Twaise v S

The appellant, Sibabalo Twaise, was arraigned on a charge of contravening section 3 of the Sexual Offences and Related Matters Amendment Act 32 of 2007 (read with section 51(1)/51(2)(b) of the Criminal Law Amendment Act 105 of 1997), for allegedly inserting his finger into the vagina of an 8-year-old girl without her consent on 9 July 2024 at Delft South. The appellant and the complainant resided in the same block of flats. The appellant applied for bail at the Bellville Magistrate's Court. He testified by affidavit that he was a gainfully employed nurse, an unmarried father of two minor children whom he supported, and that he also supported his mother. He had no previous convictions or pending cases. He provided an alternative residential address via an affidavit from Thandeka Twaise, stating he would reside with her in Mitchells Plain, which the state accepted without verification. The investigating officer opposed bail, primarily because the appellant and complainant lived on the same premises. The state conceded that its case against the appellant was weak. The magistrate dismissed the bail application, leading to this appeal.

• Whether the magistrate exercised her discretion wrongly in refusing bail under section 60(11)(a) of the Criminal Procedure Act, which requires exceptional circumstances for schedule 6 offences.
• Whether the grounds under section 60(4)(a)-(e) were established on the evidence.
• Whether the appellant discharged the onus of proving exceptional circumstances permitting his release on bail in the interests of justice.
• Whether the weakness of the state's case should have been considered as part of exceptional circumstances.

The appeal was upheld. The magistrate's refusal to grant bail was set aside. The appellant was granted bail in the amount of R3,000.00 on conditions including residence at a specified address in Mitchells Plain, no direct or indirect contact with the complainant or any state witness, and attendance at all remand dates.

In a bail application for a schedule 6 offence, a court must properly consider and weigh all evidence for and against the grounds listed in section 60(4) to 60(9) of the Criminal Procedure Act. Where the state concedes its case is weak, that is a factor to be taken into account in determining whether exceptional circumstances exist. Exceptional circumstances are to be assessed on a case-by-case basis, looking at substance rather than form, and what may be ordinary in one case may be exceptional in another. A court must not determine that detention is in the interests of justice based on speculation; it must find on a balance of probabilities that one or more of the consequences in section 60(4) will probably occur.

The court noted that lower courts being 'exceptionally busy' does not excuse a failure to properly weigh the factors under sections 60(4) to 60(9) of the Criminal Procedure Act when adjudicating a bail application.

This case provides guidance on the proper approach to bail applications under section 60(11)(a) for schedule 6 sexual offences, particularly emphasising that courts must scrutinise the evidence against each ground in section 60(4) and cannot refuse bail on speculative grounds. It confirms that the weakness of the state's case is a relevant factor in assessing exceptional circumstances. The judgment reinforces the principles from S v Dlamini regarding the flexible, case-by-case assessment of exceptional circumstances.