornelius.
[23] Ms Sikili testified further that she moved from 1[…] M[…] Street after the
appellant’s arrest and that the appellant lived with his cousin, Siyabulela, in a rented
room at 5 […] N[…]2 Street. She testified that she and the appellant were in a
relationship for 4 years prior to his arrest and that he is a taxi owner.
[24] In cross -examination, Ms Sikili testified that she was unaware that the
appellant contended that his family home was in Khayelitsha. According to her, the
appellant’s family home was in the Eastern Cape. However, she also testified that
the appellant’s family home in Cape Town was sold and that his family had relocated
to the Eastern Cape. The family home which she referred to was 5[…] N[…] Street,
the same address provided for the taxi business, SARS documentation and for hiring
the VW Polo. She testified that she was not a ware of the appellant visiting Mossel
Bay monthly, does not know Rosetta Martins and the appellant would sleep over 3 to
4 times per night.
The appellant’s application for bail
[25] The appellant did not testify but relied on an affidavit which was plac ed before
the Court and admitted into evidence as Exhibit D. The content of the affidavit is not
repeated herein at length; however, certain information is referred to. The appellant
stated under oath that he was 33 years old and resided at 5 […] N[…]2 Street,
Kuyasa, Khayelitsha, where he lived with his cousin Siyabulela, prior to arrest. He
was engaged to Ms Sikili, who lived at 1[…] M[…] Street, Eerste River, and his family
had relocated to Qumbu, Eastern Cape.
[26] The appellant has a minor son aged 1 from a previous relationship whom he
maintains at R3 000 per month . Furthermore, the s ection 62(f) report confirm ed his
address as being 5 […] N[…]2 Street, Khayelitsha and it f avoured his release
pending finalisation of the matter. The appellant was the owner of a number of taxis,
some of which were still under vehicle finance, while others were bought in cash . He
was a registered taxpayer.
[27] The appellant’s release on bail was premised on the following factors: having
a fixed/determinable address; a favourable section 62(f) report; a good bail profile;
that he gave his full co-operation to the police investigation, and that the likelihood of
endangering the public safety, of being a flight risk, of interference with witnesses
and evidence and jeopardising the bail and criminal justice system, did not arise.
The Court a quo’s judgment
[28] In the judgment, the Magistrate found that although the appellant h ad not
threatened witnesses, the charges were of such a nature that a threat(s) was/were
implied. He found prima facie, that the State had a strong case against the appellant,
that the appellant holds no property within the Court’s jurisdiction and that
additionally, because the remaining suspects were not yet apprehended, it showed
how easily the appellant could disappear. A lengthy period or imprisonment if
convicted was, in the Court’s view, sufficient reason to flee.
[29] Furthermore, the Magistrate was not satisfied with the appellant's explanation
as to his actual residence and found the explanations related to the various
addresses, to be ambiguous. Furthermore, the identities of witnesses were easily
determinable. Accordingly, bail was denied in view of the Court a quo holding that
there was a l ikelihood that the safety of the publi c or a person may be endangered
and a likelihood that he would attempt to evade his trial and influence or intimidate
witnesses.
Discussion and findings
[30] To commence the discussion, it is trite that in terms of section 65(4) of the
CPA, interference on appeal in respect of a lower Court’s decision to refuse bail may
only occur where that Court committed an error or mistake 2. In my view, the main
issue in the bail application relates to the appellant’s address or addresses and
whether he was a flight risk. Having regard to the record and submissions, it is clear
that Cornelius’ affidavit, supported by his oral testimony, was quite detailed.
[31] The appellant was entitled to exercise his right to remain silent regarding
questions related to the merits of the charges against him. That said, it is evident that
a detailed police operation led to his arrest. Significantly, the appellant was arrested
as an occupant in the taxi which , according to the police’s information and
surveillance, stopped at the spaza shops and in which a notebook containing details
of the alleged extorted spaza shops and R12 0003 were found. The appellant was
thus found on the scene, as an occupant of the same taxi and at least prima facie, is
considered to be directly connected to the charges.
[32] The appellant is linked to the crimes of extortion in two ways: firstly, he was
arrested after the ambush of the taxi resulted in the occupants thereof, fleeing from
the scene, and he was one of the occupants thereof . Secondly, the complainants
2 S v Porthern and others 2004 (2) SACR 242 (C) par [4]
3 Rounded off
identified the appellant through photo identification as being a/the person who visited
the spaza shops monthly, demanding R500 protection money.
