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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: A23/2025
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES
DATE 07-10-2025
SIGNATURE PD. PHAHLANE
In the matter between:
S[...] L[...] C[...] APPELLANT
and
THE STATE RESPONDENT
Delivered: This judgment was handed down electronically by circulation to the
parties' representatives by email. The date for hand-down is deemed to be 7 October
2025.
Judgment – (Bail Pending Appeal)
PHAHLANE, J
[1] The appellant was convicted on 11 June 2024 by the Pretoria Regional Court
on two counts, namely : attempted murder and rape. The count of rape relates
to having had sexual intercourse with the complainant while he was aware of
his HIV status. He was sentenced on 25 September 2024 to 10 years
imprisonment on the count of attempted murder and life imprisonment for rape.
[2] The appellant noted an appeal directly to the High Court in terms of section
309(1)(ii) of the Criminal Procedure Act 51 of 1977 (“the CPA”) which makes
provision for a convicted person who was sentenced to imprisonment for life by
a regional court under section 51(1) of the Criminal Law Amendment Act 105 of
1997 (“the CLAA”) to note an appeal without having to apply for leave in terms
of section 309B. On 24 March 2025, the appellant’s application to be released
on bail pending his appeal was refused by the trial court.
[3] It is common cause that the appellant did not testify under oath during the bail
application and presented his evidence by means of an affidavit , supported by
other documents as well as the affidavit deposed to by his wife confirming that
the appellant has two minor children and that she works at Woolworths in
Brooklyn. His personal circumstances were placed on record and will not be
repeated herein safe for those aspects which I consider to be relevant in this
appeal. The following circumstances are noted:
(a) The appellant is a South African citizen.
(b) He was raised by his mother and stepfather , and his biological father
resides in Namibia.
(c) He has qualifications in the security industry and has a security company.
(d) He was also in the special forces doing special operations within the South
African National Defence Force (“SANDF”). He stated that he is not allowed
to mention the special operations he was involved in for security reasons.
(e) If he is granted bail, he will adhere to all bail conditions set out by the court
and hand over his passport to the investigating officer or the clerk of the
court.
(f) He cannot flee from South Africa because he will not be safe in other
countries as a result of his career in the SANDF.
(g) If the appeal is not successful, he will hand himself over to the clerk of the
court to serve his sentence.
[4] The bail application was premised on the fact that the appeal would have
reasonable prospects of success. The appellant contends that his constitutional
right to a fair trial was infringed because the trial proceedings were marred by
procedural irregularities in that the court failed to comply with the provisions of
section 212B (5)1 of the CPA.
[5] It is specifically alleged that the trial court failed to enquire from the appellant
whether he confirms the information given by the prosecutor in terms of
subsection 1. This relates specifically to paragraphs 1 and 5 of the notice which
reads as follows:
“Paragraph 1: The accused was at all times relevant to charges employed as a
Staff Sergeant by the South African National Defence Force
(SANDF)
Paragraph 5 : The accused was immediately after the outcome of the
subsequent testing done since 8 th of October 2007 up to and until
14th of March 2014 became available, informed by the SANDF
medical staff of his positive HIV status”2.
[6] The appellant noted in his notice of appeal that his attorney did not put the
above paragraphs 1 and 5 of the notice in dispute because upon being
questioned by the Learned Magistrate if the two aspects were an issue, the
attorney confirmed that these two aspects are in fact admitted3.
[7] With regards to paragraph 5 complained of, it is alleged that the said paragraph
did not refer to the word “HIV”, and that the Learned Magistrate inserted the
word “HIV” to the positive status of the appellant. It is averred that the trial court
further misdirected itself by accepting hearsay evidence during the trial.
1 The section provides: “If a notice was forwarded or handed over by a prosecutor as contemplated in
subsection (1), the prosecutor shall notify the court at the commencement of the proceedings of
such fact and of the reaction thereto, if any, and the court shall thereupon institute an investigation
into such of the facts which are not disputed and enquire from the accused whether he or she
confirms the information given by the prosecutor and whether he or she understands his or her
rights and the implications of the procedure and where the legal adviser of the accused replies to
any question by the court under this section, the accused shall be required by the court to declare
whether he or she confirms such reply or not”.
