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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO: A85/2026
In the matter between:
ISAK KATZEN Appellant
and
THE STATE Respondent
Neutral citation: State v Kapzen (Case no A85/2026) [2026] ZAWCHC … (12
June 2026)
Coram: GXASHE AJ
Heard: 3 June 2026
Delivered electronically: 11 June 2026 Summary: Criminal procedure -bail
application-section 60 11 (a) of the act - onus on the appellant - interests of
justice- exceptional circumstances - warranting the accused release on bail -
0
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ff>L
section 60 (9) balancing - interests of justice against the accused right to his
personal freedom.
ORDER
The applicant’s application to be released on bail is hereby dismissed.
JUDGMENT
GXASHE AJ
Introduction
[1] This is an appeal against the judgment of the Blue Downs Magistrate’s
Court which dismissed the appellant’s application to be granted bail pending the
finalisation of his trial. He is arraigned for murder, conspiracy to commit murder,
and possession of a firearm in contravention of section 3 of the Firearms Control
Act 60 of 2000.
[1] It is common cause that the appellant is charged with an offence listed in
schedule 6 of the Criminal Procedure Act 51 of 1977 (the “CPA”). The court is
thus required to order that the appellant be detained in custody until he is dealt with
in accordance with the law, unless the appellant having been given a reasonable
opportunity to do, adduces evidence which satisfies the court that exceptional
circumstances exist which in the interest of justice permit his release on bail.
During the application for bail, the appellant testified under oath, but was not
cross-examined by the State. The State opposed the application on the strength of
an affidavit deposed to by Sergeant Simphiwe Tubeni, who is the investigating
officer in this matter.
Factual matrix
[2] The appellant testified under oath that he is an adult male who was born on
27 April 1977. His highest standard of education is standard 6, and he is currently
unemployed. He is single and blessed with three children and two grandchildren.
One of his children is 16 years old and is still attending school. Before his arrest,
he was residing at 2[...] G[...] Street, Wesbank, at his girlfriend’s place. He regards
this address as his permanent place of residence, and his entire family resides in the
Western Cape. He was the owner of two pick -up trucks valued at R40 000 which
he had used to gather metal, but they were both stolen. He sells metals at a
scrapyard for a living and manages to make a minimal income of R500.00 per day.
[3] Furthermore, the appellant stated that he is the sole provider of his family,
bearing full financial responsibility for his unemployed sisters as well. He has a
short intestine and has been living with this condition for thirty years. As a result,
he used to get injections, and vitamin tablets every month from Pick n Pay
pharmacy. Without treatment, his intestines will shrink. Moreover, he was
diagnosed with high blood pressure but could not tell if he is still suffering from
this condition, save to say that he was taking small pills to manage it.
[4] According to the appellant, after his arrest he was detained at Blue Downs
Police Station. He fell ill in detention and an ambulance was summoned.
Although he was never treated or consulted by a doctor, he was informed that there
was nothing wrong with him and was returned to detention. The appellant
indicated further that he understands the charges against him and will plead not
guilty. He thus elected to exercise his right to remain silent and did not disclose the
basis of his defence during this application.
[5] The investigating officer’s affidavit was read on record by the public
prosecutor. In his affidavit, he clearly stated that he was opposing the accused’s
release from detention. He confirmed in evidence that the appellant resides at 2[...]
G[...] Street, Wesbank. He has no previous convictions or outstanding warrants.
The investigating officer stated further that according to the information he
received from a witness the appellant and his friends Jason Willemse, Damien and
Hardley were standing by the fire at Gelvandale Street, Wesbank on the evening of
18 June 2024, at approximately 06:30. An argument ensued between them and
subsequently Damien punched the appellant on his face. Thereafter, the appellant
swore and said to Damien “you will see what I will do to you.” At that time,
Damien was walking down the street to his friend Valentino Jansen, the deceased,
in this matter.
[6] Later that evening, the deceased joined the appellant, Jansen and Hardly had
stood with them by the fire. At some point the deceased walked away and left the
appellant and his friends there. The appellant remarked ‘die nommer kan change’
and asked his friends to accompany him. Thereafter, the appellant and his friends
travelled in a maroon sedan (the appellant’s vehicle) and drove in the Stellenbosch
Arterial’s direction. While en route the appellant conversed with an unknown
person on the phone, to inf orm him that he was on the way to pick him up. The
appellant also instructed the unknown person to find a second person. Ultimately,
the appellant went to Uitsig Ravensmead area and picked up two coloured males,
Alias Aya and Alias Aggies. On the way back to Wesbank, Alias Aya said to the
appellant ‘Hulle gaan nou sien wat dalla ons’. That is when the witness realised
that it is the same person the appellant was speaking to earlier.