[33] As for the charges, the evidence presented by Cornelius and the finding of the
Magistrate that a threat is implicit in the charge of extortion, is correct. In view of the
above, it stands to reason that the case ag ainst the appellant, at least prima facie, is
strong, and a successful conviction could lead to a lengthy period of imprisonment.
[34] The appellant’s submission that the full detail of the charge sheet (at the time
of the bail application) was not yet available to the defence , is ultimately not that
significant. It must be remembered that Cornelius’ testimony that further
complainants exist and that therefore more charges may be added in respect of the
other spaza shops, was not materially challenged during the bail proceedings.
[35] It is important to also note that while the appellant submits that there was no
likelihood that he posed a flight risk 4, the following undisputed facts must be taken
into account: the appellant has a passport and travelled once outside South Africa, to
Lesotho. He possesses several taxis, some of which were paid for in cash or in large
cash instalments, and he was able to hire a motor vehicle with out trouble to travel
from Cape Town to Mossel Bay prior to his arrest. It is furthermore apparent from the
appellant’s affidavit that he was able to access large amounts of cash with ease, for
example, R220 000 for a Hi -Ace in 2021 and R170 000 for another taxi in 2018 ,
bought in cash.
[36] In addition to these facts, and bearing in mind that the State allege d that the
appellant was an occupant along with other suspects who fled the taxi at the police
blockade, the indications are that the offences involve a syndicate and /or persons
who operated with common purpose to extort spaza shops in the Mossel Bay and
who operated with common purpose to extort spaza shops in the Mossel Bay and
Garden Route area. In my view, the probabilities indicate that that the appellant and
4 Section 60(4)(b) read with section 66 of the CPA
other occupants of the taxi were prepared to flee the scene , notwithstanding the
police pursuit. This certainly gives the impression that if he wished, the appellant
would take the risk and flee the authorities , thus establishing a likelihood that he is a
flight risk.
[37] The appellant correctly submits that the provisions of section 60(4)( b) of the
Act must be read with the provisions of section 60(6) 5. Not all the provi sions may
apply to a particular appellant, and consideration must be given to the facts and
circumstances prevalent in a bail application.
[38] In his judgment, the Magistrate referred to the fact – and indeed made a
finding - that the appellant ha d no family ties, nor property in the jurisdiction or are a
of Mossel Bay. The appellant takes issue with this finding both as a ground of appeal
and in argument and sub mits that the Magistrate overlooked the fact that the
appellant resided perman ently outside the Court’s jurisdiction and thus bail
conditions could be fixed.
[39] Section 60(6)(a) indicates that the emotional, family, community or
occupational ties to the place where an accused would be tried are factors which the
bail Court may consider in determining whether there is a likelihood that the
accused, if released on bail, would attempt to evade his trial. From the evidence, the
alleged offence s occurred in the Mossel Bay and Garden Route area s, and it is
common cause that none of the addresses provided by the appellant for purposes of
bail, fall within these areas . Similarly, neither the appellant’s family members nor Ms
Sikili are based in the area. The Magistrate was thus correct when concluding that
the appellant resided in Cape Town and held no property in the Mossel Bay
jurisdiction, and thus the criticism directed at the Magistrate in that he overlooked
this fact, is unjustified.
5 S v Petersen 2008 (2) SACR 355 (C) at [59}
[40] Furthermore, the Magistrate also correctly held that the appellant held no
significant emotional or family ties to the Eden/Garden Route region. All these factors
must be considered along with the State’s evidence that the appellant was an
occupant in the taxi under surve illance6; that he fled the police and was eventually
apprehended; that he travelled from Cape Town to Mossel Bay in a hired vehicle and
that he has travelled beyond the country’s borders with a valid passpo rt.
Cumulatively, these factors contribute to reducing the Court’s confidence that he will
ultimately stand trial on what are very serious charges.
[41] The appellant has clearly demonstrated in his bail affidavit that he has access
to financial resources, and one would conclude that as the owner of five taxis, he has
employees and family members operating his business while he is incarcerated.
Thus, in al l probability, the appellant can afford to forfeit the amount of bail which
may be set. Given the testimony of Cornelius, the possibility of more complainants
coming forward and more extortion charges being added cannot , therefore, be
excluded. Having regard to the above, and while acknowledging that the Magistrate
did not address the issue with extensive detail and was rather cryptic, his finding in
respect of section 60(4)(b) read with section 60(6) , cannot be faulted. The re is a
likelihood that the appellant, if released on bail, will attempt to evade his trial.
