SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy



IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)

Reportable/Not Reportable
Case no: CA & R 14/2025

In the matter between:

MICHEAL PETERS Appellant

and

THE STATE Respondent

Neutral citation: Peters v The State (Case no CA & R 14/2025) ( 28 November
2025).
Coram: TYUTHUZA AJ.
Heard: 31 October 2025.
Delivered: 28 November 2025.
Summary: Criminal law – Appeal to superior court regarding bail – Section 65 of the
Criminal Procedure Act 51 of 1977 (CPA) – Schedule 5 Offences – Section 60(11) of
the CPA – Appellant to prove interests of justice permitting release on bail – Appeal
court may set aside refusal to grant bail where decision is wrong – Appeal court to
A~~

give its own decision – Magistrate’s failure to analy se evidence and provide
adequate reasons amounts to misdirection and failure of justice – Appeal upheld.

ORDER


1. The appeal against the refusal of bail is upheld.

2. The Magistrate’s Court order refusing bail to the appellant is set aside and
substituted with the order in the following paragraphs.

3. The appellant is granted bail in the sum of R5000.00 (Five Thousand Rands).

4. Upon the payment o f the said sum of money, the appellant shall be released
from custody on condition that:

4.1. The appellant shall report to the Mothibistad Police Station between
08:00 and 16h30 every Monday of each week, unless he is attending the
criminal trial in which event he shall produce proof of court attendance.

4.2. The appellant shall attend court at all times, up until the finali sation of the
trial.

4.3. Should the appellant fail to attend any court session on a date and time
appointed, or should he fail to remain in attendance at trial or such other
proceedings as he may be required, the appellant may be dealt with in
terms of section 67(1) of the CPA.

4.4. The appellant shall not leave Mothibistad Kuruman or the borders of the
Northern Cape Province without the prior written permission of the
Investigating Officer.

4.5. The appellant shall not interfere with the investigation in any manner and
shall not interfere, contact, communicate or intim idate any State witness,
either directly or indirectly until the finalisation of the case.

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
Criminal Procedure Act 51 of 1977 (“the CPA”).

[2] The appellant , accused 8 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 proceedings before the Court a quo . The appellant was
arrested in May 2023 and has been in custody since . He is charged with
various charges including attempted murder, conspiracy to commit murder,
racketeering and gang-related offences in terms of the Prevention of
Organised Crime Act 121 of 1998 (“POCA”). It is common cause that the
offences fall under schedule 5 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 the interests of justice permit his
release on bail.

Proceedings in the Court a quo:

[3] The appellant adduced his evidence by way of affidavit which was placed
before the Court and admitted into evidence as exhibit “O”. He placed the
following circumstances before the Court:

3.1. He is 38 years old. He is unmarried and has six children aged 12 years
(twins), 4 years (twins), 3 years and 2 years old. Three of his children
live with him whilst the other three live with their mothers.

3.2. He resides at 1 […] C[...] Road Kimberley, which residence he shares
with Felicia Peters, Vincent Rosen, Pharmeston Mentoor, Thabo
Sekapane, Hendrik Blom and George Peters. His alternative address is
Magojane New Stands Kuruman, this address belongs to Eva Pieters ,
his deceased mother.
3.3. He is unemployed and dependent on odd jobs like tiling and painting.
3.4. His highest level of education is grade 9.
3.5. He has furniture worth R15 000.00.
3.6. His health status is good.
3.7. He enjoys privilege against self -incrimination in these bail proceedings
and any evidence which he may proffer may be used against him at the
subsequent trial.
3.8. He has also been advised by his legal representatives that he has a
duty to disclose to the court his previous convictions and/or pending
cases.
3.9. He has the following previous convictions : possession of drugs (2003),
possession of dangerous weapon (2009), and theft (2013).
3.10. He was arreste d on 4 May 2023 and charged with attempted m urder
and several other charges as referred to in his ch arge sheet. His
previous convictions are long ago, he has no pending cases.
3.11. He has no relationship with the complainant and/or other State
witnesses.
3.12. He has a family- six children to support.
3.13. He has to look after his mother’s place in Kuruman as it is unoccupied.
3.14. He was out on bail of R1000.00 previously on this case.
3.15. If he is granted bail he is able to afford the am ount of R1000.00. He
would be able to report to Mothibistad Police Station on Mondays
weekly if the Court were to attach such a condition to his bail.
3.16. He will not endanger the safety of the public or any person including his
own safety.
3.17. He will not commit any offence while he is out on bail.
3.18. He will not attempt to evade his trial and will come to Court on the
dates directed by the above Court until his case is finalised.

