THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No: 484/2009

ABDUL MUTALIED RUDOLPH
Appellant

and

THE STATE
Respondent

Neutral citation:
Rudolph v The State (484/09) [2009] ZASCA 133 (30
September 2009)

Coram:
STREICHER, SNYDERS and MHLANTLA JJA

Heard:
28 SEPTEMBER 2009

Delivered:
30 SEPTEMBER 2009

Summary:
Bail – onus in terms of s 60(11)(a) of the Criminal Procedure
Act 51 of 1977 not satisfied.

ORDER

On appeal from: Western Cape High Court (Saldanha J sitting as a court of
appeal).
The appeal is dismissed.
JUDGMENT

SNYDERS JA (STREICHER and MHLANTLA JJA concurring):

[1] This is an appeal against a judgment of the Western Cape High Court,
Saldanha J presiding, in which the judge dismissed an appeal against the
refusal by the magistrate at Goodwood to grant bail to the appellant pending
his trial on a charge of attempted murder.

[2] At the hearing before the magistrate, during June 2009, the appellant
chose to present evidence in the form of his own affidavit, the oral evidence of
Dr Ameen, a neurologist, and a report by Dr Thakersee, a cardiologist, both of
whom were treating him at the time.

[3] The appellant is a 30 year old South African citizen. Since the age of
four he had been living at one address in the Western Cape. For two years
prior to his arrest on 29 April 2009 the appellant was employed by his sister in
her pawn shop, earning R2 000 per month. The appellant’s parents and four
of his five siblings live in the Western Cape. He was previously married and
has one child, aged four, from that marriage. The child lives with her mother.
He owns assets to the value of approximately R50 000. He has never been
overseas, he does not have a passport, and has no family or assets outside
South Africa.

[4] The appellant married Ms Firdous Rudolph, the complainant,
approximately two years prior to the incident that gives rise to the current
charge against him. They are the parents of an 18 month old girl. Two months
before the incident the complainant separated from the appellant. After their

separation, on 24 March 2009, the complainant obtained an ex parte interim
protection order in terms of the Domestic Violence Act 116 of 1998 against
the appellant. The order was served on him on 30 March 2009 and was
enrolled for confirmation on 13 July 2009. In terms of that interdict the
appellant was ordered not to physically, verbally or emotionally abuse the
complainant; not to threaten, harass or intimidate her; not to enter her
residence at 16 Faust Close, Eastridge; not to enter her place of employment
at Morkels N1 City; and not to, directly or indirectly, contact her.

[5] According to the investigating officer, Inspector Abrahams, who
testified on behalf of the state at the hearing, the case against the appellant
has been fully investigated and is ready for trial. Apart from the evidence of
the complainant, three more witnesses are to testify about the incident. The
evidence is that on 29 April 2009 the appellant went to the complainant’s
place of employment, uninvited. He persuaded her to go into the kitchen with
him. There he attacked her with a carpet knife. He cut her throat and inflicted
various other lacerations, then doused her with petrol from a 500ml Coca Cola
bottle that he carried with him and tried to set her alight with his cigarette
lighter. When the kitchen door was opened by her colleagues they saw him
swinging the knife in her direction, trying to inflict further lacerations, and then
trying to set her alight. Once his attack on her was interrupted the appellant
proceeded to cut his own throat with the same knife and then left the
premises. The bloodied knife and the almost empty Coca Cola bottle were
taken from the scene as exhibits. The content of the Coca Cola bottle
forensically tested for petrol.

[6] The appellant and the complainant were admitted to hospital after the
incident. Flowing from this incident the appellant was arrested in hospital on
29 April 2009 and charged with attempted murder. The very next day the
charge against him was withdrawn, as he was in the intensive care unit of a
hospital. On 2 May 2009 the appellant was discharged from hospital and on 7
May 2009 re-arrested. The appellant had, in the interim, also laid a charge of
attempted murder against the complainant, alleging that the injuries he
suffered during the incident were inflicted by her. At no stage did he tender

any explanation for the injuries that were inflicted on her. According to
Abrahams a decision was made not to prosecute the charge by the appellant.

