SAFLII Note: Certain personal/private det ails of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
BAIL APPEAL NUMBER: BA19/2026
LOWER COURT CASE NO: 272/2026
In the matter between:
K[...] J[...] K[...] APPELLANT
AND
THE STATE RESPONDENT
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED: YES/NO
_____________________ 27/08/2026
SIGNATURE DATE
DATE………… SIGNATURE:……
Delivered: 27 August 2026
This judgment was handed down electronically by circulation to the parties’
legal representatives by e-mail. The date and time for hand down of the
judgment is deemed to be 27 August 2026 at 16:00.
Date heard: 20 August 2026
Coram: Ngobeni J
JUDGMENT
NGOBENI J
[1] “ … our law relating to bail continued (continue -my own emphasis) to
evolve, both in terms of jurisprudence mostly seeking to develop and
expand the common law, and continuing statutory attempts to improve
the bail -related statut es, inter alia by ame liorating the plight of those
awaiting-trial prisoners who are simply unable to afford even nominal
bail. Alas, the bail law remains far from satisfactory, and instead of being
simplified, seems to be becoming ever more complicated1”.
[2] The view of Advocate van der Berg expressed above about navigating in
interpreting and applying law reforms in our courts , particularly on bail
legislation, as expressed in what I have quoted above, was fortified by
the Constitutional Court when it dealt with the case s of S v Dlamini; S v
Dladla and Others; S v Joubert; S v Schietekat 2 (Dlamini & Others ) by
saying the following on paragraph 2 of the judgment:
“… But the transition did have an effect on the country’s criminal justice
system. People who had acquired specialised knowledge of the system,
and had become skilled and sure -footed in its practice, were confronted
with a new environment and lost their confidence. Particularly in the
lower courts, where the bulk of the country’s criminal cases is decided,
judicial officers, prosecutors, practitioners and investigating officers were
uncertain about the effect of superimposing the norms of a right culture
on a system that had evolved under a wholly different regime; and about
the effect of that superimposition in a given case. Bail was no exception .
On the contrary, much of the public debate, and much of the concern in
1 This is an extract from the preface of the third edition of the book ‘Bail: A Practitioner’s Guide’ 2012, by John van der
Berg.
2 [1999] ZACC 8 (3 June 1999).
official circles about law enforcement has been directed at the granting or
refusal of bail.” (footnotes omitted).
[3] The appellant in this c ase is K[...] J[...] K[...], who appeared before
honourable Magistrate H. Henning, in the Magistrates’ Court for the
district of Moutse, sitting in Moutse (court a quo), for a bail application
having been charged with three counts of rape. The application was
dismissed by the court a quo on 03 July 2026. This appeal is against that
decision for the denial of his release pending further investigations or
trial. The state in this court still opposes the application, as was the
position in the court a quo.
[4] The brief facts that were placed before the court a quo is that the
appellant was charged with three counts of rape which allegedly took
place over a period of time. The victim is the step -daughter of the
appellant who was sharing the same residence with the appellant, his wife
(mother of the victim) and their other children. The incident that brought
about the arrest of the appellant was when the mother of the victim
found what she suspected to be semen on the cycling short or trouser
that the victim was wearing, and when she confronted her daughter
about that, she reported that the appellant sexually penetrated her in the
car the previous day.
[5] The appellant was subsequently arrested and charged with three counts
of rape of the same victim . The state in the bail application by the
appellant classified the charges as falling under schedule 6 of the CPA,
which means that the onus rested on the appellant to satisfy the court
that on a balance of probabilities, exceptional circumstances exist which
in the interest of justice permit his release 3. Section 60(11)(a) was found
to be constitutional by the Constitutional Court (CC) in Dlamini & Others
case, supra.
[6] The point of departure is of course the provisions of section 35(1)(f) of
the Constitution of the Republic of South Africa, 1996 (Constitution)
which states that:
35 Arrested, detained and accused persons
“(1) Everyone who is arrested for allegedly committing an offence has the
right-
(a) to (e) …,
(f) to be released from detention if the interests of justice permit, subject
to reasonable conditions”.
[7] The state, as required by section 60(11)(a) of the Criminal Procedure Act
51 of 1977 (hereinafter referred to as the CPA) classified the charges
3 Dlamini & Others, supra, S v Mohammed 1999(2) SACR 507 (C).
under schedule 6. It must be understood that the CPA classifies offences
under different schedules according to different sections of the CPA, and
they go up to schedule 8. Specific offences are specified for a specific
schedule. For the sake of easy reference and completeness, Section
60(11)(a) of the CPA reads as follows:
“(11) Notwithstanding any provision of this Act, where an accused is
charged with an offence-
(a)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”
[8] The first striking question upon reading the quoted section above is as to
what exceptional circumstances are. This is not a novel question. It has
been dealt with in many cases since the introduction of section 60 of the
CPA in 1995 to emphasise the importance of judicial oversight in bail
hearings. The regulation and tightening of the conditions for release on
bail for serious offences was of concern. It is also because of the outcry of
communities out there who fail to understand the purpose of release on
bail and the understanding that release on bail is not necessarily an
acquittal.