[42] In respect of the ground in section 60(4)(a), I am satisfied that the app ellant’s
counsel’s submission indeed has merit . Simply put, there was no evidence
presented to indicate that if released on bail, the appellant would endanger the
safety of the public or any specific person. Thus, I agree with the appellant that there
was no basis for the Magistrate to have reached this conclusion, and the judgment
certainly does not elucidate the basis upon which the finding was made.
certainly does not elucidate the basis upon which the finding was made.
[43] As for section 60(4)(c)7, the Magistrate found that a likeli hood existed that the
appellant would attempt to intimidate or influence witnesses . Whilst finding that a
6 As the taxi visiting the spaza shops
7 As read with section 60(7)
threat is implied in the charge of extortion, the judgment is scarce on the basis for
such finding, and in his submission s, the appellant ’s counsel criticises the finding in
the bail application. However, it must be remembered that the evidence from the
State was that the complainants identified the appellant from the photo identifications
and the information from the section 204 witness supports the State’s case that the
appellant is directly linked to the offences.
[44] It is evident from Cornelius’s testimony and further police investigation, that at
least prima facie , the appellant is in all probability part of the group of people
extorting money from the foreign spaza shops identified in the notebook found in the
taxi, wherein the appellant was a passenger. As mentioned, the taxi visited the shops
mid-month, and money was demanded by the occupant(s) of the taxi. It is therefore
highly probable that the shop owners and complainants are known to the appellant
and/or easily accessible to him even in circumstances where the identities were not
disclosed and not all the shop owners had laid charges. Given the strong case
against the appellant, and all stated above, it would not be unreasonable to conclude
that he would be aware of the names of the shops marked/ticked off in the notebook.
[45] S v Kock 8 is authority for the view that a likelihood that the acc used may
interfere with State witnesses must not be based on speculation but must have some
factual support. In this matter, the above factors amount to actual support for the
conclusion that a likelihood was established that the appellant would interfere with
State witnesses. To be clear, 11 complainants , who feared for their lives, came
forward and there was a strong possibility that more would follow.
[46] The probabilities also indicate that the appellant would at least be familiar with
the shops (if not the identities of their owners) and the areas where they are situated.
the shops (if not the identities of their owners) and the areas where they are situated.
Furthermore, the investigation was largely completed in respect of the appellant, and
the offence of extortion consist s of the element of influence and the e xertion of
pressure on the witnesses. Thus, it is not a far stretch to conclude that at least on the
8 2003 (2) SACR 5 (SCA) 13c
State’s evidence, unchallenged by the appellant, it had established the likelihood of
threats and/or interference with the witnesses in the matter.
[47] Moving on, o ne of the major concerns in the bail application involves the
uncertainty or vagueness s urrounding the appellant's residential address and
Cornelius spent a considerable time on this aspect. In this regard, the State argues
that the information provided by the appellant regarding his address was inaccurate
or false, which led to the confusion. Despite the appellant’s counsel submissions
regarding the correctness of the appellant's address, I would agree with the
Magistrate that questions arise regarding the appellant’s address, as highlighted by
the State.
[48] It is evident from Ms Sikili’s testimony that she and the appellant did not live
together. Rather, either he slept over at her address, or she slept over at his
accommodation a few times per week. Despite the appellant’s attempt to confirm his
family home (or f ormer family home) as 5 […] N[…] Street, Kuyasa, it was evident
that Ms Sikili, his intimate partner of four years, was unaware that this was his family
home. Her further testimony on this aspect was also unsatisfactory as she seemed
to contradict herself and thereby assist the appellant’s version that the N[…] Street
property was his family home.
[49] Furthermore, the alleged positive address of 5 […] N[…]2 Street, Khayelitsha,
is also known as […] N[…]2 Street, an anomaly which remained largely unexplained
or unclarified during the bail proceedings. It raises the question as to why the
appellant did n ot simply indicate […] N[…]2 Street as his place of residence . This
address, it is submitted, was occupied by the ap pellant and his cousin , yet the
permanency thereof is unclear. The address is listed on the section 62(f) report.
[50] Aside from the two addresses, there exists the note referring to 2[…] M[…]
Street, provided to Cornelius and which the appellant dist ances himself from .
Despite valiant efforts to downplay any knowledge of the note, it is highly improbable
that the appellant’s erstwhile attorney or the prosecutor at the time, would fabricate
an address for the police to follow up and hand it to the investigating officer for that
purpose.
[51] It is more probable that the appellant provided the information to his erstwhile
attorney or to the prosecutor for purposes of bail information early in the matter .