[7] On arrival in Wesbank , the appellant and his companions searched for
Damien and Valentino and when they could not find them, they went to 6[...] S[...]
Street, WesBank, where Valentino’s mother resides. They called Valentino and in
response he said ‘Julle moenie kom kak maak hier nie dalla wat jy wil’ as he was
approaching them. At that point, the appellant grabbed a black firearm from Aya
but failed because Aya resisted. Instead, Aya fired two shots at Valentino and
struck him on his upper body. After that, they travelled on the maroon sedan and
drove back in the direction of Uitsig.
[8] On the way, Aya said to the appellant “Miskien is daai jong dood” and the
appellant replied “Ons sal more op die foon hoor”. Eventually, the appellant
dropped Aya off and consumed alcohol the whole night.
[9] It also transpired from the investigating officer’s affidavit that the appellant
is well known in Wesbank and is close to all the State witnesses. Accordingly, the
investigating officer stated that if the appellant could be released on bail, he would
pose danger to the witnesses because they all stay in the same area. He stated
further that the appellant planned the offence well and organised people to kill the
deceased. By saying ‘julle gaan nou sien wat dalla ons’, it shows that the appellant
arranged the killing with his gang members from Uitsig.
[10] According to the investigating officer the appellant also used his vehicle
during the commission of this offence, which demonstrates that he did not care if
he was seen by community members. The investigating officer also stated that the
appellant is a danger to the community because at the time of the commission of
these offences, he was still looking for Damien, the deceased’s friend, and could
still get him killed if released on bail. In addition, the investigating officer asserted
that the appellant w ould make sure that the outstanding suspects evade arrest
should he released from detention.
[11] Considering the likelihood that the accused might evade justice, the
investigating officer is of the view that the State has a strong case against the
appellant and that would be an incentive for him not to stand his trial. He also
considered that the appellant’s life is in danger as indicated by him when he was
recording his warning statement. He apparently told the investigating officer that
there is R50 000.00 on his head.
The judgment of the bail court
[12] In her judgment, the magistrate correctly pointed out that the application
fell within the prescripts of schedule 6 offences. She appreciated that the appellant
testified under oath but was not cross -examined by the State. She then pointed out
that the CPA does not define exceptional circumstances and there is no list that
defines the phrase either. The magistrate understood that there is nothing which
indicates that the appellant’s personal circumstances can never be exceptional. She
then said in s ome instances, circumstances evaluated together with the State’s
evidence can be regarded as exceptional circumstances. She proceeded and
considered the appellant’s personal circumstances including the fact that he has no
previous convictions and had been suffering from an illness for 30 years.
[13] The magistrate pointed out further that in bail applications the court is not
concerned about the appellant’s guilt, but only the fact that he is linked to these
offences which shows that the State has a prima facie case against him. She then
dissected the test as two -legged, being whether exceptional circumstances exist,
and whether the interests of justice permit the appellant to be released from
detention.
[14] Furthermore, the magistrate found that the appellant is facing a charge of
premeditated murder, and an innocent life was lost. She went further and stated
that if convicted he could be sentenced to life imprisonment. Ultimately, she found
that the factors placed before her by the State weighed more heavily than the
appellant’s personal circumstances. thus found that the appellant’s release on bail
would not only undermine the objectives of the bail system but the confidence of
the public in the criminal justice system.
Grounds of appeal
[15] I will summarise the grounds of appeal as follows:
(a) The magistrate erred in finding that the appellant is a flight risk, is a
danger to the safety of the public, and will undermine the proper functioning
of the criminal justice system, thus denying him his right to liberty; and
(b) The magistrate misdirected herself by not considering the appellant’s
personal circumstances as compelling, namely that he has a fixed address,
has no previous convictions or outstanding warrants and had co -operated
with the police upon arrest. Further, the appellant has been incarcerated in
an overpopulated prison since June 2024 and is diagnosed with a medical
condition.
Principal submissions by the parties
[16] In arguments, Advocate Paries, for the appellant, submitted that the
magistrate misdirected herself when she found that there are no exceptional
circumstances in the appellant’s undisputed evidence, even though he has a fixed
address, stable employment, and dependent minor children and grandchildren.
According to counsel, the fact that the appellant handed himself to the police
shows that he is not a flight risk. Counsel then referred to the following passage
from the magistrate’s judgment: “I only want prima facie evidence in front of me”.
