REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
2 March 2026
DATE SIGNATURE
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APPEAL CASE NO: A208/2025
In the matter between:
RUDOLF CORNELIOIUS LUBBE
and
THE STATE
JUDGMENT: BAIL APPEAL
Appellant (Applicant)
Respondent
(The matter was heard in open court and the representatives of the Appellant
and the State addressed the court. Judgment was reserved and the parties were
informed that the judgment will be handed down by uploading it onto Caselines
and a copy thereof will be forwarded to the representatives via the email
addresses supplied. The date of email will be deemed che dace of che judgment.)
BEFORE: HOLLAND-MUTER J:
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BEFORE: HOLLAND-MUTER J:
(1) The appellant was arrested and appeared in the Regional Court for the
regional division of Gauteng held at Pretoria. The appellant and Shantelle
Oosthuizen were arrested and charged with three charges namely conspiracy to
commit murder, attempted murder, premeditated murder and the possession of
an unlicensed firearm and ammunition.
[2] Both the appellant and Oosthuizen abandoned their initial bail applications
on 12 August 2024. The matter was postponed several times before the
appellant brought another bail application. He appeared in person and handled
his own bail application.
[3] The appellant was informed that due the seriousness of the charges against
him, that the charges were within the provisions of Schedule 6 of the Criminal
Procedure Act 51 of 1977 (CPA). In terms of section 60(11) of the CPA an accused
in custody for schedule 6 offences shall remain in custody unless having been
given a reasonable opportunity to adduce evidence which satisfies the court that
exceptional circumstances exist which in the interest of justice permits his
release on bail.
(4] The appellant was informed of the provisions of section 60 (11) and that the
onus is upon him to prove exceptional circumstances for the court to consider
his release on bail. He elected to present his evidence by way of a written
affidavit. This affidavit consisted of 404 handwritten pages which he read into
the record during the bail application.
(5] The prosecutor presented the evidence of the police officer in charge of the
investigation, Captain Smit ("Smit"), by affidavit. Dr Mirriam Tsatsi testified
about her consultations she had with the appellant in the prison and the advice
she gave. The gist of her evidence was that the condition of the appellant was
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not that serious that he undergo an emergency operation regarding the hernia
suffered. She was satisfied to refer him to the Kalafong Provincial Hospital and
that the necessary operation would be done when needed. Her opinion was that
the medical condition of the appellant was not that serious to receive emergency
treatment. She mentioned to the appellant that should he request private
medical care it could be done but that there was a mere suggestion in this regard.
The court is satisfied that the medical condition of the appellant was not that
serious to be held as exceptional to consider his release from custody.
[S] The Magistrate denied the appellant's bail application and a Notice of Appeal
was filed with the clerk of the Magistrate's Court. The appellant filed an
amended Notice of Appeal on the 20th of October 2025 with the Registrar of the
High Court in Pretoria. This amendment consists of 24 pages setting out the
grounds for the appeal. The appellant alleges that the Magistrate erred in finding
that the appellant failed to discharge the onus upon him to prove that there are
exceptional circumstances in the interests of justice permitting his release on
bail. The appellant moves for condonation of the late filing thereof. After
consideration of the request, condonation was granted and the hearing
proceeded on the merits.
[6] The appellant elected to place his evidence in support of his request to be
released on bail on record by affidavit before the Magistrate. The affidavit
consisted of 404 pages. The court deems in not necessary to deal with every
aspect raised in the affidavit in detail but to address what is applicable to
discharge the onus in section 60(11) of the CPA.
THE APPEAL:
[7) Dr Curlewis acting on behalf of the appellant, and listed what are deemed to
be "exceptional circumstances" to be considered in favour of the appellant to
discharge the onus. This includes the following:
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* the appellant's asthmatic and allergic condition;
* the appellant's need for an urgent hernia operation;
* the appellant's foot problems and the need for custom (special) inner soles
for his shoes;
* the appellant's hypertension and need for specialised medication;
* the alleged weak case against the appellant;
* the appellant's age, lack of previous convictions, stable family life and
willingness to abide with bail conditions; and
* the effect of the appellant 's further detention on his mother's health.
[8] The appellant further averred that it is "just and equitable" to be granted bail
because:
* he will not endanger public safety and/or commit a schedule 1 offence;
* he will stand his trial;
* he will not destroy or conceal evidence;
* he will not interfere with the police investigation;
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* he will not undermine or interfere in the functioning of the justice system; and
* his release will not disturb public order, peace and security.
