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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO: A279/25
In the matter between:
JODY JURY APPELLANT
and
THE STATE RESPONDENT
Coram: Acting Judge Gxashe
Heard: 02 February 2026
Delivered electronically on: 10 February 2026
Summary: Bail – Appeal against refusal of bail - factors to be taken into account -
exceptional circumstances- section 60(11)(a) of the Criminal Procedure Act 51 of
1977- onus on the Applicant - to prove exceptional circumstances - section 60(2)
and (3) of the Criminal Procedure Act finds no application - section 60(14) access
to a police docket in bail proceedings guarantees a right to a fair trial - section
60(9) of the Criminal Procedure Act -balancing between the accused right to his
personal freedom and interests of the society-Appeal dismissed.
______________________________________________________________________
______________________________________________________________________
ORDER
Appeal dismissed.
______________________________________________________________________
JUDGMENT DELIVERED ELECTRONICALLY
GXASHE, AJ
Introduction
[1] This is an appeal against a judgment of the Magistrates’ Court in Athlone which
dismissed the Appellant’s application to be released on bail. The Appellant was arrested
with two others on charges of murder and attempted murder which fall under the
category of Schedule 6 offences. On 09 July 2025, he brought a bail application before
a bail court at the Magistrates’ Court which was opposed by the State. His application
was dismissed, hence this appeal. The appeal is opposed by the State.
The Appellant’s case
[2] In support of his application , the Appellant deposed to an affidavit and stated as
follows: he is a 26-year-old male, and a citizen of South Africa. He ordinarily resides at
2[...] H[...] Street, Beacon Valley, Mitchells Plain, with his parents. The said address has
been his permanent residence for the past 20 years. His alternative address is 2 [...]
H[...]2 Street, Beacon Valley, Mitchells Plain. The Appellant is not married, and is in a
love relationship with Ashlin Henry. He attended school until grade 12 but he did not
pass the grade. Before his arrest , he was employed at Turrim International as a digital
printer and CSC cutter, earning R2 200.00 per week . He is blessed with 4 minor
children who are between 4 to 2 years old , and is paying maintenance to their mothers
weekly. He is also a sole provider for his chronically ill father who suffers from cardiac
complications a nd his mother who was diagnosed with blood pressure and was
released from hospital two weeks before he brought the bail application. He also
provides for his two nieces who are 7 and 14 years old , respectively . He has no
previous convictions, will plead no t guilty , and elected to exercise his right to remain
silent. The Appellant averred that there is no evidence nor any likelihood that he will
threaten witnesses. He is not a flight risk and has no intention of absconding. In fact, he
learnt from his mother that the police were looking for him. After that he handed himself
over to the Manenberg Police Station. He does not possess any travelling documents
and has good emotional and family ties in Mitchells Plain. He does not own any fixed
property outside the country. He is not wealthy and has no financial means or
documents to travel abroad. The Appellant further averred that the above establishes
that his release on bail will not offend or cause harm to society or the integrity of the
justice system in its b roadest sense. According to him , the interests of justice warrant
his release on bail.
[3] At the close of the Appellants case the State submitted an affidavit deposed to by Mr
Craig Keating, the investigating officer. In his affidavit , he stated that on 06 June 2025 ,
approximately at 06h15, Manenberg police were called out to a murder scene at the
corner of Turfhall Road. On arrival at the scene, they found the body of the deceased
who was in the same gang with the accused inside a car on the driver’s side with
who was in the same gang with the accused inside a car on the driver’s side with
multiple gunshot wounds. The police left the crime scene and followed leads to solve
the case. Later, on the same day, at about 16h30, they were called out again to another
crime scene at the corner of Sneeuberg Road, Heideveld and Buffelshoek Street, where
a young man (the deceased in this matter) was shot and killed few meters away from
his residence. On arrival at the scene, they foun d a body of the deceased with multiple
gunshot wounds and 7 x 9 mm cartridges on the spot where the deceased was. They
also consulted with several witnesses who identified the Appellant, his co-accused, and
two outstanding accomplices as the culprits. They also found a video footage which
depicted the faces of the Appellant and his co -accused, and the roles they played
during the commission of these offences. The footage depicts the Appellant and his
friends sitting in a corner smoking oka pipe. At some poi nt, the Appellant and his co -
accused passed in a greyish silver Honda. The Appellant was the driver, accused 2 was
seated behind him, and the front passenger seat was occupied by one of the
accomplices who were not yet arrested. They made hand gestures to wards the
deceased and pointed them in anger. Thereafter , they drove to the back yard in a
nearby park in Sneeuberg Road and entered house number 1 [...] B[...] Road; the house
of the half -brother of one of the accomplices where the Terrible Westsiders gang
members used to hang out.
