IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Appeal No: A 86 / 2026
In the matter between:
QONDA TYALI APPELLANT
and
DIRECTOR OF PUBLIC PROSECUTIONS, RESPONDENT
WESTERN CAPE
Coram: Christians, AJ
Heard: 8 September 2026
Delivered: 16 September 2026
JUDGMENT
CHRISTIANS, AJ
Introduction
1. The Appellant was arrested on 15 February 2024 and subsequently
charged with, inter alia, robbery with aggravated circumstances, an
offence contemplated in Schedule 6 of the Criminal Procedure Act
51 of 1977 (the CPA) . The aggravating circumstances, as appear
from the charge sheet, concern the use by the accused or any co -
perpetrators or participants of a firearm . In addition, the State
alleges in the charge sheet that the offence was committed in
furtherance of a common purpose.
2. In terms of s 60(11)(a) of the CPA , an accused who is charged with
an offence contemplated in Schedule 6 must 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.
3. At the outset, I consider it necessary to address the submission, made
on behalf of the Appellant, that the absence of evidence by the State
to establish one or more of the factors contemplated in ss 60(4) to
60(9) of the CPA, per se constitutes exceptional circumstances.
4. The factors enumerated in ss 60(4) to 60(9) constitute the ordinary
considerations against which an application for bail falls to be
assessed. They describe the conventional grounds — that the accused
may endanger the safety of the public or a particular person, may
evade his trial, may attempt to influence or intimidate witnesses or to
conceal or destroy evidence, may undermine or jeopardise the
objectives or the proper functioning of the criminal justice system, or
that his release may disturb the public order or undermine the public
peace or security — each of which, if established, will ordinarily
militate against release. It does not follow, however, that the absence
of those grounds is decisive where the accused stands charged with
an offence listed in Schedule 6. In such a case s 60(11)(a) imposes a
distinct and more onerous burden: the accused bears the onus of
adducing evidence which satisfies the court that exceptional
circumstances exist which in the interests of justice permit his
release. Ex hypothesi , circumstances that are present in every
ordinary bail application cannot be exceptional. To hold otherwise
would be to collapse the enquiry under s 60(11)(a) into the ordinary
enquiry under s 60(4), and to render the Legislature ’s deliberate
elevation of the threshold devoid of content. The absence of the s
60(4) grounds is therefore a necessary but not a sufficient condition
for release under s 60(11)(a). An accused who establishes no more
than that he will stand his trial, will not interfere with the
investigation and poses no danger to the public has demonstrated
only that his case is unremarkable. Something further is required —
something peculiar to his own position which distinguishes it from
that of the ordinary applicant awaiting trial on a Schedule 6 charge.
5. The Constitutional Court’s characterisation of s 60(11)(a), articulated
when the provision was first placed under constitutional scrutiny,
warrants restatement:
“[61] The subsection says that for those awaiting trial on the
offences listed in sch 6, the ordinary equitable test of the interests of
justice determined according to the exemplary list of considerations
set out in sub-ss (4) to (9) has to be applied differently. Under sub-s
(11)(a) the lawgiver makes it quite plain that a formal onus rests on
a detainee to “satisfy the court”. Furthermore, unlike other
applicants for bail, such detainees cannot put relevant factors before
the court informally, nor can they rely on information produced by
the prosecution; they actually have to adduce evidence. In addition,
the evaluation of such cases has the predetermined starting point
that continued detention is the norm. Finally, and crucially, such
applicants for bail have to satisfy the court that “exceptional
circumstances” exist.”1
6. Against that introduction, I turn to consider the Appellant’s bail
applications and whether they were wrongly refused.
The first bail application
7. On 21 November 2024 the Appellant applied for bail, accepting that
the onus rested on him to show that exceptional circumstances
existed which in the interests of justice permit his release on bail.
Save for setting out his personal circumstances, the Appellant
presented no evidence at his bail application and expressly elected
not to address the merits of the charges against him.
