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[2026] ZAGPJHC 301
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Grobler v S (A24/2026) [2026] ZAGPJHC 301 (24 March 2026)
THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO:
A24/2026
(1)
REPORTABLE: NO
(2) OF
INTEREST TO OTHERS JUDGES: NO
(3)
REVISED
In
the matter between:
RYAN
MITCHELL
GROBLER
Appellant
and
THE
STATE
Respondent
JUDGMENT
ON BAIL APPEAL
NEMAVHIDI
AJ
:
Neutral
Citation:
Grobler v The State
(A24/2026) [2026]
ZAGPJHC 215 (11 March 2026)
Introduction
[1]
This is an appeal in terms of section 65(1)(a) of the Criminal
Procedure Act 51 of 1977 (“the CPA”). The appellant
appeals against two decisions of the Regional Court, Johannesburg:
the refusal of his bail application on 31 October 2025, and
the
subsequent ruling on 23 February 2026 in which the learned regional
magistrate refused to admit an affidavit tendered by the
appellant on
the basis that it did not constitute "new facts" as
contemplated in section 65(2) of the CPA.
[2]
The appellant is a 33-year-old male who is one of six accused persons
facing a battery of extremely serious charges in the regional
court.
These charges arise from an incident that occurred on 9 March 2025.
The State alleges that the complainant was lured to
a meeting under
the guise of engaging with a so-called "Sharia Court"
aligned to ISIS. Shortly after leaving the meeting,
he was accosted
by armed men, violently assaulted, and forced into a Toyota Prado. He
was taken to 51 Patrol Street, Johannesburg,
where he was unlawfully
detained under armed guard. Later that day, during a police rescue
operation, shots were fired from the
premises at the police, who
returned fire. One of the assailants was shot and killed.
[3]
The charges against the appellant are extensive and include:
kidnapping (count 1), assault with intent to do grievous bodily
harm
(count 2), pointing of a firearm (count 3), robbery with aggravating
circumstances (count 4), unlawful possession of firearms
and
ammunition (counts 5-10), murder (count 11), and multiple counts of
contravening the Protection of Constitutional Democracy
Against
Terrorist and Related Activities Act 33 of 2004 (POCDATARA),
including committing a terrorist act (counts 12 and 30). The
charges
fall under Schedules 5 and 6 of the CPA.
[4]
The appellant was initially arrested on 25 August 2025 on unrelated
charges under case number 41/812/2025 (alleged theft of
motor vehicle
and possession of counterfeit goods). While in custody, he was
subsequently charged in the present matter on 6 September
2025. He
has not been granted bail in the unrelated matter.
The
Bail Proceedings a quo
[5]
The bail application was heard in the Regional Court, Johannesburg,
on 10, 15, and 28 October 2025, with judgment delivered
on 31 October
2025 refusing bail. It was common cause that the application was
governed by section 60(11)(a) of the CPA, as the
appellant is charged
with Schedule 6 offences. The onus was therefore on the appellant to
adduce evidence on a balance of probabilities
to satisfy the court
that exceptional circumstances exist which, in the interests of
justice, permit his release.
[6]
The State opposed bail primarily through the affidavit of the
investigating officer, Warrant Officer Corne Oosthuizen. The
investigating officer did not testify viva voce; his evidence was
presented by way of affidavit. The State's case against the appellant
rested on two main pillars:
6.1.
Identification
evidence:
The complainant allegedly identified the appellant
as the front passenger in the Toyota Prado involved in the
kidnapping.
This identification occurred months after the incident
when the complainant was shown a photograph forwarded by an
unidentified
third party. The description relied upon was that of a
"white male with short hair and a beard."
6.2.
Financial
links:
Payments were allegedly made upon instructions from
Accused 1 into the bank account of the appellant's company, "Mock
Ford," purportedly in payment for jobs done for the syndicate.
[7]
The State raised concerns in terms of section 60(4) of the CPA,
contending that the appellant was a flight risk, a danger to
the
public, and that his release would undermine the proper functioning
of the criminal justice system. These concerns were based
on:
The
serious nature of the charges and the lengthy terms of imprisonment
the appellant faces if convicted.
