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
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Case no: A277/2025
Piketberg Magistrates’ Court Case no: A329/2025
J[...] B[...] APPELLANT
And
THE STATE RESPONDENT
Coram: Magona-Dano AJ
Heard: 27 November 2025
Order: 28 November 2025
Reasons: 17 February 2026
Summary: Bail appeal - Schedule 6 - exceptional circumstances - personal
circumstances with community ties and support - specific contribution to the
community - independent witnesses and support – the strength of the State’s
case - error in finding likelihood t o contravene in terms of S60(4) of the
Criminal Procedure Act
________________________________________________________________
ORDER
1. The appeal against the refusal of bail by the Piketberg Magistrate’s Court,
under case A329/2025, made on 29 October 2025 , is hereby upheld , and
the order of the court a quo refusing bail is set aside.
2. Bail is set for the Appellant in the amount of R2000.00 (Two thousand
Rands), and he is to be released upon payment of the bail amount.
3. The following bail conditions will apply:
3.1 The Appellant s hall ensure that he attends all further Court
appearances until finalisation of the matter.
3.2 The Appellant shall not have any contact with the complainant
and witnesses, directly or indirectly , pending the finalisation of
the matter.
3.3 The Appellant is order ed to sign at the Piketberg SAPS once a
week, every Wednesday between the hours of 9 am and 7 pm.
3.4 The Appellant will reside at an alternative address, being no 1[…]
N[…] Goedverwacht, and will only enter the Piketberg area for
purposes of his employmen t at Blaauw Cut and Style Unisex in
De Trek Street, as well as when having to sign at the Piketberg
Police Station as is needed in terms of this order.
3.5 The Appellant shall not leave the Western Cape Province without
the written consent of the investigating officer or his duly
authorised delegate or successor.
REASONS
Magona-Dano, AJ
INTRODUCTION
[1] This is an appeal against the whole of the judgment of the learned
Magistrate E. Kaptein, delivered on 29 October 2025 under Piketberg
Magistrates’ Court Case Number A329/25, refusing to admit the Appellant to
bail.
[2] On 28 November 2025, the matter was heard before me and this Court
handed down an order in this matter, the terms of which were communicated
to the parties. At that time, the Court indicated that the reasons for the order
would follow.
[3] These are the reasons for the order that was granted.
[4] In preparing these reasons, I have had due regard to the written heads of
arguments of the parties and, where helpful, have adopted or adapted portions
thereof. I am grateful to Counsel for their clear heads of argument.
RELEVANT FACTUAL BACKGROUND
[5] The Appellant stood charged with two counts of rape of a minor child.
The State alleged that on 02 April 2023 until J une 2025, as well as in July
2025, the Appellant did unlawfully and intentionally commit an act of sexual
penetration with L.A, a 13-year-old female child (stepdaughter of the
Appellant) by inserting his fingers in her vagina and touching her breast
without her consent. The Appellant was arreste d on 05 September 2025 and
had been appearing in the aforesaid court.
[6] On 19 September 2025, the Appellant's bail application was heard, and it
ran for a number of days. The charges were classified to fall under a Schedule 6
offence, and the provisions of Section 60(11)(a) of the Criminal Proce dure Act
51 of 1977 (“the CPA”) applied.
[7] On 29 October 2025 judgment was delivered by the Magistrate where
bail was denied.
[8] Disgruntled by the decision on 05 November 2025, a notice of appeal was
lodged in this court , bringing an application for the appeal of the Magistrate’s
decision that refused him bail.
[9] The Appellant’s grounds of appeal can be summarized as follows:
a. The Magistrate erred in finding that no exceptional circumstances
existed in the interests of justice that permitted this release.
b. There was no factual basis for the refusal of bail.
c. Section 60(4) risks that were relied on were speculative.
d. There was no evidence of interference with witnesses or public
danger.
e. Appellant’s material personal circumstances were ignored.
f. Continued detention was disproportionate.
g. The State’s case was shown to be weak.
h. Section 62(f), additional conditions were overlooked and ought to
have been considered to grant bail.
i. Section 60(3) was not applied where the court lacked sufficient
evidence before it.
j. Failure to properly balance the interests of justice and the liberty right
under section 35(1)(f) of the Constitution of the Republic of South
Africa, 1996 (“the Constitution”).
k. The Magistrate’s discretion was therefore misdirected.
l. Exceptional circumstances were established, taking into account the
above factors cumulatively.
[10] I turn now to look at the evidence that was placed before the court a quo.
SUMMARY OF FACTS
[11] The Appellant gave the following evidence by way of affidavit, that:
a. He is a 53 -year-old South African citizen with a fixed address. He
lives in a rental house where he resides with his wife , whom he has
been married to for the past 3 years (the mother of the complainant ).
