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IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
Reportable/Not Reportable
Case no: CA & R 8/2025
In the matter between:
BRITNEY ARENDS Appellant
and
THE STATE Respondent
Neutral citation: Arends v The State (Case no CA & R 8/2025) (21 November
2025).
Coram: TYUTHUZA AJ.
Heard: 31 October 2025.
Delivered: 21 November 2025.
Summary: Criminal law – Appeal to superior court with regard to bail – Section 65 of
the Criminal Procedure Act 51 of 1977 – Schedule 6 Offences – No exceptional
circumstances permitting release on bail – Application for b ail on new facts – Not
new facts per se – Appeal and application on new facts dismissed.
ORDER
1. The appeal is dismissed.
2. The application for bail on new facts is dismissed.
JUDGMENT- BAIL ON APPEAL
Tyuthuza AJ
Introduction:
[1] On 30 October 2023, the Kimberley Regional Court refused bail in respect of
the appellant ’s bail application which was opposed by the State. This is an
appeal against the Court a quo’s decision lodged in terms of section 65 of the
Criminal Procedure Act 51 of 1977 (“the CPA”). The appellant has also lodged
an application on bail based on new facts; the appellant’s affidavit deposed to
on 15 July 2025 is evident of this.
[2] The appellant, accused 3 in the pending matter of George Peters and 20
Others v The State under case number RCZ 50/2023, was legally represented
throughout the bail proceeding s before the Court a quo . The appellant was
arrested on 5 May 2023 and has been in custody since. The appellant is
charged with various charges , including racketeering, gang-related offences,
attempted murder and murder. It is common cause that the offences fall under
schedule 6 of the CPA and that section 60(11) of the CPA applies to the bail
proceedings. Thus, the appellant would be entitled to be released only if the
Court was satisfied that there were exceptional circumstances permitting her
release on bail, in the interests of justice.
Proceedings in the Court a quo:
[3] The appellant adduced evidence by way of written affidavit which w as placed
before the Court and admitted into evidence as exhibit “J” . According to her
affidavit, she is 22 years old, has no children and is unmarried. Her residential
address is 6[...] N[...] Street, Roodepan, Kimberley. She has been staying at
this address for the past four months and shares the residence with Abigail
Van Wyk, Eva Peters, and seven children. Her alternative address is 6[...]
W[...] Street, Roodepan, Kimberley, her mother’s address. She is
unemployed, and dependent on odd jobs for survival. Her highest level of
education is grade 11 and her health is in good condition. She has no
previous convictions or pending cases. She was arrested on 5 May 2023 and
was charged with several other charges. She intends to plead not guilty to the
charges. She states that there is no relationship between her and the
complainant and/or other state witnesses. She would be able to afford bail in
the amount of R500. 00 and would be able to report to the Roodepan police
station on a regular basis if the Court were to attach such conditions on her
bail. She will not endanger the safety of the public or any particular person
including her own safety. She will not commit any offence whilst out on bail.
She will not attempt to evade her trial and will come to Court until her case is
finalised. She will not interfere with the state witnesses or attempt to conceal
or destroy evidence.
[4] The State presented a detailed affidavit of Captain Riaan Baar tman, deposed
to on 29 August 2023, which set out the reasons for the opposition to bail. The
affidavit was admitted in those proceedings as exhibit “V”. Captain Baartman
was the lead investigator of the multi-disciplinary team, under the command of
Brigadier SJ Mojela , investigating this matter. According to his affidavit , the
appellant’s last available address is 6[...] W[...] Street, Roodepan, Kimberley,
appellant’s last available address is 6[...] W[...] Street, Roodepan, Kimberley,
her mother’s house , and the appellant also provided four other addresses as
her places of residence. The address in Kuruman , being one of the four other
addresses, is the address belonging to the mother of accused 1. The other
three addresses are linked to the Hollanders gang. The appellant has no
previous convictions or pending matters as all the pending matters were
consolidated into one trial . She was arrested in Kuruman in 2021, but that
case was struck off the roll pending the finali sation of the investigation.
