SAFLII Note: Certain personal/privat e details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Reportable / Not Reportable
Case no: A19/2026
In the matter between:
C[...] D[...] S[...] First Appellant
T[...] D[...] S[...] Second Appellant
and
THE STATE Respondent
Coram: Honourable Acting Justice SI Smith
Heard: 19 February 2026
Delivered: 20 February 2026
Neutral citation: The State versus C[...] D[...] S[...] & another (Appeal Case
no A19/2026) [2026] ZAWCHC … (19 February 2026)
This judgement is delivered electronically by circulation to the parties’ legal representatives’ email
addresses and will be deemed to have been delivered on 20 February 2026.
ORDER
The appeal against the refusal of bail for the first and second Appellant is dismissed.
JUDGMENT
INTRODUCTION
[1] This is an appeal against the refusal to grant bail to the Appellants by the District
Court Magistrate, Cape Town.
[2] The Appellants are charged with 25 counts. Th e State alleges that the Appellants
committed sexual and pornographic acts with their biological daughters, aged 3 and
8 years old, during February 2020 and April 2025. The charges include rape,
attempted s exual assault, making of and distributing pornogra phic videos of the
children, taking of nude photographs of the children, sexual grooming, using a child
for child pornography, compelled self -assault /masturbation, compelling a child to
witness self-masturbation, possession of child pornography and abuse or neglect of
a child.
[3] It is common cause that the Appellants are charged with offenses that fall within
the ambit of Schedule 6. The Appellants are therefor subject to Section 60(11)(a) of
the Criminal Procedure Act 51 of 77 (CPA), which provides that 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, haven 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.
[4] The appeal against the refusal of the Appellants appl ication for bail comes before
this court in terms of section 65(4) of the CPA which reads:
“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
is wrong, in which event the Court or Judge shall give in its opinion what the Lower
Court should have given”
[5] Section 60(4) of the CPA reads as follows:
“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 safety of the public, any person against whom the
offense in question was committed, or any other particular person or will
commit a Schedule 1 offense;
(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 likelihood 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 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”
The case for the Appellants is premised on the fa ct that the Magistrate erred in
concluding that:
1. both Appellants did not discharge the onus on them to prove that there are
exceptional circumstances that, in the interest of justice, permit their release.
2. there is a likelihood that both Appellants will endanger the safety of their two
minor children.
3. that there is a likelihood that both Appellants attempt to evade their trial.
4. that there is a real likelihood that the appellants would influence or intimidate
the witnesses, especially the two minor children.
5. the Appellants will jeopardise the proper functi oning of the criminal justice
system.
FACTS
[6] The Federal Bureau of Investigation (FBI), during 2025, alerted the South African
Authorities that two adults linked to Dizzy’s Pub and Restaurant in Camps Bay are
involved in child pornography images distrib uted on websites. The images identified
the two Appellants and their minor daughters (MV1 and MV2) engaging in explicit
sexual conduct.
On the 10 th of June 2025 the South African Police executed a search wa rrant at the
home of the Appellants. Laptops, cell ular phones and other evidence were seized.
The Appellants and their minor children were identified from the images received
from the FBI.
Due to some of the images found on the devices during the search, the two
Appellants were arrested and brought before court on 12 June 2025. The children
were placed in a foster home for a short while, until the Children’s Court, Cape
Town, placed them in the care of a safety parent on 22/6/2025. The safety parent is
the sister of the second Appellant. In the judgement, Magistrate V. Duimelaar,
ordered that there will be no contact whatsoever between the Appellants and their
two minor daughters (MV1 and MV2) 1
[7] The Appellants contended th at the refusal of bail is based on insufficient
evidence, and undue consideration of community perceptions, the well -being of the
minor children, the health issues of both the Appellants, the strength of th e States
case, the Appellants status in respect of their income and employment and the ability
and willingness of the Appellants to stand their trial. They further contended that this
1 Judgement of Magistrate V. Duimelaar, Children’s Court, Cape Town, delivered on 22/06/2025 p.
597 of
Bundle
was at the expense of their constitutional rights to the presumption of innocence and
liberty.
Applicable law and analysis
[8] To determine if the Applicants have, on a balance of probabilities, established the
existence of extraordinary circumstances, the court must consider the facts of the
specific case. Facts that may be sufficient in one matter, may not be sufficient t o
justify the release on bail in another matter.
[9] The court hearing the appeal should be at liberty to undertake its own analysis of
the evidence when considering if the onus placed on the Appellant by Section 60(11)
of the CPA, was discharged. 2
[10] The “exceptional circumstances” as referred to in Section 60(11)(a), is generally
speaking, something unusual, extraordinary, remarkable, peculiar or simply
different.3 All the evidence has to be considered to establish if exceptional
circumstances are present in a specific case.
