SAFLII Note: Certain personal/privat e 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
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: A220/2025
In the matter between:
KEANO CUPIDO Appellant
and
THE STATE Respondent
Coram: Magona-Dano AJ.
Heard: 18 November 2025
Order granted: 18 November 2025
Reasons Delivered: 11 December 2025
Summary: Bail appeal - Schedule 5 - Objective of bail proceedings -
misdirections by magistrate- weighing the interests of justice properly-evidence
by affidavit-Appeal court’s power to intervene
________________________________________________________________
ORDER
1. The bail appeal of the appellant is upheld
2. The Magistrate’s Court order refusing bail to the appel lant is hereby
set aside and substituted with the following order:
That the Appellant is granted bail in the amount of R2 000(Two thousand
rand)pending his trial and subject to the following conditions-
a. The Appellant is to appear at the Parow Regional Court at 8:45 am
on 26 November 2025 and remain present until he is excused by
the Court. The accused is to appear on subsequent dates, times and
places determined by the Court until such time that the case is
finalised.
b. The Appellant must report every Wednesday and Friday to the
Commanding Officer of the Community Service Centre of the
South African Police Service in Mfuleni during the hours of 08:00
am to 20:00 pm.
c. The Appellant may not make contact or communicate in any way,
directly or indirectly, with the complainant, J[...] M[...], her mother
or any other state witnesses.
d. The Appellant is to reside at 2[…] M[...] Street, Blackheath, until
such time that the proceedings under case A77/2025 is finalised.
e. The Appellant is not to enter the area of Belhar and the home
where the complainant resides.
REASONS FOR JUDGMENT
________________________________________________________________
Magona-Dano, AJ:
Introduction
[1] This is an appeal in terms of Section 65 of the Criminal Procedure Act 51
of 1977 (the Act) against the decision by the Magistrate, in the
Magistrate’s Court for the City of Cape Town Sub-District Bellville , held
at Bellville refusing to release the appellant on bail pending trial.
[2] On 18 November 2025 I had issued an order upholding the bail appeal and
granting bail for the appellant with conditions. I had also indicated to the
parties that I would formulate and forward my reasons for the decision
thereafter.
[3] These are the reasons.
Background Facts
[4] According to the charge sheet the appellant is charged with a crime of
assault, where it is alleged that on or about 12 January 2025 and at or near
1[…] D[...] Crescent, Belhar he unlawfully and intentionally assault ed
J[...] M[...] by banging her head against the sliding door several times.
[5] In court the Prosecutor indicated that the offence was a Schedule 5 offence
because it was a domestic violence matter as the appellant and the
complainant were boyfriend and girlfriend.
[6] The appellant did not testify and submitted an affidavit in court in support
of his application for bail. I turn now to look at his bail application.
The initial bail application
Appellant’s case
[7] According to the appellant’s affidavit,
a. he has been in custody since 24 January 2025. He is 28 years of age
and resides at 2[…] M[...] Street, Blackheath, together with his family.
b. He has lived at this address for the past 27 years. Additionally, from
September 2024 until January 2025, he lived with his girlfriend —the
current complainant—at 1[…] D[...] Crescent, Belhar. All members of
his family reside within the Western Cape.
c. He is employed as a mechanic on vessels, earning about R8000 per
month, and has completed grade 12 ov er seven years ago. The
complainant is his girlfriend.
d. He is not aware of any protection or harassment orders against him,
has no prior convictions, and no pending cases or warrants.
e. He further asserts that his release on bail will not comp romise p ublic
safety or the safety of any individual, nor will it disrupt public order.
f. He assured the court that he will not abscond from trial following his
release, nor will he attempt to influence or intimidate state witnesses.
Additionally, he affirm ed that he will neither conceal nor destroy
evidence, and that he will not undermine or jeopardise the objectives
of the criminal justice system, including those of the bail process.
g. He undert ook to comply with any bail conditions imposed by the
court. Regarding the charge, he state d that he intend ed to plead not
guilty, that he did not wish to disclose the particulars of his defence.
h. Furthermore, he declare d that he was able to pay a bail amount of
R500 which his family was prepared to cover on his behalf.
[8] While the appellant was submitting the affidavit to be included in the court
record, the court noted the existence of an interim protection order issued
on 24th January 2025. The magistrate inquired why that order had not been
served as the court was in possession of the relevant file containing the
protection order.