2 Paginated page 803 of the record.
3 Paginated page 1086 of the record.
[8] It is on the basis of the above averments that the appellant submitted that: ‘as a
result of the Learned Magistrate’s irregularities which infringed on his right to a
fair trial, there are reasonable prospects of success on appeal because his
conviction was not in accordance with the law’.
[9] Mr Moldenhauer appearing for the appellant submitted that the appellant has a
better chance than just a reasonable prospect that his convictions will be set
aside due to the irregularities committed by the Learned Magistrate. He insisted
that the enquiry done by the Learned Magistrate in respect of the admissibility
of paragraphs 1 and 5 of the notice, should have been directed at the appellant
and not his attorney.
[10] He referred to the decision in S v Beegte4; Obiwuru v S5 and Menyuka v S6,
and stated that the circumstances of t he latter case are applicable to the
current matter – and submitted that the appellant should be committed to bail
because it will be unfair to keep him in custody to serve a sentence which is
likely to be set aside.
[11] It is trite law that noting an appeal against conviction does not automatically
suspend the execution of the sentence imposed following the conviction , and
neither is it a ground to justify the release of a sentenced accused on bail
pending appeal − unless the trial court ‘thinks it fit to order’ that the accused be
released on bail. This requires of a sentenced accused to apply for bail to the
trial court and to place the necessary facts before the court that would allow it to
exercise a discretion in his favour to grant bail.
[12] There are different considerations which arises in granting bail after conviction
and sentence from those relevant to granting bail pending trial. At the heart of a
decision on the issue of bail pending appeal lies two relevant factors that are
interconnected, and they are: (a) the prospects of success on appeal ; and (b)
4 (925/12) [2013] ZASCA 1 (11 February 2013)
4 (925/12) [2013] ZASCA 1 (11 February 2013)
5 (A216/23) [2024] ZAWCHC 181 (16 July 2024)
6 2021 (2) SACR 316 (GJ) (24 February 2021)
the increased risk and likelihood of abscondment once a person has been
sentenced to a lengthy term of imprisonment.
[13] Apart from submitting that he has reasonable prospects of success on appeal ,
the appellant contends that he is not a flight risk because he attended all court
appearances during trial, safe for the time when he was absent due to ill-health,
and that the whereabouts of his wife who works at Woolworths in Brooklyn are
known.
[14] Our courts have over the years recognised that the mere fact that the appellant
has reasonable prospect s of success on appeal, is not a sufficient ground to
entitle a convicted person to be granted bail pending an appeal 7. One of the
factors to be considered during bail include the rights and safety of the victim
who is also at the centre of the criminal justice system . I will deal with this
aspect later in the judgment.
[15] It is trite that the powers of an appeal court to interfere with the decision of the
trial court to refuse bail are circumscribed by section 65(4) of the CPA.
Accordingly, this court as a court of appeal will only set aside the decision of the
trial court if it is satisfied that the trial court had exercised its discretion wrongly8.
What is of importance is that the grant or refusal of bail is under judicial control,
and judicial officers have the ultimate decision as to whether or not, in the
circumstances of a particular case, bail should be granted9. In essence, the
decision to grant bail is one entrusted to the trial court because that court is best
equipped to deal with the question of bail having been steeped in the
atmosphere of the case10.
7 S v Masoanganye & Another 2012 (1) SACR 292 (SCA); See also: S v William 1981 (1)SA 1170 (A)
where the court held as follows: “ even where there is a reasonable prospect of success on appeal
bail may be refused in serious cases notwithstanding that there is little danger of an applicant
absconding”.
absconding”.
8 Section 65(4) of the CPA provides as follows: “ 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”.
9 S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999 (4) SA 623 (CC); 1999 (2)
SACR 51 (CC).
10 S v Masoanganye at para 15; See also: S v Beegte at para 4
[16] The legal principle for interfering with the trial court’s judgment was enunciated
in S v Barber11 as follows:
“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.
Accordingly, 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. 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”.
[17] It should be noted that the authorities referred to on behalf of the appellant are
distinguishable from the current matter , not only in respect of the applicable
principles, but also in respect of the circumstances and the sentence s imposed
in those cases. Notwithstanding, the common factor in Obiwuru and Beegte12
is that the bail appeals were dismissed.
[18] To give a brief background, the court in Obiwuru dealt with bail appeal pending
petition. The appellant was sentenced to twelve (12) years imprisonment, five of
which was suspended – as opposed to the current matter where life
imprisonment was imposed on the appellant.