[9] During bail proceedings where the accused is charged with an offence falling
within the ambit of schedule 6 the accused will start by adducing evidence to
satisfy the court that exceptional circumstances exist which in the interest of
justice permits his release. See section 60(11)(a). The evidence may be viva voce
by the accused and/or other witnesses, or it may be presented on affidavit. The
state will thereafter present evidence to counter or rebut that of the accused,
which may also be done viva voce or by affidavit.
(10) The accused should bear in mind that, when electing to adduce evidence by
way of affidavit, he runs a real risk in circumstances where the onus in borne by
him. Comrie J in S v Tshabalala [1998] 3 All SA 411 (C) held that uThe only
practical and convincing way in which the appellant could counter the
aforegoing was by tendering viva voce evidence. ... and ... the risk of self
Incriminating may exist but it was a risk the appellant should have run in the
circumstances".
[11) The argument on behalf of the appellant that because the evidence of
Captain Smit was tendered on affidavit and not subject to cross examination is
unfortunately a double-edged sword because the appellant also elected to
tender his evidence on affidavit. None of the witnesses on affidavit could be
cross examined. In S v Kilian [2021] ZAWCHC 100 in par 13 it was held that: "In
cases where section 60(11) applies, there is consequently a true onus on the
appellant to prove facts establishing exceptional circumstances, and the
appellant should be well advised to give oral evidence in support of his
application for bail. This seems to me to follow, because -differing from the
position in which the Plascon-Evans Rule is applied- the discharge of the onus is
a central consideration in section 60 (11} applications. If the facts are to be
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determined on paper, the State's version must be accepted where there is a
conflict, unless the version appears improbable'~
(12] The version of the appellant is to state the least, a very comprehensive but
mostly self portraying of alleged innocence. He presents himself as the knight in
shining armour who comes to the rescue of those in and around his life. He wants
to rehabilitate Oosthiuzen (his co-accused) from drug abuse, from her
relationship with Louis Harmse, to have compassion with the now deceased
Jacques Freitag and to shelter him. He in a lavish way portrays how he provides
them with food, shelter and comfort. Underlying to his compassion is his
obsession to win over Oosthuizen and in no uncertain terms describes how he
lures her to his place for sexual purposes. On his own version he stalks her at
Harmse's place with promises, food and favours. He states how he developed a
total plan to win back the love of his life.
[13] The appellant further mentions the continuation of his total onslaught plan
is to show Harmse that he (Harmse) is not worthy of the second accused
(Oosthuizen). He uses the second accused to provide him with a lot more
information and proof of Louis Harmse's continuing life of crime. The record on
p 84 and further is clear of his motive and grudge he has against Harmse and to
use information to finally end Harmse's relationship with the second accused.
[14] The appellant collected information of alleged criminal activities by Harmse
to take Harmse legally down that he was reassured that violence will never be
considered as an option to derail Harmse. He lured Oosthuizen away from
Harmse with fake emergency work at his place to have another passionate few
hours with her before going back to Harmse. She worked for the appellant and
he made use of this to satisfy her at his place. On his own version he was no saint
and had what he called a total onslaught plan to get rid of Hamse.
[15] The appellant on his own version made use of false names for Harmse,
[15] The appellant on his own version made use of false names for Harmse,
Freitag and ultimately himself and the second accused in Sabie to hide their
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identification. He was very sparingly with the truth when questioned by Captain
Smit on the whereabouts of Freitag on the last time he saw Freitag. He did not
mention to Smit that there was an incident with Freitag on the fatal day at the
cemetery and that several gunshots were fired by the appellant towards Freitag
in alleged self-defence.
[16] He fails to mention to Smit that he booked Harmse under a false name for
lodging at the Joos Bekker Caravan park earlier. He falsified medical
documentation at the Steve Biko Hospital when Harmse was admitted and had
to undergo serious medical procedure for a head injury, the injury caused by
Freitag. He backtracks on the agreement with Freitag to get rid of Harmse and
avers he requested Freitag not to continue with the request by the appellant that
Freitag give Harmse a few slaps to deter him. There is the version by Oosthuizen
that she informed the appellant that Freitag wanted the money (R 18 000-00) he
was promised to deal with Harmse and this led to the meeting with Freitag at
the cemetery where the fatal shooting of Freitag took place. A cemetery is a
rather earie place to meet a person knowing the person wants payment for
"work done". The appellant destroyed the firearm used to get rid of incriminating
evidence to prevent being found in possession of an unlicensed firearm.
[17] He gives different versions on why he and accused 2 suddenly left Pretoria
whilst partly questioned by Smit. The interview was suspended when the
information of a body in the vicinity of the cemetery was received. Smit's version
is that he interrupted the interview to go to where the body was found and that
the interview was about the missing person of Freitag.
