Vardien v S

The appellant was convicted on 4 April 2023 of two counts of rape and two counts of sexual assault, all committed in 2013 against the same complainant. The complainant was nine years old at the time of the offences and the appellant was seventeen years old. The appellant was only arrested on 19 May 2021 when he was 25 years old. He was sentenced to an effective eight years' imprisonment on 6 October 2023. The trial court refused leave to appeal against conviction and sentence, but the High Court granted leave on petition. The appellant applied for bail pending appeal but was refused by the trial court on 6 February 2024. The appellant appealed against this refusal of bail.

• Whether the appellant was entitled to an automatic right of appeal under section 84 of the Child Justice Act 75 of 2008, and whether failure to apply the CJA constituted a miscarriage of justice.
• Whether the CJA limited the maximum custodial sentence imposable on the appellant to five years.
• Whether the trial court erred in finding the appellant to be a flight risk.
• Whether the trial court misdirected itself in refusing bail pending appeal, warranting interference by the appeal court.
• What constitutes exceptional circumstances justifying bail pending appeal following conviction on serious offences.

The appeal against the refusal of bail pending appeal was dismissed.

For an accused convicted of serious offences to succeed on appeal against refusal of bail pending appeal, they must demonstrate that the trial court was biased, failed to act for substantial reasons, or exercised its discretion capriciously or on a wrong principle. The grant of leave to appeal does not automatically entitle an accused to release; the accused must show real prospects of success on conviction and that a non-custodial sentence might be imposed. The applicability of the Child Justice Act is determined with reference to the age of the accused at the time of arrest, not at the time of commission of the offence, in accordance with section 4 of the CJA.

The court noted that even if the appellant had not been considered a flight risk, that alone would not resolve the matter, as the seriousness of the offence and the possible length of incarceration must also be weighed in a bail pending appeal application.

This judgment clarifies that section 84 of the Child Justice Act (automatic right of appeal for child offenders) applies only to persons who were under 18 at the time of arrest, summons, or written notice — not those who were minors at the time of the offence but adults when prosecuted. It reinforces that bail pending appeal following conviction on serious offences requires exceptional circumstances, and that the appeal court will defer to the trial court's discretion absent demonstrable misdirection.