[9] The magistrate then requested the appellant's attorney to revise paragraph 7
of the affidavit, instructing that it should not include a statement indicating
unawareness of any protection or harassment order. The court further
directed that the protection order be formally served on the appellant
during the bail application proceedings.
[10] That if that was not done the magistrate would be required to conduct an
inquiry in accordance with section 60 (12) (b) of the Act . The bail
proceedings were adjourned for a few minutes to allow for the service of
the protection order on the appellant. Once service was effected, the
appellant's legal representative amended the affidavit. Upon resumption,
the magistrate observed that paragraph 7 needed to be deleted in its
entirety and be substituted to avoid contradiction.
[11] The accused signed the amended portions of the affidavit, which was
submitted as Exhibit B.
[12] The appellant’s representative put it on record that the appellant was never
served with the protection order prior to the alleged offence and was not
aware of it. The record showed that he was arrested on 23 January and the
protection order issued on 24 January 2025.
The State’s Case
[13] The complainant was called to testify on behalf of the state in opposition to
the bail application.
a. She stated that she is the appellant's former girlfriend and expressed
concern that if he were released, he might harm her.
b. that after their breakup, the appellant came to her house at 1 :00 a.m.
using his mother's car, threatening to break the complainant’s mother's
windows if she did not come outside. She added that her mother could
not attend court because she works for the Department of Justice, but
this did not even stop the appellant from behaving as he did.
c. This was not the first incident in which the appellant ha d p hysically
assaulted the complainant and when she expressed that his actions
were unacceptable, the appellant responded that she was working on
his nerves. The complainant became fearful due to her knowledge of
similar behavior in his prior relationship, indicating a recurring pattern
that appears unlikely to cease.
d. The complainant went on to list the previous incident to include that in
2023, while intoxicated, he deflated the compl ainant's car tyres to
prevent her from leaving. He blamed alcohol for a second similar
incident, but in recent months, he has been sober and fully aware of
his actions.
e. That the appellant was not intoxicated when he threw her to the
ground after slamming her head twice into the sliding door at home(
the current incident).
f. The complainant was also cautioned by the appellant's mother of his
issue with alcohol. However, complainant claims that he was not
intoxicated in the previous two incidents. Appellant is also verbally
abusive whenever he gets a chance, even if he were to s tay in a
different location.
g. The complainant never opened a case because she feared facing him in
court and potential repercussions of doing so thereafter from him
h. Their relationship was entangled in petty arguments and that she
would suffer if she spoke out against him. For this reason, she was
afraid to appear in the courtroom and testify against him where she
may end up having to deal with the fallout if he gets released.
i. That even if he moves on, he still has a way of torturing her with his
words; it is not only physical abuse; it is the things he says to her and
when drunk the appellant is not afraid to drive his own mother's
automobile to her mother's place.
j. During cross -examination, she confirmed to have been in constant
communication with him. She was trying to be civil with the appellant
seeking him to allow her to get her belongings. She confirmed having
picked up and returned the appellant to sleep over at her p lace on 12
January 2025. She last spoke with the appellant on 14 January 2025
between 6 and 7pm.
k. She explained she did not report the 05 January 2025 incident earlier
because on January 13th, she was admitted to a mental health hospital
until 21st January 2025 and thereafter dealt with family issues she had
to take care of.
l. She only laid a charge against the appellant on 23 January 2025 and
obtained a protection order on 24 January 2025.
[14] The State thereafter closed it s case without calling the Investigating
officer to testify.
Magistrates Court’ decision-initial bail application
[15] The Magistrate made a finding applying section 60 4 (a) of the Act. That
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 a likelihood that the accused if he or she were released
on bail would endanger the safety of the public. Any p erson against
whom the offence in question was allegedly committed or any other
particular person who will commit a schedule 1 offence.
[16] The magistrate found that the complainant was fearful of the appellant, she
also feared for her own mother and therefore imposed a danger to them.
[17] That S.60 (5) of the Act establishes that the court may, where applicable ,
take into account
a. The degree of violence towards others who are implicit in the charge
against the accused.
b. Additionally, the accused may have threatened to harm anyone,
including the person who was allegedly the victim of the act. Bail was
refused on the aforementioned grounds.
[18] Bail was refused on the aforementioned grounds.
Bail application on new facts
[19] The appellant had a new legal representative who then brought an
application for bail on new facts.
[20] Appellant’s legal representative only made submissions without leading
evidence. The submissions related to allegations that the N ational
Prosecution Authority had taken the assault with intent to cause grievous
bodily harm and reduced it to a common assault.