8. The prosecutor led the evidence of the investigating officer, who
provided the following details about the offence in question:
8.1. There was a robbery at a shop in Main Road, Claremont.
According to the complainant, two males entered the shop
and asked him if he sold phones. Upon his confirmation, a
third male entered the shop, wielding a firearm, and the three
proceeded to grab various items without the complainant’s
consent. The investigating officer confirmed that he had
viewed video footage of the robbery and briefly explained the
contents of the footage.
8.2. Approximately 15 minutes after the robbery, a vehicle was
apprehended. The vehicle had six occupants, including the
Appellant. The stolen items and a firearm were found in the
vehicle. Five of the occupants were arrested immediately,
and one ran away. Though there are gaps in the transcription,
it is apparent that the sixth suspect was ultimately
apprehended, and all six have since been charged.
9. With specific reference to the Appellant, the investigating officer
testified the following:
9.1. At the time of arrest, the Appellant stated that he was a Bolt
driver and had driven to Claremont to collect a private client.
9.2. The Appellant had one prior conviction related to a traffic
offence.
9.3. The Appellant had one pending charge of rape against him, in
respect of which he had been released on bail.
10. In light of the above, the Magistrate concluded that (a) the Appellant
had not shown exceptional circumstances to justify his release from
custody and (b) the State had established a prima facie case against
the Appellant. Bail was, accordingly, refused.
11. The Appellant did not appeal the above decision.
The second bail application
12. However, on 30 September 2025, the Appellant brought an
application, before a different Magistrate, for leave to apply for bail
on new facts. The new facts alleged by the Appellant were the
following:
12.1. The State’s investigation was concluded and, according to the
available evidence, there is no prospect that the State will
prove his guilt on the basis of the doctrine of common
purpose;
12.2. As the eldest brother, he was required to attend a cultural
ceremony for his younger sister in the Eastern Cape in
December 2025; and
12.3. The charge of rape against him had been withdrawn.
13. After hearing initial argument on 9 and 11 December 2025, the
Magistrate concluded that the first ground did not raise any new facts
but that the latter two did. The Magistrate accordingly granted the
Appellant leave to apply for bail on new facts. However,
notwithstanding that the first ground did not constitute new facts, the
Magistrate accepted and applied the principle that the new
application had to be decided based on a conspectus of all the facts –
both old and new. Thus, the Magistrate ultimately took into account
all the issues, including those raised as part of the first ground.
14. This Magistrate, too, concluded that (a) the Appellant had not shown
exceptional circumstances to justify his release from custody and (b)
the State had established a prima facie case against the Appellant.
Bail was, again, refused.
15. The Appellant appeals that decision.
The Appeal
16. The test on appeal against the decision of the court a quo is set forth
in s 65(4) of the CPA 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.”
17. In Porthen2, Binns-Ward AJ (as he then was), described the nature of
an appeal court’s power in bail applications as follows:
“[14] 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 ss 60(4) -(9) of the Act has to be applied
differently... In my view, a court making the determination whether
or not that onus of proof has been discharged exercises a
discretionary power in the wide of 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.”
[Emphasis added]
18. The Appellant’s appeal largely focused on the alleged weakness of
the State’s case against him and the need for him to attend the
cultural ceremony to be held for his sister. I deal with the latter first.
The cultural ceremony
19. In his affidavit dated 30 September 2025, the Appellant stated that
the ceremony was scheduled to take place in December 2025.
However, at the continuation of the bail application on 21 January
2026, the Appellant’s legal representative indicated that the
ceremony did not go ahead and was scheduled to proceed in
February 2026. While the argument is persisted with in the appeal,
no facts have been presented to indicate that the matter ha d not, as at
the date of hearing, become moot.
