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)
Case No: A314/2025
District Court (Cape Town) Case No: 16/530/2025
In the appeal between:
G[...] P[...] Appellant
and
THE STATE Respondent
Hearing: 19 February 2026
Judgment: 3 March 2026
Summary: Bail Appeal; Schedule 6; whether exceptional circumstances in terms
of section s60(11)(a) of the Criminal Procedure Act 51 of 1977 established;
whether ordinary circumstances established to an exceptional degree.
ORDER
1. The appellant’s appeal against the refusal of bail is upheld.
2. The decision of the Court a quo is set aside and is substituted with an order in the
following terms:
“The accused shall be released on bail on payment of an amount of R10 000.00
on the following conditions:
1. The accused attends court on the dates ordered by the court and shall remain
in attendance until the case has been finali sed unless otherwise ordered by
the court.
2. The accused shall not interfere with, or have any contact or communication
with, directly or indirectly, the complainant or any of the state witnesses.
3. The accused shall not interfere, directly or indirectly, with the investigation of
the charges against him.
4. The accused shall not reside at or attend at 2 […] M[…] Road, Tijgerhof,
Milnerton, Cape Town, and shall instead reside at alternative accommodation
which is presently The C[...] Hotel, 3[…] H[…] Street, Cape Town.
5. The accused shall not change his residential address without being authorised
to do so by order of the Magistrates’ court.
6. The accused’s undertaking not to apply for a passport is recorded.
7. The accused shall report to the charge office of the South African Police
Service Station in Cape Town Central every Monday and Friday between the
hours of 06h00 and 19h00.
8. The investigating officers are directed to furnish the station commander of the
South African Police Service Station in Cape Town Central with a copy of the
court order herein.
9. The station commander of the South African Police Service Station in Cape
Town Central or any person designated thereto by him/her, is directed to
immediately inform either of the investigating officers should the accused
default in reporting as ordered above.
10. The accused may not leave the jurisdictional area of the City of Cape Town,
save with the written permission of either of the investigating officers in this
matter or, failing that, the court.
matter or, failing that, the court.
11. Bail may be revoked by the court if the accused breaches any of these
conditions.”
JUDGMENT
Handed down by email to the parties on 3 March 2026
Judgment handed down electronically by circulation to the parties’ legal representatives
by email and released to SAFLII.
KANTOR, AJ:
1. The appellant is charged with rape, sexual assault and assault with the intent to do
grievous bodily harm. The complainant is his daughter.
2. He applied for bail in the Cape Town Magistrates’ Court. The application was
dismissed on 28 October 2025.
3. He appeals against that decision to this court.
4. This is a difficult matter which brings into sharp focus the balancing of two highly
important, but in this context, competing, interests. As held by the Constitutional
Court in S v Dlamini & Others 1999 (2) SACR 51 (CC) at paragraph 64, it is an
exercise which involves “… the balance between the liberty interests of the accused and the
interests of society in denying the accused bail.”
5. In the context of the charges in this matter, the interests of society cannot be
under-stated. Rape and gender -based violence are serious and heinous crimes
permeating our society in the form of an unrelenting and everyday scourge. One
need go no further than comments of the Court a quo in its judgment: that what it
faces on a daily basis was ‘ shocking’, that it ‘happens from the age of a toddler up
to the age of the last complainant was 84 when raped by her own child and
murdered thereafter ’ and that ‘ there is something wrong with our society.’ This
instils a disturbing sense of shock and distress. In S v Chapman 1997 (3) SA 341
(SCA) at 344J, it was held that “Rape is a very serious offence, constituting as it
does a humiliating, degrading and brutal invasion of the privacy, the dignit y and
the person of the victim.”
6. As explored in some detail below, while bail has been made all the more difficult to
be granted in respect of these serious offences, it has not been outlawed.
Personal liberty is a cherished right protected in our law. At the individual level, it
must be considered, on all the cumulative circumstances of the case, in balance
with the interests of society. In this regard, see S v Branco 2002 (1) SACR 531 (W)
at 533.
The statutory provisions in respect of bail
7. Section 35(1)(1)(f) of the Constitution Act of 1996 provides as follows:
“Everyone who is arrested for allegedly committing an offence has the right … (f) to be
released from detention if the interests of justice permit, subject to reasonable
conditions.”
8. Section 60(4) of the Criminal Procedure Act 51 of 1977 (‘the CPA’), to be applied
with the factors in section 60(5) to 60(8A) thereof, provides as follows:
“(4) 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
offence in question was allegedly committed, or any other 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; 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;”
9. Section 60(9) of the CPA provides as follows:
“(9) 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 such delay;
(d) any financial loss which the accused may suffer owing to his or her detention;
(e) any impediment to the preparation of the accused’s 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; or
(g) any other factor which in the opinion of the court should be taken into
account.”
10. Section 60(11)(a) of the CPA provides as follows:
account.”
10. Section 60(11)(a) of the CPA provides as follows:
“Notwithstanding any provision of this Act, where an accused is charged with an offence
—
(a) 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; [my underlining]
11. Schedule 6 of the CPA sets out the offences which attract the evidentiary burden
for an accused in respect of bail provided for in section 60(11)(a) of the CPA. It is
common cause that the appellant is charged with an offence contained in
Schedule 6 of the CPA. In my view, that common cause position is correct. The
consequence of this is that section 60(11)(a) of the CPA is implicated and the onus
was on the appellant to establish exceptional circumstances in order for bail to be
granted.
12. This means that bail is only to be granted if none of the section 60(4) ‘likelihoods’
are established, the appellant satisfies the on us on a balance of probabilities of
showing that exceptional circumstances exist and that it is in the interests of justice
for bail to be granted (section 60(11)(a) of the CPA). S v Petersen 2008 (2) SACR
355 (C) at paragraph 7, Rudolph v S (484/2009) [20 09] ZASCA 133; 2010 (1)
SACR 262 (SCA) [2010] 2 All SA 178 (SCA) (30 September 2009) at paragraph 9.
The meaning of exceptional circumstances for the purposes of section 60(11)(a)
13. This is core to this appeal.
14. In Petersen it was held at paragraph 56:
“In the context of section 60(11) (a) the exceptionality of the circumstances must be such
as to persuade a court that it would be in the interests of justice to order the release of
the accused person. This may, of course, me an different things to different people, so
that allowance should be made for a certain measure of flexibility in the judicial
approach to the question. See S v Mohamed 1999(2) SACR 507 (C) at 513 f-515f. In
essence the court will be exercising a value judg ment in accordance with all the relevant
facts and circumstances, and with reference to all the applicable legal criteria.”