3.19. He will not interfere with the State witnesses or attem pt to conceal or
destroy evidence. The Court may set very stringent bail conditions
prohibiting any form of communication between himself and the State
witnesses/complainant should it be found that he is likely to interfere
with the investigation of the case.
3.20. His release on bail will not jeopardise the objectives or proper
functioning of the criminal justice system including the bail system.

[4] The State presented a detailed affidavit of Captain Riaan Baar tman, deposed
to on 29 August 2023, which set s 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
Captain Baartman’ s affidavit , the appellant’s last available address is 1[…]
C[...] Road, Rhodesdene, Kimberley. The said house was previously rented by
Felicia Peters who no longer rents it. The address is not correc t as there is no
one staying there. The appellant has no previous convictions or pending
cases, as all the pending cases are consolidated into one trial as indicated in
the indictment. The appellant is charged with racketeering and gang -related
offences. Underlying these charges are 18 counts of predicate offences as set
out in the indictment of the cases. The appellant was out on bail and under
house arrest relating to the 3 rd gang occasion of the Hollanders gang. He has
been arrested for new cases in relation to the 7 th gang occasion of the said
gang. He is the elder brother of accused 1 in the pending matter.

[5] Captain Baartman further states that there is very strong evidence against the
appellant which implicates him as being part of a gang that partook in criminal
activities. In respect of the address in Kuruman, he stated that there was no
confirmation that the appellant would be allowed to stay there, as no one was

confirmation that the appellant would be allowed to stay there, as no one was
found at the address to confirm . He further stated that the fact that some of
the applicants are giving the same addresses as their current place of
residence demonstrates that there is a likelihood that the appellant will
become involved in crime again.

[6] Upon hearing the evidence in respect of the b ail application, the Court a quo
found as follows:

‘Wat beskuldige 1 1 betref,is dit so, Micheal Peters, dat sy beedigde verklaring dan
ingehandig is as BEWYSSTUK O. Dit is verder so dat, die Hof na sy aansoek moet
kyk, met inagneming van skedule 5 van die strafproseswet, artikel 60(11)(B).
Beskuldigde het ses kinders, dit is so dat hy dan ’n adres aan die Hof gee, wat
blykbaar die adres van beskuldigde 1 was, adres wat nie meer bewoon word nie.
Daar is dan 18 aanklagtes teen beskuldigde 11, hy was dan ook op borg op die
derde-gang related-of bende verwante insident en toe was hy weer gearresteer op
die sewende bende verwante misdryf.

Beskuldigde 1 is reeds ’n geruime tyd in hegtenis vanaf 2 Desember 2022 en dit is so
dat hy dan nie voor die Hof staan as a eerste oortreder ni e, hy het weliswaar vorige
veroordelings wat lank terug is, maar as daar gekyk word na die verbintenis van die
partye, ook die voorige veroordelings, en die feit dat hy weer ge arresteer was nadat
hy vrygelaat was op borgtog, dan nou, is ek van mening dat, in die omstandighede,
al hoef hy nie buitegewone omstandighede te bewys ni e, dat daar bewys is dat dit in
die belang van geregtigheid is, waarskynklik in die bela ng van geregtigheid is dat hy
vrygelaat word op borgtog nie en wat beskuldigde 11 betref, word die borgaansoek
dan ook afgewys.’ (Sic.)

Grounds of appeal:

[7] The grounds of appeal in relation to the Court a quo’s order are, in summary:

(i) That the Court a quo did not consider that the appellant was on bail with
strict conditions on most of the charges he is currently facing, and that
he attended Court religiously and complied with those conditions . Those
matters were withdrawn and added to other matters in the indictment
and the appellant had to apply for bail again . This is a strong factor to
take into consideration when determining whether the accused is likely
to default on bail conditions if released on bail.

(ii) The appellant is charged with 23 counts out of 117 counts in the
indictment in the pending matter. The 2 3 counts are as follows: four
counts relating to gang criminal activity under POCA , ten counts of
attempted murder, one count of conspiracy to commit murder, and eight
counts relating to unlawful use or possession of firearms. The
abovementioned charges against the appellant relate to the third and
seventh racketeering events out of a total of twelve racketeering events
in the pending matter . The Court a quo mentioned the fact that the
charges the appellant is charged with do not have a minimum sentence
applicable and /or likelihood of a lengthy term of imprisonment , which
makes it unlikely that he will abscond. Regrettably, the Magistrate did not
give due weight to the abovementioned fact.