[4] Immediately thereafter , accused 1 came from the back yard to the tuck -shop a
couple of meters away from the deceased. He was on the lookout to see what the
deceased and his friends were doing. He then pretended as if he wanted to buy
something, when he realised that the deceased and his friends were looking at him. He
then left and went to accused 2 and the Appellant, but the witnesses could not hear
their conversation. Accused 2 and the Appellant went in the direction where the
deceased and his friends were seated. When they came closer to the deceased and his
friends they split up. Accused 2 went to the nearby tuckshop, where accused 1 was
earlier. He looked up and down to ensure that the coast wa s clear and thereafter
directed the Appellant to shoot. The Appellant was wearing a black hoodie and he held
the bottom part of it to hide his identity and walked past the deceased and his friends.
[5] The Appellant took out a firearm from his hoodie top pock et and fired one shot in the
[5] The Appellant took out a firearm from his hoodie top pock et and fired one shot in the
direction of the deceased ’s friend, but he missed. He then turned the firearm to the
deceased and fired multiple shots at him. The deceased stood up and tried to take the
firearm from him and another gun shot went off. The Appe llant ran to accused 2 who
directed him to run towards the passage to Heideveld Train Station. The Appellant took
the route as directed by accused 2 and was captured by cyclops CCTV cameras
running down Bloukrans Road, Heideveld.
[6] An identification parade was not conducted because the State witnesses knew who
the culprits were. Even though the Appellant is residing in Mitchells Plain , he is known
to the area because he visited house number 1[...] B[...] Road with his brother in -law.
According to the investigating officer , this was an ultimate revenge for the killing which
took place earlier in the morning , and the deceased in that incident was the member of
the Westsiders gang to which the Appellant and others are affiliated.
[7] The investigating officer further stated that the release of t he Appellant will endanger
the safety of the community and the witnesses, as they reside in the same area and are
known to him. There is a likelihood that the Appellant will evade trial because this case
attracts long -term imprisonment. Moreover, the Appellant and his co -accused are
gangsters who move around from one place to the n ext and that will make it difficult for
the police to trace him. The investigating officer averred further that the Appellant and
his co-accused would undermine the proper functioning of the criminal justice system
including the bail system and have alread y shown that nothing deters them from
committing offences. They committed these offences in broad daylight, in full view of the
community. Above all, the State has a strong case against them. In the end, the
investigating officer was of the view that the interests of justice do not permit the release
of the Appellant from detention. On 22 July 2025 , the magistrate dismissed the
application. He found that the accused failed to prove that exceptional circumstances
exist, which in the interests of justice warrant his release.
Grounds for appeal
[8] The Appellant’s grounds of appeal can be summarised as follows:
(a) That the magistrate erred in holding that no exceptional circumstances exist ,
(a) That the magistrate erred in holding that no exceptional circumstances exist ,
which in the interests of justice warrant his release on bail , as there was no
evidence presented indicating a likelihood that he will evade standing the trial;
would interfere with the State witnesses or evidence; that he would commit
Schedule 1 offences or endanger the public and/or disturb public peace and
security.
(b) That the magistrate erred in failing to attach sufficient weight to his personal
circumstances, particularly his age, the fact that he is supporting his four minor
children and nieces and his parents who are chronically ill. He is also employed
and that his continued incarceration would impact his employment.
(c) That the magistrate failed to consider that he is a first-time offender and had
surrendered himself to the police after he became aware that they were looking
for him. According to him , the court should have found that cumulatively , his
personal circumstances illustrated exceptional circumstances , which in the
interests of justice warrant his release on bail.
(d) That the magistrate erred in not finding that there is no evidence to support the
allegations that he is a member of the Terrible West Siders.