7.2.
The appellant was on bail in another matter (in Durban) at the time
of these offences.
7.3. The appellant had another pending matter
in Johannesburg (CAS 980/08/2025) for which he was not granted
bail.
7.4.
The appellant was found to have been untruthful regarding
properties registered in his name and regarding his cooperation
with investigators in providing access to his cellular telephones.
7.5.
The appellant had a valid passport and ties to Mozambique through
his wife, a Mozambican national.
[8]
The appellant testified in his own defence. He denied any involvement
in the offences, relying on the alleged weakness of the
State's case.
He challenged the reliability of the photographic identification,
pointing to its suggestive nature and the absence
of a formal
identification parade. He presented evidence regarding his personal
circumstances: he is a businessman, a father of
minor children, and
his incarceration was causing financial and personal hardship to his
family. He claimed he would stand trial
and offered to surrender his
passport.
[9]
In a comprehensive judgment, the learned magistrate evaluated the
evidence. She considered the appellant's personal circumstances
but
found that they were not out of the ordinary and did not constitute
exceptional circumstances. She found that the appellant
was not a
credible witness, pointing to contradictions regarding his properties
and his lack of full cooperation with the police.
She assessed the
strength of the State's case and found that, at the bail stage, there
was
prima facie
evidence linking the appellant to
the offences through the identification (which was admissible at the
bail stage) and the
objective documentary evidence of the financial
trail. She concluded that the appellant had failed to discharge the
onus resting
on him and that his release would jeopardise the proper
functioning of the criminal justice system.
The
Application on New Facts (23 February 2026)
[10]
Following the refusal of bail, the appellant's legal representatives
conducted further investigations. Approximately four months
later, on
23 February 2026, the appellant sought to place further evidence
before the court. The proposed evidence consisted of:
Photographic
alibi evidence purporting to confirm the appellant's presence at
his residence in Westville on the date of the
kidnapping.
10.2.
Confirmatory affidavits from third parties, including family
members, a property agent, and a mechanic.
10.3.
Banking records and other documentary material.
[11]
When the defence attempted to read the appellant's affidavit into the
record, the magistrate refused to receive it. She required
counsel to
provide a summary of the proposed evidence. After hearing the
summary, she ruled that the evidence sought to be introduced
was not
"new" as it pertained to the appellant's whereabouts on the
day of the kidnapping—an issue that had been
the subject of
extensive cross-examination during the initial application. She found
that the evidence existed at the time of the
first application or
could have been discovered with reasonable diligence, and that it was
an impermissible attempt to fill gaps
in the case presented in the
first application.
The
Appeal
[12]
The appellant's grounds of appeal against the refusal of bail can be
summarised as follows:
The
magistrate materially misdirected herself in assessing the strength
of the State's case, particularly by accepting unreliable
photographic identification evidence and treating untested hearsay
allegations as fact.
12.2.
She erred in finding that the appellant was a flight risk or a
danger to the public, as no evidence established the risks
contemplated in section 60(4).
12.3.
She overemphasised the seriousness of the offences and failed to
properly evaluate the appellant's personal circumstances.
12.4.
She failed to properly balance the appellant's right to liberty
against the interests of justice.
12.5.
The murder charge is legally unsustainable as the fatal shot was
fired by police, and the State cannot establish common
purpose
against the appellant.
[13]
Regarding the ruling on new facts, the appellant contends:
The
magistrate committed a procedural irregularity by refusing to admit
the affidavit before determining whether the facts were
new.
13.2.
The evidence does qualify as new facts, as it only became available
after further consultation and investigation.
13.3.
Cumulatively with the original record, this evidence demonstrates
that the interests of justice permit his release.
The
Respondent's Submissions
[14]
The respondent submitted a point
in limine
that this
court should not have regard to a 79-page affidavit filed by the
appellant on 9 March 2026, as it was not before
the court a quo. The
respondent further submitted that the magistrate correctly applied
the law, properly exercised her discretion,
and that no misdirection
had been shown. Regarding the new facts, the respondent argued that
the facts existed at the time of the
initial application and that the
application was an impermissible attempt to patch up the shortcomings
of the first application.
