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[2026] ZAGPJHC 82
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Combrink v S (A09/2026) [2026] ZAGPJHC 82 (5 February 2026)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION
JOHANNESBURG
CASE
NO: A09/2026
(1)
REPORTABLE:
NO
(2)
OF INTEREST TO OTHER JUDGES:
NO
(3)
REVISED.
NEMAVHIDI
AJ
Case
No: A09/2026
DPP
Ref. No: 10/2/5/2-2026/008
In
the matter between:
SHANNON
COMBRINK
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
NEMAVHIDI
AJ
:
[1]
This
is an appeal in terms of section 65 of the Criminal Procedure Act 51
of 1977 (“the CPA”) against the refusal of
bail by the
Regional Court Magistrate, Ms. Thlapi, on 22 August 2025.
[2]
The
appellant is accused 2 in the matter under case number 41/730/2025.
He faces charges of attempted murder and child abuse (or
deliberate
neglect of a child). The matter is governed by Schedule 5 of the CPA.
[3]
The
application for bail was heard on 19 August 2025. The appellant
relied on an affidavit setting out his personal circumstances,
while
the State opposed bail on the basis of an affidavit by the
investigating officer and other documentary evidence.
[4]
The
court
a
quo
refused
bail, finding that the appellant had not satisfied the onus under
section 60(11)(b) of the CPA to show that the interests
of justice
permit his release.
[5]
The
appellant appeals on various grounds, contending that the magistrate
erred in her application of sections 60(4)(a)–(e)
of the CPA
and that her decision was wrong.
LEGAL
FRAMEWORK
[6]
Section
60(11)(b) of the CPA provides that where an accused is charged with a
Schedule 5 offence, the court shall order his or her
detention unless
the accused adduces evidence which satisfies the court that the
interests of justice permit release.
[7]
The
onus is on the accused to show, on a balance of probabilities, that
it is in the interests of justice to be released on bail.
In deciding
this, the court must consider the factors listed in section 60(4) of
the CPA.
[8]
On
appeal, this court may only set aside the magistrate’s decision
if satisfied that it was wrong (section 65(4) of the CPA).
The appeal
is not a hearing
de
novo
; the
focus is on whether the magistrate exercised her discretion properly
on the evidence before her.
ANALYSIS
[9]
The
appellant’s main contentions are:
·
That the
State’s case against him is weak because he was not seen in the
video smoking drugs or handing drugs to the child.
·
That he is not
a flight risk as he has strong family ties,
visited
overseas twice,
and
is willing to surrender his passport.
·
That the
magistrate speculated about public outrage and failed to distinguish
between possibility and probability in terms of section
60(4).
·
That he has
provided an alternative address away from the area of the witnesses
and the community outcry.
[10]
The
State, in opposing the appeal, argues:
·
The appellant
failed to discharge the onus placed on him.
·
The evidence
against him is strong: he admitted taking the video of the child
smoking what is alleged to be drugs, and the video
went viral.
·
He did not
testify
viva
voce
and
his affidavit was not tested under cross-examination.
·
The magistrate
correctly considered the factors under section 60(4), including the
seriousness of the offence, the risk to public
safety, and the
potential undermining of public confidence in the justice system.
[11]
I
have considered the record, the magistrate’s judgment, and the
detailed submissions of both parties.
[12]
The
appellant’s personal circumstances are not seriously disputed.
He is unemployed, unmarried, has no dependents, and has
resided in
Bosmont most of his life. He has provided an alternative address
which was verified. He has a previous conviction for
possession of
drugs in 2018, for which he received a fine.
[13]
However,
the charges against the appellant are extremely serious. They involve
a four-year-old child being exposed to drugs and
allegedly being
given drugs to smoke. The appellant admitted to recording the
incident and distributing the video. This is not
a case of mere
presence; it is active participation in the recording and
dissemination of an act that constitutes child abuse.
[14]
The
magistrate found, on the evidence before her, that the appellant
failed to show that his release would not endanger the safety
of the
public or the child. She also found a likelihood that he would evade
trial given the seriousness of the charges and potential
sentence.
She further considered that his release could undermine public peace
and confidence in the justice system, given the
public outrage and
protests at court.
[15]
I
am not persuaded that the magistrate was wrong in these findings.
[16]
In
Schedule 5 matters, the court must be satisfied that the interests of
justice permit release. The appellant’s affidavit
did not
adequately address the substantive allegations against him. He did
not deny being present, recording, or sharing the video.
He did not
provide any exculpatory explanation. His silence on these critical
aspects weakens his case for release.
[17]
The
magistrate was entitled to consider the viral nature of the video,
the public reaction, and the potential harm to the administration
of
justice. Her reference to community protest was not speculative; it
was based on evidence before her that protests occurred
outside
court.
[18]
While
the appellant argues that he is not seen in the video handing drugs
to the child, his admitted role in recording and disseminating
the
video places him squarely within the alleged criminal enterprise. His
assertion that he is not a danger to the child or the
public is not
convincing in light of his admitted conduct.
[19]
The
magistrate did not misapply the “likelihood” standard.
She properly weighed the evidence and reached a conclusion
that is
reasonable and supported by the record.
[20]
The
appellant’s right to be presumed innocent is not in question.
However, in a bail application, the strength of the State’s
case is a relevant consideration. Here, the State’s case
appears substantial, and the appellant did little to rebut it.
[21]
I
am not satisfied that the magistrate’s decision was wrong. The
appellant has not shown that the interests of justice permit
his
release.
In
Carelse v The State
[2025] ZAWCHC 537
para 21, the court said “
Put
another way, this court cannot substitute its own view for that of
the judicial officer in the lower court (unless the decision
was
wrong even if this court held a different view) because that would
amount to an impermissible interference with the discretion
exercised
by the judicial officer in the lower court
”
ORDER
[22]
The
appeal is dismissed.
[23]
The
appellant shall remain in custody pending the finalisation of his
trial.
NEMAVHIDI
AJ
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, JOHANNESBURG
Date
of hearing:
5
February 2026
Date
of judgment:
5
February 2026