He has 3 dependents aged 6, 11 and 13 yrs old. He has an alternative
address in Goedeverwacht.
b. He has been a stepfather before, first to his ex-wife’s and then his
ex-girlfriend’s older children . He never committed , and neither was
he ever accused of ever committing the offences he is accused of in
this case.
c. He was arrested on 4 September 2025 based on the charges made
against him by the complainant. Since his arrest he has been living in
an overcrowded prison cell, and his health has gone bad; his high
blood pressure skyrocketed to the point that he had to be attended to
medically in prison, and he also has a pre-existing heart condition.
d. He is not a flight risk; he has extended family residing in the
Northern Cape. He has been employed at Blaauw Cut and Style
Unisex for the past six years as a managing director and the main
barber.
e. He has previous convictions, one of selling liquor without a license.
It has been more than 10 years since he pleaded guilty and was
sentenced to a fine of R150. He also has a common assault
conviction, which was 10 years ago, where he pleaded guilty and was
sentenced to a wholly suspended sentence and another common
assault of six years ago , where he pleaded guilty and was sentenced
to a wholly suspended sentence.
f. He has no pending cases other than the present case being
investigated by the South African Police Service (“SAPS”) , no
warrants outstanding for his arrest and no parole conditions or
protection orders against him.
g. There is no likelihood that he will interfere with any of the wi tnesses
or the evidence , nor the likelihood that he will commit further
offences while on bail.
h. There is no likelihood that his release on bail will undermine or
jeopardise the proper functioning of the criminal justice system.
i. He is prepared to submit to any bail condition that the court intends
to impose.
[12] The charges against him, he testified that:
a. The charge sheet lacked specific dates and explanations as to how
these incidents took place over the alleged two-year period. To him,
this does not make sense.
b. That in any case his defence would be that of a denial of all
allegations of rape or indecent touching because he has never
inserted his fingers into the complainant’s vagina or touched her
breasts.
c. He’s known the complainant since she was 5 years old in 2016, when
he met the complainant’s mother. He took her as his own daughter;
she even called him Dadda. He and the complainant’s mother
decided to have a suitable and stable accommodation, generate
income to rent or buy a house for themselves and their children.
d. At all times , they provided for the complainant and the maternal
grandmother since the child lived with the grandmother. In 2021, he
and the complainant’s mother found a rental home with 3 bedroom s
and got married . They then intended to take the complainant. The
grandmother was not happy that they would take the child, which
caused a feud between them and her, so much so that the wife had to
consult social workers, where the child ended up having to sleep over
at their house every other week.
e. He submitted that the charges arise from family conflict and financial
disputes following his cessation of financial support to the
complainant’s maternal grandmother. That the complainant always
respected him, he could not think of any other reasons for the made-
up charges but could recall two incidents in February and June 2025
that took place , which made the child angry, but still, these were
incidents that were ordinary incidents.
[13] The incidents were as follows:
a. The first incident occurred in February 2025 and involved an
altercation between a couple , Roxanne and her partner , who were
tenants residing in the Appellant’s house. The complainant was
present at the time. The incident upset the complainant, prompting her
to seek comfort from Aunt Monica, a neighbour. Julian, who also
resided in the Appellant’s house at the time , informed the Appellant
and his wife of the incident and its impact on the child , as they had
previously been unaware of it . Upon returning home, t he
complainant’s mother collected her, spoke with her about the incident,
and apologized for what she had experienced involving the couple.
b. Another incident occurred in June 2025 , on the day of their church
confirmation outing . On that morning , the Appellant woke to a
commotion between the complainant and her mother , which left the
child angry. While being taken to the nearby church , the child exited
the vehicle in an agitated state and later returned home exhibiting the
same behaviour, at which point the Appellant’s wife attended to her.
The following morning, the complainant left for school still angry .
The Appellant intervened and stopped his wife, who wished to address
the child at that time, asking that she not upset the child further and
instead speak to her after school. That evening, the complainant sent a
message to the Appellant’s wife stating that she no longer wanted to
live with them.
c. The father of the complainant has been involved in the child’s life
since 2025. He telephoned the Appellant’s wife to inform her that a
social worker wanted to meet with them. Following a meeting with the
social worker in August, which involved the whole family , including
the grandmother and step-grandfather, the child was given the
opportunity to choose whom she wished to live with. She chose to live
with her grandmother. They painfully accepted this decision and
helped her pack her clothing, embraced one another, said their
goodbyes, and the child then told them she was sorry ( to the appellant
and her wife) and left.
d. The Appellant highlighted that since the complainant’s father, Mr
B[...] C[...], became involved in her life in 2025 , problems started to
arise. Although he had neither assisted in raising the child nor
provided support to the child over the years, he began to establish a
relationship with her after his other daughter started attending the
same school as the complainant. Thereafter, difficulties within the
Appellant’s household involving the child began to escalate. Mr C[...]
advocated for the child to go live with the maternal grandmother, the
appellant’s wife confronted him via phone message telling him not to
create problems where there were no problems.
