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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case no: A 204/2025
Lower Court Case no: B 155/2025
In the matter between:
M[…] N[…] APPELLANT
And
THE STATE RESPONDENT
Coram: BARENDSE AJ
Heard: 22 October 2025
Electronically Delivered: 28 October 2025
ORDER
1 The appeal is dismissed.
JUDGMENT
BARENDSE AJ
INTRODUCTION
[1] The Appellant lodged an appeal to this court against the refusal by the
Bishop Lavis Magistrate to grant an order for his release on b ail. The
Appellant was arrested on the evening of 31 January 2025 and charged with
the murder of his wife, Ms Z[…] N[…], by shooting her with a firearm. A
bail application was made on 5 February 2025 ("the first appli cation"),
which was refused. A further application was subsequently brought based on
new facts on 2 April 2025 ("the second application") . Given that when the
second application was made, the court had to consider all the facts before it,
new and old , it is apposite to refer to both application s insofar as it is
necessary.1
The first application
[2] At the first application, the State contended that the Appellant was
charged with a Schedule 6 offence on the basis that the alleged offence was
premeditated. It appears that at the first application , the defence did not
challenge this, but the court nevertheless considered this issue.2 The State
1 S v Vermaas 1996 (1) SACR 528 (T) p 529A.
2 Record p 95.
called the investigation office r as a witness. The Appellant deposed to an
affidavit in support of his application. It was accepted that an onus rested
upon him to demonstrate on a balance of probabilities that exceptional
circumstances existed which rendered it in the interest of justice to release
him on bail. In his affidavit, the Appellant submitted that none of the factors
set ou t in Section 60(4) (a -e) of the Criminal Procedure Act, 51 of 1977 ,
(“the CPA”) would ensue if he were to be released on bail.
[3] The affidavit deposed to by the Appellant included averments that he
did not know the complainant and the state witnesses. The evidence of the
investigating officer was that the two state witnesses were close relatives of
the Appellant and of his late wife. The witnesses were the late wife's sister
and her husband . The Magistrate pointed at this apparent untruth in the
affidavit, and the Appellant's legal representative at the time argued that
when the first application was made, the defence did not have access to the
docket as yet and was not sure who the state witnesses were.
[4] The affidavit contained the Appellant's personal circumstances
including that he had no criminal record, was employed as a bus driver and
owned a one-vehicle shuttle service. He was the father of three children aged
18, 14 and 12 and was the main breadwinner in the family. Details were
provided of immovable property and vehicles owned by the Appellant and of
his financial obligations. It was stressed that he desperately had to go back to
work to ensure that his children would not lose the roof over their heads.
[5] In brief , t he allegations by the State were that on the evening in
question the Appellant called his wife and asked her where she was. Her
vehicle was fitted with a track ing device, and her telephonic answer was
inconsistent with the data of the tracking device. He then allegedly contacted
his wife's sister, informing her that he needed her and her husband to
urgently come to his home for a meeting . The Appellant fetched his sister -
in-law and brother-in-law from Gugulethu and brought them to his home in
Montevideo. En route to his home, the Appellant allegedly told the relatives
that he caught his wife cheating again , showed them the data of the tracking
device, and told them that his wife had lied to him about her location.
[5] Upon arrival at the Appellant's home, his wife was there. He allegedly
instructed his then 18-year-old son to take his sisters with him, proceed to a
filling station to refuel the vehicle, and thereafter go to a restaurant where
they were to wait until joined by the elders. He asked his sister-in-law to call
his wife, who was in the bedroom, to the living room. An argument between
the Appellant and his wife ensued . During this argument , he allegedly
uttered words to the effect that 'I will rather go to jail'. He allegedly left the
living room and returned with a firearm.