20. In the judgment dated 19 February 2026, the Magistrate dealt with
this issue by noting that the ceremony was to be held in the Eastern
Cape and that no indication was provided as to its duration. The
Magistrate further noted that the trial was set down for 24 and 26
March 2026 and ultimately concluded that, though important to the
Appellant, the fact of the cultural ceremony does not, on its own,
establish exceptional circumstances. In reaching this conclusion, the
Magistrate considered that the Appellant’s circumstances were akin
to, inter alia, an accused who wished to attend a parent’s funeral. In
doing so, I find that the Magistrate exercised her discretion
judiciously and did not clearly misdirect herself in concluding that
the need or desire to attend the cultural ceremony did not constitute
an exceptional circumstance.
21. Turning then, to the contention that the State’s case against the
Appellant is weak.
The strength of the State’s case
22. The first point to note at this juncture is that, as correctly found by
the Magistrate, the contended weakness of the State’s case is not a
new fact.
23. As was recently stated in Abdi:3
“[19] A court dealing with a bail appeal based on "new facts",
typically in terms of s 65(2) or s 60(11) of the Criminal
Procedure Act 51 of 1977 must primarily determine whether the
circumstances have genuinely changed since the initial bail refusal
and whether those changes warrant a different decision.
[20] New facts in these circumstances are not meant to cure defects
in a previous application, but to place before the court facts that
arose only afterwards.”
24. The Appellant has attempted to dress up the evidence the State has
since furnished to him as ‘new facts’ to support his contention that
the State’s case against him is weak. It was only in response to the
State’s evidence, that the Appellant elected to give his version. But
his version was already known to him when his first bail application
was brought.
25. Indeed, in these proceedings, much reliance was placed on an
apparent concession by the investigating officer at the initial bail
application that the State’s case against him is weak. For illustrative
purposes, I reproduce the transcription of the relevant exchange
between the Appellant’s then legal representative and the
investigating officer below:
Defence: I will also put it to you that you have got a very weak
case against [the Appellant]
IO: According to how …[indistinct]
Defence: I will not dispute it.
IO: I will not dispute it.
26. Based on the above, I have two difficulties with the proposition
made on behalf of the Appellant:
26.1. First, there is an interruption in the transcription between the
submission put to the investigating officer and the apparent
concession. It is, therefore, possible that the concession
related to a different submission. I find it particularly curious
that the Appellant’s legal representative at the time did not so
much as mention the apparent concession in his address
before the first Magistrate. Surely, if the concession was
made, it would have been front and centre of the motivation
for the Appellant’s release on bail.
26.2. Second, the proposition demonstrates that the perceived
weakness of the State’s case is not new. However, the
Appellant made the decision not to place any evidence before
the Magistrate, as required by s 60(11)(a) of the CPA. His
decision to lead evidence only after the State showed its hand
does not meet the threshold of establishing new facts.
27. For these reasons, the second Magistrate correctly found that, if the
Appellant was aggrieved by the first Magistrate’s refusal of his bail
application, his remedy was an appeal against that decision.
28. I also cannot fault the second Magistrate’s observation that a
concession by the investigating officer is not determinative of
whether the State has a prima facie case against the accused. S
60(11)(a) requires an accused, who relies on the weakness of the
State’s case against him to establish exceptional circumstances, to
adduce sufficient evidence to prove, on a balance of probabilities,
that he will be acquitted. The Appellant manifestly failed to do so at
his first bail application.
29. As was the case in Abdi, the Appellant has now sought to do no more
than to repeat and expand upon the submissions made on his behalf
at the first bail hearing. He is not entitled to have a second bite at the
cherry in this manner. 4 Thus, having found that the Appellant’s
attendance at the cultural ceremony to be held for his sister does not
constitute exceptional circumstances, that should be the end of the
enquiry. I nevertheless deal briefly with the Appellant’s contention
that the State’s case against him is so weak as to constitute an
exceptional circumstance.
30. In the main, the Appellant contends that the State will be unable to
prove that he was at the scene of the crime or that his version as to
why he was in the vehicle is not reasonably possibly true.
31. As to the first, while it may be so that there is no evidence that the
Appellant was in the shop during the robbery, it is common cause
that he was in the so -called ‘getaway vehicle’ and that the stolen
goods and one firearm were found in the said vehicle. Thus, the
State need not prove that each of the accused were actively
participating in the robbery if it can prove that one or more of the
accused were waiting for the others in or around the vehicle.