[my underlining]
15. As to the exercise of a value judgment, see also:
15.1. S v Sithole and Others (7032/11) [2011] ZAKZDHC 36; 2012 (1) SACR 586
(KZD) (19 August 2011) at paragraph 20:
“The concept ‘exceptional circumstances’, which has not been defined, has meant
different things to different people. In my view, what is expected of a court is to
exercise a value judgment in accordance with all the evidence and applying the
relevant legal criteria.”
15.2. S v Botha en 'n Ander (336/01) [2001] ZASCA 146; [2002] 2 All SA 577 (A);
2002 (2) SA 680 (SCA); 2002 (1) SACR 222 (SCA) (30 November 2001) at
paragraph 19:
“Dit is vir die hof om in elke saak in die besondere omstandighede van daardie saak
'n waarde-oordeel te vel of die bew ese omstandighede van so 'n aard is dat dit as
buitengewoon aangemerk kan word.” [my translation: It is for the court in each
case in the particular circumstances of that case to make a value judgment
whether the proven circumstances are of such a nat ure that they can be regarded
as exceptional.”]
15.3. S v Porthen 2004 (2) SACR 242 (C) at paragraphs 12 and 13.
16. In Dlamini the Constitutional Court held as follows at paragraph 79 in regard to the
above statutory provisions:
“Section 60(11)(a) therefore does not create an onus where nothing of the kind existed
before. It describes how it is to be discharged, and adds to its weight . As in the case of
reliance on any other right in the Bill of Rights, if accused persons wish to rely on the
provisions of s 35(1)(f), they must bring themselves within its ambit … The court must
be satisfied that ‘the interests of justice permit’ the release from detention …”
[my underlining]
17. The effect of section 60(11)(a) of the CPA is that the applicant for bail must
adduce evidence which satisfies the court that exceptional circumstances exist
which in the interests of justice permit his or her release. As held in Dlamini at
paragraph 64:
“These are factors, therefore, which in the past would have been considered in
determining whether bail should be granted. However, s 60(11)(a) does more than
restate the ordinary principles of bail. It states that where an accused is charged with a
sch 6 offence, the exercise to be undertaken by the judicial officer in determining
whether bail should be granted is not the ordinary exercise established by sub -ss 60(4) -
(9) (and required by s 35(1)(f)) in which the interests of the accused in liberty are
weighed against the factors that would suggest that bail be refused in the interests of
society. Section 60(11)(a) contemplates an exercise in which the balance between the
liberty interests of the accused and the interests of society in denying the accus ed bail,
will be resolved in favour of the denial of bail, unless “exceptional circumstances” are
shown by the accused to exist . This exercise is one which departs from the
constitutional standard set by s 35(1)(f). Its effect is to add weight to the sca les against
the liberty interest of the accused and to render bail more difficult to obtain than it
would have been if the ordinary constitutional test of the “interests of justice” were to
be applied.”
18. The effect of the provision is that there is not an outright ban on bail for Schedule 6
offences: Dlamini at paragraph 74.
19. Exceptional circumstances plainly can include relevant and material circumstances
beyond those covered by section 60(4) to (9), but can also reside within the
circumstances enumerated therein, as held in Dlamini at paragraph 76:
“Likewise I do not agree that, because of the wide variety of “ordinary circumstances”
“Likewise I do not agree that, because of the wide variety of “ordinary circumstances”
enumerated in sub -ss (4) to (9) , it is virtually impossible to imagine what would
constitute “exceptional circumstances”, and that the prospects of their existing are
negligible. In requiring that the circumstances proved be exceptional, the subsection
does not say they must be circums tances above and beyond, and generically different
from those enumerated.”
20. ‘Exceptional circumstances’ can therefore be found in the ‘ wide variety’ of factors
‘enumerated in sub-ss (4) to (9)’. The description ‘wide variety’ is, in my view, most
suitable: there are fifty specific instances enumerated within the rubric of sections
60(4) to (9).1
21. Rudolph at paragraph 9 (citing Dlamini at paragraphs 64, 76 and 78 and Botha at
paragraph 19) holds as follows:
“The section places an onus on the appellant to produce proof, on a balance of
probability, that ‘exceptional circumstances exist which in the interests of justice permit
his’ release. It ‘contemplates an exercise in which the balance between the liberty
interests of the accused and the interests of society in denying the accused bail, will be
resolved in favour of the denial of bail, unless “exceptional circumstances” are shown by
the accused to exist’. Exceptional circumstances do not mean that ‘they must be
circumstances above and beyond, and generally different from those enumerated’ in ss
60(4) to (9). In fact, ordinary circumstances present to an exceptional degree , may lead
to a finding that release on bail is justified.”
22. This means that circumstances beyond those enumerated in sections 60(4) to (9)
do not have to be established for exceptional circumstances to be established. In
this regard, the above dictum of the Supreme Court of Appeal establishes that “…
ordinary circumstances present to an exceptional degree will constitute
exceptional circumstances.”
23. What this sentence means, in the context of the other authority quoted above (and
further authority dealt with below), is, in my view, a legal lynchpin of this appeal, as
will appear from the discussion in this section and the evaluation below.
1 This count, which is mine, includes each of the provisions below the letter level (eg (a)), such as numerals
(eg (i)) and double letters (eg (aa)) as instances and excludes ‘ any other factor’ instances at the end of some
of the sub-sections.
24. As I see it, that sentence can mean evidence through two possible prisms relevant
to this matter . The first is uncontroversial, namely that a particular (or more than
one) ordinary circumstance of the specific instances enumerated is present to an
exceptional degree. An obvious example is the state of health of an accused which
may require 24 -hour hospitalisation which cannot happen in prison. Another is
whether the accused’s business which employs fifty persons would collapse in his
absence. This is plainly a value judgment to be made by the court.
25. The second possible prism was contentious in argument in this appeal, namely
whether the cumulative effect of the existence of a sufficient extent (in overall
effect) of the ordinary circumstances in the above sense may reach a point at
which it is ‘ordinary circumstances present to an exceptional degree’. This will be referred to
as the ‘ Cumulative Effect ’. The words overall effect are used because I do not
think that this can be a crude scoreboard counting exercise but, ultimately, a value
judgment. Some factors per se may be of less materiality than others in a
particular case or may on the facts thereof be exceptional to much greater degree
and almost on their own be decisive of the matter. All of this, too, would plainly be
a value judgment to be made by the court.
26. There is authority which appears to be in support of the Cumulative Effect which
will now be considered in some detail because it was challenged in argument.
27. Amongst my research prior to the hearing of the matter, I came across the matter
of Makibi v S (C&R: 332/2010) [2010] ZAECGHC 127 (17 December 2010) . I
provided both counsel with copies of that judgment shortly before the hearing.