Accordingly, her arrest on 5 May 2023 was on new cases wherein she is
implicated in 26 counts.
[5] In respect of the bail application, the Court a quo found as follows:
“Sover dit beskuldige 3, bederff, is dit so dat, sy geen vorige veroordelings het
nie, sy word egter aa ngekla van aanklagtes van 26 aanklagtes en dit word so
dat haar persoonlike omstandighede uiteengesit word, in BEWYSSTUK J, wat
ingehandig is.Dit is ook so dat sy dan saam woonagtig is met van die ander
beskuldigdes, Sone Adams, Peters en daar is gese dat die adres aan haard
biologiese moeder behoort, sy is dan ook ongetroud en het geen afhanklikes
nie.
Die staat se argument is dat, in die omstandighede vanwee die aard van die
aankklagtes, dit ni e in belang van geregtigheid sal wees om haar vry te laat
nie en dat daar ook nie buitengewone omstandighede bewys is, in haar geval
wat haar vrylating regverdig nie, aangesien hierdie geval onder bylaag 6 van
die Strafproseswet. Dit is ook day sy ook baie nadelig getref sal word deur die
feit dat sy in hegtenis bly, of indien sy in hegtenis sou bly, sy is eweneens
soos baie van die ander beskuldigdes baie jonk, sy is 22 jaar oud, maar ek is
ook van mening dat waneer die feite in geheel gesien, beoordeel word, dat
beskuldigde 3, nie daarin geslaag het om buitengewone omstandighede aan
te duin ie en haar aansoek om bordtog word dan ook afgewys.” (Sic.)
Grounds of appeal:
[6] The grounds of appeal in relation to the Court a quo’s order are, in summary,
the following:
(i) That the appellant was charged with offences that are included in
schedule 6 offences regulating bail applications whilst it was agreed
between the parties before the bail application commenced that the
schedule for the application is schedule 5.
(ii) That it was not taken into account that the appellant has an address
where her mother resides 6[...] W[...] Street, Roodepan, which address
was confirmed by Captain Baartman. Neither was the address of her
father taken into account , where in if she were to be granted bail and
placed under house arrest, either parent is willing to take her in.
(iii) That the Court a quo failed to take into account that her mother is
suffering from diabetes and other health issues, that her mother is taking
care of two young children , and that this is placing added strain on her
already compromised health.
(iv) That the Court a quo erred by refusing bail and finding that there will be
certain risks in granting bail to the appellant , and therefore finding that it
is not in the interests of justice to grant bail.
(v) That the Court a quo erred by not taking into account that the appellant
had no previous convictions and that the matter she was arrested for in
Kuruman under CAS 53/7/2021, was struck from the roll pending the
finalisation of the investigation.
(vi) That the Court a quo erred by not finding that to release the appellant on
bail would be in the interests of justice.
(vii) That the Court a quo erred by not granting bail to the appellant pending
the finalisation of her trial.
Analysis of the appeal:
[7] Section 65(4) of the CPA provides that: “ 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 ”. Thus, if I am to find that the Court a quo was
wrong, I must consider the facts before me afresh and determine whether the
appellant has discharged the onus which rested on her.1
1 S v Jiyane 2018 JDR 1300 (GP) para 13 ; S v Barendse and Another 2023 JDR 1714 (WCC) para
19.
[8] It is common cause that offences with which the appellant is charged fall
within the ambit of schedule 6 . Section 60(11)( a) of the CPA provides as
follows:
“Notwithstanding any provision of this Act, where an accused is charged with
an offence - (a) referred to 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 exceptional
circumstances exist which in the interests of justice permit his or her release.”
