SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
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THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
Reportable/Not Reportable
Case no: A2026-013849
In the matter between:
DAWID NAGEL First Appellant
WILLEM RAS Second Appellant
GADIFELE PETER MOGAPE Third Appellant
and
THE STATE Respondent
Neutral citation: Nagel and 2 Others v The State (A2026-013849) (08 May 2026).
Coram: Tyuthuza AJ.
Heard: 24 March 2026.
Delivered: 08 May 2026.
Summary: Criminal Law –Section 65 of the Criminal Procedure Act 51 of 1977 –
Appeal against refusal of bail – Appeal court may set aside refusal to grant bail
where decision is wrong – Whether interests of justice permit appellants ’ release on
bail – Appellants’ previous convictions – Appellants’ pending cases – Likelihood to
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evade trial – Likelihood to commit further schedule 1 offences – Likelihood of
interference with witnesses – Strong prima facie case against appellants – Appeal
dismissed.
3
ORDER
1. The appeal against the refusal of bail is dismissed.
JUDGMENT – BAIL APPEAL
Tyuthuza AJ
Introduction:
[1] The appellants allegedly acted in common purpose and were charged with 10
counts namely ; cyber fraud, cyber forgery, cyber uttering, impersonating a
police officer, restricted activity involving culling of protected species,
restricted activit y involving specifically animal transportation, possession of
unlicensed firearm , possession of ammunition without a licence , fraud and
display of a number plate which is not applicable to the said vehicle.
[2] The appellants were arrested on 4 December 2025 and have been in custody
since. On 17 December 2025, the appellants launched their bail applications
in the Upington Magistrates’ Court. The bail applications were opposed by the
State. All three appellants were legally represented.
[3] On 23 December 2025 , the court a quo refused bail in respect of the
appellants. This is an appeal against the court a quo ’s decision lodged in
terms of section 65 of the Criminal Procedure Act1 (“the CPA”).
[4] Subsequent to the filing of the notice of appeal , the State launched an
application in terms of section 6 5(2) of the CPA, which application was heard
and adjudicated on 27 February 2026 by the court a quo. The parties have
1 51 of 1977.
4
supplemented their written submissions to include the aforementioned
proceedings.
Grounds of appeal:
[5] The grounds of appeal, in sum, are that the court a quo erred in:
5.1. finding that the State succeeded in proving that the appellants are a
flight risk;
5.2. finding that there is a likelihood that if the appellants are released on
bail, they will attempt to interfere with the witnesses;
5.3. finding that there is a likelihood that if the appellants are released on
bail, they will endanger the safety of a particular person or the
witnesses; and/or commit a schedule 1 offence , especially in regard to
the first and second appellants;
5.4. finding that there is a likelihood that if the appellants are released on
bail, they will attempt to evade their trial as a result of the strength of
the State’s case;
5.5. making no finding in terms of section 60(4)( a)–(e) as to why the
appellants’ bail was denied;
5.6. finding that the appellant s did not prove that the interests of justice
permit their release on bail; and
5.7. failing to properly consider the factors listed in section 60(4)(a)–(e) and
subsection (9) of the CPA.
[6] The above grounds of appeal were dealt with in the appellants’ heads of
argument which were filed in February 2026 prior to the application on 27
February 2026. Subsequent to the section 6 5(2) proceedings i n February
2026, the appellants supplemented their grounds of appeal to include the
following:
6.1. that the court a quo erred in considering other counts other than count
1 and count 2; and
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6.2. that the court a quo erred in considering the second and third
appellants’ bail applications under schedule 5, they ought to have been
considered under schedule 1.
Judgment of the court a quo:
[7] In refusing bail for the first appellant, the court a quo relied on his previous
convictions and the fact that he was found guilty on 17 charges in August
2017, and that some of th ose charges are relevant to this matter. The court a
quo found that if the first appellant is released on bail, there is a likelihood that
he will commit other offences, based on his past conduct. Further that there is
a likelihood that if he is released on bail, he will interfere with the State
witnesses. In respect of the second appellant, the court a quo relied on the
fact that he has pending cases, that he was supposed to appear on a matter
on 8 December 2025 for stock theft , and the fact that he is allegedly identified
on a matter in Colesb erg for theft of rhino horns. In respect of the third
appellant, the Court indicated that he does not have any previous convictions
or pending cases, but was of the view that the third appellant would commit a
schedule 1 offence if he is released on bail.