Makibi is a matter in which a refusal of bail was set aside on appeal in relatively
similar circumstances (there are some differences) and also involving a charge of
the rape of a daughter by her father (for another similar matter see Gumbo v S
(A130/2017) [2017 ] ZAGPJHC 147 (12 May 2017) ). It was held as follows at
paragraph 6 thereof:
“In evaluating the evidence, there can be in my view be little doubt that the magistrate
has misdirected herself by only concentrating to find such circumstances over and
above t hose enumerated in s. 60(4) -(9), despite the fact that the evidence clearly
established that there was no likelihood that any of the consequences contemplated in
s.60(4) would follow upon the release of the appellant on bail.” [my underlining]
28. The words I consider to be key are those underlined. They support the Cumulative
Effect mentioned above. The State Advocate submitted that the court was wrong
in holding as it did and that the meaning should be limited to the first described
above. It was also submitted that the courts should guard against (1) creating a
reverse onus and against (2) the distinction between the different tests for bail for
Schedule 5 and Schedule 6 offences becoming illusory. I do not see how the
Cumulative Effect could result i n a reverse onus because , if it applies , it would
nonetheless remain the onus of an accused to prove the cumulative effect of
ordinary circumstances to an exceptional degree. The Schedule 5 and Schedule 6
point as contended by the State Advocate is more fo rceful and will be considered
further below.
29. Petersen at paragraph 56, quoted above, includes the following: “In the context of
section 60(11) (a) the exceptionality of the circumstances … allowance should be made for a
certain measure of flexibility in t he judicial approach to the question ... In essence the court will
be exercising a value judgment in accordance with all the relevant facts and circumstances, and
with reference to all the applicable legal criteria.” [my underlining]
30. The recognition of a cumulative effect is to be found in S v Bruintjies 2003 (2)
SACR 575 (SCA) in which it was held at paragraph 6:
“What is required is that the court consider all relevant factors and determine whether
individually or cumulatively they warrant a finding that circumstances of an exceptional
nature exist which justify his or her release . What is exceptional cannot be defined in
isolation from the r elevant facts, save to say that the legislature clearly had in mind
circumstances which remove the applicant from the ordinary run and which serve at
least to mitigate the serious limitation of freedom which the legislature has attached to
the commission of a schedule 6 offence.” [words underlined by me]
31. Similarly, in S v DV & others 2012 (2) SACR (GNP) at paragraph 8, the cumulative
effect of various circumstances constituted exceptional circumstances.
32. In Hendricks v S CPD case no A714/98 1 October 1998 (unreported) this court
held as follows:
“[It was] submitted on behalf of the accused that, in dete rmining whether or not
exceptional circumstances have been shown, the cumulative effect of all the
circumstances of each particular case must be evaluated and not each individual
circumstance, as was done by the Magistrate in the present case. I agree with this
submission. In my judgment it is the only sensible and logical approach to the provision
in question. It recognises the fundamental fact that, although a series of individual
factors, taken in isolation, may not be exceptional, it may well be excepti onal to
encounter them simultaneously and collectively in combination.” 2
2 The judgment wa s in Afrikaans. The translation is that of the author of Bail A Practitioner’s Guide 3ed
Johan van der Berg at page 100 (the Afrikaans text is quoted in footnote 160 at page 100 thereof). Court staff
located the judgment from the court file, for which I am grateful to them. The paragraph quoted began with
the words “Adv Erasmus het”. Save for that, and that I would perhaps replace ‘recognises’ in the last
sentence of the translation with ‘lends recognition to’, it appears to me that the translation in Van der Berg
is accurate.
33. Hendricks was referred to in footnote 103 of Dlamini at paragraph 76 in which it is
described as one of “… three of the unreported judgments that were handed up,
namely … Hendriks v The State an unreported decision of the Cape of Good Hope
High Court, case A714/98 (1 October 1998). ” Save for Dlamini not having the ‘c’ in
Hendricks as the name is (correctly) spelt in Van der Berg, the citation of the case
is the same.
34. Hendricks is a decision of this division which is direct authority for the Cumulative
Effect discussed above. I am bound by it unless I consider it to be clearly wrongly
decided. I consider its approach to be appropriate, correct and consistent with the
above authority. Bruintjies is a decision of the Supreme Court of Appeal which I
consider to be of materially the same effect. Accordingly, to consider each
individual circumstance only separately or independently, as opposed to
evaluating the cumulative effect of all the circumstances of each particular case
and making a value judgment thereon, would be a misdirection.
35. Some further support, stated less straightforwardly, can be found in S v H 1999 (1)
SACR 72 (W) in which it was held at 77f that:
“What a court is called upon to do is to examine all the relevant considerations, not
individually, but as a whole, in deciding whether an accused person has established
something out of the ordinary or unusual which entitles him to relief under s 60(11)(a) of
the Act.”
36. Dlamini at paragraph 74 confirmed that section 60(11)(a) does not ban bail for
certain offences: “ Section 60(11)(a) does not contain an outright ban on bail in
relation to certain offences, but leaves the particular circumstances of each case to
be considered by the presiding officer. The ability to consider the circumstances of
each case affords flexibility that diminishes the overall impact of the provision. ” In
S v Mohammed 1999 (2) SACR 507 (C) at 515f, this court commented that “ Such
flexibility and discretion was, I apprehend, one of the factors which saves s
60(11)(a) from constitutional invalidity. ” Referring to that decision, it was held in
Mququ v S (CA&R78/2019) [2019] ZAECGHC 55; 2019 (2) SACR 207 (ECG) (14
May 2019) at paragraph 6 that “… a measure of flexibility in the judicial approach
to the determination of “exceptional circumstances” is permitted.”
37. In Josephs v S 2001 (1) SACR 659 (C) , this court held as follows at 668i:
“Showing ‘exceptional circumstances’ for the purposes of s 60(11) of the CPA
does not posit a standard which would render it impossible for an unexceptional,
but deserving applicant to make out a case for bail.”