According to him, these words constitute punitive reasoning inconsistent with S v
Branco and section 35(1)(f) of the constitution.1
[17] Counsel further submitted that the magistrate gave minimal effect and
disregarded the presumption of innocence because despite alleging that bail is not a
trial, she engaged in a mini synopsis, evaluating the merits and drawing adverse
inferences from the disputed facts. According to him, the magistrate rejected the
appellant’s version and made credibility findings against him based on the
investigating officer’s affidavit that was not tested in cross examination. He is of
the view that reliance on the affidavit of the investigating officer without oral
evidence prejudiced the appellant and constitutes a clear misdirection.
[18] Moreover, counsel is of the view that the state’s concession that the
appellant was not the shooter, combined with the evidence that there are suspects
1 S v Branco 2002 (1) SACR 531 (W).
who are not yet arrested weakens the State’s case unless a factual position of
premeditation may be proven with the shooter or co -perpetrator. Counsel also
lamented the magistrate for not applying the provisions of section 60(9) of the
CPA and /or considering granting bail with bail conditions. In this regard, he
referred the court to Rhode v S ,2 and to Lifman v Director of Public Prosecution
Western Cape ,3 and submitted that in both cases the accused were charged with
murder and were granted bail.
[19] Advocate Smith on the other hand argued that the appeal court can intervene
in determining whether bail should be refused or granted if the bail court
misdirected itself. She then submitted that the State has a strong case against the
appellant because the witness was in the appellant’s vehicle, and he witnessed the
shooting. The appellant, according to her, had an opportunity to tell the court his
version but he elected to remain silent.
[20] As far as the appellant’s personal circumstances are concerned, counsel was
of the view that they were nothing out of the ordinary. According to her that is
apparent from the fact that the appellant’s minor child who was sixteen (16) years
old is now a major. In addition, there is no evidence that the sisters were unable to
survive for the last two years without the appellant’s assistance.
[21] Counsel for the State also disagreed with the defence’s referral to the Rhode
and Lifman cases and submitted that the argument is not fair and implies that the
accused who is charged with murder cases should always be granted bail.
2 S v Rohde 2020 (1) SACR 329 (SCA).
3 Lifman v Director of Public Prosecutions, Western Cape 2024 (1) SACR 188 (WCC).
[22] Counsel for the State further submitted that given the circumstances of the
evidence levelled against the appellant, and the potential lengthy term of
imprisonment he faces, shows a likelihood that he would not stand his trial.
Accordingly, she submitted that the magistrate correctly evaluated the
circumstances of the appellant, because he did not show the existence of
exceptional circumstances.
Discussion
[23] This appeal is brought to this court in terms of section 65(4) of the CPA,
which 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.’
[24] This bail application is regulated by section 60(11) (a) of the CPA, which
provides as follows:
‘Notwithstanding any provision of this Act, where an accused 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.’
[26] The correct approach to the decision of bail is that the 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. 4
4 S v Smith and Another 1969 (4) SA 175 (N) at 177E-178B.
[27] What is required is that the court should consider all relevant factors and
determine whether individually or cumulatively they warrant a finding that
circumstances of an exceptional nature exist which justify the accused’s release.
What is exceptional cannot be defined in isolation from the relevant 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.5
[28] In S v Porthen and others,6 the court held that:
‘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… a
court making the determination whether or 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 CPA, enjoined to interfere with the lower court's decision of a bail
application if it is satisfied that the lower court's decision was wrong.
Accordingly, in a case like the present where the magistrate has 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 appeal, 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 meaning of s 65(4) and (ii) that this
Court on appeal can substitute its own decision in the matter.’
5 S v Bruintjies [2003] ZASCA 4; 2003 (2) SACR 575 para 6.
6 S v Porthen and Others 2004 (2) SACR 242 (C)
[25] It is therefore clear that when considering the refusal of bail and determining
whether the magistrate was wrong in doing so, the appeal court is required to
balance the accused’s personal liberty, pending the outcome of his trial, against the
interests of society.7
[26] In this matter, the appellant’s personal circumstances were placed on record
viva voce , and his testimony is clear and remains uncontroverted. As such, the
defence counsel’s argument that the magistrate did not adequately consider the
financial prejudice suffered by the appellant, in particular the fact that his entire
source of income has ceased due to his incarceration, is not correct. In her
judgment, the magistrate referred to Ali v S, 8where the court held that ‘financial
loss is an inevitable consequence of the incarceration of any gainfully employed
person. In the present case, the evidence does not go so far as to prove that,
straitened as their circumstances may be, the appellant’s dependents will starve if
he is not released to fend for them’. The magistrate then proceeded to take into
consideration the personal circumstances of the appellant including the financial
responsibility he had towards his children and sisters. In the end, she said the
following:
‘I have considered these personal circumstances that you set out in your testimony, and if
the court evaluates everything that you placed on record during your testimony, all of
them are normal circumstances. There is nothing exceptional about them. Your medical
condition was also brought as problematic ( sic) if you are incarcerated. However, there I
want to agree with the state, there are facilities available as well as medical attention.