[8] The court a quo refused bail on the basis that the appellants could evade trial.
In this regard, the court a quo found that the State had a strong case against
the appellants based on the evidence before it. The court a quo further found
that if the appellants were ultimately convicted and sentenced on these
charges, they could serve a long sentence of imprisonment. It further
concluded that there is a likelihood that if the appellants were released on
bail, they would attempt to influence or intimidate witnesses or hide/destroy
evidence. The court emphasi sed that the witnesses were concerned for their
safety and feared for their lives. In respect of the first and second appellants ,
the court concluded that there is a likelihood that they would endanger the
the court concluded that there is a likelihood that they would endanger the
safety of a particular person or witness , and/or commit a schedule 1 offence if
released on bail. The court a quo concluded that the appellants failed to
satisfy the court, on the balance of probabili ties, that the interests of justice
permit their release on bail.
6
Proceedings in the court a quo:
[9] The appellants elected not to adduce oral evidence but filed affidavi ts in
support of their bail applications.
[10] Mr Nagel, the first appellant, provided the following information: he is 48 years
old. He is engaged. He has four children aged 9,14,15, and 16 who reside
with him and his fiancée. His children, fiancée and his parents are dependent
on him. He is residing at 4[...] C[...] Street, Pretoria Gardens, Pretoria and has
been residing there for 6 years. He is in good health. His highest level of
education is an N3 certificate. He is self -employed and earns R30 000.00
monthly. He owns six vehicles which are worth R500 000.00 . He has no
pending cases against him. He has four previous convictions and was
arrested on 4 December 2025. He intends to plead not guilty to the charges
levelled against him. He has no relationship with the State witness. He
employs several individuals, and his detention would negatively impact not
only his dependants , but his employees too. He further states that his last
conviction was six years ago thus showing rehabilitation and a sustained
period of law -abiding conduct. That if he is granted bail , he would be able to
afford R3000.00 and report to the Pretoria Police Station every Friday
between 06:00 and 18:00.
[11] Mr Willem Ras, the second appellant, stated in his affidavit that he is 47 years
old and presently residing at 7[...] P[...] L[...] , Fred Messenger (Pretoria). He
has been residing at this address for two years. He is married and has four
children aged 20, 18, 17 and 13 who reside with him and his wife. His wife
and children are fully dependent on him. His highest level of education is also
an N3 certificate. He is employed and earns a monthly income of R15 000.00.
He owns a vehicle to the value of R40 000.00. He is in good health. He has
one previous conviction and one pending matter. He was arrested on 4
one previous conviction and one pending matter. He was arrested on 4
December 2025 and intends to plead not guilty to the charges levelled against
him.
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[12] Mr Gadifele Peter Mogape, the third appellant , stated as follows : he is 4 3
years old and is residing at 2[...] V[...] Crescent, Island Estate, Hartebeespoort
Dam and has been residing at th is address for three years. He is unmarried
and has four children aged 12, 10, 8 and 6 who currently reside in Pretoria
with their mother. His fiancée, with whom he resides, also has four children .
All the eight children, his fiancé e and his parents are dependent on him. His
highest level of education is grade 10. He is employed and earns a monthly
income of R15 000.00. He owns a house to the value of R300 000.00. He is in
good health. He has no previous convictions and no pending cases. He was
arrested on 4 December 2025 and intends to plead not guilty to the charges.
He has no relationship with the State witness. If he is granted bail , he can
afford the amount of R3000.00 and is able to report to the Hartebeespoort
Police Station every Friday.
[13] It is so that parroting the terms of s ection 60(4), without the addition of facts
that add weight to the applicant’s ipse dixit, does not establish any ground to
be released on bail. 2 It is significant that in their affidavits, the appellants
simply regurgitated the provisions of section 60(4)( a)–(e) of the CPA, without
elaborating thereon. Further evidence was , however, led on behalf of the
appellants, in confirmation of their addresses, financial obligations and
employment. Undoubtedly, “evidence” as envisaged in s ection 60(11) of the
CPA, for which a bail applicat ion is an opportunity to adduce , refers to the
available body of facts and information which indicate that the proposition by
an applicant, that the interests of justice permit their release, is a valid and
true proposition. The legislature could not have intended that an applicant
could simply repeat the findings which the legislature set out for consideration,
and not provide the facts upon which such findings could be made.3
and not provide the facts upon which such findings could be made.3
[14] On behalf of the State, the investigating officer- Renier Daniel Visser, led viva
voce evidence. He testified that Mr N agel was convicted on 4 August 2017 in
one matter where the re were several charges. He has five previous
2 S v Mathebula 2010 (1) SACR 55 (SCA) para 15 ; see also Kgatle v S [2023] JOL 60451 (GJ) para
22.