The
Legal Framework for a Bail Appeal
[15]
The powers of a court sitting on appeal against a refusal of bail are
governed by section 65(4) of the CPA, which provides:
"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 opinion
the lower court should have given."
[16]
The test is well-established. An appeal under section 65(4) is not a
rehearing. The appellate court's power to interfere is
limited. In
S
v Barber
[1]
1979
(4) SA 218
(D) at 220E-G, Hefer J held:
"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 wrongly.
Accordingly, although this Court
may have a different view, it should not substitute its own view for
that of the magistrate because
that would be an unfair interference
with the magistrate's exercise of his discretion. I think it
should be stressed
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."
[17]
Interference is only justified if the court a quo exercised its
discretion capriciously, or upon a wrong principle, or has
not
brought its unbiased judgment to bear on the matter, or has
misdirected itself on the facts or the law to such an extent that
its
decision is vitiated. See
S
v Mpulampula
[2]
2007
(2) SACR 133
(E) at 136e and
S
v Jacobs
[3]
2011
(1) SACR 490
(ECP) at para 18.
[18]
In
S
v Porthen and Others
[4]
2004
(2) SACR 242
(C), the court distinguished between a "wide"
and "narrow" discretion, holding that the determination of
whether
an onus of proof has been discharged entails exercising a
discretionary power "in the wide sense." This means that if
this court is satisfied that the lower court's decision was wrong, it
is entitled to substitute its own decision. As articulated
in
Killian
v S
(A87/2021)
[5]
[2021] ZAWCHC 100
and followed in
Pillay
v S
(2025-189869)
[6]
[2025] ZAKZDHC
82, where the appellate court concludes that the accused has in fact
discharged the onus, it must follow that the
lower court's decision
was wrong within the meaning of section 65(4).
The
Onus and Standard in Schedule 6 Bail Applications
[19]
Section 60(11)(a) of the CPA provides that in the case of an accused
who is charged with an offence referred to in Schedule
6, the court
shall order that the accused be detained in custody until he or she
is dealt with in accordance with the law, unless
the accused, 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.
[20]
The Constitutional Court in
S
v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat
[7]
[1999] ZACC 8
;
1999
(2) SACR 51
(CC) affirmed the constitutionality of this provision.
The court held that the heightened threshold for bail in serious
offences
is justified by the need to protect the public, uphold the
integrity of the justice system, and ensure the proper administration
of justice. Kriegler J held that the limitation on the right to
liberty in section 35(1)(f) of the Constitution is reasonable and
justifiable in an open and democratic society, given the "deplorable
levels of violent crime" in the country .
[21]
"Exceptional circumstances" are not defined in the Act.
In
S
v Petersen
[8]
2008
(2) SACR 355
(C) at 371c, the court held:
"
On the meaning
and interpretation of “exceptional circumstances” in this
context there have been wide-ranging opinions,
from which it appears
that it may be unwise to attempt a definition of this concept.
Generally speaking “exceptional”
is indicative of
something unusual, extraordinary, remarkable, peculiar or simply
different. There are, of course, varying degrees
of exceptionality,
unusualness, extraordinariness, remarkableness, peculiarity or
difference. This depends on their context and
on the particular
circumstances of the case under consideration.
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, mean different things to different
people, so that allowance
should be made for a certain measure of flexibility in the judicial
approach to the question."
[22]
The enquiry is a unitary one. As held in
Solomons
v S
(CC23/2018)
[9]
[2019] ZAWCHC 38
, the court
does not first determine whether exceptional circumstances exist and
then separately determine whether the interests
of justice permit
release. All factors, including those listed in section 60(4)-(9),
must be weighed together in a holistic assessment.