Then, too there is 1 […] M[…] Street, which led to the landlady Noloyiso, whom it
seems, neede d prodding to confirm that the appellant was known to her. This
address turned out to be the former address of Ms Sikili , which then begs the
question why the details of another woman (p urportedly a girlfriend) would be stated
on the same note. None of these aspects were clarified during the bail application,
leading to uncertainty and confusion regarding the appellant’s address.
[52] In view of the differing addresses and confirmation by Ms Sikili that she did
not live with the appellant, and notwithstanding the favourable section 62(f) report ,
the steadfastness and permanency of residence were questionable, certainly leading
to doubts with the Magistrate as to the police’s ability to trace the appellant if he were
to be released on bail. In view of the above issues, the Magistrate was correct in his
finding that the addresses were vague or ambiguous.
[53] Furthermore, the abovementioned aspects also raise doubt as to the
appellant’s ties to the area he refer s to as his home, Kuyasa , Khayelitsha. The
section 62(f) report does not provide insight as to when the appellant commenced
living at the N[…]2 Street address and it would al so seem that the second address ,
5[…] N[…] Street is specifically used for the taxi business and was used to rent the
Polo. The Co urt was informed that the N[…] address was the appellant’s former
residence and if this is so , it is unclear why he would still use such address for his
residence and if this is so , it is unclear why he would still use such address for his
business enterprise and for official purposes, especially as on his version he lived at
5[…] N[…]2 Street. Once again, these issues were not clarified in the bail
application.
[54] When I have regard to the above discussio n, then the appellant’s income,
possibility of bail conditions , burgeoning taxi business and other personal
circumstances, do not trump the serious concerns raise d by the State as to the
appellant’s inconsistency regarding his address , the likelihood of absconding from
the trial and interference with witnesses . As seen from Cornelius’s testimony, the
State has a strong prima facie case against the appellant.
[55] Insofar as ba il conditions are concerned, Cornelius explained the serious
challenges in monitoring the appellant were he to be release d on bail. The reality is
that, if the appellant’s submissions were accepted and bail fixed, the appellant would
be in Khayelitsha and the investigating officer in Mossel Bay, hundreds of kilometres
away. I agree with the State that the question of bail conditions must be considered
in light of the application as a whole, which presents compelling evidence against the
appellant in respect of the likeli hood of absconding from the trial , the likely
interference with witnesses, the strength of the State’s case and the inconsistencies
with regard to his address(es).
[56] The judgment is criticised for its lack of considering suitable bail conditions. In
my view, the reference to bail conditions occurs in the judgment, albeit without a full
assessment thereof. In S v Branco 9, the High Court indicated that where no
consideration is given to suitable bail conditions, it may lead to a failure to exercise a
proper discretion in respect of the consideration of bail . In this matter, the nature and
seriousness of the offences, the strength of the State’s case against the appellant ,
the difficulty in monitoring the appellant10, plus all the other factors mentioned above,
militated against bail conditions being fixed. In my view, the Magistrate’s decision not
to fix bail conditions when considering an alternative to incarceration, cannot b e
faulted.
9 2002 (1) SACR 531 (WLD) at 537 a-b
faulted.
9 2002 (1) SACR 531 (WLD) at 537 a-b
10 Due to distance and multiple addresses of the appellant
[57] On a conspectus of the evidence, the Court a quo was correct to find that it
was not in the interest s of justice to permit the appellant’s release on bail.
Accordingly, therefore, I find that the Magistrate’s decision in refusing bail, was
correct.
[58] The Magistrate seemed to have relied upon social media platforms as a guide
or basis upon which to briefly discuss the prevalence of the offence of extortion
within the area of jurisdiction of that Court. My observation is that the judgment lacks
specific detail a nd statistics regarding the prevalence of extortion in the area. With
respect to the Magistrate, i t is hoped that in future judgments, the reference to and
reliance upon unverified information on social media platforms , will be avoided. In
conclusion, while the judgment may be criticised in certain respects, the exercise of
the Magistrate’s discretion and his refusal of bail were correct in the circumst ances
of the appellant’s application for bail.
Order
[59] In the result, the following is ordered:
The appeal against the refusal of bail is dismissed.
______________________________
M PANGARKER
JUDGE OF THE HIGH COURT
Appearances
For appellant: Adv N Mbangata
Instructed by: Prince Attorneys
Bellville
For respondent: Adv S Rambarun
Director of Public Prosecutions
Cape Town