(e) The magistrate erred in not applying the provisions of section 60(2)(c) of the
Criminal Procedure Act 51 of 1977 (“the Act”) in that she failed to direct that the
CCTV footage that allegedly depicts the Appellant be produced.
(f) That the magistrate erred in not applying the provisions of section 60(3) of the
Act to the evidence of the investigating officer who failed to disclose what the
witnesses would testify.
(g) That the magistrate misdirected herself in failing to consider granting bail with
appropriate bail conditions and/or considering the provisions of section 62(f) of
the Act.
The law and analysis
[9] Section 65 of the Act guarantees accused persons an opportunity to appeal against
decisions of lower courts refusing to release such accused persons on bail, and it
regulates the parameters on which such an appeal may be brought before a superior
court. Section 65(4) of the Act provides that:
‘The court or judge hearing the appeal shall not set aside the decis ion 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.’
[10] It is established law that appeal courts have limited powers to interfere with the
decisions of lower courts and/or courts of first instance, and the standard and/or level of
interference open to an appeal court in a particular case depends on the nature o f
discretion exercised by the lower court. An appeal court is thus enjoined to first
‘ascertain whether the discretion exercised by the lower court was a discretion in the
true sense [narrow sense] or whether it was a discretion in the loose sense [wide
sense].’1 The lower court, in the present appeal, exercised a discretion in the wide
sense when it considered whether to grant or refuse bail to the Appellant. Therefore,
while appropriate deference must be afforded to the lower court, this Court is entitle d
and duty bound to consider all the material that was presented before the lower court to
determine whether that court reached a correct or wrong decision when it refused to
grant bail to the Appellant. Put simply, this Court is in a position to evaluate the material
that was before the lower court and reach a decision as to whether the lower court
exercised its discretion correctly or wrongly. If it is satisfied that the decision of the lower
court was wr ong, as argued by the Appellant, it is entitled to give the decision it thinks
should have been given by the lower court. 2
Was the State obliged to provide the Appellant with the video footage?
[11] The Appellant had qualms with the State’s failure to make available the footage it
intends to use against him during the trial. It was argued on his behalf that the State
bears a duty to provide sufficient factual detail to enable the court to assess wheth er the
bears a duty to provide sufficient factual detail to enable the court to assess wheth er the
interests of justice permit his release.
1 Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Ltd and Another
2015 (5) SA 245 (CC) para 83.
2 S v Porthen and Others 2004 (2) SACR 242 (C).
[12] Section 60(14) of the Act provides as follows:
‘Notwithstanding anything to the contrary contained in any law, no accused shall, for the
purposes of bail proceedings, have access to any information, record or document
relating to the offence in question, which is contained in, or forms part of, a police
docket, including any information, record or document which is held by any police official
charged with the investigation in question, unless the prosecutor otherwise directs:
Provided that this subsection shall not be construed as denying an accused access to
any information, record or document to which he or she may be entitled for purposes of
his or her trial.’
[13] The court in Mafe v S (A/49/22) [2022] ZAWCHC 108 at paras 69 and 71 held that:
‘In my view, there is no reason why the right to be properly informed of the charge with
sufficient detail to answer it cannot extend to a bail application, irrespective of its
schedule. It is in that sense that the extremes of section 60(14) of the CPA can be
mitigated and justified. Currently it seems that a bail applicant facing serious allegations
is blind folded in darkness but expected to hit the target. Even those accused of serious
crimes must see and feel justice to be manifestly done.’
‘The State is required to put all the necessary and relevant substantial facts before the
court for the purposes of upholding the right of a bail applicant to be apprised of the case
which he faces, in the bail application. This will enhance the impartiality of the courts and
their independence in exercising their judicial functions. It also adds to the flavor of bail
proceedings being sui generis.’
[14] The Constitution prioritises the right to a fair trial and it is the court’s duty to ensure
that fairness is applied in bail applications as well . This will ensure that the
administration of justice is not compromised and will enhance and give effect to the
administration of justice is not compromised and will enhance and give effect to the
accused’s right to a fair hearing. It is so that the State did not furnish the Appellant with
a video footage, but it was clearly stated by the investigating officer in his affidavit that it
depicts what happened on the scene and is supported by the evidence of the State
witnesses. It also became clear that the State will not rely solely on the footage but also
on the direct evidence it has at its disposal. The video footage forms part of a police
docket. The Act does not have any provision which requires the State to make available
to the accused the contents thereof for the purposes of bail applications. However, that
does not preclude the accused from bringing an application before the court for an order
that he be furnished with that part of the evidence. As an independent arbite r, the court
has a discretion to balance the need for confidentiality in criminal investigations against
the accused’s right to a fair hearing.