[9] The concerns of the community members may have merit where a serial
offender keeps on reoffending when out on bail, hence the need for the
tightening of the bail laws so that the course of justice is not undermined
as stated in provisions of section 60(4)(d) and 60(8A) which was inserted
because of continued community concerns and it came into effect on 01
August 19984.
[10] There is a plethora of cases that dealt with what exceptional
circumstances are. It is trite that there is no definite definition of what
exceptional circumstances are, but that determination is made by the
judicial officer presiding over the bail application based on the facts and
circumstances of the case. Exceptional circumstances in one case may not
be exceptional circumstances in another case. That is the reason why
judicial oversight is important.
[11] It was well explained in S v Petersen 5 on the meaning and interpretation
of exceptional circumstances as follows:
4 See footnote 2, Dlamini & Others, paragraphs 13-14 emphasise the fact that judicial oversight is important in bail
hearings as required by section 60 of the CPA and that the community is also considered when a bail is considered for an
accused person.
5 2008 (2) SACR 355 (C).
“Generally speaking “exceptional” is indicative of something unusual,
extraordinary, remarkable, peculiar or simply different … 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 … In essence the court will be exercising a value judgment in
accordance with all the relevant facts and circumstances, and with
reference to all the applicable criteria”
[12] In the case at hand the court a quo in its judgment placed emphasis on
the seriousness of the offences that the appellant is charged with. One of
the factors that is required from the presiding officer when dealing with
an application of this nature is of course to test or make a value
judgment on the strength of the state’s case. That aspect, if not well
managed or considered has the tendency of being elevated to the task of
a trial court of determining guilt or innocence , because at the end it will
be dependent on the presidi ng officer on how much he/she believes the
strength of the version of the state vis-à-vis that of the accused.
[13] The court a quo in its judgment dealt with different aspects of the state’s
case in as far as its strength is concerned, and why it found that the case
of the state is strong, as compared to the version of the appellant. There
was an issue with regard to an alleged semen found on the pants that the
victim was wearing, which is still the subject of investigation. Be that as it
may the court a quo dealt with the improbability that the mother of the
victim could have taken the condom that they used with the appellant
and planted that semen on the pants that was worn by the victim or in
her genitals.
[14] There are no issues that the appellant could flee nor evade trial. The
court a quo of course dealt with the possible sentence or sentences faced
by the appellant if convicted. The court a quo considered the relationship
and the proximity of the appellant to the victim and the mother even
though they moved out of the common home. The court a quo was not
persuaded about the fact that the appellant was employed and
maintaining his children. Counsel for the appellant submitted in argument
that this court must take into consideration the harsh economic realities
of this country of unemployment. Counsel also persuaded this court to fix
bail for the appellant and consider imposing conditions on the appellant.
[15] In order to interfere on appeal, it is accordingly necessary to find that the
Magistrate misdirected himself or herself in a material way in relation to
either the facts or the law. In the absence of a finding that the Magistrate
misdirected himself or herself , the appeal must fail 6. If the appeal court
finds that the court a quo has misdirected itself in terms of the law and
6 Fourie v S (A107/2020) [2020] ZAGPPHC (8 June 2020), S v Barber 1979 (4) SA 218 (D).
facts, then it must follow what the court in S v Porthe rn and Others7
concluded, referring to S v Botha 8 that the appeal court’s power to
intervene in terms of section 65(4) of the CPA is not strictly confined as
suggested in Barber, above, and that the appeal court can undertake its
own analysis of the evidence and come to its conclusion whether the
appellant had discharged the onus in terms of section 60(11)9.
[16] The provisions of section 65(4) of the CPA are peremptory as it contains
the word ‘shall’ on what the court or judge in an appeal is supposed and
expected to do. Section 65(4) of the CPA reads as follows:
65 Appeal to superior court with regard to bail
“(1) to (3) …
(4) 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 is in its or his opinion the lower court should
have given”
[17] The CC in the Dlamini and Others judgment, supra, reconciled the rights
of an arrested and detained person in terms of section35(1) (f) of the
7 2004 (2) SACR 242 (C).
8 2002 (1) SACR 222 (SCA).