3 S v Motsi 2023 (1) SACR 218 (WCC) para 28.
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convictions and one pending case. He testified that Mr N agel will commit an
offence if he is released on bail and that the charges were serious. He
testified that Mr Nagel attended to some of the witnesses addresses, and that
the witnesses feared for their lives. He further testified that the charges
against Mr N agel are similar to those he was charged with in 2017 . Further
that the appellants were found in possession of a falsified police appointment
certificate with Mr Nagel’s face on it, as well as a ref lector jacket, hand- cuffs,
police forensic bags and dockets, and also a name tag. Mr Visser further
testified that the police are in possession of two commissioned statements
confirming that Mr Nagel pretended to be a police official. He further testified
that Mr N agel would not stand trial in that he had previously escaped from
lawful custody on two occasions. He testified that Mr N agel was released on
parole in September 2024.
[15] It is Mr Visser’s testimony that the second appellant (Mr Ras ) has four
pending cases , three of which are for stock theft and one for theft of other
goods. The latter theft matter was postponed to 12 January 2026. Whilst the
appellant was supposed to appear in Brits for one of the matters in respect of
stock theft on 8 December 2025, he was in custody then. He testified that in a
span of three months, four cases w ere opened against Mr Ras. He testified
that Mr Ras knows where the complainants are residing as he was at their
place of residence. He further testified that at the time of arrest, a rhino horn
was found in the vehicle in which the appellant s were travelling. Finally, that
Mr Ras was positively identified as an accused in Colesberg CAS41/10/2025,
a matter wherein rhino horns were stolen from a complainant.
[16] In respect of Mr Mogape, the third appellant, Mr Visser testified that he has no
previous convictions and no pending cases. He further testified that the third
previous convictions and no pending cases. He further testified that the third
appellant is implicated in two theft matters which are still under investigation.
Further that the State has information, including witness statements ,
regarding the charges against the appellants. He testified that the appellants
were arrested on 4 December 202 5 in a Ford Ranger bakkie in Upington , and
that the number plate of the motor vehicle belonged to another Ford Ranger
bakkie. Two lo ose number plates were found in the vehicle, and the third
9
appellant indicated that the vehicle belonged to his sister. He testified that
they found licenced firearms, but not belonging to the appellants, and a rhino
horn in a sealed police forensic bag inside the vehicle. The first appellant was
also found with a forged police appointment certificate in his possession. The
appellants were also in possession of a police name badge, a police jacket,
handcuffs, a laptop full of documentation, a clean police docket , as well as
unused police forensic bags. Mr Visser concluded that, despite the fact that it
was in the early stages of investigation in this matter, the State has a strong
prima facie case against the appellants.
Proceedings in the court a quo on 27 February 2026:
[17] The State brought an application based on new facts, which facts the State
alleged it was not privy to at the time that the appellants launched their bail
application.
[18] During those proceedings, after much objection from the appellants, the State
proceeded to read the statement of Detective Dobola into the record. In sum ,
he alleged therein that on Saturday, 18 January 2026, he received information
that the appellants had planned to kill warrant officer Visser for opposing their
release on bail. The court a quo found the information to be relevant and
further found that the information would not reverse its decision on 23
December 2025 to deny the accused bail. Thus, the court’s decision on 23
December 2025 stood.
Analysis of the appeal:
[19] In terms of section 12(1)(a) of the Constitution of the Republic of South Africa,
1996 (“the Constitution”), a person cannot be deprived of his or her freedom
arbitrarily or without just cause. Section 35(1)(f) of the Constitution provides
that “everyone who is arrested for allegedly committing an offence has the
right to be released from detention, if the interest s of justice permit, subject to
reasonable conditions.”
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[20] Section 65(4) of the CPA directs , in the following terms, how an application in
terms of section 65(1) ought to be dealt with:
“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.”
[21] Section 65(4) of the CPA is drafted in peremptory terms. The decision of the
court a quo cannot be set aside on appeal unless the appeal court is satisfied
that it was wrong. Thus, if this Court is satisfied that the impugned decision
was wrong, this Court shall set aside that decision and substitute it with the
decision which, in its opinion, the court a quo ought to have made. In order to
succeed, the appellant s will have to show that the court a quo wrongly
weighed up the points for and against the granting of bai l; or that it
overemphasised aspects which militate against the granting of bail, whilst
aspects in favour of the appellant s to be granted bail were not given sufficient
weight.4
[22] The court a quo dealt with the application for bail on the basis that the parties
agreed that the bail would fall within the ambit of schedule 5 to the CPA.