(iii) The Court a quo dealt with section 60(4)(a) - (e) and correctly found that
those sub -sections will determine whether it will be in the interest o f
justice to release the appellant . The Court a quo did not, however, make
a finding that there was a likelihood of the eventuation of any of those
factors in respect of the appellant.

(iv) The Court a quo did not consider the factors under section 60(9) of the
CPA1 when deciding whether it was in the interests of justice to grant
bail.


1 Section 60(9) of the CPA provides:
‘In considering the question in subsection (4) the court shall decide the matter by weighing the
interests of justice against the right of the accused to his or her personal freedom and in particular
the prejudice he or she is likely to suffer if he or she were to be detained in custody, taking into
account, where applicable, the following factors, namely-

(a) the period for which the accused has already been in custody since his or her arrest;
(b) the probable period of detention until the disposal or conc lusion of the trial if the accused is not
released on bail;

released on bail;
(c) the reason for any delay in the disposal or conclusion of the trial and any fault on the part of the
accused with regard to such delay;
(d) any financial loss which the accused may suffer owing to his or her detention;
(e) any impediment to the preparation of the accused's defence or any delay in obtaining legal
representation which may be brought about by the detention of the accused;
(f) the state of health of the accused; or
(g) any other factor which in the opinion of the court should be taken into account.’

(v) The Court a quo found that the appellant was out on bail and arrested for
charges allegedly committed while he was out on bail, this is not correct
as the seventh gang related incident did not occur while he was out on
bail. This incident happened on 12 February 2022 at a time when the
appellant had no pending charges on the court roll . The appellant was
arrested in September 2022 and released on bail on 3 November 2022.

(vi) The Court a quo misdirected itself in failing to consider granting bail
coupled with appropriate conditions which could have addressed any
risks under section 60(4)( a) - (e). The Court a quo was accordingly
wrong in finding that the interests of justice did not permit the release of
the appellant on bail.

Analysis of the appeal:

[8] Section 65(4) of the CPA directs how the application in terms of section 65(1)
ought to be dealt with, it directs 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.’

[9] As alluded to above, the appellant faces charges that fall within the a mbit of
schedule 5 offences described in the CPA; thus, the appellant would be
entitled to bail in the event that he satisfied the Court that the interests of
justice permit his release . It is in this regard that section 60(11)(b) places an
onus on the appellant, to prove, on a balance of probabilities, that the interest
of justice permits his release on bail. Section 60(11)(b) of the CPA provides as
follows:

‘Notwithstanding any provision of this Act, where an accused is charged with an
offence-

(b) referred to 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.’

[10] The Constitutional Court in S v Dlamini; S v Dladla and Others; S v Joubert; S
v Schietekat2 stated:

‘That subsection [60(11)(b)] stipulates that an accused must satisfy a magistrate that
the “interests of justice” permit his or her release. It clearly places an onus upon the
accused to adduce evidence. However, apart from that, the exercise to determine
whether bail should be granted is no different to that provided for in ss 60(4) - (9) or
required by s 35(1)(f). It is clear that an accused on a Schedule 5 offence will be
granted bail if he or she can show merely that the interests of justice permit such
grant.’

[11] Indeed, the interest of justice considerations are premised on section 35(1)( f)
of the Constitution 3, which provides that ‘everyone who is arrested for
allegedly committing an offence has the right to be released from detention, if
the interests of justice permit, subject to reasonable conditions.’ In S v Smith
and Another 4 it was stated that: ‘the Court will always grant bail where
possible, and will lean in favour of, and not against, the liberty of the subject,
provided that it is clear that the interests of justice will not be prejudiced
thereby.’

[12] It is trite that a Court hearing a bail application relating to a schedule 5 offence
must conduct a careful judicial enquiry as to the existence of any evidence
that may permit, in the interest of justice, the release of the applicant on bail.5


2 1999 (4) SA 623 (CC) para 65.
3 The Constitution of the Republic of South Africa, 1996.
4 1969 (4) SA 175 (N) at 177E– F.

3 The Constitution of the Republic of South Africa, 1996.
4 1969 (4) SA 175 (N) at 177E– F.
5 Mofokeng v S 2022 (2) SACR 184 (GP) para 8. See also generally S v Mabena 2007 (1) SACR 482
(SCA) paras 5 and 26.