Appellant’s Supporting Evidence
[14] Further letters and some affidavits from various community leaders
within Piketberg were handed in as part of the record in support of the appellant
granted bail, which included:
a. Letters f rom an Executive Mayor, a School Principal, a Pastor from the
Appellant’s church, a Pastor Emeritus , affidavits from neighbours, and
from senior members of the community were submitted collectively. The
letters presented the Appellant as a respected, community -oriented
individual with strong moral standing , positive influence , and no prior
record of misconduct within the community.
b. The references further portrayed him as a provider, a mentor, and a local
contributor, reinforcing his case that he was not a danger to the
community, unlikely to abscond, and enjoys strong community support.
c. The affidavits from the Appellant’s wife and employees of the Barber
shop reinforced his case that he had strong family, community, and
economic ties to Piketberg and the surrounding areas. An example which
was confirmed by the beneficiaries were that he supported the youth that
are drug dependent, he would find them a rehabilitation centre, give them
a home and also employment on their return to help them become better
members of society.
d. The statements collectively portray ed him as a stable, law -abiding
citizen, committed husband and father , stepfather and a community
employer whose detention caused undue prejudice to innocent dependents
and employees.
e. These affidavits further supported the submission that the Applicant posed
no flight risk , would not interfere with witnesses , and that less restrictive
bail conditions could adequately safeguard the interests of justice.
The State’s case opposing bail
[15] The State also led evidence by way of affidavit s from various
witnesses, some of which I summarise hereunder.
[16] The first was that of the I nvestigating officer , Sgt. Salomon
Koning, wherein he testified that:
a. He confirmed the Appellant’s personal particulars as specified above,
including the alternative address, which was verified . The owner of
that house, being his aunt, confirmed that she would have no problem
accommodating him.
b. He confirmed the A ppellant’s previous convictions, with corrections:
three convictions for dealing in liquor, for which the Appellant was
sentenced in 2011, and one conviction for assault with intent to cause
grievous bodily harm, for which he was sentenced in 2017 to a fine or,
alternatively, direct imprisonment, wholly suspended for five years.
c. He then made averments regarding the allegations brought against the
Appellant, as reported to him ( addressed below). The allegations
included the Appellant touching the child ’s breast and inserting his
finger in her vagina over a period of time between 2023 and 2025. The
last incident was in July 2025. He also licked the child’s vagina on this
day. It was alleged that the incidents always occurred when the child’s
mother was away for work in Moorreesburg.
d. The J88 was obtained after the child was examined by a doctor, it
reflected no injuries.
e. A petition from members of the community , as well as a letter from a
Gender Based Violence Association, was submitted demanding that the
accused not be released on bail.
[17] The affidavit of Mr B[...] C[...], the complainant’s biological father, was
also submitted , detailing multiple reports from the child of fear and distress
caused by the a ppellant, t he involvement of the Department of Social
Development, and the eventual discovery of the child’s written disclosure of
sexual abuse in September 2025 . He strongly urged that bail be refused to
protect the complainant from further trauma and possible intimidation.
[18] In the social worker’s affidavit, Ms Andolene Somers makes averments
regarding her intervention with the child and the school social worker in May
and August 2025, at the request of Mr C[...]. The child was troubled by having
to choose between living with her mother and stepfather or with her
grandmother and step -grandfather, as well as by the strained relations hip she
was experiencing with her mother. This issue was resolved when the child was
granted the opportunity to choose who m she wished to live with. There were
never any allegations of sexual assault made by the child or by anyone else
during these sessions.
[19] Roxanne Titus, a former tenant in the Appellant’s house until April 2025,
stated in her affidavit that the Appellant had a good, father-and-daughter-like
relationship with his stepdaughter, although she described it as unusually close.
She further stated that, at times in 2025, she witnessed arguments between the
Appellant and the child in her presence . During these arguments, the child
would always say that she wanted to go live with her grandmother. On one
occasion the child told Ms Titus that the Appellant refused to allow her to go
live by her grandmother . She also observed that the child became emotionally
withdrawn. In her second affidavit , Ms. Titus referred to alleged incidents that
purportedly took place notably after she no longer lived with the Appellant, and
in some respect also contradicted some content of her first Affidavit.
[20] The affidavits of Mrs E[...] S[...], the grandmother , confirmed that the
child wanted to live with her . She stated that she observed changes in the
complainant’s mood and that the child wrote in a book about the alleged sexual
assault, which she then gave to Ms Danae, a neighbour, to read to her. Mrs S[...]
thereafter contacted the child’s father, Mr C[...], which led to a case being
opened at the police station. Mrs S[...] denied reporting the allegations of sexual
assault to her mother , Ms V. A[…], the c omplainant’s great-grandmother. She
also denied being financially dependent on the Appellant.