9 See footnote 6, par. 16, Fourie v S.
Constitution to the provisions of section 60(11)(a), in terms of the duty to
adduce evidence on exceptional circumstances by stating the following on
paragraph 64:
“… However, s 60(11)(a) does more than restate the ordinary principles
of bail. It states that where an accused is charged with a sch. 6 offence,
the exercise to be undertaken by the judicial officer in determining
whether bail should be granted is not the ordinary exercise established by
sub-ss 60(4)-(9) (and required by s 35(1)(f)) in which the interests of the
accused in liberty are weighed against the factors that would suggest that
bail be refused in the interests of society. Section 60(11)(a) contemplates
an exercise in which the balance between the liberty interests of the
accused and the interests of society in denying the accused bail, will be
resolved in favour of the denial of bail, unless “exceptional circumstances”
are shown by the accused to exist. This exercise is one which departs
from the constitutional standard set by s 35(1)(f). Its effect is to add
weight to the scales against the liberty interest of the accused a nd to
render bail more difficult to obtain than it would have been if the ordinary
constitutional test of the “interests of justice” were to be applied”.
[18] The appellant in trying to show the court a quo exceptional circumstances
came strongly on the issue that he is employed and responsible for the
maintenance of his thirteen children, and the fact that his livestock was
stolen in his absence. The misdirection by the court a quo on the aspect
of employment in my view was to say that the R12 000-00 that he
earned was not enough to maintain his thirteen children. I believe that,
that aspect is dependant on their standard of living.
[19] The court a quo dealt with the strength of the state’s case by referring to
the alleged incidents which the victim reported to her mother , who
apparently did nothing with the reports, hence when she confronted the
victim regarding the last alleged incident she apparently asked her if the
appellant was still sexually abusing her . I find that as the prosecutor
submitted, the mother of the victim might be easily influenced with
regard to the charges the appellant is facing, because she allegedly knew
as to what was happening between the appellant and the victim but did
not report that.
[20] The reasoning by the state of interference with witnesses is therefore not
farfetched if one goes with what allegedly transpired before the appellant
was arrested. The only aspect that stands out in favour of the appellant is
the fact that he is employed. It is generally known in this economic
climate that it is difficult to find employment. The fact that he is
employed was not found to be exceptional by the court a quo as
compared to the seriousness of the allegations the appellant is facing. I
did not find fault with the application of the law to the facts by the court a
quo as required by section 65(4) of the CPA.
Conduct of the proceedings in the court a quo
[21] Having dealt with the bail application, I now turn to a different issue. It is
important that the decorum of the court must be upheld at all times. That
is in terms of the language used in court, how witnesses are spoken to
and also how they are treated. The respect must even be extended to
those that are not even before court but mentioned in the proceedings for
whatever reason. That duty rests on all officers of the court, and that
duty lies more heavily on the presiding officer who is in control of the
proceedings in court. It should be concerning when a presiding officer
uses a language that is unbecoming to address a potential witness who is
not even before the court.
[22] On pages 12 to 13 of the record of the proceedings of the case at hand,
on 02 July 2026, one Warrant Officer Phala testified for the state in this
bail application. The witness was testifying about the fact that Sergea nt
Tlaka took down the statement of the mother of the victim. It appears
that the learned Magistrate Henning was not satisfied with the quality of
the statement that was obtained from the mother of the victim by a
Sergeant. When he was told that it is a Sergeant who took down that
statement this is how he reacted:
“COURT: Not a stupid constable, a sergeant. Did he ask her what she
had done about the report in August?
MS PHALA: …
COURT: …
MS PHALA: …
COURT: …
MS PHALA: What she relayed or told me, although it differs from what
she had written on the statement, she told me that she only saw the child
behaving differently all along until she only discovered when she saw the
semen on the child’s clothes.
COURT: Warrant, you are an experi enced 17 year investigator on these
[indistinct 12:22], you get an A1 statement taken by a flat foot in a
charge office. It screams questions. Surely the very first thing you do is
retake a proper detailed statement from the complainant”.
[23] I do understand the frustrations of the learned Magistrate because of the
standard of the statement, but he must have ventilated his frustrations
better, than using the demeaning or inappropriate words in describing the
potential witnesses in the case. It is clear from the court record that the
words that I highlighted above were not directed to the appellant, but to
the witness that was testifying. The fair trial right can therefore not be
invoked by the appellant on that basis. On page 30 of the judgment the
Magistrate refers to the children of the appellant as a “small army of
dependants”. That is derogatory in my view. It is a conduct which this
court condemns in the strongest terms. This judgment must be brought
to the attention of the Chief Magistrate , Limpopo Province with regard to
the concerns of this court on the use of language by the presiding officer
of record in court.
[24] In the result, the following order is made:
(i) the appeal is dismissed,
(ii) the copies of the whole record of this case and this judgment must
be send to the office of the Chief Magistrate, Limpopo Province ,
with regard to what I raised from paragraph 21 of this judgment.
J.T. NGOBENI
JUDGE OF THE HIGH COURT
APPEARANCES
For the appellant: Adv. Mathabatha with Adv. Moetji
Instructed by: Mtsweni Attorneys Inc.
For the respondent: Adv. Magoda.
Instructed by: Director of Public Prosecutions, Polokwane.
Heard on: 20 August 2026
Judgment delivered on: 27 August 2026