38. I do not consider the Cumulative Effect to create any onus for the State nor to turn
a bail hearing for a Schedule 6 offence into one for a Schedule 5 offence (or to
result in the difference between them disappearing), as argued by the State
Advocate. Reasons for this are to be found in Dlamini, portion of paragraph 79 of
which explains that the onus is on the accused and that section 60(11)(a) “ describes
how it is to be discharged, and adds to its weight” and portion of paragraph 64 of which,
quoted above, which describes the effect of section 60(11)(a) (my underlining): “Its
effect is to add weight to the scales against the liberty interest of the accused and to render bail
more difficult to obtain than it would have been if the ordinary constitutional test of the
“interests of justice” were to be applied.” The way I read this is that it amounts to a
greater level or standard of proof, to be applied to the same evidence, required of
an accused to satisfy an onus. Judges and Magistrates routinely do this on a
regular basis in both criminal and civil cases. Common examples include: on the
same facts, different conclusions can be reached when applying the standards of a
prima facie case and a balance of probabilities to interim interdicts and final
interdicts and also to applications for provisional sequestration or liquidation and
final sequestration or liquidation; similarly, on the same facts, different conclusions
can be reached when applying the test for a discharge of an accused in terms of
section 174 of the CPA and the standard of proof of ‘beyond reasonable doubt’
should the accused clo se his/her case without leading evidence. Courts can, and
do, come to different decisions on the same evidence based on these different
standards of proof.
39. For an example of an application of the principle resulting in there being enough
weight in the sca les “which tipped the balance ” in an appellant’s favour, see S v
Porthen 2004 (2) SACR 242 (C) at paragraph 58 in which accumulated ordinary
circumstances were the factors that tipped the balance (or, out another way,
resulted in the onus being satisfied).
40. Accordingly, with weight added to the scales, on the same evidence of ordinary
circumstances, the court can come to different conclusions on applications for bail
involving a charge in respect of a Schedule 6 offence and a Schedule 5 offence.
This accords with the flexibility in the enquiry recognised in the authority
considered above.
41. In the result, I am of the view, that ‘ ordinary circumstances present to an exceptional
degree’ for the purposes of exceptional circumstances in section 60(11)( a) of the
Act includes the cumulative effect of ordinary circumstances in the sense that ,
while a series of individual factors, taken in isolation, may not be exceptional, it
may well be exceptional to encounter them simultaneously and collectively in
combination. In other words, should all, or a sufficiently substantial number, of
these ordinary circumstances be established to a sufficiently material degree , a
tipping point may be reached (beyond that required for a schedule 5 offence:
more weight on scales ) at which their cumulative weight amounts to exceptional
circumstances (this is what has been referred to above as the Cumulative Effect).
As mentioned, that is plainly a value judgment to be made by the court.
The test on appeal against the decision to refuse bail
42. Section 65(4) of the CPA provides as follows:
“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;”
43. In order for an appeal court to interfere with the decision of a court a quo in a bail
application, it was held as follows at 220 in S v Barber 1979 (4) SA 218 (D) (see
also Panayiotou v S (CA&R 06/2015) [2015 ] ZAECGHC 73 (28 July 2015) at
paragraphs 26 and 27):
“It is well known that the powers of this Court are largely limited where the matter comes
before it on appeal and not as a substantive application for bail. This Court has to be
persuaded that the magistrate exercised the discretion which he has wrongful ly.
Accordingly, although this Court may have a different view, it should not substitute its
own view for that of the magistrate because that would be an unfair interference with
the magistrate’s exercise of his discretion. I think that it should be stress ed that, no
matter what this Court’s own views are, the real question is whether it can be said that
the magistrate who had the discretion to grant bail exercised that discretion wrongly.”
44. The approach in this regard was explained in this court in S v Po rthen 2004 (2)
SACR 242 (C) at paragraphs 8, 9 , 14 and 1 5 as follows (cited in other cases,
including Killian v S [2021] ZAWCHC 100 (24 May 2021) at para [8] and
Mangombe v S (A75/2025) [2026] ZAGPJHC 91 (6 February 2026) at paragraph
7):
“[8] When considering the extent of an appellate Court’s power to interfere with a
decision of a lower court entailing the exercise by the lower court of a discret ion, it is
necessary to know whether the discretion in issue is one in the narrow or wide sense of
the term …”
“[9] Where the lower court has exercised a discretion in the wide rather than the narrow
sense the Court of appeal ‘is entitled to substitute its view for that of the court which
heard the matter and is not precluded from interfering unless it concludes tha t the
lower court has not exercised a judicial discretion’.”
“[14] On the issue of the existence of ‘extraordinary circumstances’ within the meaning
of s 60 (11) (a) of the CPA, there is a ‘formal onus’ of proof on the applicant for bail. The
ordinary equitable test of the interests of justice determined according to the exemplary
list of considerations set out in s 60 (4)–(9) of the Act has to be applied differently. Se S v
Dlamini (supra in para [61]). In my view, a court making the determination whether or
not that onus of proof has been discharged exercises a discretionary power in the wide
not that onus of proof has been discharged exercises a discretionary power in the wide
sense of discretion. The appellate Court is, in terms of s 65 (4) of the C PA, enjoined to
interfere with the lowe r court ’s decision of a bail application if it is satisfied that the
lower court`s decision was wrong.”
“[15] Accordingly, in a case like the present where the magistrate refused bail because he
found that the appellants had not discharged the onus on them in terms of s 60(11)(a) of
the CPA, if this Court, on its assessment of the evidence, comes to the conclusion that
the applicants for bail did discharge the burden of proof, it must follow (i) that the lower
court’s decision was ‘wrong’ within the meani ng of s 65(4) and (ii) that this Court can
substitute its own decision in the matter.”
The material before the court a quo
45. The following was amongst the material placed before the court a quo by the
appellant:
45.1. The appellant has no previous convictions, other pending charges or
outstanding warrants.
45.2. He has previously been charged with the offence of negligent/reckless
driving. He attended all court appearances required of him and the
charges were withdrawn.
45.3. He is 39 years old, is married and had (until his arrest) a fixed address
where he lived with his wife, their daughter and mother-in-law.
45.4. He has recorded that he understands that he cannot, and will not, live with
any of them because of the pending charges in respect of which his wife
and mother-in-law may be witnesses and his daughter is the complainant
(although she does not appear to live at their home anymore).
45.5. He supports himself, his wife, his mother -in-law and his daughter (this was
the case at the time of the application for bail).
45.6. Should he be denied bail he will lose his employment, which will lead to
undue financial hardships, not only for him and the complainant but also
his wife and her mother who he supports financially.
45.7. He has been employed since 2007 after he finished his studies.
45.8. He is currently employed as the food and beverage manager at the C[...]
Hotel, earning approximately R39 700 ‘ gross’ and R30 200 ‘ take
home’ per month.
45.9. His employer confirmed in an affidavit that his employment will be
continued pending the determination of his criminal matter.
45.10. His employer has also confirmed in an affidavit that he can live at the hotel
where he works pending the determination of his criminal matter. This was
confirmed in an affidavit by Constable Solomzi Ngunda, one of the two c o-
investigating officers.
45.11. He was informed by his attorney on 28 October 2025 (the date of the bail
application) that he (his attorney) had received information from the
appellant’s step-father that the complainant had apparently left home and
moved in with her boyfriend in Brackenfell. He has no personal knowledge
whether this is correct.