[19] Although the appeal court dealt with the aspect relating to the ‘prospects of
success on appeal ’, it emphasized the importance of always being mindful of
the fact that “launching a petition is not a guarantee that the petition would be
granted”.
[20] In expressing that the appeal before it rested entirely on the assertion that the
trial court used the wrong test in coming to a conclusion that bail should be
11 1979 (4) SA 218 (D) at 220E-F
12 Ibid 10.
denied’, it referred inter alia, to the decision in S v Masoanganye where the
court held that the trial judge is the one vested with a discretion whether or not
to grant bail, and held further that as far as the issue of prospects of success is
concerned, it is important to remember that the stringent test in bail after
conviction and sentence is potentially designed to protect the proper functioning
of the bail administration and to maintain public confidence in the administration
of justice.
[21] In the ultimate, the appeal court concurred with the trial court ’s decision by
holding that the trial court did not misdirect itself in refusing to grant bail to the
appellant pending his petition because leave to appeal had not been granted
and it was not known whether the appellant’s appeal would be adjudicated or
not. It acknowledged that the trial court ‘attributed weight to the fact that there
was a likelihood that the appellant would abscond should he be released on
bail, because a substantial custodial sentence provides an incentive to abscond
and leave the country ’. Further that the court hearing an application for bail
pending appeal should only be concerned with an application for release of the
applicant, because ‘it is not the task of the bail court to try and second guess
the outcome of the petition or the appeal’.
[22] On the other hand, the courts in Menyuka and Beegte, dealt specifically with
the applications brought in terms of section 321 of t he CPA 13 where the
sentences were imposed by the high court and leave to appeal had already
been granted to the appellants who were serving 27 years and 15 years
imprisonment respectively . As indicated in Menyuka14, the issue for
determination was whether a Superior Court hearing a bail application pursuant
to the terms of section 321 is bound by the terms of section 60(11)? This is an
aspect entirely different from the present case because the conviction s and
aspect entirely different from the present case because the conviction s and
13 Section 321(1) provides: “The execution of the sentence of a superior court shall not be suspended
by reason of any appeal against a conviction or by reason of any question of law having been
reserved for consideration by the court of appeal, unless –
(a) …..
(b) the superior court from which the appeal is made or by which the question is reserved thinks fit to
order that the accused be released on bail or that he be treated as an unconvicted prisoner until
the appeal or the question reserved has been heard and decided.”
14 At para 14.
sentences herein were imposed by the magistrate at the regional court , and
accordingly, the provisions of section 321 do not apply to this case.
[23] Having regard to the above, I am of the view that the appellant’s reliance on the
authorities cited above is misplaced. Consequently, I do not ag ree with the
submission that the circumstances in Menyuka are applicable to the present
case.
[24] It is important to note that the focus in this bail appeal was predominantly on the
criticisms levelled against the trial court for the alleged irregularit ies committed
during the trial proceedings. It is also clear from the appellant’s heads of
argument that much emphasis was placed on th ose alleged irregularities and
the argument that the appellant has reasonable prospects of success on appeal
by reason of such irregularities. Similarly, this was the same argument
presented during the appellant’s bail application before the trial court . Mr
Moldenhauer submitted that the appellant’s heads of argument relied upon
during his application before the magistrate, would also be relied upon in this
appeal.
[25] What is noted in the preceding paragraph begs the question of whether the trial
court misdirected itself or had exercised its discretion wrongly when it refused to
grant bail to the appellant , because that remains the issue for determination by
this court.
[26] If regard is had to the appellant’s heads of argument and the submissions made
before this court, it is indisputable that the trial court’s decision to refuse to grant
bail was n ever challenged. This is so because no misdirection specifically
dealing with the trial court’s refusal of bail has been identified , − which would
entitle or empower this court to interfere with th e decision of the trial magistrate
as required by section 65(4) of the CPA. (underline added for emphasis)
[27] As already indicated, there are different considerations which arises in granting
[27] As already indicated, there are different considerations which arises in granting
bail after conviction and sentence , which include the prospects of success on
appeal which forms the basis of the appellant’s application, and the increased
risk and likelihood of abscondment, bearing in mind that the appellant has been
sentenced to life imprisonment.