[21] The state prosecutor denied that this was the case , but the op posite had
taken place. The parties engaged in back-and-forth arguments, but no new
information on the bail application itself was presented under oath.
[22] Other issues were ventilated , but correctly so , as had been found by the
Magistrate , no evidence was l ed before the magistrate and he made a
finding that the issue that there was a domestic relationship and there was
also an interim protection order between the appellant and the complainant
still remained.
[23] The Magistrate held that there were no new facts that were p laced before
the court for consideration and therefore a refusal of bail remained.
[24] The decision was then appealed and brought before this court.
The Issues for determination
[25] Did the appellant discharge the onus of proving on a balance of
probabilities that the interests of justice permit his release?
[26] Did the magistrate correctly apply the Schedule 5 test for bail in terms of
s60(11)(b) of the Criminal Procedure Act?
[27] Were there misdirection s ( factual or legal) that materially affected the
refusal of bail? if so, should the Court substitute its own decision and grant
bail?
Legal Principles
[28] A bail appeal can succeed if the appellant demonstrates that the lower
court misdirected itself in law or fact.
[29] In S v Barber1 the Court remarked as follows in the context of deciding an
appeal in terms of section 65(4) of the CPA:
“It is well known that the powers of this Court are largely limited where
the matter comes before it on appeal and not as a substantive application
for bail. This Court has to be persuaded that the magistrate exercised the
discretion which he has wrongly. Accordingly, although this Court may
have a different view, it should not substitute its own view for that of the
magistrate because that would be an unfair interference with the
magistrate's exercise of his discretion. I think it should be stressed that,
1 1979 (4) SA 218 (D) at 220E–H.
no matter what this Court's own views are, the real question is whether it
can be said that the ma gistrate who had the discretion to grant bail
exercised that discretion wrongly.” [Emphasis added.]
[30] In S v Porthen and others ,2 this Court decided, with reference to S v
Botha,3 that the appeal court’s powers to consider an appeal against the
refusal of bail in terms of section 65(4) of the Act are not to be
constrained by the decision in Barber. The appeal court is at liberty to
consider its own analysis of the evidence in order to conclude whether an
accused person has discharged the onus on him as set out in section
60(11)(a) of the Act:
“Insofar as the quoted dictum in S v Barber (supra) might be amenable to
be construed to suggest that the appellate Court's p ower to intervene in
terms of s 65(4) of the CPA is strictly confined, in the sense of permitting
interference only if the magistrate has misdirected him or herself in the
exercise of his or her discretion in the narrow sense, I consider that it
would be incorrect to put such a construction on the subsection; certai nly
in respect of appeals arising from bail applications made in terms of s
60(11)(a) of the CPA. I am fortified in this conclusion by the manner in
which the Supreme Court of Appeal dealt with the bail appeal in Botha's
case supra. See paras [21] - [27] of the judgment.
2 2004 (2) SACR 242 (C) at paras [16]-[17].
3 2002 (1) SACR 222 (SCA)
It is clear that the Appeal Court undertook its own analysis of the
evidence and came to its own conclusion that the appellants had not
discharged the onus on them in terms of s 60(11)(a) of the CPA .
…Without in any way detracting from the courts' duty to respect and give
effect to the clear legislative policy inher ent in the provisions of s
60(11)(a) of the CPA (viz that save in exceptional circumstances it is in
the public interest that persons charged with the class of particu larly
serious offences listed in Schedule 6 to the CPA should forfeit their
personal freedom pending the determination of their guilt or innocence
…), it is still necessary to be mindful that a bail appeal, including one
affected by the provisions of s 60(11)(a) , goes to the question of
deprivation of personal liberty. In my view, that consideration is a further
factor confirming that s 65(4) of the CPA should be construed in a
manner which does not unduly restrict the ambit of an appeal Court's
competence to decide that the lower court's decision to refuse bail was
'wrong'. See s 39(2) of the Constitution of the Republic of South Africa
Act, 1996.”
[31] Thus, even if this Court finds that the Magistrate was wrong, this
Court must consider the facts before it afresh and determine whether the
appellant has discharged the applicable onus.
[32] In terms of section 1 of the Domestic Violence Act ,4 A “domestic
relationship” means a relationship between a complainant and a
respondent, whether they (are of the same or of the op posite sex) live or
lived together in a relationship in the nature of marriage, although they are
not, or were not, married to each other, or are not able to be married to
each other;
[33] An appeal court intervenes if the original court wrongly exercised its
discretion. Grounds for a successful appeal include err ors in law (like
misconstruing the offence schedule), errors in fact (such as overlooking
evidence), or failing to exercise proper discretion (not weighing the
interests of justice adequately).