[21] The affidavit of the complainant’s mother, Ms S[...] A[...], confirms that
the Appellant had a close relationship with the complainant and that the child
confided in him more than she did in her. She also described the domestic
circumstances and the strained relationship between her self and her own
mother, Mrs S[...], the grandmother of the complainant. Ms S. A[...] stated that
she heard about the allegations from her own grandmother sometime in August
2025 the latter kind to have been told by Mrs S […] her daughter. However, the
grandmother (Mrs S[...]) denied ever disclosing such allegations to the great-
grandmother, Ms V. A[...], and she assured the family that there were no such
allegations against the Appellant and they need not worry.
[22] An online petition was submitted by the State to support the opposed bail
application.
[23] A letter from an NGO was also submitted condemning gender -based
violence and urging the Court not to grant bail , considering the seriousness of
the offence and the risk to the minor vict im and public confidence in the justice
system.
Appellant’s Replying Affidavit
[24] The Appellant, in summary, replied stating the following:
a. Mr B[...] C[...] is a GBV activist in the local area who adopts a blanket
approach to organizing online petitions opposing bail applications in
sexual offence cases. He is well known in the community, and individuals
often sign his petitions without knowing the accused person or the facts
of the case. As the complainant’s father in this matter, his petitions lack
objectivity. F urthermore, his testimony contradicts that of the Social
Worker regarding, inter alia, t he dates/disclosure of the alleged incident
in 2025. It is submitted that he is intent on ensuring that the case proceeds
at all costs; however, these issues are matters to be challenged at trial.
b. Ms. Roxanne Titus’s affidavits contained untruths, and she is a
disgruntled former tenant who was asked t o vacate the Appellant’s house
due to disagreements between her and the Appellant and his wife
regarding her behavior and lifestyle in the presence of the children. She
moved out in April 2025.
c. Mrs. S[...], the grandmother, provided testimony that was contradictory to
her first affidavit and included additional facts that appear improbable,
particularly regarding the timing and circumstances under which the child
allegedly disclosed the incidents. Furthermore, the version differs from
that of her own mother , Mrs. V[...] A[...]. There was no supporting
evidence obtained from Ms. V. A[...].
d. Notably also no affidavit was handed averred to by Ms Danae, the
neighbour to whom the child allegedly gave the book to read, in which
the disclosure of sexual assault by the Appellant was purportedly made.
The Appellant averred that the above demonstrates weaknesses in the State’s
case.
ISSUES TO BE CONSIDERED
[25] This Court must determine the following issues:
a. Whether the court a quo exercised its discretion judicially.
b. Whether the Magistrate’s refusal of bail was based on a proper and
judicial exercise of discretion.
c. Whether material misdirection and reliance on speculative
considerations justify interference by this Court.
d. Whether the interests of justice permitted the granting of bail.
e. Whether, on a proper consideration of the totality of the evidence,
including the Appellant’s personal circumst ances, community standing,
and the availability of appropriate bail conditions, continued detention
was justified.
LEGAL POSITION
[26] The appeal to this Court was in terms of Section 65 of the CPA. Section
65(4) of the CPA provides that:
“(4) 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.”
[27] In S v Barber1 the court held at 220E-H:
“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.”
[28] In S v Porthen and Others 2 this Court decided, with reference to S v
Botha3, that the appeal court’s powers to consider an appeal against the refusal
of bail in terms of Section 65(4) are not to be constrained by the decision
in Barber.4 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 CPA.
1 1979 (4) SA 218 (D).
2 2004 (2) SACR 242 (C).
3 2002 (1) SACR 222 (SCA).
4 At paras [16]-[17].
[29] Kriegler J in t he Constitutional Court judgment of S v Dlamini S v
Dlamini, S v Dladla and Others; S v Joubert; S v Schietekat 5 emphasised the
need for a cautious approach and highlighted the limited field of application in
refusing bail on account of the provisions of Section 60(4)(e) and (8A).
[30] This clearly postulates the need for exceptional circumstances in this
regard, which is indicative that the application of these sections should be
limited to rare cases where the circumstances are justified. Furthermore, even if
such exceptional circumstances are established in respect hereof, they must be
weighed against Section 60(9) before a decision to refuse bail is taken.
[31] The strength of the State’s case has been held to be relevant to the
existence of 'exceptional circumstances.'6
[32] S v Rudolph 7 confirms that a strong rootedness in the community
constitutes an exceptional circumstance.8
DISCUSSION
[33] It is trite that a bail decision involves the exercise of discretion by the
court of first instance. An appellate court will not interfere merely because it
would have come to a different conclusion. It will, however, interfere where it
is shown that the discretion was not exercised judicially, or that the court a quo
committed a misdirection in law or on the facts.
