IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL DIVISION, DURBAN
CASE NO: 2025-194288
In the matter between:
SIBONGISENI WELCOME BANANA APPELLANT
and
THE STATE RESPONDENT
___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from: the Scottburgh Regional Court (sitting as court of first instance):
The appeal against the refusal of bail is dismissed.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
PUDIFIN-JONES AJ
[1] This is an appeal against the decision of the Regional Court, Scottburgh,
which on 8 April 2025 refused to admit the appellant to bail pending his appeal
against conviction and sentence.
Background
[2] On 26 March 2025, the appellant was convicted of one count of rape and two
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counts of sexual assault of his stepdaughter. In relation to the count of rape, he was
sentenced to life imprisonment. On the remaining two counts, the appellant was
sentenced to seven and five years’ imprisonment r espectively, to run concurrently
with the life sentence.
[3] The appellant has exercised his automatic right to appeal to the high court in
terms of section 309 of the Criminal Procedure Act 51 of 1977 (CPA) against both his
conviction and sentence.
[4] The appellant applied to the Regional Court for his release on bail pending the
finalisation of his appeal. The Regional Court refused the application.
[5] Before this court, the appellant contends that the court a quo misdirected itself
in refusing his application for bail pending his appeal.
The relevant legal test
[6] The powers of this court to interfere with the decision of the lower court in
relation to bail are governed by s 65(4) of the CPA. In terms of this section:1
‘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.’
[7] In S v Porthen and Others ,2 Binns-Ward AJ explained that in exercising its
discretion in a bail appeal, the appeal court should accord due deference and
appropriate weight to the fact that the lower court had exercised its discretion in a
particular way.
[8] Given that the appellant was convicted of inter alia rape, an offence referred to
in Schedule 6 to the CPA, the appellant’s application for bail is governed by s
60(11)(a) of the CPA. This section requires the appellant to adduce evidence
satisfying the court that “exceptional circumstances ” exist which in the interests of
1 See also S v Barber 1979 (4) SA 218 (D) at 220E-H.
2 S v Porthen and Others 2004 (2) SACR 242 (C) para 11.
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justice permit his release. The section primarily addresses unconvicted persons ;
however it follows that a person already found guilty of a Schedule 6 offence cannot
claim the benefit of a lighter test.
[9] While the courts have not defined what constitutes exceptional circumstances,
in S v Petersen ,3 Van Zyl J for a Full Court observed that, generally speaking, the
use of the word exceptional is indicative of something “unusual, extraordinary,
remarkable, peculiar or simply different”.4
[10] Where the appellant has already been convicted and sentenced , one of the
factors to be considered is the prospects of success in the pending appeal. The
mere existence of the appeal is insufficient. As Navsa JA explained in S v Oosthuizen
and Another:5
‘…There has to be a real prospect in relation to success on convictions and that a non -
custodial sentence might be imposed, such that any further period of detention before the
appeal is heard would be unjustified…’ (Footnote omitted.)
[11] Relevant here too is the increased risk of abscondment that may attach to a
convicted person facing the known prospect of a long sentence.6 In M.K. and Another
v S,7 the court observed that once an applicant has experienced prison life and faces
a lengthy sentence, the incentive to abscond is significantly magnified.
[12] Against that background, I turn to consider the appeal before me.
Submissions of the appellant and the State
[13] Mr Edwards, for the appellant, focused in his address on the prospects of
success in the pending appeal in relation to conviction and sentence. Mr Edwards
submitted that the court a quo had misdirected itself by relying on the “corroboration”
of facts provided by certain witnesses to ground its conviction. He argued further that
the appellant has a reasonable prospect of success on appeal because his
conviction was based on the evidence of a single and child witness and that the trial
3 S v Petersen 2008 (2) SACR 355(C).
4 Ibid para 55.
3 S v Petersen 2008 (2) SACR 355(C).
4 Ibid para 55.
5 S v Oosthuizen and Another [2018] ZASCA 92; 2018 (2) SACR 237 (SCA) para 29.
6 S v Bruintjies 2003 (2) SACR 575 (SCA) para 6.
7 M.K. and Another v S [2025] ZAGPPHC 439 para 24.
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court failed to apply the necessary cautionary rule.
[14] Mr Edwards also highlighted the appellant’s personal circumstances, namely
that he is a 51 -year-old businessman earning between R60 000 and R80 000 per
month. The appellant owns immovable property and trucks, is a registered taxpayer,
and has deep -rooted ties to his community. He is a widower with three biological
children, including a 17 -year-old daughter for whom he is financially responsible.