[13] Section 60(4) of the CPA sets out a list of circumstances in which it would not
be in the interest of justice to grant bail, the provision provides as follows:

‘The interests of justice do not permit the release from detention of an accused where
one or more of the following grounds are established:

(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 particular person or will
commit a Schedule 1 offence; or
(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 released on
bail, will attempt to influence or intimated wi tnesses or to conceal or destroy
evidence; or
(d) where there is the likelihood that the accused, if he or she were released on
bail, will undermine or jeopardize the objectives or the proper functioning of the
criminal justice system, including the bail system;
(e) where in exceptional circumstances ther e is the likelihood that the release of
the accused will disturb the public order or undermine the public peace or
security.’

[14] It is trite that the factors listed above serve as useful guidance in assisting the
court in arriving at a just decision. In dealing with the above factors in S v
Branco6, Cachalia AJ said the following:

‘The factors which the court may take into account in determining whether any of the
grounds described in section 60(4) Have been established, are set out in section
60(5), section 60(6), section 60(7) and section 60(8) of the Act. These factors are
merely guidelines in assisting the court in arriving at a just decision, they are not
“numerus clausus” of the factors that a court may consider. (See S v Stanfield 1997
(1) SACR 221 (C) at 226 c-d.) Nor are any of the factors individually decisive. Some

(1) SACR 221 (C) at 226 c-d.) Nor are any of the factors individually decisive. Some
of them may be weightier than others, depending on the circumstances of the

6 2002 (1) SACR 531 (WLD) at 533F– H.

particular case. The court must judicially exercise a proper discretion taking into
account the totality of the circumstances.’

[15] The appellant did not present viva voce evidence in order to discharge the
onus; he relied on an affidavit which was accepted as evidence in those
proceedings. It is trite that evidence on affidavit is less persuasive and carries
less weight than oral evidence. 7 In S v Bruintjies 8 the Supreme Court of
Appeal stated that:

‘The appellant failed to testify on his own behalf in the trial and no attempt was made
by his counsel to have him testify at the bail application. There was thus no means by
which the Court a quo could assess the bona fides or reliability of the appellant save
by the say-so of his counsel.’

[16] The State could not cross -examine the appellant to test the veracity of the
averments in his affidavits. This affects the weight to be attached to the
averments made in the affidavits as the probative value of the affidavits could
not be tested.

[17] According to the appellant’s affidavit, three of his six children were living with
him prior to his arrest, no evidence has been placed before the court
regarding whom the children have been residing with since the appellant’s
arrest, or what their circums tances are since the arrest of the appellant. He
further alleged that he supports his children, without mentioning how,
especially since he mentioned that he is unemployed and depends on odd
jobs.

[18] The appellant’s address in Kuruman is unconfirmed. Both addresses which he
mentioned are unoccupied and linked to the other accused, and the
Hollanders gang. The Court a quo had regard to the appellant’s link to the
gang. It is therefore evident that the Court a quo was mindful, in

7 S v Mathebula 2010 (1) SACR 55 (SCA) para 11.
8 2003 (2) SACR 575 (SCA) para 7(f).

contemplating its decision, that the provisions of POCA were invoked which
require that the matter be viewed through a different lens.9

[19] The Court a quo correctly found that the appellant did not have to prove any
extraordinary circumstances but had to prove that it is in the interests of
justice that he be released on bail. The Magistrate correctly looked at the
factors envisaged in terms of section 60( 4)(a) - (e) of the CPA but failed to
deal with these considerations together with the evidence presented by the
appellant, thus the third and fourth grounds of appeal should stand.

[20] During the argument, it was submitted that the previous convictions of the
appellant were older than ten years, mainly on minor offences, and should
therefore be not given undue weight. It was further averred that it was not
disputed that the appellant who was previously on bail attended his trial
religiously. The respondent submitted that there were many other
considerations which the court must consider and not only whether the
appellant will attend his trial.

[21] The State avers that it has a very s trong case against the appellant, which
evidence implicates the appellant as being part of a gang that partook in
criminal activities. The appellant is linked to the activities by way of
eyewitnesses, witness statements, ballistic reports and crime scene p hotos.
The nature and the gravity of the offences is a crucial consideration in that
there is a prospect of long -term imprisonment on conviction. The appellant’s
involvement in the criminal activities is set out in the affidavit of Captain
Baartman. The appellant proffers no explanation in response thereto and only
submits that he intends to plead not guilty to the offences levelled against him.

