Van der Schyff v S

The applicant, Faried van der Schyff, was arrested on 27 October 2021 and remained in custody for over two years awaiting trial on 711 charges including racketeering, money laundering, fraud, forgery, uttering, and contraventions of the Value Added Tax Act, the Tax Administration Act, and the Prevention of Organised Crime Act. His previous bail application was refused by the magistrates' court on 14 March 2022, and his appeal against that refusal was dismissed by the High Court on 4 April 2023. He brought a renewed bail application based on alleged new facts: (a) the State decided to proceed first with another voluminous matter (S v Modack and 14 others) involving his co-accused, which would delay his trial by more than a year; (b) he could not prepare properly while in custody due to the voluminous docket (over 20,000 pages); (c) his wife's deteriorating health; (d) his own deteriorating health; (e) the deteriorating financial status of his family; and (f) section 49G of the Correctional Services Act. The Department of Correctional Services offered him a single cell with a lockable cabinet, desk, chair, window, and electric light for studying, but the applicant declined, preferring to share a cell. The NPA provided the docket electronically to his Legal Aid attorney but could not provide an ink-reader or laptop due to budgetary constraints and lack of control over the asset.

• Whether the applicant demonstrated new facts or changed circumstances sufficient to justify a renewed bail application after prior refusal.
• Whether the State's decision to proceed with a co-accused's separate trial before the applicant's trial constituted exceptional circumstances warranting bail.
• Whether the applicant's inability to prepare for trial while in custody, given the voluminous docket, violated his right to a fair trial and justified release on bail.
• Whether the personal circumstances (health and financial deterioration of the applicant and his family) constituted exceptional circumstances for bail.
• Whether the failure by the State to provide an electronic device (ink-reader or laptop) for document access in prison violated the applicant's rights.

(a) The application for bail was dismissed. (b) The court referred the matter of acquisition of either an ink-reader or a laptop for use by the applicant's attorney (Legal Aid SA) in consultations for trial preparation to Legal Aid South Africa for evaluation and report within 60 days, as envisaged in section 22(2) of the Legal Aid South Africa Act, 2014.

On a renewed bail application based on new facts, the court must consider all facts — both old and new — and determine whether, on the totality of circumstances, the interests of justice permit release on bail. Personal hardships (health, financial loss) that are common consequences of incarceration do not, without more, constitute exceptional circumstances. A delay in trial commencement caused by the State prioritising another matter does not justify bail where the applicant himself has not demonstrated genuine willingness and readiness to prepare for his own trial. The State's obligation is to provide adequate time and facilities to prepare a defence, not to provide specific electronic equipment; the right to a fair trial is satisfied where reasonable alternative arrangements for document access are made.

The court observed: 'Both may be at the foot of the most scenic mountain range in Cape Town, but there is a vast difference between the purpose, offers, packages and facilities at the Twelve Apostles Hotel and Spa and Pollsmoor Correctional Facility. This is the simplest truth to which the applicant must awake.' The court also noted that 'the applicant and a laptop in a prison facility is a danger to the fiscus and a threat to security in the facility.'

This judgment clarifies the threshold for 'new facts' in renewed bail applications under South African law, particularly in the context of complex commercial crime trials. It establishes that personal and family hardships typical of incarceration do not constitute exceptional circumstances warranting bail. The case also addresses the intersection of an awaiting-trial detainee's right to prepare a defence with the practical limitations of document access in correctional facilities, balancing fair trial rights against security and fiscal constraints. It further demonstrates the court's gatekeeping role under section 22 of the Legal Aid South Africa Act in ensuring indigent accused persons receive adequate facilities for trial preparation.