[7] On 11 May 2009 the appellant suffered a massive heart attack and a
second one later in the same month with the result that he was left with 70 per
cent loss of function in the left ventricle of his heart together with coagulated
blood in an artery that supplies the wall of his heart with blood. A piece of the
coagulated blood dislodged and caused a stroke. Since his first heart attack
the appellant has been treated at the Gatesville Medical Centre by Dr O S
Ameen, a neurologist, Dr S N Thakersee, a cardiologist, and a psychiatrist.
The gist of the evidence of both doctors was that prison is not the ideal
environment for the appellant’s recovery. Although, according to Dr Ameen
the appellant’s condition has stabilised and would improve, imprisonment
would delay his healing and presents some risks. Any form of anxiety, which
implies an increased heart rate, could result in further damage to his heart
and another stroke. As the appellant is receiving blood-thinning medication,
any form of trauma could cause excessive bleeding and, in fact, even
spontaneous bleeding is possible. Swift access to the appellant in the event of
any of these occurrences is essential to help him and in prison such access is
unlikely. According to Dr Ameen’s experience of working at Groote Schuur
Hospital, where prisoners are treated, instructions by doctors are not
efficiently implemented.

[8] Although the appellant has no previous convictions, he was on bail of
R2 000 pending his trial on charges of rape and attempted murder allegedly
perpetrated on his former wife at the time of the incident on 29 April 2009. The
incident has given rise to a second charge of attempted murder. Attempted
murder is an offence referred to in Schedule 5 to the Criminal Procedure Act
51 of 1977 (the Act). Schedule 5 includes ‘[a]ttempted murder involving the
infliction of grievous bodily harm’ and ‘rape’. A Schedule 5 offence committed
whilst ‘released on bail in respect of an offence referred to in Schedule 5’
constitutes an offence under Schedule 6. Section 60(11)(a) of the Criminal
Procedure Act 51 of 1977 prescribes that in the case of offences falling within
the ambit of Schedule 6 that ‘. . . the court shall order that the accused 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’.

[9] The section places an onus on the appellant to produce proof, on a
balance of probability, that ‘exceptional circumstances exist which in the
interests of justice permit his’ release.1 It ‘contemplates an exercise in which
the balance between the liberty interests of the accused and the interests of
society in denying the accused bail, will be resolved in favour of the denial of
bail, unless “exceptional circumstances” are shown by the accused to exist’.2
Exceptional circumstances do not mean that ‘they must be circumstances
above and beyond, and generally different from those enumerated’ in ss 60(4)
to (9). In fact, ordinary circumstances present to an exceptional degree, may
lead to a finding that release on bail is justified. 3

[10] The case presented on behalf of the appellant is that his attachment to
his community and environment and poor health constitute exceptional
circumstances that ‘in the interests of justice permit his release’.4

[11] The appellant is rooted in his community and he is physically frail. Dr
Ameen conceded during evidence that the appellant’s condition would,
however, improve. Despite being in custody he is receiving adequate medical
attention as is reflected by the evidence of Dr Ameen. As an arrested person
he is entitled ‘to conditions of detention that are consistent with human dignity,
including at least exercise and the provision, at state expense, of adequate
accommodation, nutrition, reading material and medical treatment;’.5

[12] The appellant’s case is characterised rather by what he does not
address than by what he does. The state’s case against him is that he

1 S v Dlamini 1999 (2) SACR 51 (CC) para 78.
2 Dlamini para 64.
3 Dlamini para 76; S v Botha 2002 (1) SACR 222 (SCA) para 19.
4 These are factors listed in s 60(6) of the CPA as relevant considerations in an enquiry
whether the ground in s 60(4)(b) has been established.
5 The Constitution of the Republic of South Africa 108 of 1996, s 35(2)(e).