Submissions
[34] Ms Adams for the Appellant submitted that the Magistrate misdirected
himself in not granting bail to the appellant when considering his personal
circumstances, the fact that he is a first offender and has no previous
convictions or warrants, he never had a protection order against him but
was served one in court during the bail application . Therefore the
appellant was not in contravention of it as the alleged incident happened on
5 January 2025 and no other incidents have ever happened since.
4 DOMESTIC VIOLENCE ACT 116 of 1998
[35] Further that the appellant successfully discharged the onus to show that it
was in the interests of justice that he be released on bail. That he d id not
pose a risk to the complainant and has moved to live in Blackheath after
their relationship ended. That the strength of the State’s case is for the trial
court to decide on.
[36] I was referred to S v Acheson5.
“An accused person cannot be kept in detention pending his trial as a
form of anticipatory punishment. The presumption of the law is that he is
innocent until his guilt has been established in court. The court will
therefore ordinarily grant bail to an accused person unless this is likely to
prejudice the ends of justice.
[37] Mr Koti for the State submitted for the application to be dismissed due to
the nature and seriousness of the offence. That this was a domestic
violence matter and the court should confirm the refusal of bail.
[38] The magistrate was correct in finding that the mere fact that the charge of
assault with intent to do grievous bodily harm has changed to common
assault is of no effect as this was a domestic violence matter.
[39] He further made submissions that in determining whether there were new
facts, the approach were to consider whether they were in the first instance
facts which were new.
5 1991, (2) SA 805 (NM)at page 822
[40] Further ,whether they were relevant and to consider bail ap plication on
such new facts against the background of the old facts. [ S v Petersen6; S v
Yanta 7]That, therefore, the magistrate was also correct in finding that there
were no new facts.
[41] On questions asked by the Court there were submissions on the issue of the
schedule of the offence and the charge that the appellant was actually
charged with. I will not deal much with this as I now find as the offence
was related to domestic violence in nature as defined above.
[42] Mr Koti further conceded that because the protection order was o nly
served on the accused in court during this bail application it cannot be said
that the accused had contravened it before his arrest when he was not even
aware of it.
Discussion
[43] Bail applications are distinct and unique, the rules of evidence typically
followed in trial actions are not rigidly enforced, and the presiding officer
possesses greater inquisitorial powers.
Analysis-The initial bail application
6 2008(2)SACR 355(C) at para [57]
7 2023 (2) SACR 387 (WCC) at para [15] to [15.5]
[44] Whilst the offence is serious due to it being a Gender Based Violence
(GBV), in my view, each case must be treated differently according to its
facts.
Overemphasis of the crime
[45] The charge sheet on record reflects that the charge was that of common
assault, the magistrate in his judgment refers to it as assault with intent to
cause grievous bodily harm , even if this did not change the fact that the
charge was related to domestic violence
[46] The magistrate erred in not taking into account the fact that the appellant
since 5 January 2025 he never again threatened or assaulted the
complainant or her family.
[47] The previous threats which were correctly considered were allegedly made
in the past ; there is no clarity about how long ago they were made. The
current offence was once off and the detailed issues thereon will be dealt
with by the trial court.
Consideration of Section 60(4)- Public safety and witness tampering
[48] The Magistrate erred in not taking into account that from the recent history
the appellant kept his distance from the complainant whilst she was the one
communicating with him by phone and allowing him to sleep over even
after 5 January 2025 ( the date of the incident).
[49] Therefore during this time the element of fear did not seem to have existed
from the complainant’s side, and no threats of violence were made.
[50] The Magistrate erred by failing to consider the evidence that the rep orting
of the case to the police took place when the complainant was not
successful with her quest to get her possessions from the appellant and him
having failed to give her attention when contacting him as well as lack of
remorse for what he had done to her.
[51] Further the element of fear stated by the complainant was a subjective
issue and could have been guarded against by the consideration of stringent
bail conditions, and the complainant also being advised not to
communicate with the appellant. I deal with this further below.
[52] The complainant testified that she tried to resolve issues with the appellant
prior to reporting this criminal case but he kept on ignoring her concerns;
she has shown that she was serious by reporting the assault and having a
Protection Order issued against him and now helped in opposing this bail
application after his arrest to really show the serious attitude she has
against the allegedly abusive nature of the appellant. The relationship has
since come to an end.