[9] As alluded to above, the appellant has been charged with an offence referred
to in schedule 6 of the CPA . Accordingly, she bore the onus to satisfy the
Court a quo , on a balance of probabilities that; first, there exist exceptional
circumstances; and second, those exceptional circumstances permit her
release on bail in the interests of justice . To succeed with her application in
this Court, the appellant is still called upon to prove the two abovementioned
requisites. It is trite law that the two requisites under section 60(11)(a) of the
CPA, to wit, exceptional circumstances and interests in justice, must
contemporaneously or conjunctively be present or exist, for a successful bail
application. The absence of one requirement may result in the bail applicant
being not admitted to bail.2
[10] As to what constitutes exceptional circumstances remains undefined . In S v
Mohammed3 when dealing with this concept the Court found that, “the true
enquiry is whether the proven circumstances are sufficiently unusual or
different in any particular case as to warrant the applicant’s release .” In S v
Scott-Crossley4, the SCA held that personal circumstances which are really
“commonplace” cannot constitute exceptional circumstances for purposes of
section 60(11)(a).
2 Cele v S (CA&R 13/2024) [2025] ZAECMHC 2 (21 January 2025) para 31.
3 1999 (2) SACR 507 (C) at 508G.
3 1999 (2) SACR 507 (C) at 508G.
4 2007 (2) SACR 470 (SCA) para 12.
[11] In the written submissions , the appellant intimated that the offences she is
charged with fall under schedule 5 . However, during the hearing she
conceded that the charges fell under schedule 6 and thus that the onus on the
appellant was stricter. Accordingly, the court a quo correctly adjudicated the
application on schedule 6, thus the appellant’s first ground of appeal cannot
stand.
[12] In respect of the second ground of appeal, during the proceedings in the
Court a quo, the appellant provided as her residence the address which she
shares with Abigail Van Wyk and Eva Peters , who are also her co-accused in
the matter. Her mother’s address was provided as an alternative address. In
those proceedings she stated under oath that she lived with the co -accused
for the last four months and did not share her father’s address. Captain
Baartman confirmed under oath that the appellant provided four other
addresses as her place of residence, and that the addresses are linked to the
Hollanders gang. The appellant withheld this information during the
proceedings in the Court a quo, deliberately so in my view . Bearing in mind
that the appellant has been charged with racketeering and gang related
offences, it is of significance that her address is linked to the members of the
same gang she is alleged to be part of ; that she lived with her co -accused;
and that one of her addresses is an address belonging to the accused number
1’s mother. It was submitted on behalf of the respondent , correctly so in my
view, that this was an indication of her close association with the criminal
enterprise, and demonstrated that she did not maintain close ties with her
family. Accordingly, the second ground of appeal cannot stand either.
[13] In the Court a quo, the appellant was silent about her mother’s deteriorating
health conditions and the circumstances surrounding the young children.
Resultantly, t his information was not placed before the Court a quo for
Resultantly, t his information was not placed before the Court a quo for
consideration. Therefore, it cannot be said that the Court a quo had erred in
not having taken these facts into account. This ground too cannot stand.
[14] The respondent submitted that the appellant is alleged to have been involved
in attacking a police station and private residences of community members,
and that this prima facie shows a lack of respect of authority and rights of
fellow citizens. The respondent submitted that despite the evidence
implicating the appellant having been presented in the Court a quo , the
appellant made no attempt to challenge the strength of the evidence against
her in those proceedings.
[15] After a perusal of the record of the Court a quo , I am of the view that the
appellant has failed to successfully discharge the onus as contemplated in
section 60(11)(a) of the CPA, that there are exceptional circumstances which
permit her release on bail. Accordingly, I find no grounds to satisfy this Court
that the decision of the Court a quo was wrong.