Your medical problem is not of that sort that normal medical attention will not address
the problem. So, if the court looks back individually evaluated, I cannot find anything
exceptional in your application. However, the act is clear that it does not stop there. The
exceptional in your application. However, the act is clear that it does not stop there. The
7 Conradie v S (A248/2020) [2020] ZAWCHC 177 (11 December 2020) para 19-20.
8 S v Ali 2011 (1) SACR 34 (ECP).
court must go further, and in terms of section 60(9) of the criminal procedure act evaluate
your application together with what the state put in front of me, and then also see whether
cumulatively evaluated anything can be regarded as exceptional circumstances’.
[27] Accordingly, the court then proceeded to consider whether the interests of
justice permit the release of the appellant from detention. Section 60(4) (a) to (e)
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 particular 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 the 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
(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.
[28] It is clear from the record that the appellant has no previous convictions.
However, the evidence of the investigating officer showed that the witness’s
statement indicates that the appellant was intending to kill Damien as well, the
person he was in conflict with before the deceased joined them by the fire. He then
expressed that there is a likelihood that should the appellant be released from
detention, he might look for and kill Damien because he had intended to do so
when he fetched his accomplices. This likelihood impacts on subsection (4) (a) of
the CPA and even though this is not factual, it is sufficient because the CPA does
not require proof of factual issues, but a likelihood that if released from detention
the appellant might endanger the safety of the public or of a particular person.
[29] It is also evident that the appellant is charged with murder, and the State
relies on common purpose. Undoubtedly, the magistrate was correct when she
stated that if convicted the appellant might be sentenced to life imprisonment. The
record reflects that the appellant did not disclose the basis of his defence, save to
indicate that he would plead not guilty. Considering what was placed on record on
behalf of the State, it can be said that the State has a strong case against the
appellant and, knowing that the prescribed minimum sentence on conviction is life
imprisonment, that might be an incentive for him to evade trial. The fact that he
has family ties in the Western Cape does not circumvent the likelihood of evading
trial if measured against the severity of the sentence he will face should he be
convicted.
[30] This was the rationale of the court in S v Panayiotou, 9 where the court said
the following:
‘Accordingly, the magistrate was quite correct to consider as one of the factors in
determining whether exceptional circumstances exist, the fact that the prosecution has a
reasonably strong case. That factor, of course, is also relevant in the overall assessment of
whether the appellant poses a flight risk and whether there is a real likelihood that he will
evade his trial. In her judgment the magistrate noted that the likely consequence of a
conviction was that the appellant would face potential life imprisonment, given the nature
of the offence. This she found would serve as an inducement to evade trial. In so finding
the magistrate did not misdirect herself in any manner.’10
[31] I must mention at this stage that during arguments, the defence counsel
attacked the State’s evidence and stated that it will encounter difficulties to prove
common purpose. Counsel’s argument is premised on the fact that the appellant is
the only person arraigned for the commission of these offences and allegations are
that he is not the one who pulled the trigger. Without pre-empting the finding of
the trial court, I am of the view that this argument is flawed because this issue was
settled and in criminal proceedings the accused may be convicted on common
purpose even if he is the only one indicted on the charge if evidence shows that he
acted in common purpose with others. So, the fact that the appellant is the only one
facing these charges does not affect the strength of the State’s case, at least at this
stage.
[32] Section 60(4)(c) of the CPA refers to the likelihood that if the accused was
released on bail, he will attempt to influence or intimidate witnesses or conceal
and/ or destroy evidence. The State’s evidence that the appellant is friends with the
9 Panayiotou v S (CA&R 06/2015) [2015] ZAECGHC 73 (28 July 2015).
State witnesses and resides in the same vicinity as them remains uncontroverted.