45.12. He records that ‘ I have in the past disciplined our daughter when she was
rude, cheeky, and/or disobedient. I have been advised by my attorney of
record that same can technically constitute assault common. I do not know
what incident or incidents she is referring to. Be that as it may, once we
receive the content of the docket, I will be in a position to see what she is
alleging in this regard and respond appropriately thereto.’
45.13. He denies any sexual assault or rape of his daughter. He described the
allegations as ‘ sick and untrue’ . He states that ‘ I do not need to see any
allegations in this regard as I know I am innocent’.
45.14. His step -father deposed to an affidavit on 27 Octob er 2025 in which he
recorded that the appellant’s mother-in-law:
“Without us asking or prompting her pertaining to the situation she, out of her
own accord, informed us the following, namely:
8.1 [The complainant’s] plan has backfired;
8.2 She is now apparently staying with a man, presumably a new boyfriend,
in Brackenfell and is very happy and wants to introduce the boyfriend to
them;
8.3 [The complainant] does not want to proceed with the case and has
apparently withdrawn same. In this regard she apparently had a meeting
with a one Captain Chetty on Monday, 20 October 2025, and apparently
would have seen the prosecutor on the Tuesday or the Wednesday to
inform the prosecutor accordingly and discuss the matter.
9. We did not want to discuss the matter with Gavin’s mother -in-law as
Gavin’s attorney informed us not to discuss the matter with her as she
may be a potential state witness and it is also an uncomfortable
situation for us, to say the least. We terminated the conversation and
drove back to Kleinmond.” [‘Gavin’ is the appellant]
45.15. He stated as follows in his affidavit in support of his application for bail:
“The allegations made against me by our daughter only now surfaced after my
wife recently found toys and lubricants of a sexual nature in our daughter’s
cupboard. In addition to the above we also found out, to our shock, that our
daughter is/was active on a porn site known as Only Fans. There the woman
perform, inter alia, naked sexual acts on themselves and the people who
subscribe to this site then pay a fee for being able to watch. Ultimately our
daughter also receives payment from either the porn site or its subscribers for
the acts she performs and which they watch. I noted that thousands and
thousands of rands are paid into her personal acc ount, which she generated
from these vile activities.”
45.16. He stated in his affidavit that he knows that the allegations against him are
false and that he can only assume that when confronted with the above,
she made up a story in order to escape responsibili ty for her actions and
now realises that she has gone too far. He could not think of any other
explanation that makes sense at this stage.
45.17. He used to have a passport, but it expired and he no longer has a valid
passport. He undertook in his affidavit not to apply for a new passport.
45.18. His mother would assist him with money for bail.
45.19. He will adhere to all bail conditions which may be imposed.
46. The complainant signed an affidavit in which she stated:
46.1. “When I was a child my father used to beat me with a belt and physically
assault me. Started to sexually abuse me from the age of 12 and started to
rape me till now.”
46.2. “I fear for my safety. I left home and live with a friends family. I am terrified
of my father if he is g(r)anted bail he will come looking for me. He will kill
me.”
46.3. “I don’t have a protection order.”
46.4. “My father will find me and kill me. For my safety he should be kept in
prison.”
47. The other co-investigating officer, Constable Athini Gandilanga, deposed to an
affidavit in which she explained what the complainant had conveyed to her:
47.1. He hit her on her legs with a belt when she forged her father’s signature for
her test at school when she was ten years old.
47.2. When the complainant misplaced some cooking oil the appellant got angry
pushed her ‘towards a glass and glass broke’.
47.3. She had been told by the complainant that the family had a rash and the
appellant “… offered to rub victim with ointment, the accused app lied the
ointment and massage victims body. Accused concluded by removing
victim’s bra and massaged victim’s breasts and ask victim not to tell
anyone.”
47.4. In 2021 the appellant and the complainant “… were alone and he
summoned her into ‘his room where he und ressed victim and climbed on
top of her started by sucking victim’s breasts and proceeded by inserting his
penis inside victims vagina. The rape incident continuously happed that
victim lost count and accused would now and then transfer money to victims
account. Victim never reported these incident to anyone.”
48. On the second page of the aforesaid affidavit the following was recorded:
“Reasons for OPPOSING BAIL:
1) The accused is staying same jurisdictions as victim.
2) This is a very serious incident according t o our law, accused did this sober minded
and multiply times.
3) Accused knew very well what he was doing, he did these allegations in different
occasions.
4) The victim was still a minor accused knew better as he is way older.
5) Victim trusted the accused with her life as he is her father.
6) Accused took victims innocence.
7) There is a likelihood that if accused released on bail he will influence and intimidate
the victim and witness.
8) Accused told victim not to tell anyone what he was doing to her.
9) Accused would transfer money on victims account before or after most incidents.”
49. As I see it, three categories can be identified in these reasons for opposing bail:
49.1. The first consists of item 1) and concerns the fact that the appellant and the
complainant live in the same jurisdiction.
49.2. The second consists of items 2) to 6) which relate to the gravity of the
charges against the complainant and the impact on the complainant.
49.3. The third consists of items 7) to 9) which relate to the influence and
intimidating of witnesses and the complainant.
Evaluation
50. This evaluation is conducted through the prism of the function of an appeal court in
respect of bail described above
Whether there was a misdirection on the facts
51. On my reading of the judgment of the Court a quo, the real question which was the
focus of and determined the application was, in my view, correctly, whether section
60(11)(a) exceptional circumstances were established.
52. In regard to section 60(4)(a) the Court a quo recorded (in my view, correctly) that it
has to look at the views of the complainant. It then recorded that the complainant
had under oath stipulated that she is afraid of the appellant because she feels that
he will get to wherever she lives an d might hurt her, the Court a quo referring to
the complainant’s version of violence in the sense of hitting and raping her (this is
from the affidavit of the complainant which is quoted in paragraph 46 above). The
Court a quo then recorded (in my view, correctly): “So the court has to look at that
as a factor.”
53. The Court a quo then dealt with other factors (mainly the question of a defence)
and nine pages later, it held in the final sentence of the penultimate paragraph of
the judgment as follows (the C ourt a quo was addressing the appellant): “ The
court finds that there is a real likelihood that if you should be granted bail, you will
endanger the safety of the complainant.”
54. Where, I consider, the court a quo erred in the exercise of its discretion, was that
nothing further appears to have been considered , and weighed against the factor
of what the complainant had said , in reaching this conclusion, despite the court
saying that what the complainant had said was, in my view, correctly, a factor (i.e.
not the only factor in regard to that aspect).