Application on new facts:
[16] Together with her application for the appeal of the decision of the Court a quo,
the appellant brought an application for bail on new fa cts by way of affidavit,
which she deposed to on 15 July 2025. The appellant asserts that new facts
have since come to pass since she previously applied for bail in October
2023. She sets out the new facts as follows:
i. She is unemployed and dependent on her father.
ii. Her mother is unemployed and suffering from diabetes and other health
issues. Her mother is taking care of two young children; this is placing
strain on her already compromised health. Before her arrest she was living
with her mother and assisting her with taking care of the two young
children.
iii. She can afford bail in the amount of R15 000.00 and that she will abide
with any bail condition imposed by the Court.
iv. She has no previous convictions, no pending ch arges and pleaded not
guilty to the charges levelled against her.
v. She understands the seriousness of the charges level led against her and
intends to prove her innocence. She does not pose a danger to the public
in that despite the allegations level led against her ; she has never been
accused of violence towards any member of the public, her family or the
community.
vi. There is no evidence of any likelihood that she will not stand trial. Her
immediate family, economic and cultural ties are within the Northern Cape.
vii. There is no evidence that she will interfere with the witnesses’ evidence or
continued investigation of this matter. She is aware of the identity of some
of the witnesses and has no inclination to interfere or to temper with any of
them.
viii. She has been advised to avoid contact with any of the witnesses.
ix. Her release will not undermine or jeopardize the public confidence in the
criminal justice system.
x. She confessed to the murder because she was informed that she should
take responsibility for the death. Regarding the unfounded allegations
made against her in 2022, she cooperated fully with the Court and the
police. She submits that the State’s case is exceptionally weak.
[17] In S v Mpofana5 the approach which one ought to consider when dealing with
an application for bail on new facts was set out as follows: “In considering an
application for bail allegedly brought on the strength of new facts, the court’s
approach is to consider whether there are, in the first instance, new facts and,
if there are, reconsider the bail application on such new facts, against the
background of the old facts.”
[18] In S v Mohammed 6 the Court confirm ed that an application based on new
facts ought to be judge d with reference to the facts and circumstances which
were placed before the court in the first instance. This confirms that the facts
which were placed before the Court a quo are also relevant for me to
determine whether the application for bail on new fa cts meets the standard
set out in section 60(11) of the CPA.
5 1998 (1) SACR 40 at 44G – I.
6 1999 (2) SACR 507 (C) at 511A – D.
[19] What constitutes new facts and the procedure for a renewed bail application is
neither defined nor prescribed in the CPA. In Yanta v S7, the Court provides
guiding principles relevant to applications for bail on new facts as follows:
“15.1. Whether the facts came to light after the bail was refused. Such facts
can include circumstances which have changed since the first bail
application was brought , such as the period that an accused had been
incarcerated;
15.2. Whether the facts are ‘sufficiently different in character’ from the facts
presented at the earlier unsuccessful bail application , in the sense that it
should not simply be a ‘reshuffling of old evidence’;
15.3. Whether the alleged new fact(s) are relevant in the sense that , if
received by the court, it would per se, or together with other facts already
before the court from the initial bail application, assist the court to
consider the release of an accused afresh;
15.4. A court hearing an application based on alleged new facts must
determine, with reference to the evidence previously presented in the
unsuccessful bail application, whether such facts are indeed new. In [S v
Mpofana 1998 (1) SACR 40 (Tk)] at 44g-45a Mbenenge AJ (as he then
was) explained that–
‘whilst the new application is not merely an extension of the initial
one, the court which entertains the new application should come to a
conclusion after considering whether, viewed in the light of the facts
that were placed before court in the initial application, there are new
facts warranting the granting of the bail application’; and
15.5. Where evidence was known and available to a bail applicant , but not
presented by him at the time of his earlier application, such evidence can
generally not be relied upon , for purposes of a renewed bail application ,
as ‘new facts’.”8
7 2023 (2) SACR 387 (WCC).
8 Ibid para 15.
[20] In S v Nwabunwanne 9 this Court described the true nature and essential
purpose of new fact s in the context of a renewed bail application as follows,
“[n]ew facts can and should be put before a magistrate by adducing oral
evidence or submitting a document stating facts which are common cause.