However, at the hearing of the matter in this Court, it was agreed between the
parties that the bail application in respect of the second and third appellants
fell within the ambit of schedule 1 to the CPA, and thus ought to have been
dealt with as such. In light thereof, it follows that the correct test which should
be applied in relation to the second and third appellants is as set out in
section 60(1)(a) of the CPA which provides as follows:
“An accused who is in custody in respect of an offence shall, subject to the provisions
of section 50(6), be entitled to be released on bail at any stage preceding his or her
of section 50(6), be entitled to be released on bail at any stage preceding his or her
conviction in respect of such offence , if the court is satisfied that the interests of
justice so permit.” (Own emphasis.)
4 Msimango v S [2025] ZAGPPHC 1119 para 16; See also S v Zondi 2020 (2) SACR 436 (GJ) para
14.
11
[23] In light of the previous convictions in respect of the first appellant , section
60(11)(b) places an onus on the first appellant to prove, on a balance of
probabilities, that the interests of justice permit his release on bail. Section
60(11)(b) of the CPA provides as follows:
“Notwithstanding any provision of this Act, where an accused is charged with an
offence-. . .(b) referred to in Schedule 5, but not 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 the interests of justice permit his
or her release.”
[24] Section 60(4) of the CPA provides that:
“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; or
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(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.”
[25] It is common cause that if one or more of the jurisdictional grounds mentioned
in the above subsection are established, the appellants would not be entitled
to be admitted to bail. The court must be satisfied, on the evidence, that there
is a real likelihood, and not a speculative or remote possibility, that one or
more of the grounds enumerated in section 60(4) of the CPA will occur if the
accused is released on bail. 5 This can only be achieved if the court properly
considers and evaluates all the relevant evidence , well informed of the
applicable standard of proof as well as the party upon whom the onus rests,
before reaching its conclusion in respect of each appellant.
[26] In the matter of S v Smith and Another6, it was held that:
“. . . [T]he Court will always grant bail where possible, and will lean in favour of, and
not against, the liberty of the subject, provided that it is clear that the interests of
justice will not be prejudiced thereby.”
[27] Where the court a quo has indeed misdirected itself materially on the facts
and/or the legal principles, the court of appeal may consider the issue of bail
afresh. Interference is also justified where the lower court “overlooked some
important aspects” in coming to the decision to refuse bail.7
[28] In my view , it is apparent from the record that the court a quo engaged with
the statutory grounds as set out in section 60(4)( a) to (e), and weighed those
considerations against the evidence tendered by the appellants.
[29] The court hearing the bail application must express a balanced value -
judgment, taking into account the grounds in section 60(4) of the CPA. In
5 Botha v S (Bail Appeal) (BA 03/2025) [2025] ZALMPPHC 49 (19 March 2025) para 18; see also S v
Diale and Another 2013 (2) SACR 85 (GNP) para 14.
6 1969 (4) SA 175 (N) at 177E– F.
Diale and Another 2013 (2) SACR 85 (GNP) para 14.
6 1969 (4) SA 175 (N) at 177E– F.
7 S v Alehi 2022 (1) SACR 271 (GP) para 21.
13
general, the reasons for refusal of bail can usually be found in one of two
considerations, or both, namely: (1) whether the accused will abscond; and
(2) whether the granting of bail will lead to interference with the investigation
and/or prosecution. 8 These considerations entail a projection of future
conduct, taking into account past conduct.9
[30] It is evident from Mr Visser’s testimony and further police investigations that ,
the appellants are at least prima facie part of a syndicate and that the State
has a prima facie case against the m. The three appellants were arrested
together on 4 December 2025 in Upington. They were driving a Ford Bakkie
with a number plate that belonged to another vehicle. Two other number
plates were found in the vehicle . According to the third appellant , the vehicle
they were found driving belonged to his sister. Inside the vehicle , the police
found two licenced firearms which do not belong to the appellants. A rhino
horn in a sealed police forensic bag was also found. The first appellant had a
forged police appointment certificate in his possession and a name badge. A
police jacket, handcuffs, a laptop, a clean police docket and a lot of unused
police forensic bags were found in the appellants’ possession. The State also
has witnesses’ statements linking the appellants to the charges.
