A62/2025-ds 1 JUDGMENT
15-10-2025
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
Further corrected 30 October 2025 – Kuny J
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: A62/2025
DATE: 2025-10-15
DATE 28 October 2025
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In the matter between
STATE
and
TI ONA MEGAN MOODLEY Accused
EX TEMPORE JUDGMENT
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KUNY J:
(1) REPORTABLE: NO.
(2) OF INTEREST TO OTHER JUDGES: NO.
(3) REVISED.
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1. The appellant Tiona Megan Moodley is a 25- year -old
Indian woman. She is accused 2 in a pending case
against her and accused 1, Darryn Gavin Wilken.
2. The state has preferred charges under section 19A of
the Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007 as amended. It is
not alleged that the appellant and accused 1 created,
made or produced child pornography. The offence
related to the online distribution and sale of child
sexual abuse material.
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3. There are also charges under the Prevention of
Organised Crime Act 121 of 1998 relating to the
acquisition, possession or using the proceeds of
unlawful activities. The state relies in this regard on
section 6, alternatively section 4(b)(a) of the above
Act. There is also a charge of fraud, possession of
stolen property and the possession and use of drugs.
4. The state submits that the charges that relate to the
dissemination of pornography are schedule 1 offences.
However, it is submitted that the charges that relate to
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contraventions of POCA are schedule 5 offences and
accordingly , that the provision of sections 60(11)(b) of
the Criminal Procedure Act of 1977 applies. This
section places an onus on the accused to adduce
evidence which satisfies the court that the interest of
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justice permits his or her release on bail.
5. The state filed an affidavit before the lower court of
Warrant Officer Boshoff opposing the grant of bail to
accused 1 and the appellant. Warrant Officer Boshoff
is stationed at the SECI unit in Johannesburg. He is
the investigating officer in the matter. He explains in
his affidavit as follows :
5.1 The investigation originated when an under aged
girl in the United States of America reported a
case of ‘sextortion’ to the Federal Bureau of
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Investigation (FBI).
5.2 The FBI Cyber Investigation traced the offence to
an online pornographic website known as
“DankmegaZ” which was found to host extensive
child sexual abuse material.
5.3 The administrator of the site was identified as a
South African national , confirmed to be accused
1.
5.4 The USA police authorities conducted undercover
operations and made control purchases of child
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pornography from the DankmegaZ website.
5.5 After establishing that the website administrator
was located in South Africa, the information was
forwarded to the South African Police Services.
6. Warrant Officer Boshoff details in his affidavit the fact
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that accused 1 was difficult to trace. He was
eventually found and arrested at his residential
address and business premises, also occupied by the
appellant. The police found at the premises a digital
infrastructure used to run the alleged illegal online
business distributing child pornography. Digital
devices, storage media and records seized linked
accused 1 directly to the website operations.
7. Warrant Officer Boshoff alleges that subsequent
investigation revealed that the appellant played a
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major role in the daily operations of the website and
the associated business. Her electronic devices were
seized and analysed and this showed that the
appellant had attempted to delete or destroy evidence
after the arrest of accused 1, in order to conceal her
role in the running of the website. Fortunately
however , investigators were able to secure and mirror
the incriminating data on alternative devices before
the information could be erased. The appellant was
arrested thereafter once her active involvement had
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been confirmed through the recovered evidence.
8. The state alleged that the appellant and accused 1 are
“unseen predators” who operated behind a digital veil ,
profiting from the exploitation and abuse of children.
9. In opposing the grant of bail to the appellant the state
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relies heavily on the submission that it has a strong
case against her. It also alleges that she and accused
1 made use of cryptocurrency and that if she is
released , the appellant will be able to access crypto
wallets and make use of funds that the state contends
are the proceeds of crime.
10. The appellant relies in summary in her submissions
that she should be granted bail on the following:
10.1 She submits that her personal circumstances
warrant the grant of bail.
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10.2 She has no previous convictions and there are no
pending cases against her.
10.3 She is able to rely on her family support, and her
aunt and uncle have undertaken to provide her
with a place to stay if she is released on bail.
10.4 An amount of ten thousand rand is tendered in
respect of bail.
10.5 The applicant submits that accused 1 was the
primary predator and controller of the relevant
operations.
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10.6 The appellant argues that the state’s case against
her is weak and that there are no direct
allegations that she transmitted, offered,
procured, accessed, downloaded, possessed or
benefited from child pornography.
