THE REPUBLIC OF SOUTH AFRICA



THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
Appeal Case Number: A 232 / 2025
In the matter between:
CHRISTOPHER CARELSE APPELLANT
and
THE STATE RESPONDENT
Summary: Bail Appeal - Co-Accused – Possession of Dependence
Producing Drugs and Unlicensed Firearms – Onus of Proof –
Threshold not Met – S v Kara Revisited - Interests of Justice
- Interests of Society Represented by the State - Bail
Refused.
Coram: Wille, J
Heard: 14 November 2025

Delivered: 20 November 2025
________________________________________________________________

JUDGMENT
________________________________________________________________
INTRODUCTION
[1] This is a bail appeal. The appellant pursue d a formal bail application in
the lower court, which was denied. The appellant now seeks to be released on
bail from this court. The respondent opposes this appeal.1
[2] The initial bail application was addressed and determined in accordance
with the principles and jurisprudence applicable to offences as defined in
Schedule 5 of the Criminal Procedure Act, 51 of 1977 (CPA). The appellant
elected not to testify in the initial bail application and presented evidence in
support of his application with the use of an affidavit.2
[3] Similarly, the respondent presented an affidavit from the investigating
officer, who is a high -ranking police officer. In the initial bail application in the
lower court, the appellant was the second applicant (Accused 2). The first
applicant (Accused 1) also applied for his bail release in the lower court. He was

1 Both legal representatives having filed extensive and helpful Heads of Argument.
2 The initial bail application was determined only with the use of affidavits.

denied bail. Both the accused sought formal release in a singl e composite
application.3
OVERVIEW AND FACTUAL CIRCUMSTANCES
[4] The case against the appellant was made out in an affidavit deposed to by
the investigating officer . He stated that a large quantity of dependence -
producing drugs (cocaine in the form of fifteen bricks with a weight of 15,043
kilograms at an estimated street value of R18 052 680, 00 million) were
discovered in a local storage unit allocated with number 868.4
[5] The investigating officer elaborated as follows in his affidavit:
‘…The cocaine was undiluted and therefore believed to originate from several
international drug cartels. I submit that it is rare to discover such pure cocaine as
the drug would usually undergo several stages of being “cut” and mixed with
other substances before distribution and sale…’5
[6] In addition, the investigating officer stated as follows:
‘…I submit that the only reasonable inference that can be drawn from these facts
is that first and second applicants are so -called “first-receivers” of the cocaine as
it is smuggled into South Africa by international drug cartels…’6

3 The appellant was the second applicant (accused) in the initial bail application .
4 This was an extraordinarily large amount of uncut cocaine.
5 Page 49 at paragraph 8.
6 Page 49 at paragraph 9.

[7] Furthermore, certain firearms and ammunition were discovered inside unit
868. The investigating officer had the following to say about these items:
‘…It was found that three of the firearms recovered were stolen during a
business robbery in Boksburg in 2019, Boksburg North Cas 290/02/2019. These
were both the 9mm CZ pistols and one 9mm Smith and Wesson pistol. During
the same robbery, 69 other firearms were also taken. The other four firearms are
not registered on the firearm system of South Africa. At this stage, it is unknown
how these firearms entered into South Africa. This is of grave concern to me as
two of these firearms are fully automatic and t herefore capable of inflicting an
increased level of destruction. In other words, the firearms found in the storage
facility (the unit) are not the standard fare that are typically seized in a police -
bust. In the latter instance, the firearms initially h ave a legal history until a
criminal act saw it circulated in the so -called “black market”. Hence, the often -
seen attempts by criminals to file off the serial numbers of these firearms to
conceal it`s historical origins…’7
[8] He went on to state the following:
‘…In this case, several of the firearms found inside unit 868 are unique in that
they are undocumented. This is disturbing as it means that an organised crime
entity has likely found a point of (illegal) entry for these firearms into South Africa.

7 Page 50 paragraphs 10 and 11.

The proliferation of illegal firearms in the country is well -known to the courts.
Preventing an influx of unregistered firearms into Cape Town is imperative…’8

COMMON CAUSE FACTS
[9] It was not disputed by the appellant that the items mentioned above were,
in fact, discovered in unit 868 . It was not disputed that the appellant rented this
unit (868) for a rental amount of R2300.00 per month.9
[10] Furthermore, the appellant did not dispute that, as the designated person
renting unit 868, he was provided with an allocated tag that would reveal the
usage of the tag holder for unit 868.10
[10] The investigating officer concluded as follows (sic):
‘…The movement report reveal that there was no further movement on the tag
allocated to unit 868, i.e. second applicant`s unit, since 19 February 2022. This
is nine (9) days prior to the date first applicant initially began renting at unit 866
on 28 February 2022. I submit that the prima facie evidence at this stage
indicate that first applicant enjoyed access and use of unit 868 even though it
was rented by second applicant. I submit that in the absence of an innocent
explanation, it is highly suspicious that second applicant would diligently pay a

8 Page 50 paragraph 12.
9 This was left unchallenged and unexplained
10 This had been the case for period of several years.