[15] Section 60(3) of the Act provides as follows:
‘If the court is of the opinion that it does not have reliable or sufficient information or
evidence at its disposal or that it lacks certain important information to reach a decision
on the bail application, the presiding officer shall order that such inf ormation be placed
before the court.’
The peremptory provision in section 60(3) is triggered when the court is of the opinion
that it does not have reliable or sufficient information or evidence to reach a decision on
the bail application. In this matter , the court had the State’s uncontroverted evidence,
and the Appellant’s case at its disposal. The State alleged that the video footage
supports the evidence of the State witnesses who were at the scene during the
commission of the offences. The Appellant exercised his right to remain silent and
elected not to test the State’s case. In the circumstances, I could not find any reason
why the court would have required any other evidence because what was placed before
it was sufficient to reach a decision.
[16] Having said that, there is no indication on the record that the Appellant and/or his
attorney applied to the court to invoke the provisions of section 60(3) during the bail
attorney applied to the court to invoke the provisions of section 60(3) during the bail
hearing. The Appellant’s attorney glossed over the State’s failure to make availabl e the
footage in arguments and there was no application made for the court to exercise its
discretion. I thus find solace in Lekhuleni J’s words in Mafe v S supra, when he
remarked at para 126 as follows:
‘In my view, the appellant cannot cry foul belated ly that he was not furnished with these
documents, when he did not request the relevant information from the State. The
Supreme Court of Appeal noted in S v Mathebula 2010 (1) SACR 55 (SCA), para 12,
that the State is not obliged to show its hand in advanc e, at least not before the time
when the contents of the docket must be made available to the defence…I agree with
the views by Mr Menigo that the bail court and the State could not exercise their
discretion in terms of section 60(3) and 60(4) of the CPA in a vacuum. In my view, it was
incumbent upon the defence to have requested this information before the hearing of
this matter.’
[17] Section 60(2)(c) of the Act provides as follows:
‘In bail proceedings the court may, in respect of matters that are in dispu te between the
accused and the prosecutor, require of the prosecutor or the accused as the case may
be, that evidence be adduced.’
This subsection gives a discretion to the court to order the parties to lead evidence in
respect of matters that are in dis pute. In this matter, no disputes were raised during the
bail hearing and the Appellant did not test the State’s evidence either. The Appellant
needed to go further and prove that the State’s case is so lacking in detail that a court
hearing a bail applica tion cannot express a prima facie view as to its strength or
weakness.3 These sentiments were echoed in S v Mathebula where the court said that:
‘But a state’s case supposed in advance to be frail may nevertheless sustain proof
beyond reasonable doubt when put to the test. In 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: S v Botha en 'n
prove on a balance of probability that he will be acquitted of the charge: S v Botha en 'n
Ander 2002 (1) SACR 222 (SCA) (2002 (2) SA 680; [2002] 2 All SA 577) at 230 h, 232c;
3 S v Kock 2003 (2) SACR 5 (SCA).
S v Viljoen 2002 (2) SACR 550 (SCA) ([2002] 4 All SA 10) at 556 c. That is no mean
task, the more especially as an innocent person cannot be expected to have insight into
matters he was involved only on the periphery or perhaps not at all. But the State is not
obliged to show its hand in advance, at least not before the time when the contents of
the docket must be made available to the defence; as to which see Shabalala and
Others v Attorney -General, Transvaal, and Another 1995 (2) SACR 761 (CC) (1996 (1)
SA 725; 1995 (12) BCLR 1593). Nor is an attack on the prosecution case at all
necessary to discharge the onus; the applicant who chooses to follow that route must
make his way and not expect to have it cleared before him. Thus it has been held that
until an applicant has set up a prim a facie case of the prosecution failing there is no call
on the State to rebut his evidence to that effect: S v Viljoen at 561f - g.’4
In this case as well, there was no need for the State to rebut the Appellant’s evidence
because the State’s case was nev er tested. The State had clearly demonstrated that it
has a strong case against the Appellant.