The
Strength of the State's Case
[23]
A central plank of the appellant's argument is that the State's case
is fundamentally weak. He contends that the photographic
identification is inherently unreliable, that the murder charge is
legally unsustainable as the fatal shot was fired by police,
and that
the State's reliance on common purpose is speculative.
[24]
In
S
v Mathebula
[10]
2010
(1) SACR 55
(SCA), the Supreme Court of Appeal held that to
successfully challenge the merits of the State case in bail
proceedings, the applicant
must prove on a balance of probability
that he will be acquitted of the charge. Heher JA stated at paragraph
[12]:
"To successfully
challenge the merits of the State case in bail proceedings, the
applicant must prove on a balance of probability
that he will be
acquitted of the charge. Until an applicant had set up a prima facie
case of the prosecution failing there was
no call on the State to
rebut his evidence to that effect" .
[25]
The court further held in
Mathebula
at paragraph
[11] that an accused who relies on affidavit evidence which is not
open to test by cross-examination presents
evidence that is "less
persuasive." The vulnerability of unsupported alibi evidence was
noted as "notorious and
dependent on the court's assessment of
the truth of the accused's testimony" .
[26]
In the present matter, the magistrate did not accept the
identification evidence as proven fact. She correctly approached it
as
prima facie
evidence linking the appellant to the
case, which is permissible in bail proceedings. The financial trail,
consisting of objective
documentary evidence of payments from a
co-accused to the appellant's company, provides corroboration. The
magistrate cannot be
said to have materially overstated the strength
of the State's case.
[27]
Regarding the murder charge and common purpose, the appellant's
argument is premature. The doctrines of common purpose and
dolus
eventualis
are complex and their application will be
determined at trial based on all the evidence. The State is not
required at the
bail stage to prove its case beyond a reasonable
doubt. The mere fact that the fatal shot was fired by police does not
automatically
exonerate the appellant if the State can prove that he
was part of a common enterprise that foreseeably led to the death. As
held
in
S v Thebus and Another
[2003] ZACC 12
;
2003 (6) SA 505
(CC),
common purpose can be established through active association or prior
agreement. The financial links and the identification,
if accepted by
the trial court, could form the basis for such a finding.
The
Section 60(4) Risk Factors
[28]
The appellant argues that the State failed to establish any of the
risk factors contemplated in section 60(4). I disagree.
The
magistrate conducted a thorough analysis of these factors and her
findings are supported by the evidence.
[29]
In
S v Dlamini
(supra), the Constitutional Court
held that the risk that the detainee would endanger a particular
individual or the public
at large is a legitimate consideration in
the "interests of justice" test. The court stated that
section 60(4) provisions
are "not intended as deeming provisions
at all but as pointers towards the categories of factual findings
which could ground
a conclusion that bail should be refused" .
[30]
The magistrate found:
30.1.
Flight
risk:
The
appellant faces extremely serious charges carrying lengthy terms of
imprisonment. He has a valid passport and ties to
Mozambique. He was
on bail in another matter when these offences were committed,
demonstrating a disregard for judicial supervision.
In
S
v Vermaas
[11]
1996
(1) SACR 528
(T), it was held that an accused who applies for bail is
unlikely to admit that he intends to abscond, and the court must
assess
the objective factors.
30.2.
Risk of
further offences:
The appellant committed these offences
while on bail in Durban. He was arrested for the present matter while
in custody for
another matter in Johannesburg for which he was not
granted bail. This demonstrates a propensity to offend and a lack of
respect
for the criminal justice system.
30.3.
Undermining
the criminal justice system:
The magistrate found the
appellant was not truthful regarding properties registered in his
name and regarding his cooperation
with investigators. His failure to
be candid with the court is a factor that weighs heavily against him.
In
S v Mathebula
(supra), the court held that
"parroting the terms of s 60(4) does not establish any of the
grounds, without the addition
of facts that add weight to the
appellant's ipse dixit" .
[31]
The appellant's personal circumstances, while sympathetic, do not
outweigh these risk factors. In
S v Vermaas
(supra),
it was held that the personal hardships of detention are experienced
by many accused persons and do not, on their
own, constitute
exceptional circumstances.