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10.7 She avers that she has no disposition to violence
and poses no threat to public or individual safety.
10.8 She emphasises that she voluntarily surrendered
herself to the police on 23 January 2025 after she
had been contacted by the investigating officer
and that she has cooperated with the police since
accused 1 was arrested on 17 January 2025.
10.9 Appellant undertakes not to contact or interfere
with witnesses and not to access any relevant
online platforms. She asserts that she has no
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access to evidentiary material as all devices were
seized and forensically examined. She further
notes that the state returned her cell phone after
she voluntarily handed it over. (It was revealed in
argument that the appellant’s mobile phone has
since been returned to the police and is being
held in custody as an exhibit).
10.10 The appellant alleges that she was in a
“misogynistic relationship” with accused 1 and
that he controlled her bank accounts and directed
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the payment of monies.
10.11 When accused 1 was arrested, he transferred
an amount of a hundred and ninety -eight
thousand rand to her. The appellant submits that
this money was given to her as payment for legal
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fees that would be incurred after accused 1’s
arrest.
10.12 Finally , the appellant contends that the
prosecution of this case will not be completed
anytime soon. She submits that her continued
detention whilst awaiting the completion of the
trial would be unjust.
11. In my view, there was sufficient evidence to conclude
that the appellant is not a flight risk.
11.1 She is a young South African citizen who has
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concrete ties to South Africa.
11.2 She has a verified place or residence where she
will stay if released on bail. The state has
satisfied itself of the address.
11.3 She has the support of her family although this
may have been complicated by adverse publicity
that surrounded this case.
11.4 She states that she does not have foreign assets
or ties that would induce her to flee from South
Africa.
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11.5 She surrendered herself to the police voluntarily
when requested to do so after accused 1 was
arrested, and she appears to have cooperated
with the police.
11.6 The likelihood that she may flee can further be
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reduced by suitable bail conditions that require
her to surrender her passport and to report to her
nearest police station.
12. I do not regard the fact that the appellant may have
deleted certain information from her devices as a
reason to refuse bail. The police are already in
possession of the evidence they need to prove the
unlawful activities that were allegedly engaged in,
and they have forensically secured the devices and
data that were allegedly used in the commission of
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the offence.
13. Although the state alleges that there are crypto
wallets that she can access , there is no concrete
evidence that such wallets exist. The appellant denies
that she had access to crypto wallets. She states
however , that if there is any evidence of crypto wallets
he will cooperate with the state in securing these
wallets.
14. The state did not rely on the fact that the appellant
was a flight risk. It primarily relied on the fact that on
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the evidence in its possession it was likely to secure a
conviction against the appellant and that she was
facing a custodial sentence because of the
seriousness of the offence.
15. I agree that the state has prima facie evidence linking
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the appellant to a website that is alleged to have
disseminated and sold pornography. On the evidence
of Warrant Officer Boshoff child pornography was
hosted on this website. However, the fact that the
state has a good case against the appellant , in itself ,
is not sufficient to deny he bail.
16. In the judgment of Michael Harry Lomas v S
(SS36/2024) (17 March 2025) my brother Strydom J , in
deciding whether to grant bail , accepted that the state
has a strong case against the accused. He went so
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far as to say that the evidence produced by the state
stood uncontested and that upon conviction, the
accused was facing a mandatory sentence of fifteen
years. The court nevertheless found the accused was
not a flight risk and granted him bail.
17. In my view , the court a quo conflated the allegations
against the accused 1 with the allegations against the
appellant. The evidence points to the fact that whilst
the appellant was involved in the administration of the
offending website and probably had received monies
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obtained through the sale of pornographic material,
she was not the primary offender.
18. There are no minimum sentences applicable in this
case , and although the charges against her and
accused are serious, it is not a foregone conclusion
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that if convicted , the appellant will necessarily receive
a custodial sentence. It would not , in my view , be in
the interest of justice to deny her bail. During the
course of argument , Ms Ryan , who appeared for the
state , informed the court that the investigation has
proceeded and come to a conclusion.
19. In further argument that was heard by the court just
before it was about to deliver its judgment , the court
drew Ms Ryan’s attention to the fact that the initial bail
application was heard in February 2025. Some eight 10
months have lapsed since this bail appeal has been
heard. The state was invited (before the handing down
of this judgment) , to submit a further affidavit
disclosing any new information in the state’s
possession that m ay affect the court’s decision in
granting bail. Ms Ryan informed the court that she did
not believe this was procedurally correct and she
declined the court’s invitation in this regard. She only
made further submissions to the court that the proposed
amount of bail offered by the appellant was not
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commensurate with the seriousness of the offence , and
she asked that bail in the amount of fifty thousand rand
be set. Whilst taking cognisance of the seriousness of
the offence, I am of the view that bail should not be set
at an amount that would effectively deprive the
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appellant of the opportunity to be released on bail.