[11] The exceptionality of the circumstances must persuade the court that it would be
in the interest of justice to release the accused on bail. 4
[12] The Court seized with the bail application cannot evaluate and make a finding
on the evidence of the matter. That is the duty of the trial court. However, during the
bail hearing, it is imperative for the court to hear the State on the merits, to determine
2 S v. Porthen and Others 2004(2) SACR 242(C) at p. 248(e) and 249 (c - e)
3 S v. Petersen 2008(2) SACR 355 p. 370(j)
4 Petersen p. 371
the strength of the States case. The State, in this matter, is relying on witnesses, real
evidence (video and photographs) and medical evidence on the gynaecological
examination of MV1 and MV2. The medical evidence in respect of both MV1 and
MV2 supports the allegations made by the State. The State has a strong prima facie
case against both the Appellants.
[13] The charges against the two Appellants, by the mere nature thereof, will induce
a sense of shock and public outcry, nationally and internationally.
[14] Both the Appellants have a fixed address. The first Appellant is gainfully
employed. Both the Appellants have strong family ties in South Africa. They have a
multitude of friends in South Africa and abroad. Despite their positive personal
circumstances, they are facing charges of a very serious nature that is sanctioned
with life imprisonment. The travelling documents of the Appellants was at the time of
the bail hearing in the possession of their Legal Counsel. Even if their travelling
documents are handed over to the authorities , the nature of the charges against the
Appellants will always be an incentive to evade their trial. They have the financial
means to do so.
[15] The real evidence that the State is relying on is evidence that is accessible from
an electronic device like a cellular phone or a laptop. Access to these sites can be
obtained remotely.
[16] Due to the biological relationship between the Appellants and MV1 and MV2,
given their young age and the fact that they are placed with a family member, there
is a real likelihood that the Appellants, if they are released on bail, will influence and,
or intimidate the State witnesses and place their safety at risk.
[17] The medical condition of both the Appellants was properly vetted during the bail
hearing. Pollsmoor prison is aware and attending to the medical issues.
[18] The contention by Counsel for the defense that the probation officer (Mazeka)
reported positively on contact between the Appellants and their minor daughters, is
flawed. It is very clear from Mazeka’s firs t report 5 that it will not be in the best
interest of the children to return to the care of the Appellants. During the bail hearing
the Magistrate requested Mazeka to interview MV1 and MV2 again in respect of
contact with the Appellants.
[19] In Mazeka’s final report 6, requested by the bail Court, she a dvised that any
contact, between the Appellants and MV1 and MV2, that the Bail Court may
consider, be approached with “extreme caution”. It was not her recommendation that
contact be established. Mazeka also advised that the children miss their parents, bu t
that due to their innocence and young age do not understand the seriousness of the
offenses perpetrated against them.
[20] Maseka further states in her final report that contact between the appellants and
MV1 and MV2, “may further contribute to possible trauma and skewed development
potential as they might be further exposed to emotional, manipulated and distorted
norms around nudity”.
[21] The best interest of a child is paramount, but not absolute. The r elationship of
children’s rights in relation to ot her rights contained in the Bill of Rights may require
that their ambit be limited.7
5 Exh “J” dated 24/06/2025, p 518 of Bundle (2)
6 Exh “P” dated 08/09/2025, p 584 of Bundle (2)
7 S v M 2007(2) SACR 539 CC
[22] This court is seized only with the appeal against the findings of the District Court
Magistrate, Cape Town.
[23] I need to mention that this Court, as the Upper Guar dian of minor children, find
the allegations of the State, in respect of the behavior of the safety parent, (referred
to in the judgment of the Children’s Court and in the Bail Application), of grave
concern.
[24] It is imperative that the National Prosecu ting Authority, in conjunction with the
South African Police, the investigating officer and social worker Mazeka, diligently
monitor the situation to ensure not only the safety and well -being of MV1 and MV2,
but also to ensure that the investigation by the authorities seized with bringing this
matter to trial, is not impeded.
[25] The real evidence handed to this Court in a sealed envelope on 18 February
2026, was not viewed. A description thereof was given during the bail hearing. The
sealed envelope was handed back to Advocate Kortje of the Office of the Director of
Public Prosecutions for safekeeping.
[26] This Court is not persuaded that the Magistrate hearing the bail application, has
exercised her discretion wrongly by refusing bail for both the Appel lants. The
Appellants have not discharged the onus placed on them by Section 60(11) of the
CPA. This Court not likely to interfere with the refusal of bail for the first and second
Appellant.
ORDER
[27] The appeal against the refusal of bail for the first and second Appellant is
dismissed.
_________________________________
S I SMITH
ACTING JUDGE OF THE HIGH COURT
Appearances
For the Appellant/s: Mr. William Booth
For the Respondent: Adv. EA Kortje