Evaluation
of the Magistrate's Discretion
[32]
The appellant has identified several alleged misdirections. I have
carefully considered each of them.
[33]
Regarding the identification evidence, the magistrate did not err.
She was aware that the identification arose from a photograph
and not
a formal parade. However, at the bail stage, the court is not
required to evaluate the reliability of evidence as if at
trial. The
magistrate correctly treated the identification as
prima
facie
evidence
linking the appellant to the case, corroborated by the financial
trail. In
S
v Matshwe
(CA
118/05)
[12]
[2006] ZANWHC 11
,
the court emphasised that photographic identification must be treated
with caution, but that is a matter for trial.
[34]
Regarding the treatment of hearsay evidence, the appellant relies
on
K.Y.M
v S
(CAB20/2024)
[13]
[2025] ZANWHC 140
and
Solomons
v S
(supra)
for the proposition that untested affidavit evidence has less
probative value than viva voce evidence. This is correct.
However,
the magistrate was alive to this distinction. She considered that the
appellant testified and was cross-examined, while
the investigating
officer did not testify. She nevertheless found the appellant's
evidence to be lacking in credibility and the
State's evidence,
though untested, to be sufficient to establish a
prima
facie
case
and the section 60(4) risks. This was a finding within her
discretion.
[35]
The appellant's credibility was central to the magistrate's
assessment. She found contradictions regarding his properties and
his
cooperation. In
S v Mathebula
(supra), the court
held that an accused's bare denial of complicity, without more, is
insufficient. The magistrate was entitled
to reject the appellant's
version based on the contradictions revealed during
cross-examination.
[36]
The magistrate did not treat the seriousness of the charges as
determinative. She considered it as one factor among many, which
is
entirely proper. In
S v Mpulampula
(supra), the
court acknowledged that the seriousness of the offence is a relevant
consideration.
[37]
Having reviewed the record, I am not persuaded that the magistrate
misdirected herself in any material respect. She conducted
a thorough
and balanced assessment of all the evidence. She correctly applied
the onus. Her findings of fact are supported by the
evidence. Her
conclusion that the appellant failed to discharge the onus of proving
exceptional circumstances was one that a reasonable
court could
reach. Her decision was not wrong.
The
Ruling on New Facts
[38]
Section 65(2) of the CPA provides that if new facts have arisen, an
accused may apply for bail again. The term "new facts"
refers to facts which were not before the court at the time of the
original application and which are materially different in character
from those previously presented. See
S
v Mohammed
[14]
1999
(2) SACR 507
(C) and
S
v Petersen
[15]
2008
(2) SACR 355
(C).
[39]
In
S v Petersen
(supra) at 371e-f, Van Zyl J held:
"
When, as in the
present case, the accused relies on new facts which have come to the
fore since the first, or previous, bail application,
the court must
be satisfied, firstly, that such facts are indeed new and, secondly,
that they are relevant for purposes of the
new bail application. They
must not constitute simply a reshuffling of old evidence or an
embroidering upon it. "
[40]
In
S v Vermaas
(supra), the court held that a bail
application on new facts is not an extension of the old application.
The court must compare
the old and new facts to determine if the
latter are truly new.
[41]
The appellant argues that the magistrate committed a procedural
irregularity by refusing to admit the affidavit before determining
whether the facts were new. He relies on
Mia
v S
(A198/2025)
[16]
[2025] ZAFSHC 365
and
Obinyeluba
v S
(BA01/2024)
[17]
[2024] ZALMPPHC 73 for the
proposition that a court must first receive the evidence to determine
if it is new.
[42]
While it is generally prudent for a court to receive the evidence, a
refusal to admit evidence that is patently not "new"
does
not constitute a reviewable irregularity. The court is entitled to
assess the nature of the proposed evidence to determine
its novelty.
In this case, the magistrate required counsel to summarise the
proposed evidence. The summary revealed that the core
of the new
evidence was an alibi for the appellant's whereabouts on 9 March
2025—placing him at his residence in Westville.