55. There were, however, other considerations and evidence , as appears from the
above summary: The court did not consider that the complainant does not allege
that there has been any actual threat to her by the appellant in this regard. Nor that
she does not allege that there has been any form of communication or contact
between them, or even attempted communication or contact. This is consistent
with the appellant having made it clear that he knows that he must have no contact
with the complainant, his wife and mother -in law and will live elsewhere until the
matter is finalised . The court a quo recorded in its judgment that “ … there is no
evidence previously that you made contact from the prison to the m …”
Accordingly, this appeared to have been implemented. The appellant recorded in
his affidavit, with reference to information he received from his attorney and
contained in the affidavit of his step -father quoted in paragraph 45.1 4 above, “ I
have no personal knowledge whether or not the above is correct as I am prohibited
from contact with my wife, our daughter and my wife’s mother. ” This reinforces his
version that he will not have any contact with the complainant. The complainant
will be l iving separately from the appellant. Aside from the charges, t he appellant
had no history of violence.
56. Accordingly, there is no evidence to support what the complainant says other than
the fact of the charges of the very serious crimes laid against her f ather and her
perceptions. I apprehend that this should apply in the case of almost every (if not
every) charge of rape which, if it carries overriding effect on this aspect, would
result in bail always being denied.
57. Despite the affidavit of the complainant, the aspect of the safety of the complainant
being endangered was not recorded as a ground for opposing bail in the affidavits
of the investigating officers (see paragraph 48 above) . What was raised was the
distinct contention that the appellan t ‘ told victim not to tell anyone what he was
doing to her ’ and there is a likelihood that the appellant will ‘ influence and
intimidate the victim and witness’, which is dealt with below.
58. On my reading of the judgment, the court a quo did not take all of these factors
into account. I consider the failure to do so to be a misdirection.
59. Taking into account all of the factors, I consider that no likelihood has been
established that the appellant will endanger the safety of the complainant and
therefore the misdirection was material.
60. To the extent that the sentence quoted in paragraph 53 above from the
penultimate paragraph of the judgment of the Court a quo may be seen to hold
that the likelihood in section 60(4)(a) has been established, I am of the view that
the Court a quo was wrong in this respect.
Whether there was a misdirection on the law
61. In regard to the core element of exceptional circumstances, as mentioned above,
in deciding a bail application , a court exercises a value judgment taking into
account all the relevant facts and circumstances, and with reference to all the
applicable legal criteria, one of which is whether, individual ly or cumulatively,
ordinary circumstances exist to an exceptional degree and thereby constitute
exceptional circumstances for the purposes of section 60(11)(a) of the CPA. On
my assessment of the judgment of the Court a quo, it went through each instance
considered by it to be relevant and commented thereon in relation to the facts of
the case but did not exercise the aforesaid overall value judgment . In failing to do
so, the Court a quo, in my view, misdirected itself in law.
62. The consequence of this is that, in this appeal, the material before the Court a quo
must be considered and it is to be determined whether the aforesaid misdirection
had a material effect and whether, as a result, the decision of the Court a quo, in
the opinion of this court, was wrong.
The merits of the defence to the offences with which the appellant is charged
63. There is no obligation on the part of an applicant for bail to challenge the strength
of the State’s case. However, if he/she chooses to do so, the burden on the
applicant for bail is to prove on a balance of probability that he will be acquitted of
the charge: S v Botha 2002 (1) SACR 222 (SCA) at 230h and 232c, S v Viljoen
2002 (2) SACR 550 (SCA) at 556c. There must be a real likelihood of acquittal at
trial, which requires ‘convincing evidence’: Panayiotou v S (CA&R 06/2015) [2015]
ZAECGHC 73 (28 July 2015) at paragraphs 56 and 57.
64. This would be very difficult to achieve in this matter because it is largely a matter
of the appellant’s word against that of the complainant, the indications being that
there are no other direct witnesses of the incidents in question.
65. A case on the merits is further attenuated for the appellant because , as correctly
pointed out by the Court a quo , he did not deal with the complainant’s version
which was recorded in the affidavit of the co -investigating officer referred to and
quoted in paragraph 47 above.
66. In my view, this burden of proof has not been satisfied in this matter.
67. I might add that the court a quo also found that the appellant satisfied himself with
a bare denial. I consider this to be incorrect and a misdirection because the
appellants did raise some detailed circumstances which are recorded in
paragraphs 45.13 to 45.16 above, but they would not disturb the conclusion in the
above paragraph and therefore take the matter no further.
68. Although pressed with some vigour by counsel for the appellant, who appeared for
the appellant, whatever shortcomings there may have been in the assessment of
the eviden ce, I am of the firm view that the appellant did not establish a real
likelihood of acquittal at trial, with ‘convincing evidence’. Much emphasis was
placed on the presumption of innocence by counsel for the appellant, but that does
not detract from the aforesaid onus and conclusion.
69. In my view, therefore, this aspect is not of assistance to the appellant in this
appeal.
70. The relevant statutory factors will now be considered.
Section 60(4)(a): likelihood that the accused will endanger the safety of the
public, any person against whom the offence in question was allegedly
committed, or any other particular person or will commit a Schedule 1
offence
71. There is no evidence in regard to the accused endangering the safety of the public
and any particular person. In regard to the complainant, this has been dealt with in
paragraphs 52 to 60 above.
72. Insofar as the criteria in section 60(5) are concerned in relation to this section
60(4) aspect:
72.1. Rape and sexual assault are serious and heinous, and themselves are
violence against the complainant . The evidence does not suggest any
degree of violence towards any others (besides the complainant) implicit in
the charge against the appellant (section 60(5)(a)).
72.2. As mentioned above, there is no evidence of a threat of violence which the
accused may have made to a person against whom the offence in
question was allegedly committed or any other person, as opposed to the
complainant’s fears. This aspect was not raised by the State.
72.3. There is no evidence of any r esentment the accused is alleged to harbour
against a person against whom the offence in question was allegedly
committed or any other person. This aspect was not raised by the State.
72.4. There is no evidence of any disposition to violence on the part of the
accused, as is evident from his past conduct. This aspect was not raised
by the State.
72.5. Save for the allegations in respect of the charges in question, there is no
evidence of any disposition of the accused to commit offences as
contemplated in section 60(5)(e).
72.6. There is no evidence that section 60(5)(f), prevalence of a particular type
of offence, applies.
72.7. The evidence showed that section 60(5)(g), commission of previous
offences, does not apply.
73. The court a quo found that there is a real likelihood tha t if the appellant were to be
granted bail, he would endanger the safety of the complainant. I disagree for the
reasons set out in paragraphs 52 to 60 above.
74. In the premise, I am of the view that there is no likelihood as contemplated in
section 60(4)(a).