Taken together with the good prospects on appeal, Mr Edwards submitted that these
circumstances meet the exceptionality threshold.
[15] The State, represented by Ms Essack, opposes bail pending appeal . The
State contends that there is no reasonable prospect that another court would
interfere with the court a quo’s conviction and sentence . Ms Essack submitted that
the court a quo correctly found that the complainant’s testimony was satisfactory in all
material respects and was consistent with other evidence on the record. She argued
that the cautionary rule was correctly applied by the Regional Magistrate , without
misdirection.
[16] Ms Essack submitted further that the appellant ha d failed to show the
existence of any exceptional circumstances as required by s 60(11)(a) of the CPA ,
arguing that his ordinary personal and financial ties are neither unusual nor
exceptional. Moreover, these factors are far outweighed by the extreme gravity of
the appellant’s convictions for rape and sexual assault, the absence of reasonable
prospects of success on appeal, and the significantly magnified risk of abscondment
posed by his sentence of life imprisonment.
Evaluation
[17] In assessing whether the court a quo was wrong in relation to the question of
bail pending appeal, I consider first the prospects of success in relation to the appeal
against conviction and sentence.
[18] The court a quo provided clear reasons for its conviction and sentence. It was
[18] The court a quo provided clear reasons for its conviction and sentence. It was
satisfied with the evidence of the single witness (the complainant) who did not
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contradict herself nor leave room for inconsistencies. 8 While reference was made in
the judgment to the evidence of the other witnesses who testified for the State,
ultimately the court concluded that “On the evidence in its totality the Court is
satisfied that the single evidence of the complainant is clear and satisfactory in all
material respects.”9
[19] Conversely, the court found the appellant’s version that the complainant had
fabricated the allegations against him was “not only so improbable that it cannot be
reasonably possibly true but that it is false beyond doubt and his version is
rejected.”10
[20] As to sentence, the court a quo correctly weighed up the relevant mitigating
and aggravating factors and found that no substantial and compelling circumstances
existed to justify a deviation from the prescribed minimum sentence. The approach
by the Regional Magistrate reflected a judicious exercise of her discretion regarding
the probative weight to be afforded to all the information placed before her.
[21] In the premises, I am not satisfied that the appellant has established good
prospects of success in relation to either his conviction or sentence.
[22] Turning to the personal circumstances presented by the appellant, in my view,
the standard family and financial ties relied upon do not meet the high threshold of
exceptionality. The appellant’s minor daughter remains in the care of her mother, and
the appellant's business interests, while substantial, do not elevate his case above
the ordinary run of persons facing incarceration. Moreover, these factors were placed
before and considered by the Regional Magistrate in the court a quo.11
[23] A further significant factor in this matter is the known prospect of a life
sentence. The Regional Magistrate correctly identified that facing life imprisonment
is “enough reason for [the appellant] to want to abscond”.12
8 Judgment, p. 21.
9 Judgment, p. 24.
10Judgment, p. 25.
11 Bail Ruling, p. 3.
8 Judgment, p. 21.
9 Judgment, p. 24.
10Judgment, p. 25.
11 Bail Ruling, p. 3.
12 Bail Ruling, p. 3.
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Conclusion
[24] Upon an overall assessment, I am not satisfied that the decision of the
Regional Magistrate in relation to bail pending appeal was wrong. The Regional
Magistrate properly weighed the seriousness of the offences and the sever ity of the
sentence against the appellant’s ordinary personal circumstances , and the lack of
prospects of success of the appeal. The appellant failed to show the existence of any
factors sufficiently out of the ordinary to be deemed exceptional. Consequently, there
is no basis for this court to interfere with the judicial discretion exercised by the lower
court.
Order
[25] The following order shall issue:
The appeal against the refusal of bail is dismissed.
__________________
PUDIFIN-JONES AJ
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Case Information
Date of Hearing : 6 March 2026
Date of Judgment : 13 March 2026
Appearances
Counsel for the Appellant : Mr S Edwards
Instructed by : Bux & Associates
15 Wick Street
Verulam
c/o Messenger King
c/o Sihle pearl Makhanye
Suite 7, 3rd Floor Harbour View House
47 Margaret Mncadi Avenue
Durban
: Tel: 0713323942
: Email: zbux@mweb.co.za
: Ref: (M Nagouran)
Counsel for the Respondent : Ms K Essack
Instructed by : The Director of Public Prosecutions
5th Floor, Southern Life Building
88 Joe Slovo Street
Durban
: Tel: 084 5200 106
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: Email: kessack@npa.gov.za
: Ref: K Essack