[28] With regards to the issue of the prospects of success on appeal in respect of
conviction, the appellant had in his Practice Note referred this court to the
prosecutions’ section 212B notice which forms part of the court’s bundle
presented in support of this bail appeal. It is important to note that the
prosecution’s section 212B notice specifically refers to the “ positive HIV status”
of the appellant 15. It was therefore incorrect for the defence to state that the
Learned Magistrate inserted the word “HIV” to the positive status of the
appellant when the document states otherwise.
[29] One wonders why the Practice Note prepared on behalf of the appellant would
refer to a specific document which contradicts paragraph 5 complained of, −
which forms the core basis of his appeal against conviction.
[30] When Mr Moldenhauer’s attention was drawn to this aspect and the court
enquired from him why ‘his submission s’ and the notice of appeal which the
court was referred to , reflects different information to what is actually contained
in the prosecution’s section 212B notice, he responded that there is another
document that was placed before the trial court that supports his argument that
the word “HIV” was not included, but that document is not before th is court and
is not contained in the court’s bundle.
[31] It is therefore my considered view that the submissions made in respect of
paragraph 5 complained of has no merit.
[32] With this in mi nd, it becomes difficult to find in favour of the appellant and
conclude that he has reasonable prospects of success on appeal. I am mindful
of the appellant’s heads of argument which deals in detail with the criticisms
levelled against the trial court and the submission s made that support those
criticisms. Be that as it may, it is important to note that this court cannot at this
15 Ibid paragraph 5.
stage be concerned with the evaluation of the merits of the case because that is
the responsibility of the appeal court which will have the benefit of the entire
transcript before it. Consequently, this court is not required to second-guess the
outcome of the appeal or scrutinise the evidence of the trial court in full detail as
was presented in argument before this court on behalf of the appellant because
that may amount to a dress rehearsal for the appeal to follow16.
[33] As far as the application before this court is concerned, t he appellant had the
onus to prove on a balance of probabilities and to place relevant factors before
the court to enable it to determine whether individually or cumulatively , they
warrant a finding that circumstances of an exceptional nature exist, which in the
interest of justice warrant his release.17 This is because he has been sentenced
for an offence listed under Schedule 6 which attract the application of the
provisions of section 60(11)(a) of the CPA. But most importantly his status has
changed, and the increased risk of abscondment is inevitable
because he has been sentenced to a long term of imprisonment.
[34] It is common cause that t he respondent opposed the bail application and
presented the affidavit of the investigating officer and the complainant. The
investigating officer noted in his affidavit that bail should not be granted
because the appellant poses a threat to the complainant because he has
received specialised training in the SAND F which include evasive actions and
escape techniques as a special force operative. He also noted that the
appellant is a flight risk because the address provided by the appellant could
not be verified due to lack of access to the premises, having regard to the fact
that he has been sentenced to life imprisonment. This evidence is corroborated
by the affidavit of the complainant who noted that she fears for her life and
safety and explained that because of the training which the appellant had
safety and explained that because of the training which the appellant had
received in the Special Forces withing the SANDF, he has the ability and skill to
evade the law enforcement and to kill.
16 S v Viljoen 2002 (2) SACR 550 (SCA)
17 See also: S v Bruintjies, 2003 (2) SACR 575 (SCA) at paragraph 6
[35] The respondent submitted, and correctly so, that the appellant has failed to
discharge the onus that rests upon him to prove that exceptional circumstances
exist which in the interest of justice permits his release, especially when regard
is had to the fact that he has been convicted and sentenced for an extremely
serious offence. The respondent further submitted that there is no apparent
misdirection in the reasoning of the trial court and that the Learned Magistrate
exercised his discretion properly when refusing to grant bail to the appellant.
[36] I concur with the respondent’s submission. While the appellant contends that
he has reasonable prospects of success on appeal, one should not lose sight of
the fact that the prospect of success is not considered in isolation. Even if the
appellant were to succeed in establishing the prospects of success on appeal,
that does not necessarily mean that he is entitled as of right to be granted bail
because prospects of success on appeal (on its own) is not sufficient to entitle
a convicted person to bail pending an appeal. In S v William18 the court held as
follows: “even where there is a reasonable prospect of success on appeal, bail
may be refused in serious cases notwithstanding that there is little danger of an
applicant absconding”.