[6] At this stage , the two relatives were allegedly in the living room with
the Appellant and his wife. The Appellant allegedly cocked his gun, and the
sister-in-law left the living room out o f fear and went to the kitchen. While
the brother-in-law, the deceased, and the Appellant were in the living room ,
the Appellant fired a shot at the deceased. The brother-in-law then allegedly
ran to his wife, who was in the kitchen at the time , and he and his wife went
from the kitchen into the garage. The kitchen door leads to the garage.
[7] While the two relatives were in the garage, a second shot was fired, and
afterwards a third shot was fired. After the t hird shot was fired , the
Appellant allegedly went to the garage where the two relatives were , put his
gun to his head , and threatened to shoot himself. The A ppellant allegedly
decided against this and started making phone calls, informing people that
he shot and killed his wife. The Appellant remained at home and cooperated
with the police.
[8] The Magistrate found that the Appellant failed to satisfy the court that
exceptional circumsta nces existed, cited extensive authorities for his
conclusions and refused the application.
The second application
[9] The Appellant engaged the services of another legal representative and
an application for bail on new facts was made on 2 April 2025, before the
same Magistrate. The latest facts were listed as follows:
a) the bail affidavit previously submitted was poorly drafted and
contained inaccuracies.
b) the state witnesses were known to the Appellant , the affidavit was
prepared by his previous attorney, and he signed it in good faith ,
unaware of the inaccuracies;
c) not all his assets , sources of income , and obligations were
disclosed in the affidavit and that since his in carceration his
financial position deteriorated drastically , his inability to manage
his affairs led to severe financial hardship impacting his ability to
meet obligations and provide for his family;
d) the court failed to fully consider the fact that he was the primary
caregiver of his children and the devastating, emotional , mental
and financial toll that his continued incarceration has on them;
e) the children found themselves in a desperate situation , struggling
without his support and that their well-being was at risk.
[10] The affidavit drew attention to the fact that the Appellant owns
another business, a funeral parl our, that was not disclosed in the previous
affidavit.3
[11] It must be added further that the Appellant's affidavit dealt extensively
with relevant case law around the interests of children in these situations and
emphasised that, since the loss of their mother, he has become the primary
caregiver to them.4 In the second application , there was also an affidavit by
his brother, Mr B[…] N[…], who submitted that the Appellant's continued
incarceration is creating severe financial hardship for the children and is
putting the Appellant's business es at serious risk. He mentioned that the
eldest child, a n 18-year-old son , was left to care for his younger siblings .
This is a responsibility that he is not emotionally or financially equipped
for.5 He pointed at the rapidly deteriorating financial position of the family
and the risk of losing their home. He further me ntioned that the children
3 Record p 120.
4 Record p 122-127.
5 Record p133-136.
were struggling emotionally, mentally, and financially as they had to deal
with the loss of their mother and the ongoing incarceration of their father.
[12] The Magistrate, with reference to S v Petersen6 considered whether the
new facts on which the second application was based were , in fact, new or
whether they were not a mere reshuffling or embroidery of old evidence.
Further, and with reference to paragraph 58 of Petersen, the magistrate
pointed out that where evi dence that was available at the time of the
previous application was , for whatever reason , not revea led, it cannot be
relied upon in a later application as new evidence. 7 The Magistrate
concluded that the new facts relied upon in the second application did not
constitute new facts demonstrative of exceptional circumstances. This
finding applied to the position around the children as well. However, when
refusing the second application , the Magistrate made an order directing the
Clerk of the Goodwood Court to, with the assistance of the Clerk of the
Goodwood Children's Court, notify the head of the social workers for the
Montevideo are a to investigate the well-being/welfare of the two minor
children and take all necessary steps to ensure their well-being.
Reasoning on Appeal
[13] The appeal record contained reports by a Psychologist, Dr Nyewe , in
respect of each of the three children.8 These reports were dated 16 June 2025
and were therefore procured after the second application to which this appeal
relates. I shall return to this later.
6 2008 (20 SACR 355 at 371.