R2300 monthly rental on his unit, notwithstanding the fact that he had not used
his allocated tag in more than three (3) years…’11
[12] The investigating officer noted that the first applicant in the bail application
(Accused 1 ) was found inside unit 868 and was carrying keys that gave him
access to the unit, despite the appellant being the tenant of the unit.12
[13] The r espondent argued in the bail application that the appellant was in
cahoots with his co-accused and that the inactivity recorded on the access tag of
the appellant, over a period of three years, coincided with the arrival of his co -
accused as a person renting a separate storage unit. Their collaboration became
apparent when the appellant’s co -accused relocated h is rental unit to one
situated exactly adjacent to the appellant’s unit, once this adjacent unit became
available for rental.13
CONSIDERATION
THE RESPONDENT’S CASE
[14] It is the respondent’s case that the appellant is faced with a prima facie
case against him. The case against the appellant is primarily based on
substantial circumstantial evidence. However, there is some evidence aliunde in
the form of the large amount of cocaine and the illegal firearms found inside unit

11 Page 52 paragraph 17.

12 This was not the subject of any material challenge.
13 This was never explained.

868, which unit was rented out and paid for by the appellant, for which there is no
explanation.14
[15] Thus, it is undisputed that the appellant had a formal onus to satisfy the
court of first instance on a balance of probabilities that the interests of justice
commended his release on bail.15
THE APPELLANT’S CASE
[16] The appellant elected to remain silent on the merits and only addressed
the court concerning his personal circumstances. His personal circumstances
are these: (a) he is 36 years old, (b) he is a manager of a business, (c) he has
been employed as a manager for the last 14 years, (d) he lives with his life
partner in Cape Town, (e) he has been living at this address for the past 8
months, (f) this property belongs to his aunt, (g) he owns immovable property in
Gauteng, (h) he earns a monthly salary of R 76000.00, (i) he has no previous
convictions, (j) he has a passport that he is prepared to surrender , (k) he has
emotional and financial ties to the jurisdictional area of this court and, (l) he has
a young minor child.16
[17] Furthermore, he states that he has not had insight into the police docket or
allegations against him and cannot pursue the merits of the case against him any
further. This is challenging to comprehend and leaves much to be desired. I say
so because he knows he is facing serious charges, and yet he relies solely on his

14 This was not challenged.
15 This is common cause.
16 He only placed his personal circumstances on record (no explanation on the merits).

personal circumstances in his attempt to secure his release on bail , without
offering a single explanation regarding the merits of the charges against him.17
THE GROUNDS OF APPEAL
[18] The core ground of appeal is that the judicial officer in the lower court
erred and misdirected herself by finding that the appellant did not meet the
threshold of the onus imposed upon him, losing sight of the very tenuous
evidence linking the appellant to the offences he faces.18
[19] Again, this is challenging to understand. To aver that the prima facie
evidence against the appellant is tenuous is incorrect. This is especially so in the
context of the appellant’s decision not to take the court into his confidence
regarding the merits of the allegations against him. Self -evidently, this failure on
the part of the appellant contributed signif icantly to his inability to relieve himself
of the onus resting on him to satisfy the court that his further detention is not in
the interests of justice.19
SECTION 65 (4) OF THE CPA
[19] The applicable legislation 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

17 One would have expected more.
18 Section 60 (11) (b) of the CPA.
19 It goes without saying that he does have the right to remain silent.

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…’20
[21] Put another way, this court cannot substitute its own view for that of the
judicial officer in the lower court ( unless the decision was wrong even if this court
held a different view) because that would amount to an impermissible
interference with the discretion exercised by the judicial officer in the lower
court.21
[22] It is common cause that this is a ‘S chedule 5 Bail Application’ and that
section 60 (11) (b) finds application, which provides as follows:
‘…in Schedule 5, but not in Schedule 6, the court shall order that the accused be
detained in custody until he or she is dealt with in accordance with the law,
unless the accused, having been given a reasonable opportunity to do so,
adduces evidence which satisfies the court that the interests of justice permit his
or her release…’22
[23] Thus, there was a formal obligation on the appellant to demonstrate to the
court that the inter ests of justice did not require his continued detention. The
approach by the judicial officer in the lower court cannot be faulted in that she
delivered a judgment which reflected a judicious exercise of her discretion about
the probative weight to be afforded to all the information placed before her. The
matter before her was a discrete bail application, and it was not a miniature trial.

20 Section 65 (4) of the CPA.
21 S v Porthen and Others
22 Section 60 (11) (b) of the CPA.

The respondent was not obliged to plug every potential loophole in its case at
this stage of the proceedings.23
[24] Before I can determine whether bail should have been refused or granted
to the appellant, I must decide if a material misdirection occurred by the judicial
officer in the lower court. This misdirection, if it exists, must also have been
material in relation to the facts or the law, or in rare cases both.24
[25] The court of first instance had to, among other things, determine on a
weighing up of the available material before it whether it was legally entitled to
conclude that th e prosecution had a sufficient and adequate prima facie case
against the appellant.25
[26] To assist the court of first instance in this weighing -up process, the
appellant was required to adduce convincing evidence to establish that the case
against him was weak or that he was likely to be acquitted . The respondent
submits that the appellant failed to adduce any evidence to prove that the case
brought against him by the prosecution was and is a weak case.26
[27] The respondent submitted that the appellant's circumstances did not
demonstrate anything unusual or unique. It was not shown that the appellant
would suffer any real undue hardship if bail was not granted to him . The
appellant’s circumstances did not warrant his release on bail in the le gal sense.
The appellant’s life partner and his daughter are living with his aunt. There is no