5 CCT21/98, CCT22/98, CCT2/99, CCT4/99) [1999] ZACC 8; 1999 (4) SA 623 (CC); 1999 (7) BCLR 771
(CC); 1999 (2) SACR 51 (CC) (3 June 1999).
6 S v Botha en 'n Ander 2002(1) SACR 222 (SCA) at para [21], S v Viljoen 2002(2) SACR 550 (SCA) at para
[11].
7 2010 (1) SACR 262 (SCA).
8 At para 10.
[34] The Magistrate properly considered the facts of this case and correctly
found no grounds that Section 60(4)(a ) and (b) were likely to be committed by
the Appellant if he were to be released on bail.
[35] Section 60(4)(c), (d), and (e) , however, were the main reasons the
Magistrate denied bail. I believe that his decision on each was incorrect and I
address these individually below.
[36] It is apposite to quote all of Section 60(4) which provides:
‘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 endan ger the safety of the public 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 likeliho od that the accused, if he or she were released on bail,
will attempt to influence or intimidate witnesses 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 jeopa rdise 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 p eace or security; or
[sic]’.
[37] The o ffences listed in Schedule 1 to the Act include murder, culpable
homicide, rape, sexual assault, assault when a dangerous wound is inflicted, and
arson.
[38] I turn now to consider the provisions of these sections and to compare
and apply the above-mentioned case law, which has led this court to intervene ,
having found the Magistrate’s decision to be incorrect.
[39] In my view , the Magistrate was wrong in making a finding that the
Appellant had failed to show that , in the interests of justice , there were
exceptional circumstances that warranted his release on bail.
With regards to section 60(4)(c) - alleged likelihood he may interfere or
intimidate witnesses
[40] Mr Filton, for the Appellant, made submissions that the State opposed
bail based on allegations that the Appellant may interfere with witnesses, whilst
they led no evidence to support this. The fact that the Appellant knew the
complainant and maybe some of the other witnesses , without placing any
evidence before the court, circumstantial or direct, supporting this ground , was
wrong.
[41] Further submissions were that t he State sought the Appellant’s
incarceration for fear he might influence witnesses, solely because he resided in
the same community as the witnesses and was the stepfather of the complainant,
being married to her mother . This, it was submitted, was an incorrect approach,
as there was no evidence that he had attempted, or would attempt, to influence
any witnesses.
[42] Mr Snyman, for the State, repeated that the Appellant would influence the
state witnesses and that the Magistrate’s finding was correct. The Appellant was
held in high esteem in the Piketberg and Berg River Municipality, and therefore,
he would use his influence, as well as that of the biological mother of the child,
to intimidate or interfere with witnesses.
[43] I have considered these submissions and was of the view that the
Magistrate attached too much weight to the se factors, which seem to suggest
that the Appellant, because of his connection with high esteemed members of
the community, may go in cohort with these individuals to influence witnesses.
This finding , however, was not supported by evidence and constitute d a
speculative leap rather than a reasoned inference grounded in objective facts.
[44] Section 60(4)( c) of the CPA requires proof of a real likelihood of
interference with witnesses. Such a likelihood must be established on the basis
of concrete conduct or demonstrable facts. In my view , the mere existence of
positive community standing or associations with respected individuals does
not, without more, translate into a propensity to obstruct the administration of
justice.
[45] The evidence placed before the court a quo was deposed to by pastors, a
school principal /educator, senior community members and public office -
bearers, all of whom provided letters/sworn testimon ies regarding the
Appellant’s character and contribution to society. These deponents were
independent witnesses ; some took an oath giving th eir evidence by way of
affidavit and must have had a full appreciation of the legal consequences of
false testimony.
[46] To suggest, in the absence of any evidence, that the Appellant may utilise
his relationship with such individuals to influence witnesses not onl y amounted
to conjecture but also carrie d the troubling implication that these community
leaders were themselves susceptible to manipulation or prepared to compromise
their integrity.
[47] Moreover, to treat positive community relationships as a risk fac tor is to
invert the logic of bail jurisprudence. Good character, social accountability and
respected community ties are ordinarily regarded as stabilising factors that
mitigate, rather than heighten, the risk of unlawful conduct. To hold otherwise
would mean that the more responsible and socially integrated an accused person
is, the greater the perceived danger he poses — an approach that is neither
rational nor consistent with constitutional values.
[48] In the circumstances, the Appellant’s ties with principled and respected
community members and b eing a responsible husband and stepfather ought
properly to have been regarded as reducing the likelihood of interference with
the administration of justice. The Magistrate was incorrect to find otherwise.
[49] Furthermore, the Appellant was described in various witness affidavits as
a responsible stepfather and caregiver, deeply involved in the well-being of
children and vulnerable youth. This profile remained fundamentally
incompatible with the suggestion that he posed a danger to the integrity of the
judicial process.
[50] The Appellant’s role as a caring stepfather and a supportive spouse
demonstrated responsibility and moral restraint, not a disposition to interfere
with witnesses.