20. In all the circumstances , in my view , the magistrate
erred in finding that it would not be in the interest of
justice to admit the appellant to bail.
21. The appellant has agreed to subject herself to stringent
bail conditions. The bail application in the lower court
was heard decided in February 2025. It may be that
since then, the state has been able to obtain further
information from electronic devices used by the
applicant and accused 1 to operate the alleged illegal
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website. Such information may reveal the existence of
crypto wallets and cryptocurrency. The search for and
processing of such information requires special forensic
skill in computer technology. If further information is
available that requires that appellant’s co- operation with
the handing over of passwords, log on details, crypto
currency serial numbers and other information , the
appellant has undertaken to cooperate with the
investigating officer. If she does not cooperate, the
state can again approach the court for a reconsideration
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of bail. I propose to include , as part of this order , a
digital lockdown on the appellant that will prohibit her
from accessing the internet. The defence acknowledges
that such lockdown would be difficult to monitor and
check up on. This may be so. Before the appellant is
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released she must sign a declaration that she
undertakes and swears that she will abide by the
conditions relating to the prohibition against her
accessing the internet. She must acknowledge that if
she breaches these conditions her bail may be revoked
and she may be returned to prison pending the
finalisation of her trial.
22. In the circumstances , I make the following order.
1) The appeal is upheld.
2) The decision of the court a quo refusing to admit
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the appellant to bail is set aside.
3) The appellant is granted bail in the amount of
fifteen thousand rand subject to the following
conditions :
3.1) The appellant must surrender her passport to
the investigating officer.
3.2) The appellant shall reside at 4 […] A[…] P[…]
Street, E […] P[…]rk, Pretoria and shall not be
permitted to leave Gauteng without the written
permission of the investigating officer. If the
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appellant changes her residential address she
shall first inform the investigating officer and
seek his written permission.
3.3) The appellant shall surrender any electronic
devices owned by her that are capable of
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accessing the internet, including any smart
phone that is capable of accessing the internet
via WIFI or LTE, 3G, 4G or 5G.
3.4) The appellant may possess and use a basic cell
phone that is capable of GSM communication
provided that such a device is not capable of
accessing the internet and is not capable of
operating digital communication platforms such
as WhatsApp, messenger, telegram and the
like. Appellant shall be required to provide the
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investigating officer with her cell phone number
and the sim card number and details of the
network used.
3.5) The appellant shall not access the internet
through any other person’s computer , laptop,
tablet or similar digital device for the purposes
of browsing the internet, interacting with social
media of any kind and sending emails or digital
messages in any other form.
3.6) The investigating officer or an expert in the
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services of the SAPS may monitor the
appellant’s communication via any permitted
electronic monitoring device , in order to ensure
that she complies with this order.
3.7) The appellant shall not communicate with any
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state witness or potential state witnesses. If she
does not know whether a person is a potential
state witnesses, she must approach the
investigating officer for confirmation that she
may communicate with such person.
3.8) If any further information becomes available to
the state from forensic analysis of devices in its
possession the appellant shall cooperate with
the state in handing over passwords, log- on
details, crypto currencies, serial numbers and if
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she not able to do so, to provide any further
information at her disposal as to how these can
be obtained.
3.9) The appellant shall not visit or communicate
directly or indirectly with accused 1 , but may do
so through her legal representative only.
3.10) The appellant shall report to Garsfontein police
station twice a week on Tuesday and Friday
between the hours of six AM and eight PM.
3.11) Before the appellant is released on bail she
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shall sign the following declaration.
“I swear and undertake that I shall comply
with the above conditions and I acknowledge
that if I breach any of these conditions , my
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bail may be revoked and I may be required,
upon the order of a competent court , to be
reincarcerated pending the finalisation of my
trial.
- - - - - - - - - - - -
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…………………………
KUNY J
JUDGE OF THE HIGH COURT
DATE : 28 OCTOBER 2025
JUDGEMENT FURTHER CORRECTION FOR
TYPOGRAPHICAL ERRORS ON 30 OCTOBER 2025