[53] The magistrate whilst tak ing into account the content of the appellant’s
affidavit in the summary of the evidence he failed to weigh these with the
circumstances placed by the complainant, instead focused on the alleged
crime and threats made only.
[54] The magistrate failed to consider the factor s dealt with below as he
weighed the complainant’s version
stable community ties
[55] The Appellant live s with his family outside of the Belhar area, that is in
Blackheath for some 27 years except from September 2024-January 2025;
[56] To show he has family support it was recorded that his family was willing
to pay for his bail showing the reality of the closeness.
[57] He had stable employment therefore someone with structure and
responsibilities during the week.
robust alternative accommodation arrangements
[58] The magistrate erred in not considering using the family house address in
Blackheath which I understand is kilometres away from Belhar as an
alternative accommodation for the appellant to be restricted to live in
pending the finalisation of this case.
[59] That the complainant and the appellant’s relationship has come to an end
since January 2025, therefore imposing conditions restricting his
movement or communication with the complainant or her family directly
or indirectly should have been considered.
Personal circumstances
[60] In my view further the magistrate did not properly apply his mind to the
appellant’s personal circumstances in that;
a. He is a first offender.
b. He has no previous convictions.
c. He has no pending cases but only allegations of threats that were made
by him.
d. The alleged incident of 05 January 2025 was the first reported the
appellant kept away from the complainant whilst the latter did not.
[61] In my view the magistrate’s decision was wrong. The above were some of
the factors that reflected that the appellant satisfied the onus that rested on
him that it was in the interests of justice to release him on bail , with
stringent bail conditions.8
[62] To quote Kriegler J: S v Dlamini9 , S v Joubert; S v Schietekat10 para [11]
8 See S v Porthen and Others above
9 S v Dlamini 1999(2) SACR 51 (CC)
10 S v Joubert; S v Schietekat (CCT21/98, CCT22/98, CCT2/99, CCT4/99) [1999] ZACC 8;
1999 (4) SA 623; 1999 (7) BCLR 771 (3 June 1999)
“It is that there is a fundamental difference between the objective of
bail proceedings and that of the trial. In a bail application, the enquiry
is not really concerned with the question of guilt. That is the task of
the trial court. The court hearing the bail application is concerned with
the question of possible guilt only to the extent that it may bear on
where the interests of justice lie in regard to bail. The focus at the bail
stage is to decide whether the interests of justice permit the release of
the accused pending trial; and that entails in the main p rotecting the
investigation and prosecution of the case against hindrance”.
[63] This court notes that the magistrate overlooked the fundamental difference
between the objective of bail proceedings and that of the trial as stated
above. The focus of the magistrate was to decide whether the interests of
justice permitted the release of the accused pending trial , which include,
protecting the investigation and prosecution of the case against hindrances.
[64] In my view I found that approving bail for the appellant, contingent upon
stringent conditions to effectively restrain and eliminate the chances of him
communicating with the complainant or her loved ones; prevent him from
committing a schedule 1 offence, was justified.
[65] Further,since the appellant was served with a Protection Order , a move I
commend from the magistrate’s side as he was duty bound to issue one if
this was not done after an enquiry. The Protection order now was effective
immediately on the day of service which carries stringent conditions to it,
an added advantage for the complainant.
[66] In my view, I found the above would certainly strengthen the p rotection
needed for the complainant or her family as these court orders carry clear
consequences with them should there be any breach of the conditions.
[67] Upon reviewing the lower court's record and considering the evidence, this
court concluded that the lower court's decision to deny bail in the initial
bail application was wrong.
[68] Having made that decision I regarded it would be superfluous for me to
deal with the Magistrate’s decision regarding bail on new facts since the
initial bail decision I have found to be wrong, in case of any doubt it is also
set aside.
[69] Section 65(4) of the Act 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.”
Conclusion
[70] In my view the Magistrate’s decision in refusing the initial bail was wrong
he overlooked some of the evidence which led for him to improperly
exercise his discretion as explained above. I found that it was in the
interests of justice that the appellant should be released on bail.
[71] These are the reasons the order stipulated above was granted.
___________________________
MAGONA-DANO, AJ
Acting Judge of the High Court of South Africa
Western Cape Division, Cape Town
Appearances:
For the Appellant: Adv L Adams
Legal Aid South Africa
Cape Town
For the Respondent: Adv M Koti
Director of Public Prosecutions
Cape Town