Section 60(4)(b): likelihood that the accused will attempt to evade trial
75. I think that the appellant’s personal circumstances and history dealt with above
indicate against such a conclusion. This includes his family and emotional ties as
well as the fact that he attended all court attendances in another matter which was
eventually withdrawn.
76. Save for the nature and gravity of the charges and likely punishment if convicted,
which apply in every case of rape, the factors in section 60(6) appear to be in
favour of the appellant: He has no money or valid passport and relies on his
salary to live (and support his family). He undertook not to apply for a passport. His
emotional and family ties appear to be in Cape Town and Kleinmond (where his
mother and step -father live). There is no evidence of any assets outside of the
country and the evidence before the court suggests otherwise. Whether extradition
can readily be effected does not appear to be a factor to be taken into account. He
has said that he will have to borrow the bail money from his mother who can ill
afford to lose it.
77. Strict bail conditions with binding effect and which are enforceable can be crafted,
and they ought not to be capable of easy breach. I raised this issue with the
parties during argument and they were in all material respects ad idem as to the
conditions. As to the bail amount, the State Advocate suggested R5 000. Counsel
for the appellant countered, unusually, with a higher amount of R10 000. I said
that both may be a bit light and I would consider the aspect further. I deal with this
aspect of conditions further below, but briefly because it was not materially in
issue. The strength of the case against the appellant has been dealt with above
and does not appear to militate in either direction.
78. As mentioned, the negative factors for the appellant are the nature and gravity of
the charges and punishment should he be convicted. That applies in respect of
any charge of rape – which are most serious charges – and I do not understand
the legal position to be that they serve to override or effectively nullify all other
factors, as that would in effect result in bail being refused in all cases in volving
such a charges. Dlamini at paragraph 74 stated this generally: “ Section 60(11)(a)
does not contain an outright ban on bail in relation to certain offences, but leaves
the particular circumstances of each case to be considered by the presiding
officer. The ability to consider the circumstances of each case affords flexibility that
diminishes the overall impact of the provision. ” In State v Mohammed 1999 (2)
SACR 507 (C) at 515f this court commented that “ Such flexibility and discretion
was, I appreh end, one of the factors which saves s 60(11)(a) from constitutional
invalidity.”
79. In my view, there is no reasonable prospect of the appellant being a flight risk and
there is no basis which establishes a likelihood of an attempt by him to evade trial.
While not eliminating the aspect, it was not relied on by the State in its written
reasons for opposing bail.
80. In the premise, I am of the view that there is no likelihood as contemplated in
section 60(4)(b).
Section 60(4)(c): likelihood that the ac cused will attempt to influence or
intimidate witnesses or to conceal or destroy evidence
81. This is the particular instance which was raised specifically by the State in its
written reasons for opposing bail quoted in paragraph 48 above.
82. Being his daughter, who lived with him, the appellant is obviously familiar with the
complainant. The same ap plies to the possible state witnesses, his wife and
mother-in-law who also lived with him . The appellant has explained in his affidavit
that he understands that his wife and mother -in-law may, in addition to the
complainant, be witnesses in the trial and t hat he must keep away from them. For
example, he recorded that he needs to find somewhere else to live pending the
finalisation of the matter and that he has arranged this already, as also confirmed
by one of the investigating officers. This approach of th e appellant has been
extended to his mother and step-father, which is shown by the affidavit of the step-
father quoted above. Appropriate bail conditions can serve to entrench and
implement what appears to already to be understood to be required to be the case
and is being implemented (insofar as communication is concerned, the appellant
being in custody: see paragraph 5 5 above). The content and ambit of conditions,
if the appeal is upheld and bail is granted, w ere not contentious between the
parties at any material level, referred to below.
83. While the investigation does not appear to be complete, the main witness (the
complainant) has already been interviewed and made a statement. There is no
indication that any other possible family witnesses will not co -operate or will be
interfered with by the appellant. The contrary appears to emerge from the
evidence.
84. As to evidence which may be destroyed or to which the appellant may have
access, there is no indication of evidence which may exist and this was not raised.
85. The factors in section 60( 7) therefore appear to be mostly in favour of the
appellant
86. In my view there is no basis to establish a likelihood o r attempt by the appellant to
influence or intimidate witnesses or to conceal or destroy evidence.
87. In the premise, I am of the view that there is no likelihood as contemplated in
section 60(4)(c).
Section 60(4)(d): likelihood that the accused will attempt to undermine or
jeopardise the objectives or the proper functioning of the criminal justice
system, including the bail system
88. Save for the seriousness of the offence, in my view there is no basis in this
respect. The appellant’s personal circumstances and history all indicate against
such a conclusion. None of the factors in section 60(8) apply against the appellant.
89. While not eliminating the aspect, it was not relied on by the State in its written
reasons for opposing bail.
90. In the premise, I am of the view that there is no likelihood as contemplated in
section 60(4)(d).
Section 60(4)(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
91. Rape and sexual assault are extremely serious offences which are a terrible
scourge in our society. To rape one’s daughter is a particularly heinous instance. It
goes without saying that this would induce a sense of shock or outrage among any
right-thinking persons, as contemplated in section 60(8A)(a).
92. Save for justified and expected general opprobri um in relation to charges of the
nature in question, there does not appear to be any basis for there being a
likelihood, in this particular case , that the release of the accused will disturb the
public order or undermine the public peace or security or for the circumstances in
section 60(8A)(b) -(e) to arise. There is no indication of any vigilantism or public
unrest. This aspect was not recorded as a ground for opposing bail in the affidavits
of the investigating officers. Save for the heinous nature of the offences charged,
the factors in section 60(8A) do not appear to count against the appellant.
93. The appellant’s personal circumstances and history all indicate against such a
conclusion.
94. While not eliminating the aspect, it was not relied on by the State in its written
reasons for opposing bail.
95. In the premise, I am of the view that there is no likelihood as contemplated in
section 60(4)(e).
Section 60(9)
96. In considering the question in section 60(4), the court must weigh the interests of
justice against the right of the accused to his personal freedom, as contemplated
in section 60(9).
97. The Court a quo indicated that the trial would take place in approximately a year. It
also indicated that the regional court, where the trial would be held, is inundated. A
period of a year in prison before trial is not insubstantial.
98. Counsel for the appellant stated from the Bar that consulting in prison consumes
the better part of a day. This was not objected to or contested by the State
Advocate.
99. No fault can be attributed for any delay to the appellant or the State.
100. The appellant stands to lose his job if not released on bail. The State Advocate
correctly submitted that the evidence showed that he is capable of finding work,
should he be acquitted, but, in my view, being out of a job while in prison for a year
must carry with it a material element of prejudice.