[51] In my view, it was incorrect for the Magistrate to also regard the
relationship between th e Appellant, his wife, and the complainant as a risk
factor, suggesting he might interfere with witnesses.
[52] The overwhelming community support shown, I found , to be wholly
inconsistent with the notion that the Appellant would act in a manner that
subverts justice. A person who has earned the trust of almost an entire
community over many years is not reasonably likely to jeopardize that standing
by interfering with witnesses.
With regards to Section 60(4)(d) - allegation that there is a likelihood he will
undermine or jeopardize the objectives or the proper functioning of the
criminal justice system, including the bail system.
[53] Mr Filton submitted that the Magistrate erred in finding that the
Appellant had done nothing in response to the report made by the complainant,
alleging sexual abuse by her paternal uncle. The Appellant’s evidence was that
he informed the mother of the child , his w ife, who confirmed this in her
affidavit.
[54] The issue regarding the Appellant's SAP69, which minimized his
previous convictions, was a mere error ; he did not dispute that he had previous
convictions.
[55] Mr Snyman submitted that the investigating officer testified before the
Magistrate, showing that the release of the Appellant on bail would bring the
criminal justice system into disrepute and jeopardize the proper functioning of
the system, and that the Appellant cannot be trusted.
[56] I agree with Mr Filton's argument; the Magistrate erred on the facts, the
mother of the child confirmed that the allegations of sexual assault by a paternal
uncle were reported to her by the Appellant. Therefore, there was no evi dence
to support the Magistrate’s finding that the Appellant had been withholding
reporting this serious crime to reflect that he has a propensity to jeopardize the
proper functioning of the justice system.
[57] Furthermore, I noted that the Magistrate also considered the Appellant’s
failure to disclose his previous conviction for assault with intent to cause
grievous bodily harm and relied on it against him.
[58] In my view , the Appellant had disclosed his previous convictions,
although the record later showed some inaccuracies. Any inconsistencies in the
Appellant’s disclosure of previous convictions were clarified on record by the
investigating officer. There is no evidence of deliberate non -disclosure. At
most, the discrepancy reflect s a lapse of memory rather than an intention to
mislead the court. Once the correct information was before the court, no adverse
inference was justified.
With regards to Section 60(4)(e): allegation that he might undermine public
confidence.
[59] Mr Filton submitted that the Magistrate misdirected himself to conclude
that the Appellant’s release would disturb public order or undermine public
peace and security. The commotion that took place during the tea break of the
bail application was unjustifiably considered , and the Magistrate erred in
treating community sentiment s as determinative and decisive in refusing bail.
There was no factual or legal basis placed before the Magistrate to conclude that
the Appellant would pose a threat to the public.
[60] Mr Snyman argued that the personal circumstances of the Appellant did
not constitute exceptional circumstances; the Magistrate’s findings cannot be
faulted.
[61] In my view, t he evidence reflected that the Appellant has played a
meaningful role in assisting with the rehabilitation of drug-dependent youth by
assisting them to access rehabilitation programmes and offering them
employment in the hair salon. Therefore, his contribution to crime prevention
and social stability is tangible and measurable.
[62] Public confidence in the criminal justice system is not enhanced by the
automatic refusal of bail, but by decisions that are rational, fair, and grounded in
evidence.
[63] Detaining an accused who enjoys overwhelming community confidence,
who has a prove n record of social upliftment, and who has no history of
violence or intimidation, risks creating the very perception of injustice which
Section 60(4)(e) seeks to prevent. A single conviction for assault with intent to
cause grievous bodily harm does not make him violent.
[64] His continued incarceration would have deprived the community of a
positive influence and a stabilizing presence. Far from promoting public
confidence, such detention may have been perceived as disproportionate and
unjust. In my view , the Magistrate’s decision under the above provision was
wrong as he failed to weigh in the above factors for con sideration in the
application of his discretion.
The Charges
[65] There is no obligation on the part of the applicant for bail to challenge the
strength of the state's case. It is not necessary to do so in order to establish
exceptional circumstances.
[66] Exceptional circumstances warranting the release of an applican t on bail
can be established without challenging the strength of the State’s case.9
However, if an accused person challenges the strength of the State’s case
against him in the bail proceedings, then in that event the challenge attracts a
burden of proof to show that there is a real likelihood that he will be acquitted at
trial.10
[67] In this instance , the Appellant did indeed se ek to challenge the strength
of the State's case. His argument for a finding that exceptional circumstances
existed, entitling him to be released on bail, relied inter alia on the assertion that
the State’s case was not as strong as a lleged. He submitted that there was no
medical evidence to support the alleged offence , the discrepancies in the
evidence of State witnesses, a lack of direct evidence, uncertainty regarding the
dates on which the alleged offences were committed, and that much of the
evidence was speculative and the complainant was a single witness.
