IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL DIVISION, DURBAN
CASE NO: 2025-189869
In the matter between:
LEVERNE PILLAY APPLICANT
and
THE STATE RESPONDENT
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ORDER
______________________________________________________________________
1. The appellant's appeal against the order of the court below refusing his
application for bail is dismissed
______________________________________________________________________
JUDGMENT
Delivered on: 4 December 2025
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SHAPIRO AJ
[1] The appellant is charged with one count of murder and one count of attempted
murder; it being alleged that he murdered the deceased by intentionally running
him down with the tow truck that the appellant was driving . T he charge of
attempted murder relates to the same event.
[2] Given the nature of the offence, it falls within the ambit of Schedule 6 to the
Criminal Procedure Act 51 of 1977 (“the Act”). Therefore, any application for bail
is governed by the provisions of section 60(11) of the Act which holds that an
accused charged with an offence under Schedule 6 shall be kept in custody
unless he can demonstrate exceptional circumstances that justify him being
admitted to bail, and that it is in the interests of justice that he be so released.
[3] The appellant launched a bail application in the court below and elected to rely
on an affidavit submitted on his behalf by his legal representative and that was
read into the record during the bail application. The State also relied on an
affidavit, of the Investigating Officer, which likewise was read into the record .
Neither party sought to deliver a further affidavit or to lead oral evidence in
support of or in opposition to the application.
[4] The Learned Mag istrate refused the appellant's application, finding that the
appellant had not established exceptional circumstances that would justify his
admission to bail. The appellant appeals against this decision.
[5] In terms of section 65(4) of the Act, the court below's decision must stand unless
I am satisfied that it is wrong. However, Binns-Ward J described the test in the
following terms1:
“…in respect of bail applications governed by s 60(11), in which the bail applicant bears
a formal onus of proof, the nature of the discretion exercised by the court of first instance
is of the wide character that more readily permits of interference on appeal than when a
true or narrow discretion is involved… where the magistrate refused bail because he
found that the appellants had not discharged the onus on them…, if this court, on its
assessment of the evidence, comes to the conclusion that the applicants for bail did
discharge the burden of proof, it must follow (i) that the lower court decision was ‘wrong’
within the meaning of section 65(4) and (ii) that this court can substitute its own decision
in the matter…”.
[6] It is settled that section 60(11) is constitutional and that it is for the a pplicant to
prove on a balance of probabilities that he will be acquitted of the charge2.
1 Killian v The State – unreported judgment of the Western Cape Division of the High Court, case no
AR87/2021, delivered on 24 May 2021, para [8]
2 S v Sithole 2012 (1) SACR 586 (KZD) at para [16]
[7] In his affidavit, the appellant averred that was approached by a group of males,
unknown to him, who asked him about an acquaintance of his, Sameer . When
the appellant stated that Sameer was not with him and he did not know where
Sameer was , the group became confrontational and began pelting his vehicle
with bottles. The appellant stated that he drove away from the scene in haste and
then drove to a Refuel petrol station, where the same group followed him and
were swearing at him and threatening him. When the appellant was attempting to
escape from the situation, he heard someone scream that “a person had been
struck by [his] vehicle” but that he looked around and could not see anything. The
appellant averred that he then went to the Durban Central police station to report
the incident but that when he was accompanied back to the scene by the police,
no one was there. The police told him to come back the next day, which he did
and was then told to wait until the next shift had come on duty and to return then.
He did so and was t hen advised that an inquest case had been registered
relating to the death of a male person “that may have been linked to [his]
circumstances” and stated that he was “later charged” with the murder of the
deceased.
[8] According to the appellant, he lived with his mother in a house owned by his
uncle and was employed by a towing company that paid him approximately
R7,000 per month on a commission basis. This was his first offence.
[9] The State's version is quite different, and it was averred by the Invest igating
Officer that the appellant not only knew the group of males with whom the
confrontation occurred but that he followed the group to the Refuel petrol station,
arriving there after them and then intentionally running down deceased. The
State averred that it was in possession of video evidence and bail was opposed
primarily because of the safety of the witnesses, who were known to the
appellant.
[10] In his Ruling, the Learned Mag istrate recorded that he was obliged to
consider the grounds set out in section 60(4) of the Act cumulatively to determine
whether the appellant had established the existence of exceptional
circumstances, and that it was then in the interests of justice that he be admitted
to bail.
[11] The Learned Mag istrate focused on three areas of the appellant's case,
finding that the fact of his employment (which was not supported by any objective
evidence) was not exceptional, that the alleged reporting of the offence and
attendance at the police station was unsupported by objective evidence and was
not a decisive factor and then also found that the appellant had not discharge d
the onus of establishing a defence to the charges that likely would succeed at
trial.
[12] The appellant argues that the Learned Mag istrate paid lip service to his
obligation to consider the grounds in section 60(4) cumulatively and in fact did
the opposite. It was argued that the Learned Mag istrate focused on a limited
number of grounds, overemphasising the strength of the State's case and the
weakness of the appellant’s prospects and that had the Learned Mag istrate
considered the appellant's personal circumstances, his stated defence and his
undisputed version that he did not know the witnesses that would be called by
the State and that he had reported himself to the police station, bail would have
been granted.