[43]
The issue of the appellant's whereabouts on that day was the central
feature of the bail proceedings. The appellant testified
at length
and was cross-examined on this very point. The proposed alibi
evidence was known to him at the time of the first application.
It is
not a new fact; it is a belated attempt to bolster his version with
corroborating witnesses and documents that were available
but not
procured timeously.
[44]
In
S
v Le Roux en Andere
[18]
1995
(2) SACR 613
(W), the court held that where evidence was available to
the applicant at the time of the previous application but was not
adduced,
it cannot be relied on in a later application as new facts .
This principle applies squarely to the present matter.
[45]
Furthermore, the appellant's argument that there has been a lack of
progress in the investigation is not borne out by the record.
The
State indicated that investigations were ongoing and that another
accused had been added. The mere passage of time, without
more, does
not constitute a new fact justifying a fresh bail application. As
noted in the De Rebus article on bail applications
on new facts, the
State's inability to investigate the case
could
be a
new fact, but only where there is clear evidence of delay or
failure . Here, the appellant's own application for
a section
342A postponement was dismissed, and the State was given three months
to finalise investigations, indicating that progress
is being made.
[46]
The magistrate was therefore correct in finding that the evidence
tendered did not constitute new facts. Her ruling was in
accordance
with established jurisprudence.
Conclusion
[47]
The appellant has failed to persuade this court that the decision of
the court a quo to refuse bail was wrong. The magistrate
exercised
her discretion judicially and on a proper conspectus of the evidence.
She correctly applied the onus and the legal principles
governing
Schedule 6 bail applications. Her findings on the risk factors under
section 60(4) are supported by the evidence.
[48]
Similarly, the magistrate was correct in finding that the evidence
tendered on 23 February 2026 did not constitute new facts.
The
proposed evidence was either available at the time of the first
application or pertains to issues that were fully canvassed
in those
proceedings. To permit such evidence now would be to allow the
appellant to piecemeal his case and circumvent the finality
of bail
proceedings, which is precisely what the "new facts"
jurisprudence seeks to prevent.
[49]
The balance between the liberty of the individual and the interests
of society is a delicate one. In this case, the scale tips
firmly in
favour of the interests of justice. The serious nature of the
charges, the
prima facie
evidence linking the
appellant to a violent, organised criminal enterprise, his lack of
candour with the court, and his demonstrated
propensity to offend
while under judicial supervision all compel the conclusion that his
continued detention is justified.
Order
[50]
Consequently, the following order is made:
The
appeal against the refusal of bail handed down by the Regional
Court, Johannesburg, on 31 October 2025 is dismissed.
The
appeal against the ruling of the Regional Court, Johannesburg,
delivered on 23 February 2026, refusing to admit the appellant's
affidavit as constituting new facts, is dismissed.
NEMAVHIDI
AJ
Acting
Judge of the High Court
Gauteng
Division, Johannesburg
DATE
OF HEARING:
18 March 2026
Date
of judgment:
24 March 2026
Counsel
for Appellant:
Adv
W J Burger
Instructed
by:
MW Joosub Attorneys
Counsel
for Respondent:
Adv N Kowlas
Instructed
by:
NPA
[1]
1979(4) SA 218 (D) at 220E-G
[2]
2007 (2) SACR 133
(E) at 136e
[3]
2011 (1) SACR 490
(ECP) at para 18
[4]
2004 (2) SACR 133 (C)
[5]
2021 ZAWCHC 100
[6]
2025 ZAKZDHC 82
[7]
1999 (2)SACR 51 (CC)
[8]
2008 (2) SACR 355
(C) at 371c
[9]
2019 ZAWCHC 38
[10]
2010 (1) SACR 55 (SCA)
[11]
1996 (1) SACR 528 (T)
[12]
2006 ZANWHC 11
[13]
2025 ZANWHC 140
[14]
1999 (2) SACR 507 (C)
[15]
2008 (2) SACR 355 (C)
[16]
2025 ZAFSHC 365
[17]
2024 ZALMPPHC 73
[18]
1995 (2) SACR 613
(W)