[68] Further, his personal circumstances , together with the fact that he would
not evade trial and that he would not interfere with witnesses, established
exceptional circumstances as required. However, in order to enable the court to
9 S v Mathebula 2010 (1) SACR 55 (SCA) at para 12.
10 S v Mathebula (supra).
conclude that the State’s case was weak or that he was likely to be acquitted, he
was required to adduce convincing evidence to establish this.11
[69] This he did; the Magistrate in his judgment even made a finding that he did
not have enough evidence before him to determine the strength of the State's
case against the Appellant and therefore would not be able to determine
whether, if released, he would attempt to evade trial or commit further offences.
Refusing bail under the circumstances where the strength of the State’s case was
in doubt was a misdirection by the Magistrate.
[70] In that regard , I find that the court a quo placed undue and
disproportionate emphasis on the provisions of Section 60(4)(c),(d) and (e) of
the Act, without properly weighing these considerations against the
overwhelming personal, social and community circumstances of the Appellant,
as well as the substantial prejudice he stands to suffer should bail continue to be
refused. The possibility of a conviction remains doubtful.
[71] I also examined several factors that highlighted errors in the Magistrate’s
decision.
Gender Based Violence
[72] Mr Snyman made submissions with regard to G ender Based Violence
(“GBV”) cases, noting that such cases remain a pandemic in th e country, in
support of the Magistrate’s decision. He submitted that this court need ed to be
sensitive to these considerations and should dismiss the appeal.
11 S v Mpulampula (supra) at 135h; S v Mathebula (supra).
[73] Mr Filton replied that the constitutional rights of an accused person must
not be weighed out of the scale of justice in matters of this nature, even though
the country is faced with a number of GBV cases, which he agreed needed to be
harshly dealt with.
[74] It is so that the Magistrate also took into consideration the circumstances
in the country regarding GBV cases. A signed petition w as handed in court
against the bail application, and there was also a petition supporting that the
court grant bail.
[75] In my view, protecting complainants in GBV matters is essential, but that
protection must be achieved through evidence -based safeguards, such as
appropriate bail conditions, rather than through the denial of bail based on
hypothetical possibilities.
[76] The presumption of innocence remains a cornerstone of our criminal
justice system. Sensitivity to the complainant must coexist with fairness to the
accused. In my view , one cannot be sacrificed for the other , and the facts of
each case will differ and must be judged accordingly.
[77] The Magistrate was enjoined , in considering the interests of justice in
terms of Section 60(4), in particular (c), (d) and (e), not to unduly elevate their
significance but to assess them in conjunction with the factors contained
in Section 60(9). A failure to do so would conflict with the jealously guarded
right to freedom entrenched in our Constitution.12 Moreover, it remained
necessary for the court to enquire as to whether the ‘likelihood’ referred to
12 Section 35(1)(f).
in Section 60(4) existed, even if exceptional circumstances were found.13 In my
view, and as reflected above, such a likelihood did not exist.
Evidence by affidavit
[78] The Magistrate made an adverse finding against the Appellant for
presenting his bail application by way of affidavit.
[79] It has been held in a plethora of cases that bail proceedings are sui generis
and are not subject to the strict rules of trial procedure.14 Evidence may lawfully
be placed before the court by way of affidavit.15
[80] There is no legal requirement that evidence in bail proceedings must be
given viva voce. The court is enjoined to consider the totality of the information
placed before it, whether presented orally or by affidavit, in determining
whether the interests of justice permit the granting of bail.16
[81] Having held the use of affidavits against an accused amount ed to
penalising him for exercising a lawful procedural choice and was inconsistent
with the constitutional guarantees of fairness, dignity and equality before the
law. Bail proceedings are concerned with the assessment of risk, not with the
determination of guilt.17
[82] An accused person cannot be prejudiced for exercising a lawful
procedural right.18 Findings in bail proceedings must be grounded on facts and
13 S v Mohammed 1999 (2) SACR 507 (C).
14 S v Dlamini; S v Dladla; S v Joubert; S v Schietekat 1999 (4) SA 623 (CC).
15 S v Botha en ’n Ander 2002 (1) SACR 222 (SCA); S v Hlongwa 1990 (4) SA 375 (N).
16 S v Mathebula 2010 (1) SACR 55 (SCA).
17 S v Dlamini supra; S v Rudolph 2010 (1) SACR 262 (SCA).
18 S v Acheson 1991 (2) SA 805 (Nm).
not conjecture.19 The Appellant used an admissible tool to present his evidence
by way of affidavit.
[83] Accordingly, the reliance on affidavits in the present matter was entirely
proper and should not have been treated as a factor counting against the
Appellant. There exists no legal basis upon whic h a recognised and lawful
procedural method can be transformed into an adverse consideration in deciding
whether the interests of justice permit the granting of bail.