23 S v Branco 2002 (1) SACR 531 (W) 535 D-E.

24 Panayiotou v S (CA&R 06 /2015) [2015] ZAECGHC 73 (28 July 2015) at paragraph [27].
25 This is one of the factors to be considered.
26 This as a matter of logic as the appellant failed to deal with the merits.

allegation of exceptional undue hardship to his family if he were not released on
bail.27
THE INTERESTS OF JUSTICE
[28] Finally, turning to the heavily debated and sometimes undefinable term
known as the interests of justice. In the context of this species of bail application,
it has been suggested that the term ‘interests of justice’ should be read to mean
the ‘interests of society’ as a whole. This seems somewhat problematic to me.28
[29] Instead, a court must weigh the interests of the appellant against the
interests of society, as prescribed by the provisions of the intervening legislation,
when dealing with an application for bail release under these circumstances.29
[30] In this connection, t he appellant takes the view that the judgment by
Gamble J in Kara was wrongly decided.30
[31] The appellant also contends that the respondent relies solely on the
jurisprudence set out in Kara. I agree and I also disagree. I say so because the
respondent only referred to the analysis in Kara concerning an appellant’s
reluctance to deal with the m erits of the case during his or her initial bail
application. As a matter of pure logic, I agree with this jurisprudence.31

27 The judicial officer in the lower court engaged with this issue.
28 It is a value judgment with reference to the law and the facts.
29 With reference sections 60 (4), 60 (9) and (10) of the CPA.
30 S v Kara and Others 2023 (2) SACR 171 (WCC).
31 S v Kara and Others 2023 (2) SACR 171 (WCC) at [27] to [32].

[32] I have some difficulty with the reasoning in Kara in the following respects.
In Kara, the court was dealing only with a Schedule 5 offence. Thus, only section
60 (11) (b) found direct application and nothing else.32
[33] Thus, in these cases, the onus rests squarely on the person seeking bail
to prove on a balance of probabilities that circumstances exist which permit his or
her release in the interests of justice. This involves establishing a negative, in
that the accused person is unlikely to ‘realise’ any of the r isks as set out in
section 60 (4) (a)-(d).33
[34] The onus that applies to an alleged Schedule 6 offence is entirely
different. I say this because section 60 (11) (a) finds application. Section 60 (11)
(a) refers specifically to exceptional circumstances. The words ‘exceptional
circumstances’, when referring to the interests of justice , are absent when
dealing with an alleged Schedule 5 offence. The words exceptional
circumstances with reference to an alleged Schedule 5 offence are only used in
section 60 (4) (e) of the CPA.34
[35] Thus, the appellant may be correct (to a limited extent) in his criticism of
some of the reasoning in Kara, as only an alleged Schedule 5 offence was before
the court in Kara, and the judgment, on the face of it, dealt with several issues
that were not strictly before it for determination.35

32 Section 60 (11) (a) finds no application.
33 Section 60 (4) (d) finds application in this appeal.
34 Dealing with a disturbance of the public order or undermining the public peace or security.
35 Fischer and Another v Ramahlele and Others 2014 (4) SA 614 at para [13].

[36] What does this mean? I say it does not matter one iota. I say this
because it does not matter what my views are on this debate. After all, the only
question is whether the judicial officer in the lower court , who had the discretion
to grant bail, exercised that discretion incorrectly.36
[37] In this case, I am unable to conclude that the lower court's judicial officer
was wrong when weighing up the appellant’s personal circumstances against the
seriousness of the charges against him and the interests of society.37
[38] Put another way , the finding that the appellant did not provide sufficient
circumstances causing it to be in the interests of justice to grant him bail was not
wrong. This is, inter alia, because, in this case, the appellant made a conscious
and deliberate decision not to address the merits of the case against him.38
[39] Finally, t here is some academic debate about the meaning of the term
‘interests of justice’ when dealing with bail appeals. I subscribe to th e reasoning
that the term primarily refers to the interests of the state, which , in turn,
represents the interests of society.39
[40] In summary, I am not permitted to interfere with the judicial discretion
exercised by the judicial officer in the lower court, as this decision was correctly
based on a cumulative analysis of the evidence (which was not wrong) , which

36 This debate is largely academic and does not touch on the real issues.
37 In my view the judicial officer in the lower court was not wrong.
38 The judicial officer in the lower court had only the appellant’s personal circumstances.
39 Bail – A Practitioner’s Guide – Third Edition – John van der Berg - Page 156.

demonstrated that the a ppellant did not discharge the legal onus that rested on
him in the circumstances.40
ORDER
[41] The appeal is dismissed.
__________
E.D. WILLE

40 The lower court correctly weighed up the interests of the state representing society .