101. There is no indication that the state of health of the accused is not good.
102. I am of the view that these ordinary circumstances have been established to a
sufficient degree of materiality and number with the result that the tipping point has
been reached, as contemplated in the authorities considered, at which their
cumulative weight amounts to exceptional circumstances for the purposes of
section 60(11)(a).
103. Taking into account all of the above in relation to sections 60(4) -(9), I am of the
view that none of the ‘likelihoods’ contemplated in section 60(4) exist, that the
cumulative effect of the evidence and the aforesaid provides enough weight in the
scales to tip the balance in favour of finding that the ordinary circumstances in
section 60(4)-(9) exist to an exceptional degree and, accordingly, that exceptional
circumstances as contemplated in section 60(11)(a) exist.
Whether bail is to be granted
104. There are three aspects: (1) Bail is to be refused if any one or more of the
‘likelihoods’ in section 60(4) have been established; (2) if not, then the court must
determine whether the accused has established exceptional circumstances as
contemplated in section 60(11)(a) and (3) if so, whether bail is to be granted in the
interests of justice.
105. I have found the first aspect (the section 60(4) ‘likelihoods’) to not be established
and the second aspect (section 60(11)(a) exceptional circumstances) to be
established.
106. What then follows is whether, in weighing the interests of just ice and the personal
freedom of the appellant, bail should be granted. By the nature of the exercise in
considering the factors in section 60(4) to 60(9), much of the factual ground for this
exercise has already been covered. From the exposition in this judgment, it is my
view that none of the ‘likelihoods’ in section 60(4) have been established and that
considered cumulatively the factors enumerated therein establish exceptional
circumstances in the exercise of a value judgment.
107. Rape is always extremely serious and heinous, and would involve fear on the part
of the complainant, aggravated in the case of a daughter being the victim at the
hands of her father, but I do not understand the legal position to be that a charge
of rape per se , due to the nature and gravity of the offence and possible
punishment, excludes the granting of bail (as held in general terms in Dlamini at
paragraph 74; Gumbo and Makibi being examples of bail being granted). I say this
because otherwise bail would be impossible to be granted in an instance of a
charge of rape, which is plainly not the legal position. Absent a particular ordinary
circumstance to an exceptional degree (such as illness or a business employing
50 persons facing ruin), it would, to my mi nd, be difficult to conceive of bail being
granted based on the cumulative effect of ordinary circumstances to an
exceptional degree were it not to be granted in the circumstances of this case in
which the only factors against the appellant, considered abo ve, are those arising
inherently from the charges, which apply to almost all (if not all) such cases, and
his good health. If bail is not granted in this instance, it would be an indicator that
any healthy person charged with rape where the complainant is terrified of him and
thinks he will try to kill her with no basis for that besides the allegations in respect
of the charges themselves, must be denied bail.
108. Also apposite to this matter, it was held as follows in paragraph 15 of Makibi (see
also Gumbo, these being the most comparable cases): The State submitted that
“… the evidence had established that there is a real likelihood that the appellant
will interfere with state witnesses if he were to be released on bail. He referred in
particular to the fact that the victim’s mother is the appellant's common law wife
and that he will have some influence over her, being the bread -winner and sole
provider of the family. In his view it was not possible for the court to impose any
conditions which c ould conceivably alleviate this likelihood. I am however in
agreement with the submission made by Ms McCallum, who appeared for the
appellant, that conditions which prohibit interference with state witnesses are
usually imposed when bail is granted and any attempt by an accused person to
interfere with the state witnesses or the investigation of the matter is a crime and
may result in the cancellation of the bail. I am in the event of the view that there
was no evidence of such likelihood and one is left to speculate about such a
possibility.”
109. I engaged the parties as to appropriate conditions to be applied and the
appropriate amount of bail, in the event that the appeal succeeded. There was not
any material difference between them. Three aspects bear brief mention: (1) The
appellant’s counsel suggested that more than one reporting to the police station
becomes arduous. The State Advocate did not seem to demur. Having considered
the aspect, I think that the appellant should report twice a week, especially
because his place of work and residence will be very close to Cape Town Central
Police Station (in Josephs, daily reporting was ordered). (2) As to the amount of
bail, I consider ed ordering an amount higher than the larger amount of R10 000
for bail sugges ted as aforesaid , but on balance decided not to do so. (3) I have
added a condition that was not discussed in court, namely that the appellant may
not leave the jurisdictional area of the City of Cape Town save with the written
permission of either of the investigating officers in this matter or, failing that, the
(magistrates’) court. This condition and those contained in the order below have
been largely modelled on those as ordered in the relatively similar matter of
Gumbo, and also Makibi.
110. In the circumstances, in weighing the interests of justice and the personal freedom
of the appellant, the court concludes that bail is to be granted, subject to the
conditions set out in the order below.
Order
111. In the result the appeal is upheld and the following order is granted:
1. The appellant’s appeal against the refusal of bail is upheld.
2. The decision of the Court a quo is set aside and is substituted with an order in the following
terms:
“The accused shall be released on bail on payment of an amount of R10 000.00 on the
following conditions:
1. The accused attends court on the dates ordered by the court and shall remain in
attendance until the case has been finalised unless otherwise ordered by the court.
2. The accused shall not interfere with, or have any contact or communication with,
directly or indirectly, the complainant or any of the state witnesses.
3. The accused shall not interfere, directly or indirectly, with the investigation of the
charges against him.
4. The accused shall not reside at or at tend at 2 […] M[…] Road, Tijgerhof, Milnerton,
Cape Town, and shall instead reside at alternative accommodation which is presently
The C[...] Hotel, 3[…] H[…] Street, Cape Town.
5. The accused shall not change his residential address without being authorised to do so
by order of the Magistrates’ court.
6. The accused’s undertaking not to apply for a passport is recorded.
7. The accused shall report to the charge office of the South African Police Service Station
in Cape Town Central every Monday and Friday between the hours of 06h00 and 19h00.
8. The investigating officers are directed to furnish the station commander of the South
African Police Service Station in Cape Town Central with a copy of the court order
herein.
9. The station commander of the South African Police Service Station in Cape Town Central
or any person designated thereto by him/her, is directed to immediately inform either
of the investigating officers should the accused default in reporting as ordered above.
10. The accused may not leave the jur isdictional area of the City of Cape Town , save with
the written permission of either of the investigating officers in this matter or, failing
that, the court.
11. Bail may be revoked by the court if the accused breaches any of these conditions.”
_________________
A Kantor
Acting Judge of the High Court
Legal representatives:
For the appellant: Mr J Weeber
Instructed by Liddell Weeber & vd Merwe
For the respondent: Adv C Blankenberg