(18] The appellant's version of the Sabie visit is suspect. According to him he
needed a brake away from Pretoria and the plan was to book into a guesthouse.
It is then strange why the camping tent was available if a guesthouse was the
It is then strange why the camping tent was available if a guesthouse was the
place to be. The excuse for the false name is difficult to buy. It is strange why he
feared Harmse finding them there in view of his compassion with Harmse after
the assault by Freitag and the serious head injury sustained by Harmse. Although
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a bail application is not a mini trial, the contradictions by the appellant should
count against him when considering whether he convinced the court to consider
his release.
[19) The exceptional circumstances levelled by the appellant to be considered in
his favour with respect is nothing more than the ordinary circumstances in
almost every bail application. There is little if any medical information to
substantiate his claim that he needs urgent medical attention. The affidavit by
Dr Shepton is that he did not diagnose the appellant with chronic Asthma. Again,
evidence on affidavit about the condition of the appellant is untested but
contradicted and in view supra regarding the onus to prove cannot be dealt with
as in the Plascon-Evans Rule. Dr Tsatsi's evidence is attacked by the Appellant as
biased because it was not in his favour. He should have presented medical
evidence to the contrary to prove the urgency of the medical operation he
argues to be exceptional.
[20) There is no evidence to substantiate the appellant's averment that the
smoking by other inmates and that the appellant's intestines could be
"constricted" at any given moment. There is no evidence that the appellant must
undergo an emergency hernia operation and again Dr Tsatsi disputes his
averment. A similar argument for special inner soles for his shoes is not
supported by medical evidence. His hypertension complaint is another example
of the appellant beating around the bush without any proven medical evidence.
[21) The argument that the state failed to provide any written confirmation in
terms of section 60(11)(A)(c) to confirm that the charges are schedule 6 offences
is neither here not there. It was never in contention that such certificate was
necessary. It was never an issue that the appellant was charged under schedule
6. In terms of section GO(ll)(A)(a) such certificate may issue a written
confirmation to the effect that it is intended to charge the accused with an
confirmation to the effect that it is intended to charge the accused with an
offence In schedule 6. It was not raised during the bail application and to try to
introduce it now is somewhat optimistic and unconvincing.
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[22) It is further not the forum to debate the strength of the case against the
appellant . On his own version he shot Freitag, although in self-defence. There is
a serious charge to be answered. This argument lacks any persuasion.
(23) The issue of a stable family, a newly born grandchild, an ailing mother and
a dog at home in the court's view does not amount to exceptional circumstances.
[24) The following aspects weighs negative against the appellant: (i) he is not
afraid to give false names to unsuspected people. (ii) He on his own version
worked with a total onslaught plan to get rid of Harmse as contender for accused
number 2 in his life. (iii) His negotiations with Freitag to do something with
Harmse and (iv) destroying the firearm and intimidation of Harmse. (v) He is a
flight risk as already demonstrated with his disappearance to Sabie when things
became close and hot.
[25) When his version is considered, taking into account the onus he bears and
the evidence of Smit and others, the version of the appellant falls far short to be
accepted and to reject the other versions. The court is satisfied that the version
by Smit was to the point without any serious negative considerations. Has no
reason to mislead the court and the criticism levelled against his version has no
substance.
[26) Section 65(4) of the CPA is clear that a court or judge hearing a bail appeal
shall not set aside the decision which is appealed unless the court or judge is
satisfied that the decision was wrong .
[27) In Sanji Majall v State Case No 41210/2010 GHJ ON 19/7/2011 considered
the position in section 60 of the CPA which governs bail principles and held that
although section 35 (3) of the Constitution provides that every accused person
and in bail applications the presumption of innocence operates in favour of the
accused even if the case against him was strong, but the rights in the Bill of Rights
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may be limited if the interests of justice requires so. No right is unlimited . The
court is of the view that the interests of justice militate against the release of the
appellant on bail
[27) The refusal of bail is also not pre-empted punishment but the court must
consider all facts applicable . See Madlozl v The State Case No A 278/2021
Gauteng High Court Pretoria par 21. The court is of the view that the appellant
has failed to discharge the burden laid upon him in schedule 6 of the CPA.
ORDER:
The appellant 's bail appeal is dismissed.
HOLLAfiP-MUTER J
e¥f)/dz)~
Judge of the Pretoria Htgh Court
Appeal was heard on 30 January 2026
Written judgement handed down and sent by Email to the representatives on 2
March 2026
On behalf of the Appellant : Dr L Curlewis: dm@d2law.co .za
083 3251870
On behalf of the State: Adv A Wilsenach: awilsenach@npa.gov.za .
083 823 8963