7 Record p 197.
8 Record 219-223 ; 229-233 and 234-238.
[14] While the brother of the Appellant made general statements about
financial hardship and the real threat to the financial well -being of the
children, there is no information about how the Appellant conducted these
businesses in the past. Given hi s employment as a bus driver , it is expected
that he had assistance with operating the shuttle service and conducting the
funeral business. The court a quo was not, at either of the two applications ,
provided with this information, and to what extent, if any, the two businesses
were continuing. That said, there were only general statements by the
Appellant's brother that the businesses were suffering.
[15] In terms of Section 60(11)(a) of the CPA, an accused charged with a
Schedule 6 offence shall be detained in custody unless the accused satisfies a
court that exceptional circumstances exist which, in the interest of justice ,
permit his or her release on bail . Exceptional circumstances denote
something '…unusual, extraordinary, remarkable, peculiar or simply
different'.9
[16] Section 65(4) of the CPA stipulates that a court or judge hearing an
appeal against a decision of a lower court on bail may only set asi de the
decision of a lower court if it is satisfied that the decision was wrong.
[17] Section 60(4) of the CPA lists the following grounds which, if any is
shown to exist, would have the effect that the interests of justice w ould not
permit the release of an accused. These are:
9 S v Petersen 2008 (2) SACR 355 paragraphs [54]-[56].
a) Where there is the likelihood that the accused, if he or she were
released on bail, will endanger the safety of the public, any person
against whom the offence in question was allegedly committed, or
any other particular person or will commit a Schedule 1 offence;
b) Where there is the likelihood that the accused , if he or she were
released on bail, will attempt to evade his or her trial; or
c) Where there is the likelihood that the accused, if he or she were to
be released on bail , will attempt to influence or intimidate
witnesses or to conceal or destroy evidence; or
d) Where there is the likel ihood that the accused, if he or she were
released on bail, will undermine or jeopardi se the objectives or the
proper functioning of the criminal justice system, including the bail
system; or
e) Where in exceptional circumstances there is the likelihood that the
release of the accused will disturb the public order or undermine
the public peace or security.
[18] This court must agree that the facts placed before the magistrate at the
second application were not new facts but rather an elaboration on the facts
that were available at the time of the first application and presented thereat.
There are also no other grounds upon which this court can find that the
Magistrate misdirected himself.
[19] Turning to the reports by Dr Nyewe referred to in paragraph [1 3]
above, it is not open to this court to accept new evidence on appeal. The
enquiry is confined to whether the Magistrate correctly refused the bail
application brought on new facts . It cannot receive new evidence on
appeal.10 New evidence must first be placed before the court a quo.
[20] It is so that the best interests of a child are paramount in any case that
affects a child.11 Given that the best interests of the ch ildren are paramount
but not absolute, these must be balanced with the other prescripts of, in this
instance, whether the granting of bail will be in the interest of justice.
[21] It appears that t he report/s by the social workers pursuant to the
investigation directed by the Magistrate were not yet available. The matter
cannot, therefore, be remitted to the court a quo . It is not clear where the
minor children are currently living, whether a family member other than the
eldest sibling is living with them and taking care of them , and, importantly,
whether it is in the opinion of the social worker/s in the children's best
interests for the Appellant to be released on bail. It is not known whether any
of the children maintained a relationship with the Appellant since his
incarceration, whether they visit him , and whether, given the allegations
against him, they see their way clear to l iving with him in the family home.
The reports by the social workers will undoubtedly cast light on these and
other relevant factors.
[22] It remains open to the Appellant to obtain the reports by the social
workers and if so indicated, bring another bail application based on new
facts.
10 S v Yanta 2000 (1) SACR 237 (Tk) p 239.
11 Section 28(2) of the Constitution. See also S v M 2008 (3) SA 232 (CC).
[23] In the circumstances, the appeal is dismissed.
_____________________________
R.D. BARENDSE
ACTING JUDGE OF THE HIGH COURT
Appearances:
For applicant: Adv A Paries
Instructed by: R Davies Attorneys
For respondent: Adv M Koti
Instructed by: State Attorney