[84] Therefore, it was my view further that t he Magistrate also misdirected
himself in making an adverse decision against the accused due to his mere
election to proceed by affidavit.
Alternative address and bail conditions
[85] The Magistrate further failed to consider that any perceived concern
relating to the Appellant’s place of residence or his presence in the area where
the alleged incident occurred could easily and effectively have been addressed
through appropriate and stringen t bail conditions. The Magistrate , in his
decision on the point of financial harm and alternate address, held that:
“The defence in the alternative argued that the Court must consider bail and release
the accused and order that the accused resides in Citrusdal. This argument does not
make any sense. Even if the Court does consider bail and orders that the accused
resides in Citrusdal until finalisation of this matter, the accused and his family would
in any event suffer financially as the accused will not be able to attend his barbershop
and commence employment.”20
19 S v Bruintjies 2003 (2) SACR 575 (SCA).
20 Page 27 line 18-25, Bail proceedings Judgment dated 2025-10-29.
[86] I believe conditions such as restricting the Appellant’s move ment,
requiring him to live at an alternative address, and allowing access only for
work would have effectively managed any risk without needing continued
detention.
[87] Bail conditions exist precisely to balance the protection of the
administration of j ustice with the preservation of the accused’s liberty. The
failure to consider such less restrictive measures constitute d a material
misdirection, as incarceration should always remain a measure of last resort.
Financial prejudice
[88] In addition, and perhaps lastly, the court a quo did not properly engage
with the extensive and concrete financial prejudice flowing from the a ccused’s
continued detention. The Appellant is employed as a manager his incarceration
placed him losing his empl oyment and therefore his salary. This was not a
speculative harm but a real and imminent consequence, supported by evidence
placed before the court. His wife already had to sell her own business to pay for
legal fees and to support the household.
[89] The Magistrate made a cursory note on the fi nancial prejudice issue ,
stating that:
“This Court failed to agree with the defence that if bail is denied, the accused and
more specifically his family will suffer financially.”21
[90] The Magistrate failed to engage the evidence placed before him on this ,
which include d, amongst other things, that the closure or disruption of the
21 Page 27 line 15-17, Bail proceedings Judgment dated 2025-10-29.
Appellant’s business ha d far-reaching consequences beyond the Appellant
himself, as it would affect:
a. His minor children and his wife, who stood to suffer severe financial
and emotional hardship as a direct result of the loss of income.
b. His sister, who has minor children , is partially dependent on him ; she
lost her husband recently and would likewise be prejudiced.
c. Furthermore, the Appellant employ s several individuals whose
livelihoods, and the well-being of their families, were dependent on
the continuation of his business. The refusal of bail, therefore, affected
not only the Appellant but a wider circle of innocent persons who
relied on him for survival.
[91] The cumulative effect of this financial and social prejudice was not
properly weighed against the speculative risks relied upon by the Magistrate.
[92] The interests of justice require a proportional response. Where risks can
be managed through tailored bail conditions, and where detention would result
in widespread and irreversible harm to innocent dependants , continued
incarceration becomes excessive and unjust. In my view , that is the position in
this case.
[93] In that regard , I found that the Magistrate misdirected himself by
preferring detention over release with reasonable and practical bail conditions,
and by failing to attach due weigh t to the substantial financial hardship that
would be suffered by the Appellant, his family, his dependants, his employees
and their families.
[94] In my view , this omission constitute d a further misdirection , warranting
interference with the refusal of bail.
[95] Another factor that the Magistrate failed to carefully consider was that
this matter was already affecting the Appellant’s health. His hypertension
required medical attention while he was in custody . This medical condition
should have been taken into account, as it persuaded this court that it was in his
interest to be released on bail.
CONCLUSION
[96] In considering the evidence presented in the court a quo and the
reasoning of the Magistrate, I am of the view that he misdirected himself
materially on both the facts and the law.
[97] In these circumstances, and in terms of Section 65(4) of the CPA, this
court is empowered to set aside the decision of the Magistrate and to substitute
the decision that the lower court should have given.
[98] Having considered the evidence led by the accused and the state in the
court a quo, I am satisfied that the a ccused discharged the onus of
establishing exceptional circumstances and that the interests of justice permit
his release on bail.
[99] I was further satisfied that the basis of opposition by the State would be
adequately addressed by the imposition of appropriate bail conditions.
[100] These are the reasons that led this court to grant the order marked X, as
stipulated above.
___________________________
MAGONA-DANO, AJ
ACTING JUDGE OF THE
HIGH COURT OF SOUTH
AFRICA, WESTERN CAPE
DIVISION, CAPE TOWN
Appearances:
For the Appellant: Adv. M Filton
Instructed by: Borchards Attorneys Inc.
For the Respondent: Adv. L Snyman
Instructed by: DPP (Director of Public Prosecutions)