Did the Appellant prove the existence of exceptional circumstances?
[18] Section 60(11)(a) of the Act provides as follows:
‘Notwithstanding any provision of this Act, where an accused is charged with an offence
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.’
[19] Section 60(11)(a) places the burden on the Appellant to adduce evidence and
prove to the satisfaction of the court the existence of exceptional circumstances of such
nature as to permit his or her release on bail. The court must also be satisfied that the
nature as to permit his or her release on bail. The court must also be satisfied that the
release of the accused is in the interests of justice.5
4 S v Mathebula 2010 (1) SACR 55 (SCA) para 12.
5 S v Petersen 2008 (2) SACR 355 (C).
[20] Exceptional circumstances are not defined by the Act . However, there have been
wide-ranging opinions, from which it appears that it may be unwise to attempt a
definition of this concept. Generally speaking, exceptional is indicative of something
unusual, extraordinary remarkable, peculiar or simply different. These a re, of course,
varying degrees of exceptionality, unusualness, extraordinariness, remarkableness,
peculiarity or difference. This depends on their context and on the particular
circumstances of the case under consideration. In the context of section 60(11) (a), the
exceptionality of the circumstances must be such that it would be in the interests of
justice to order the release of the accused. This may of course mean different things to
different people . Therefore, allowance should be made for a certain meas ure of
flexibility of the judicial approach to the question. 6 In essence , a court tasked with
applying section 60(11 )(a) is exercising a value judgment , taking into account all the
relevant facts and circumstances, and with reference to all the applicable criteria.7
[21] It is noteworthy that the Appellant relied on the affidavit to persuade the court that
there are exceptional circumstances, which in the interests of justice warrant his release
from detention. He did not lead any other evidence except for the affidavits deposed to
by his father and the mothers of his children to prove the allegations he made. He did
not deal much with the State allegations , save for denying that he killed the deceased.
The court in S v Mathebula held that:
‘In the present instance the appellant’s tilt at the State case was blunted in several
respects: first, he founded the attempt upon affidavit evidence not open to test by cross-
examination and, therefore, less persuasive: cf S v Pien aar 1992 (1) SACR 178 (W) at
180h; second, both the denial of complicity and the alibi defence rested solely on his
180h; second, both the denial of complicity and the alibi defence rested solely on his
say-so with neither witnesses nor objective probabilities to strengthen them. The
vulnerability of unsupported alibi defences is notorious, depending, as it does, so much
upon the court’s assessment of the truth of the accused testimony.’8
6 S v Mohammed 1999 (2) SACR 507 (C).
7 S v H 1999 (1) SACR 72 (W).
8 S v Mathebula 2010 (1) SACR 55 (SCA) para 11.
[22] Furthermore, in Killian v S 2021 ZAWCHC 100 para 13 the court said:
‘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) applications. 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 ….Applying the approach I have just described,
as I believe it was bound to do in the circumstances, the court a quo was obliged - if it
chose not to exercise its power of its accord to require oral evidence - to accept the
police evidence on the point.’
The interests of justice
[23] Bail applications are regulated by section 60 of the Act. Section 60 (4)(a) to (e)
provides 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 the likelihood that the accused, if he or she were released on bail
will endanger the s afety of the public or any particular person or will commit a
Schedule 1 offence;
(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;
(c) where the is the likelihood that the accused, if h e or she were released on bail,
will attempt to influence or intimidate witnesses or to conceal and or destroy
evidence;
(d) where there is the likelihood that the accused, if he she were released on bail,
will undermine or jeopardise the objectives or the proper functioning of the
will undermine or jeopardise the objectives or the proper functioning of the
criminal justice system, including the bail system;
(e) where in exceptional circumstances there is the likelihood that the release of the
accused will disturb the public order or undermine the public peace or security.
[24] Likelihood is probability or substantial or real possibility that a risk will materiali se.
This clearly indicates that the State does not have to prove that the accused will evade
his trial, but a probability that he might evade his trial.