[37] I have already indicated that one of the factors to be considered by the court
include the rights and safety of the complainant. Having said that, there are
certain objective facts which the court on appeal will no doubt find interesting,
especially when dealing with the enquiry as to whether the appellant poses a
flight risk. This relates to (a) failure of the appellant to rebut the respondent's
case. In this regard, the affidavit s of both the investigating officer and the
complainant containing the averment that the appellant poses a threat to the
complainant remain unchallenged; and (b) the undisputed evidence that the
complainant remain unchallenged; and (b) the undisputed evidence that the
appellant has the ability to vanish without a trace because he received
specialised training as a special force operative in the SANDF which include
evasive actions and escape techniques.
18 1981 (1) SA 1170 (A)
[38] Having regard to the above, I am of the view that the safety of the complainant
ought to be guaranteed, and it would be in the interest of justice to do so.
[39] Reading through the judgment of the trial court, it is clear that when the court
evaluated the evidence before it, it took into account the undisputed evidence
presented on behalf of the State which cannot be ignored.
[40] In dismissing the appellant’s application to be released on bail, the trial court
held inter alia that the appellant is a flight risk. In this regard, the trial court held
as follows:
“The applicant would be facing a lengthy term of imprisonment if the
convictions are confirmed, despite him undertaking to hand himself over
to the clerk of the court and also to surrender his passport to authorities
should his appeal fail the prospects of a lengthy term of imprisonment is
in my opinion sufficient motivation for the applicant to flee or abscond
instead of handing himself in to go back to prison.
This court also has to consider that the applicant has a family
connection, that is his biological father who is in Namibia which is
outside the borders of this country”.
[41] Having regard to the above, I cannot find any fault or misdirection in the
decision of the trial court which exercised a discretion, having taken into
account all the circumstances before the court.
[42] This court is mindful of the undisputed evidence which also formed the basis of
the trial court’s decision to refuse bail when it held that the appellant is a flight
risk. With that being said, I find that the appellant has failed to adduce any
evidence to prove that he is not a flight risk, or that the interest of justice
permits his release from custody. The trial court having considered the
specialized training of the appellant stated the following:
“It was never challenged or disputed that the applicant has received
specialised training while in the special forces unit within the SANDF
involving evasive and escape techniques. That being the case with
such training, even if the applicant were to surrender his passport, there
is no guarantee or no amount of bail or strict bail conditions that would
act as a safeguard against the risk of the applicant fleeing. He can
easily evade the law enforcement with the skills that he possesses. The
court considers the applicant under those circumstances to be a flight
risk. To grant bail to the applicant under those circumstances would not
be in the interest of justice”.
[43] An analysis of all the evidence before the trial court supports a finding that the
appellant had failed to establish exceptional circumstances entitling him to be
granted bail. Accordingly, I am of the view that the trial court did not misdirect
itself in finding that (a) the appellant’s release would undermine the objectives
of the criminal justice system ; (b) it would not be in the interest of justice to
grant bail to the appellant , but most importantly; (c) there are no prospects of
success on appeal.
[44] The appellant indicated in his heads of argument that he would be able to loan
from his family an amount of R10 000,00 for bail, but there are no guarantees
that even the stringent bail conditions would provide adequate safeguards
against the risk of abscondment in the circumstances19.
[45] In light of the above, I am not persuaded that the trial court erred in refusing to
admit the appellant to bail . I am satisfied that the Learned Magistrate properly
exercised his discretion. In my view, to release the appellant on bail under the
above circumstances would, to my mind, not be in the interests of justice as this
would also seriously undermine the criminal justice system including the bail
system itself. I therefore cannot find any basis to interfere with the decision of
system itself. I therefore cannot find any basis to interfere with the decision of
the magistrate. Similarly, I concur with the magistrate’s finding that the appellant
19 S v Beegte (925/12) [2013] ZASCA 1 (11 February 2013)
failed to satisfy the court that the interests of justice permit his release.
Accordingly, the appeal must fail.
[46] In the premises, the following order is made:
1. The appeal against the refusal of bail is dismissed.
PD. PHAHLANE
JUDGE OF THE HIGH COURT
APPEARANCES
Counsel for the Appellant : Mr HW Moldenhauer
Instructed by : Moldenhauer Attorneys
Counsel for the Respondent : Adv. K Germishuis
Instructed by : National Director of Public Prosecutions,
Pretoria
Date of Judgment : 07 October 2025