[13] Accordingly, the appellant argued that the Learned Mag istrate had
misdirected himself in applying the appropriate test and that, therefore, the court
was at liberty to interfere with that decision and set it aside.
[14] The State argued that the Learned Mag istrate's decision was right and
that given not only the weakness in the appellant's defence but his failure to
discharge the onus that rested upon him, there were no grounds to interfere with
the refusal to grant bail.
[15] Regarding the election of an accused to rely on affidavit evidence in a bail
application where exceptional circumstances must be established, Bin ns-Ward J
stated the following in Killian3:
“[9] The appellant chose to bring his application for bail by means of an affidavit and
the state responded with answering affidavits… In the result the court a quo was called
upon to determine the bail application on what were in substance motion proceedings . I
question whether it is wise or desirable for a party bearing a formal onus to seek to
discharge it by adducing its evidence on paper, especially when the evidence is likely to
be challenged or disputed, as was the case in the current matter…
[13] Bail applications are sui generis. To an extent they are inquisitorial and, in
general, there is no prescribed form for introducing evidence at them. But in cases
where s 60(11) applies and there is consequently a true onus on the applicant to prove
facts establishing exceptional circumstances, an applicant would be well advised to give
oral evidence in support of his application for bail. This seems to me to follow, because –
differing from the position in which the Plascon -Evans rule is applied – the discharge of
the onus is a central consideration in s 60(11) applicants. If the facts are to be
determined on paper, the state’s version must be accepted where there is a conflict,
unless the version appears improbable.”
[16] I respectfully agree. On the facts before me, I cannot find that the State's
version is improbable and, as I must, I therefore accept it. I must proceed from a
starting point that not only recognises the nature of the offence and the alleged
violence used but also that prima facie there is a relationship or connection of
sorts between the appellant and the individuals with whom he came into conflict
on the night in question, including the deceased. I must therefore question why
the appellant would profess not to have knowledge of these individuals, which
raises a reasonable concern (as it did in the mind of the Investigating Officer and
the L earned Mag istrate) that the likelihood exists of the interference with or
intimidation of witnesses.
3 See above
[17] The Supreme Court of Appeal has found that the fact of an applicant's
employment is not exceptional 4 and given the default position that obtains in
Schedule Six offences, the fact that it may be a first offence is not relevant.
[18] I do not consider that the applicant has demonstrated on a balance of
probabilities that he will be acquitted of the charge of murder. The appellant does
not explain how people he did not know would be sufficiently aware of who he
was to approach him at 02h00 in the dark in the middle of winter while he was
parked on the side of the road and know that he was an acquaintance of
Sameer. The appellant is very vague about exactly how the incident occurred,
not only that led to the death of the deceased but also the injury to the second
victim. It is unclear currently whether the two victims were standing in front of his
vehicle or behind it and, certainly, if they were standing behind the vehicle such
that the appellant did not know that he had struck them, he would have had
ample opportunity to drive forward and to escape from the conflict. If the victims
were standing in front of his vehicle, he could not but have known that he struck
them when he drove off.
[19] Whilst I make no findings in this regard, these are the fundamental
questions of which the appellant should have been aware and that may well have
been resolved at the appropriate level had he testified and been cross-examined.
His election not to do so means that both the court below and this court are left to
speculate and cannot therefore accept with any comfort that the appellant has
discharged the onus resting upon him to demonstrate that he will be acquitted at
trial.
[20] The appellant's alleged visits to the police station are neutral: if in fact he
acted as alleged by the state, reporting himself to the police to control the
narrative makes sense. His version of the three visits to the police station does
not appear to tally with the fact that he was arrested the day after the event and it
is entirely unclear from his affidavit how long after he was allegedly told about the
“inquest” that he was arrested. In the circumstances, the Learned Magistrate was
correct to be cautious and not simply to accept the veracity of the appellant's
version in the absence of any real evidence.
[21] I do accept that the Learned Mag istrate identified certain discrete grounds
of enquiry in his ex-tempore ruling before refusing the application for bail.
However, I do not accept that this means that he assessed the grounds
contemplated in section 60(4) in isolation, especially where he was clearly alive
to his obligation to assess the grounds cumulatively. The fact that he did not
identify every ground does not mean that he failed to consider the m or that he
misapplied the appropriate test.
[22] I therefore cannot conclude that the Learned Mag istrate was wrong when
dismissing the appellant's bail application and I do not agree that he misdirected
4 S v Scott-Crossley 2007 (2) SA 470 (SCA) at para [12]
himself in any other way that would justify this court interfering with that decision.
[23] Given the fact that the appellant chose to lay an affidavit before the court
and his choice not to testify, I agree that the appellant did not discharge the onus
resting upon him to demonstrate the existence of exceptional circumstances
justifying his admission to bail. Based on what I have stated above, it is therefore
not in the interests of justice that the appellant be admitted to bail.
[24] I make the following order:
The appellant's appeal against the order of the court below refusing his
application for bail is dismissed.
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SHAPIRO AJ
APPEARANCES
Appellant’s Counsel: Mr W Lombard
Appellant’s attorneys: Ramouthar Attorneys
66 Round the Green
Umhlanga Rocks
Counsel for the State: Mr B Mbokazi
Office of the Director of Public Prosecutions, KwaZulu
Natal
Date of hearing: 28 November 2025
Date of judgment: 4 December 2025