32. The further difficulty with the Appellant’s contention is that the
evidence in his bail application was presented by way of affidavit
and, ex facie the attachments thereto, it is clear that his reliance on
the State’s evidence (or apparent absence thereof) is selective.
33. For example, the Appellant attempts to make much of the fact that
the complainant’s statement indicates that three of the robbers were
armed, and that only one firearm was found in the vehicle and
another was found in a field hours later. The Appellant, however,
ignores the evidence that one of the accused had run away and was
found later that same day. This immediately presents a possible
explanation for why only one firearm was found inside the vehicle.
34. In addition, the arresting officer’s statement also indicated that, when
the vehicle was being pursued, the driver attempted to evade the
police. The Appellant’s affidavit is silent on this part of the State’s
evidence. He is also silent about the fact that the State had procured
tracking records for the vehicle.
35. In short, the Appellant’s contention that the State’s case against him
is weak does not account for all of the available evidence.
36. Of course, this does not prove the Appellant’s guilt. That is not what
is required at the bail stage. But the Appellant’s failure to address
those parts of the evidence means that he has not discharged the onus
placed upon him by s 60(11)(a).
37. Put differently, the Appellant’s selective treatment of the evidence is
material because, to meet the onus resting on him to establish
exceptional circumstances, he is required to prove on a balance of
probability that he will be acquitted of the charge.5
38. The shortcoming brought about by the Appellant’s selective
treatment of the available evidence is exacerbated by his election to
proceed by way of affidavit. Gamble J recently reaffirmed the risk
that a bail applicant takes if he elects to proceed by way of affidavit
thus:6
“It has repeatedly been said that an accused who elects to go by way
of affidavit rather than presenting viva voce evidence in a bail
application runs a distinct risk. Recently, in Killian (where the
accused was charged with murder which resorted under Schedule 6
to the CPA), Binns-Ward J observed, in my respectful view correctly,
that, in choosing to attempt to discharge that onus on affidavit, an
accused person runs the risk of not resolving disputed allegations
which might arise in the process.”
39. Moreover, the best evidence the Appellant could have presented was
evidence from the passenger he says he intended to collect on the
day in question. The Appellant states baldly that he needs to be
released from custody in order to follow up on that evidence. I find
the contention entirely unconvincing. It would have been to most
obvious solution in the world for the Appellant to provide the
person’s contact details to his attorneys and to instruct them to
contact this potentially critical witness in his defence. His failure to
do so leaves a significant gap in his version.
Conclusion and Order
40. In all the circumstances, I am not satisfied that either of the
Magistrates’ decisions was wrong in concluding that the State has a
prima facie case against the Appellant. The Appellant has ,
accordingly, not adduced sufficient evidence to demonstrate
exceptional circumstances which in the interests of justice permit his
release.
41. In the result, I make the following order:
The appeal by the Appellant against the refusal of bail in the
Wynberg Regional Court is dismissed.
_____________________________
AG CHRISTIANS
ACTING JUDGE OF THE HIGH COURT
Appearances:
For Appellant: Mr Lingani
(heads of argument prepared by Mr Mtshembla)
For defendant: Mr Hough
State Prosecutor
1 S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999 (2) SACR 51 (CC) – see also the
discussion of s 60(11)(a) more generally at paras 63 to 65.
2 S v Porthen & Others 2004 (2) SACR 242 (C).
3 Abdi v S (A16/2026) [2026] ZAGPJHC 640 (3 March 2026).
4 Abdi para 24
5 S v Botha 2002 (1) SACR 222 (SCA) at 230h, 232c; S v Viljoen 2002 (2) SACR 550 (SCA) at 556c.
6 Kara and Others v S (A 218/22; F563/2022) [2022] ZAWCHC 258; 2023 (2) SACR 171 (WCC) (1
December 2022) para 9.