This aspect does not deal with the merits of the case but is one of the factors the
court must consider when determining whether there are exceptional circumstances
which in the interests of justice warrants the appellant’s release on bail. I
acknowledge that the State opposed this application by way of an affidavit, but
surely the defence was furnished with the contents thereof before the appellant’s
testimony. That should hav e given the appellant an opportunity to dispute the
allegations, but nowhere in his evidence did he do so. So, the likelihood alleged
cannot be excluded, especially if the witnesses are his friends. He might not
intimidate them but there is a likelihood that he would attempt to influence them
should he be released on bail.
[33] When drafting this piece of legislation, the legislature was careful and
ensured that the accused’s right to be presumed innocent during bail applications is
not undermined. That is evident from the use of the word likelihood in section
60(4)(a) to (e) of the CPA, which means a probability that such risk will
materialise.
[34] Section 35(3)(h) of the Constitution provides that every person has a right to
a fair trial, which includes the right to be presumed innocent during criminal
proceedings. It is trite that the rights in the Bill of Rights, including the right to be
presumed innocent, can only be limited by law of general application as envisaged
in section 36 of the Constitution. The presumption of innocence, specified as a fair
trial right in subsection 35(3)(h), is traditionally viewed as the ballast of fairness in
criminal justice proceedings (see Currie I and De Waal J: The Bill of Rights
Handbook (2005) at 745). It is a fundamental right which plays a pivotal role in
our criminal justice system. It is, however, not absolute, but its value and weight
will differ according to a variety of factors and circumstances against which it is
pitted on the scales. 11 It ‘is a hallowed principle lying at the very heart of criminal
law’.12
[35] It can be gleaned from the record that the magistrate exhibited knowledge of
the above principle because in her judgment she found that the State has a prima
facie case against the appellant, while emphasising that the courts in bail
applications do not determine the guilt of the accused. This illustrates that she did
not deny bail on punitive grounds as alleged by the defence’s counsel. It further
shows how selective the defence’s counsel was in his arguments because to come
to that conclusion he relied on the following words: ‘I only want prima facie
evidence in front of me’. From the judgment, the complete paragraph reads as
follows: ‘I only want prima facie evidence in front of me, and that I have already
found is in front of me, which means that an innocent person in a brutal manner
lost his life. It is an offence which has a very high prevalence in this community’.
In my view, the magistrate was entitled to take these factors into account when
determining whether the grounds in section 60(4) (a) and (e) have been
established.13 Clearly, the choice of words might be unfortunate, however, on
careful reading of this paragraph it becomes clear that the magistrate was
considering the seriousness and the prevalence of this offence. Regardless, the
magistrate did not only rely on this paragraph to dismiss the application but took
into account the evidence in totality including the provisions of section 60(9) of the
CPA.
11 S v Coetzee [1997] ZACC 2; 1997 (3) SA 527 (CC) para 122.
12 R v Oakes [1986] 1 SCR 103 para 29.
13 See Sections 60(5)(f) and 60(8A)(a) of the CPA.
[36] With regards to the reference made to Rhode and Lifman, and arguments
thereto, it is my view that the courts in those cases took into account various
factors to reach the conclusion that the interests of justice permit the accused
release from detention. The submissions made by the defence counsel in this
regard are unjustified, and fundamentally in conflict with the precedent and the
law. If they could be adopted, the criminal justice system would be put into
disrepute, and the objectives of bail legislation would be undermined. It suffices to
say strict bail conditions will not adequately mitigate the risks highlighted in the
court’s judgement. As a result, I will thus not deal with the distinguishable factors
between these cases because the only similarity the defence counsel highlighted is
the fact that the accused in both cases were charged with murder and that is
untenable. The principle that each case must be decided in accordance with its own
merits is trite and it suffices to say that the defence ar gument is flawed and cannot
stand.
[37] Section 60(9) of the CPA provides that 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 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:
(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 delay;
(d) any financial loss which the accused may suffer owing to his
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;
(g) any other factor which in the opinion of the court should be taken into
account.
[38] Again, I do not agree with the defence counsel that the magistrate erred in
not weighing the interests of justice against the appellant’s right to his personal
freedom. As illustrated above, the magistrate took all relevant factors into account
before she arrived at the conclusion that there are no exceptional circumstances
which in the interests of justice warrant the appellant’s release on bail.
[39] In the result, having considered all the evidence and the arguments of the
parties, the appellant has not succeeded in demonstrating that the decision of the
bail court was wrong.
[40] Therefore, the appeal is dismissed.
_______________________________
N. GXASHE
ACTING JUDGE OF THE HIGH COURT
Appearances:
Counsel for the Appellant: Advocate Paries
Instructed by: M THOMAS Attorneys
Counsel for the Respondent Advocate Smith