[22] The Court in Landela and Another v The State10 said:


9 Kameni v S [2024] ZAWCHC 224 para 23.
10 [2017] ZAGPPHC 930 para 25.

‘The strength of the state case, ideally goes hand in hand with consideration of
failure to attend court. The stronger the case and punishment upon conviction, the
more incentive and chances of decamping. But this alone would not necessarily
disentitle an a ccused person from being granted bail. Strict bail conditions can be
imposed. For example, strict reporting conditions, fixing high amount of bail and
confiscation of any travelling documents.’

[23] The court hearing the bail application must express a ba lanced value -
judgment taking into account the factors mentioned in section 60(4). In
general, t he reasons for refusal of bail can usually be found in one of two
considerations, or both: (1) will the accused abscond; and (2) will the granting
of bail lead t o interference with the investigation and/or prosecution? 11 These
considerations entail a projection of future conduct taking into account past
conduct.12

[24] In Rosen v S 13, this Court was faced with an application for bail appeal of a
co-accused in respect of the same proceedings in the Court a quo, it found as
follows:

‘It is also so that in our law a Court cannot find that the refusal of bail is in the interest
of justice merely because there are certain unidentified risks or possibility that one or
more of the consequences mentioned in Section 60(4) will result. A findi ng on the
probabilities must be made. The Court cannot grope in the dark and speculate
because justice cannot be conceived in the dark – it is not a cloak and dagger issue.
Unless and until it can be found that one or more of the consequences will probably
occur, detention of the accused is not in the interest of justice, and the accused
should be released- S v Diale and Another 2013 (2) SACR 85 (GNP).’

[25] It is clear from the record that the Court a quo failed to consider whether
effective and enforceable bail conditio ns could be put in place to ensure that
the appellant:
25.1. does not endanger the safety of the public or anyone else;

the appellant:
25.1. does not endanger the safety of the public or anyone else;

11 Hiemstra’s Criminal Procedure, Issue 2 at 9 – 12.
12 See S v Thornhill 1998 (1) SACR 177 (C) at 182E– G.
13 [2024] ZANCHC 101 para 45.

25.2. does not evade trial; and
25.3. does not intimidate witnesses and/or conceal or destroy evidence.

All these factors were overlooked even though the State presented no
evidence that the appellant would likely in timidate witnesses and conceal or
destroy evidence. The ‘likelihood’ mentioned in the sub -sections of s ection
60(4) must have some factual support and may not amount to speculation.14

[26] No cogent findings were made by the Court a quo on whether if the appellant
is released on bail there would be a likelihood that he would endanger the
safety of the public or any particular person . This is notwithstanding the fact
that, in his affidavit, the appellant gave an undertaking that he will not act in a
way that gives rise to any of these factors. The Court a quo ignored the
undertakings made by the appellant in his affidavit.

[27] In light of the above, I am of the view that the appellant is not a flight risk,
neither is there a likelihood that he will influence or intimidate witnesses , nor
undermine the criminal justice system if he is released on bail. The imposition
of appropriate bail conditions will, in my view , limit any risk that he may not
stand trial.


[28] In the premise, I make the following order:

1. The appeal against the refusal of bail is upheld.

2. The Magistrate’s Court order refusing bail to the appellant is set aside and
substituted with the order in the following paragraphs.

3. The appellant is granted bail in the sum of R5000.00 (Five Thousand
Rands).


14 S v Kock (670/2002) [2003] ZASCA 1 para 20.

4. Upon the payment of the said sum of money, the appellan t shall be
released from custody on condition that:

4.1. The appellant shall report to the Mothibistad Police Station between
08:00 and 16h30 every Monday of each week, unless he is attending
the criminal trial in which event he shall produce proof of court
attendance.

4.2. The appellant shall attend court at all times, up until the finali sation of
the trial.

4.3. Should the appellant fail to attend any court session on a date and
time appointed, or should he fail to remain in attendance at trial or
such other proceedings as he may be required, the appellant shall be
dealt with in terms of section 67(1) of the CPA.

4.4. The appellant shall not leave Mothibistad Kuruman or the borders of
the Northern Cape Province without the prior written permission of
the Investigating Officer.

4.5. The appellant shall not interfere with the investigation in any manner
and shall not interfere, contact, communicate or intimidate any St ate
witness, directly or indirectly until the finalisation of the case.



_______________________
T TYUTHUZA
ACTING JUDGE OF THE HIGH COURT
NORTHERN CAPE DIVISION


Appearances

For the Appellant: Mr Ishmail
Instructed by: RC Ishmail Attorneys

For the Respondent: Adv JJ Cloete
Instructed by: Office of the Director of Public Prosecutions