The purpose of adducing new facts is not to address problems encountered in
the previous application , but should be facts discovered after the bail
application.”
[21] The “new facts” which were not presented in the Court a quo are summarized
as the following: The appellant’s new address, her father’s address. That she
was resident with her mother at 6[...] W[...] Street, Roodepan, Kimberley and
assisting her sick mother with the young children prior to the arrest. That she
is dependent on her father. The circumstances around the charge of murder
and that the State has a weak case against her.
Analysis of application on new facts:
[22] The appellant has, in this renewed bail application , prima facie demonstrated
that she had placed false evidence before the Court a quo in her initial bail
application. In those proceedings , the appellant under oath stated that she
lived with the co -accused and seven children in the last four months before
her arrest and not with her mother as attested to in these proceedings. In the
Court a quo the appellant did not indicate her father’s address as a place of
residence, instead, she mentioned the address she shared with the co -
accused as her place of residence and her mother’s address as an
alternative. In the Court a quo , the appellant never took the Court into her
confidence regarding her mother’s health and her assisting her mother in
taking care of the young children. This information which the appellant sets
out in these proceedings and relies upon has come to light after the
appellant’s failed bail application, despite it being information which the
appellant was obviously aware of during the proceedings in the Court a quo,
appellant was obviously aware of during the proceedings in the Court a quo,
but she opted not to divulge these facts. As such I am inclined to believe that
9 2017 (2) SACR 124 (NCK) para 24.
these facts are not new facts but constitute of no more than a reshuffling of
existing facts with a view of supplementing unsatisfactory aspects of the first
bail application.
[23] In the Court a quo, the evidence implicating the appel lant was presented, but
the appellant in those proceedings despite being aware of the charges against
her, opted to not deal with them and only stated that she would plead not
guilty. In these proceedings, she state d under oath that she confessed to the
murder of Dameline Jacqueline Albertus , because she was told to take
responsibility for the death. On her version, the confession was false, but she
does not take the Court into her confidence as to how it came about that she
made a false confession. I am of the view that her confession itself, is
indicative of her involvement with the co -accused and their activities , and
further that by virtue of giving a false confession as alleged , she is involved in
defeating the ends of justice.
[24] The appellant asserts that she wants to prove her innocence and thus will
attend to the trial.
[25] In S v Mathebula 10 the Supreme Court of Appeal held that “[i]n order
successfully to challenge the merits of such a case in bail proceedings an
applicant needs to go further: he must prove on a balance of probability that
he will be acquitted of the charge…”11
[26] The appellant stands accused of committing serious offences, she has failed
to prove on a balance of probability that she will be acquitted of the charges
she faces . H er only stance is that the allegations made against her are
unfounded, whilst the State has presented the evidence of a section 204
witness, who has linked the appellant to the charges. In my view the appellant
has not discharged the onus of proving exceptional circumstances by
adducing strong, independent evidence pointing to her innocence. On th e
contrary, she has relied on facts which she failed to reveal in the first bail
10 2010 (1) SACR 55 (SCA).
11 Ibid para 12.
application, such facts are not new but directed at supplementing her failed
bail application.
[27] Having regard to all the evidence placed before me, I am not satisfied that the
release of the appellant on bail is in the interests of justice. The appellant has
failed to establish exceptional circumstances that in the interests of justice,
permit her release. Consequently, the appellant’s application to be released
on bail based on new facts must fail.
Order:
[28] In the premise, I make the following order:
1. The appeal is dismissed.
2. The application for bail on new facts is dismissed.
T TYUTHUZA
ACTING JUDGE OF THE HIGH COURT
NORTHERN CAPE DIVISION
Appearances
For the Appellant: Adv K Nxumalo
Instructed by: Legal Aid South Africa
For the Respondent: Adv JJ Cloete
Instructed by: Office of the Director of Public Prosecutions