Van Zyl v S (A86/2025) [2025] ZAGPJHC 1318 (19 December 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: South Gauteng High Court, Johannesburg South Africa: South Gauteng High Court, Johannesburg You are here: SAFLII >> Databases >> South Africa: South Gauteng High Court, Johannesburg >> 2025 >> [2025] ZAGPJHC 1318 | Noteup | LawCite sino index ## Van Zyl v S (A86/2025) [2025] ZAGPJHC 1318 (19 December 2025) Van Zyl v S (A86/2025) [2025] ZAGPJHC 1318 (19 December 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPJHC/Data/2025_1318.html sino date 19 December 2025 REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG LOCAL DIVISION, JOHANNESBURG Case Number: A86/2025 (1) REPORTABLE: YES / NO (2) OF INTEREST TO OTHER JUDGES: YES /NO (3) REVISED: YES/NO In the matter between: MICHAEL HENDRIK VAN ZYL                                                  Appellant and THE STATE                                                                                Respondent JUDGMENT Nieuwoudt, AJ [1]  This is an appeal against refusal of bail pending an appeal to the Supreme Court of Appeal, by Regional Court Magistrate Ms Mkhasibe on 14 November 2025. [2]  A brief overview of the matter is as follows: o The matter started in the Regional Court in March 2020 o The Appellant was found guilty in July 2022 o The Appellant was sentenced in July 2024 [3]  The Appellant was charged with sexual assault and rape of a minor in 2016 and 2017 when the minor child was around 11 years old. [4]  The Appellant and the Respondent was ad idem that this court can only grant the Appellant bail if the Court is of the opinion that the learned Magistrate made a mistake when she refused the Appellant’s bail pending appeal. [5]  Before moving to the judgement of the Magistrate I want to reference the applicable sections of the Criminal Procedure Act, Act 51 of 1977 and more specifically Sections 60 (4)(a) to (e) and read with Section 60(8A) and Section 60(11)(a). It is common cause that the Appellant has the onus to proof the requirements set out in these sections to get bail pending appeal. [6]  In State vs Branco 2002(1) SACR 532 the Court found that for bail a court should always lean in favor of liberty, but that liberty must be weighed up against the interest of justice, i.e. releasing a person on bail should not jeopardize the interest of justice. [7]  The Appellant submitted that application for bail in the court a quo was unopposed, i.e. the Respondent by way of the Prosecutor did not lead evidence but chose to refer to the submission made during the previous bail application. On questions by the Court the Respondent confirmed that it was the evidence submitted during the bail application made at the onset of the matter in 2020 which seems correct as there were no further bail applications bar the one following the special leave to appeal to the Supreme Court of Appeal. [8]  I have to agree with the Appellant that by just asking the court a quo to read into the bail pending appeal application the 2020 submission boils down to no opposition. The submissions made in 2020 prior to the conviction and sentencing of the Appellant can no longer be relevant in 2025. [9]  The Honourable Magistrate refused bail to protect the child victim until she can protect herself. I have to differ with the learned Magistrate for the following reason: At the time of the offence as per the charge sheet in 2016 the minor child was 10 years old. As the time of the conviction of the Appellant in 2022, 8 years later, the complainant was no longer a child as she was 19 years old. In 2024 when the Appellant was sentenced the complainant was 21 years old and in 2025 when the bail application was heard the complainant was 22 years old. At the age of 22 years old the complainant should be equipped to protect herself and by saying this the court is not negating any trauma suffered by the complainant as a child victim. There is however not any evidence before this Court to indicate that a 22-year-old victim will not be able to protect herself. [10]  The application for special leave to the Supreme Court of Appeal was attached to the Appellant’s bail affidavit handed in, in the Court a quo. The notice highlights serious discrepancies in the evidence of the complainant which the Supreme Court of Appeal considered when granting special leave to appeal. The Prosecutor in the Court a quo did not address the application for special leave and from her silence I take it that she agrees that there are some prospects of success. The Magistrate in her judgement also did not deal with the notice. The facts that the Magistrate did not deal with the notice so filed nor did she make any mention of it leave this Court to belief that she did not apply her mind to the special leave that was granted by the Supreme Court of Appeal but that she merely looked at the matter as the same matter which she presided over for 4 years. This Court does understand that it must be difficult for the Magistrate to divorce herself from the facts of the matter which was part of her caseload for such a long time but it is the judicial duty of a Magistrate in these circumstances to take a step back and to look at the matter a fresh to ensure that all factors are taking into consideration and the application for bail by the Appellant is considered properly. [11]  The Magistrate in her judgement said the following and I quote: ‘The sentence given indicates a propensity to evade’. Propensity is defined as ‘tendency or inclination or susceptibility’. This reason for the refusal of bail is confusing. The Magistrate herself gave the Appellant not only bail pending the trail but also bail pending sentence. If she therefore truly believed that the Appellant had a ‘propensity to evade’ she would have not given him bail until he was sentenced in 2024. [12]  I therefore found that the learned Magistrate Ms Mkhasibe erred in not finding that exceptional circumstances exist, that the liberty of the Appellant does not jeopardizes the interest of justice and the Court a quo should have given the Appellant bail pending the appeal to the Supreme Court of Appeal. [13]  I therefore set aside her decision and replace it with the following – a. Pending the appeal to the Supreme Court of Appeal, the Appellant is released on bail of R10 000.00 [Ten Thousand Rand]. b. While out on bail the Appellant is to report to the Pretoria North Police Station every Monday, Thursday and Saturday between the hours of 12h00 and 14h00. c. The Appellant is not to make contact with the complainant or any of her family members or extended family members, directly or indirectly. d. The Appellant is not to leave the province of Gauteng while on bail pending the appeal the Supreme Court of Appeal. e. If due to the non-prosecution of the appeal the appeal lapses the Appellant is to report to the Department of Correctional Services within 24 hours of such lapse to continue serving his sentence. f. If the appeal is dismissed by the Supreme Court of Appeal the Appellant is to report within 24 hours of such dismissal to the Department of Correctional Services to continue serving his sentence. NIEUWOUDT, E ACTING JUDGE OF THE HIGH COURT GAUTENG DIVISION, JOHANNESBURG Date of Hearing:                                   17 December 2025 Date of Judgment:                                19 December 2025 Appearances: For the Applicant:                                 Adv Van Wyngaardt Instructed by:                                       Elso Viljoen and Associates For the Respondent:                            Adv Rampyapedi Instructed by:                                       Director of Public Prosecutions sino noindex make_database footer start