[25] The State’s opposition is premised on the fact that after the commission of these
offences the Appellant was led by his co -accused to run towards Heideveld Train
Station. In addition, the police visited his addre ss on two occasions, and his mother did
not know his whereabouts. These allegations remain uncontroverted and negate the
Appellant’s case that he is not a flight risk. They suggest a likelihood that he will evade
his trial should he be released on bail, es pecially now that he knows these offences
attract minimum sentences of life imprisonment each. The nature and gravity of the
punishment which is likely to be imposed is one of the factors the court must consider in
determining whether there is a likelihood that the accused will attempt to evade his or
her trial. 9 That could be an incentive for him to evade his trial if he is released from
detention.
[26] It is still not clear to the court where the Appellant was after the commission of
these offences and few days thereafter. I am alive to the fact that the Appellant has a
right to remain silent . In this case , however, he exercised his right to his detriment
because he had a duty to satisfy the court that there are exceptional circumstances ,
which in the interests of justice warrant his release. In his affidavit , he regurgitated the
provisions of section 60(4)(a) to (e) of the Act and that is not enough , he needed to go
further and exclude any likelihood which could cause the interests of justice not to
warrant his release from detention , especially if there are serious allegations levelled
against him.
against him.
9 Section 60(6)(f) of the Act.
[27] It is common cause that the Appellant handed himself to the police after he
became aware that they were looking for him. Of course, this shows that he co-operated
with the police and that might have contributed to the speedy finalisation of any
outstanding investigations that needed to be conducted . In his affidavit, however, he did
not deal with his whereabouts during and after the commission of these offences and
did not account for anything except his personal circumstances. His change of heart
does not guarantee that he will stand trial because the allegations made by the State
remain unchallenged.
[28] Section 60(4)(c) of the Act provides that the interests of justice do not permit the
accused’s release from detention where there is the l ikelihood that the accused, if he or
she were released on bail, will attempt to influence or intimidate witnesses or to conceal
and/or destroy evidence. The court may, where applicable, take into account the fact
that:
(a) the accused is familiar with the identity of the witnesses and with the evidence
which they may bring;
(b) whether the witnesses have already made statements and agreed to testify;
(c) whether the investigation against the accused has already been completed;
(d) the relationship of the accused with various witnesses and the extent to which
they could be influenced or intimidated.10
[29] It was intimated by the investigating officer that the Appellant and the State
witnesses are known to each other . The witnesses have already made statements
hence th e investigating officer was able to indicate in his evidence that the video
footage supports their evidence. The State might not have disclosed them to the
Appellant but the fact that the Appellant and the State witnesses are known to each
other remains un controverted. The likelihood that Appellant might intimidate the State
witnesses stems from that and even bail conditions will not prevent this from happening
witnesses stems from that and even bail conditions will not prevent this from happening
considering the ser iousness of the offences he is facin g and the gravity of the
10 Section 60(7) of the Act.
sentences to be imposed should he be convicted of these offences. It must be born e in
mind that non -disclosure of the State witnesses or the video footage does not provide
the Appellant with an avenue to be released from detention. In recent years , we have
seen witnesses being killed or forced to go on a witness protection because of threats
made against their lives and families. Several cases remain unresolved because
witnesses are killed daily. It is therefore imperative for the State to protect witnesses
because disclosure can compromise and jeopardise their safety.
[30] The State further averred that the Appellant is a member of the terrible Westsiders
gang, but he bears no mark to confirm this. Counsel for the Appellant stressed that it
cannot be acceptable for the State to conclude that the Appellant is a gang member
because he does not have insignia like his co-accused. This might be so, but the State
allegations are premised on the fact that th e offences were committed shortly after the
killing of a member of the Westsiders gang. These allegations were not disputed, and
the court had no other evidence to the contrary. In dealing with this , the magistrate
referred to the case of Ngcobo and others v S (A207/23) [2023] Z AWCHC 272 at para
16 where the court held that:
‘In the prevailing climate in the country, and especially in the Western Cape where
communities are tired and in distress because of violent crime, it is incumbent upon the
courts of law to guard and maintain the rule of law. Courts have an obligation to ensure
that the criminal justice system remain [s] a beacon of hope for communities in distress.
In response to the iron -fist of syndicates and gangs involved in serious violent crime
where life is chea p and is sacrificed at the altar of greed on the snap of the finger by a
gang leader, courts cannot be found wavering and irresolute.’