[31] The appellants did not take the court a quo into their confidence, they failed to
deal with the merits of the matter and chose to remain silent , despite the
evidence which was before the court a quo. In S v Mathebula,10 the Supreme
Court of Appeal (“the SCA”) instructively observed thus:
“In the present instance the appellant ’s tilt at the State case was blunted in several
respects: first, he founded the attempt upon affidavit evidence not open to test by
cross-examination and, therefore, less persuasive . . .”11
In S v Bruintjies,12 the SCA further stated as follows:
8 Hiemstra’s Criminal Procedure, Issue 2 at 9 – 12.
8 Hiemstra’s Criminal Procedure, Issue 2 at 9 – 12.
9 S v Thornhill 1998 (1) SACR 177 (C) at 182E– G.
10 2010 (1) SACR 55 (SCA) para 11.
11 See also Van Biljon v S [2025] JOL 68999 (GJ) paras 19 – 20.
12 2003 (2) SACR 575 (SCA) at para 7(f).
14
“The appellant failed to testify on his own behalf in the trial and no attempt was made
by his counsel to have him testify at the bail application. There was thus no means by
which the Court a quo could assess the bona fides or reliability of the appellant save
by the say-so of his counsel.”
[32] During the evidence of Mr Visser, it became clear that the first appellant has
numerous previous convictions, and two of those are for escaping from lawful
custody. The second appellant has three pending matters. He is also
implicated, and has been positively identified, as an accused in another
matter where rhino horns have been stolen. The third appellant had three
pending theft cases. It is concerning that the first and third appellants failed to
disclose all this information in their affidavits, and opted to conceal this
evidence from the court a quo. I find this to be serious omissions, which
further affect the appellants’ prospects of being released on bail. It is
important when applying for bail that all the facts be placed before court to
determine if it is in the interests of justice for the ap pellants to be released on
bail.
[33] I am of the view that the circumstances contemplated in section 60(4) present
themselves based on the following considerations:
33.1. The appellants are a flight risk and there is a likelihood that they will
attempt to evade their trial if they are released on bail. The first
appellant has previously been convicted on two occasions for escaping
from lawful custody. A J50 was issued in respect of the third appellant
on two occasions. The appellants have no family or occupational ties,
and do not own assets , in Upington (where they are to be tried) or in
the Northern Cape Province . It is also clear from the pending matters
that the appellants ’ only link to the Northern Cape Province is through
the offences they have allegedly committed.
33.2. There is a likelihood that the appellants will commit further schedule 1
33.2. There is a likelihood that the appellants will commit further schedule 1
offences. The appellants ’ propensity to commit schedule 1 offences is
15
evidenced by their previous convictions and /or the pending cases
against them, which are similar to the charges which they face in casu.
33.3. There exists, at the very least, a well-grounded fear of interference with
the State witnesses. The appellants attended to the residences of the
witnesses, personified themselves as police officers , and were armed.
Thus, it is clear that the appellants are aware of the witnesses’
residence, and this has caused fear amongst the witnesses. Therefore,
I am of the view that if the appellants are released on bail , a
reasonable possibility exists that the appellant s will interfere with the
witnesses or attempt to influence or intimidate those witnesses.
33.4. According to the evidence led on 27 February 2026, the appellants
have allegedly plotted and planned to have someone monitor the
movements of the investigating officer in order to ultimately kill him.
These are serious allegations, which in my view further demonstrate
that a likelihood exists that the appellants, if released on bail , would
undermine or jeopardise the objectives or proper functioning of the
criminal justice system.
[34] On a conspectus of the evidence, the court a quo was correct to find that it
was not in the interests of justice to permit the appellants ’ release on bail. In
light of the prevalence of the above -mentioned factors; the first appellant has
failed to adduce evidence to satisfy this Court that the interest s of justice
permit his release on bail, and this Court is also satisfied that the interests of
justice do not permit the release of the second and the third appellants on
bail.
[35] In the premise, I make the following order:
1. The appeal against the refusal of bail is dismissed.
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_______________________
T TYUTHUZA
ACTING JUDGE OF THE HIGH COURT
NORTHERN CAPE DIVISION
Appearances
For the Appellant: Mr. K Juries
Instructed by: Kenneth Juries & Associates
For the Respondent: Adv. R Steyn
Instructed by: Director of Public Prosecutions