[31] These are indeed the conditions the Western Cape community has to contend with
[31] These are indeed the conditions the Western Cape community has to contend with
on a daily basis. The facts of this case demonstrate what happens when a member of a
rival gang member is killed. On the same day , two lives were lost and gang violence
does not end. Therefore, I agree with the court a quo that the release of the Appellant
will disturb public order and for his safety as well, the interests of justice demand that he
be kept in detention.
[32] The Appellant’s counsel further argued that the magistrate misdirected herself in
failing to consider granting bail with appropriate bail conditions and/or considering the
provisions of section 62(f) of the Act.
[33] Section 62(f) provides as follows:
‘Any court before which a charge is pending in respect of which bail has been granted ,
may at any stage, whether the bail was granted by th at court or any other court, on
application by the prosecutor , add any further condition of bail which provides that the
accused shall be placed under the supervision of a probation officer or a correctional
official.’
[34] In oral arguments, however, counsel could not take this point any further and he
ultimately abandoned this ground and conceded that section 62 (f) is not applicable in
the present appeal.
[35] I have noted with concern that the court a quo did not apply the provisions of
section 60(9) of the Act. In its judgment, the court glossed over the Appellants’ personal
circumstances and did not weigh the interests of justice against the right of the accused
to his personal freedom and in particular the prejudice he is likely to suffer if he were to
be detained in custody.
[36] Section 60(9) provides as follows:
‘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 conclusion of the trial if the accused
is not 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 delay;
(d) any financial loss which the accused may suffer owing to his detention;
(e) any impediment to the preparation of the accused 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;
(g) any other factor which in the opinion of the court should be taken into account.’
[37] In Mafe v S supra par a 72 the court referred, with approval, to S v Smith and
Another 1969 (4) SA 175 (N), where the following observations laid down in S v Essack
1965 (2) SA 161 (D) were reaffirmed:
‘In dealing with an application of this nature, it is necessary to strike a balance , as far as
that can be done, between protecting the liberty of the individual and safeguarding and
ensuring the proper administration of justice. I refer , in acknowledgement of th ose
words, to the judgment of Diedmont , J., in the case of S v Mhlawi and Others 1963 (3)
SA 795 (C) at p.796. The presumption of innocence operates in favour of the applicant
even where it is said that there is a strong prima facie case against him, but if there are
indications that the proper administration of justice and the safeguarding thereof may be
defeated or frustrated if he is allowed out on bail, the Court would be fully justified in
refusing to allow him bail.’
The appellant’s personal circumstances were placed on record through an affidavit. The
only attachments which could be c onsidered by the court a quo are the affidavits from
his father and the mothers of his children confirming that he was supporting his parents
his father and the mothers of his children confirming that he was supporting his parents
and children before his arrest. The contract and the letter attached from his employer
indicate that the Appellant is an active member of Turrim Brands and that should he be
released from detention he will continue working for the same company. However, the
purpose of bail is to secure the Appellant’s attendance until the trial is finalised. Thes e
factors are outweighed by the likelihood that should he be released from detention he
will evade his trial. If the Appellant’s release from detention will undermine the proper
functioning of the criminal justice system, the bail the court is bound to deny bail. To my
mind, the evidence the Appellant adduced fell short of what is required in terms of
section 60(1 1)(a) of the Act and cannot be accepted as exceptional circumstances
which in the interests of justice warrants his release.
[38] In the end , I am of the view that h is release from detention will u ndermine the
objectives and proper functioning of the criminal justice system because the offences in
question were committed in broad daylight and in the presence of the community
members. The State has a strong case against the Appellant, and it remains
uncontroverted. There is also the likelihood that if he is released on bail , he will evade
his trial and that is based on the evidence which touches the Appellant personally
because after he committed these offences he ran away.
[39] I therefore could not find any reason why I should interfere with the magistrate’s
decision. The court a quo did not err in finding that the Appellant did not discharge the
onus to establish exceptional circumstances.
Order
[40] For these reasons I make the following order:
(a) The appeal is dismissed.
_________________________
N GXASHE
Acting Judge of the High Court
Appearances
Appellant : Adv. Filton
Respondent : Adv. Rambarun