attempted to murder his wife by the use of barbarous violence. He has made
no attempt to meet that case. The complainant obtained the interim interdict
against him on allegations of violence and threats of violence by the appellant
against her and their child. None of these allegations are addressed by him.
He has also not tendered any explanation for the charges of attempted
murder and rape by his former wife. Those charges also involve acts of
violence. Thus the unchallenged allegations against him show that he has a
propensity to violence.6 In those circumstances subsecs 60(4)(a) and (d) of
the Act prohibits his release from detention. It is apposite to quote all of s
60(4):
‘The interests of justice do not permit the release from detention of an accused where
one or more of the following grounds are established:
(a) Where there is the likelihood that the accused, if he or she were released on bail,
will endanger the safety of the public or any particular person or will commit a
Schedule 1 offence; or
(b) where there is the likelihood that the accused, if he or she were released on bail,
will attempt to evade his or her trial; or
(c) where there is the likelihood that the accused, if he or she were released on bail,
will attempt to influence or intimidate witnesses or to conceal or destroy evidence; or
(d) where there is the likelihood that the accused, if he or she were released on bail,
will undermine or jeopardise the objectives or the proper functioning of the criminal
justice system, including the bail system;
(e) where in exceptional circumstances there is the likelihood that the release of the
accused will disturb the public order or undermine the public peace or security; or
[sic]’.
Offences listed in Schedule 1 to the Act include murder, culpable homicide,
rape, sexual assault, assault when a dangerous wound is inflicted and arson.

[13] The appellant, despite the onus on him, did not introduce any evidence
to show that he is not likely to act in terms of the propensity to violence that
his past undisputed behaviour illustrates. His physical condition, as evident at
the time of the hearing, even in the unlikely event of no improvement, may
prohibit him from physically employing some forms of violence, but is not

6 All of these factors are listed in s 60(5) of the CPA as relevant to the consideration whether
the ground in s 60(4)(a) has been established.

evidence that the propensity no longer exists nor that he would be unable to
commit any violence.

[14] It was argued on behalf of the appellant that appropriate bail
conditions, like house arrest, could adequately safeguard all interests.7 The
impracticality of house arrest was conceded during argument. Apart from that
the appellant was in breach of an interdict and bail conditions when he
committed the offence currently charged with. He did not adduce any
evidence to explain the commission of an offence whilst on bail pending
charges of attempted murder and rape. He only tendered an explanation for
ignoring the interdict against him. He alleged in this affidavit that the
complainant invited him to meet with her and that they were likely to reconcile.
This explanation misses the point. The interdict was served on him on 30
March 2009, less than a month before the incident. The date for confirmation
was set for 13 July 2009. Neither the appellant nor the complainant had taken
any steps to change the set course or effect of the interdict. One of the
express terms of the interdict aims at keeping the appellant away from the
complainant’s place of employment. The unanswered allegations by the state
are of violence against the complainant at her place of employment, the very
thing she wanted to prevent by obtaining an interdict in the terms that she did.

[15] The appellant has not addressed his propensity to ignore court orders
illustrated by his past behaviour. He has also not furnished any evidence,
despite the onus being on him, that he is unlikely to behave with the same
disregard in the future.8 He has, therefore, not addressed the evidence that
his release will ‘undermine or jeopardise the objectives or the proper
functioning of the criminal justice system, including the bail system’.

[16] When all the allegations are weighed up at least two of the grounds
listed in s 60(4) have been established. In those circumstances the release on

7 S v Branco 2002 (1) SACR 531 (W) at 537a-b.
8 These factors are relevant to consider whether the ground in s 60(4)(d) has been
established.

bail of the appellant is not permitted. The court a quo was therefore correct in
upholding the refusal of bail by the magistrate.

[17] The appeal is dismissed.

_________________________
S SNYDERS
Judge of Appeal

Appearances:

For the appellant:

F Roets

Instructed by:

F Rudolph Attorneys, Cape Town

Symington & De Kok Attorneys, Bloemfontein

For the Respondent:
C De Jongh

Instructed by:

Director of Public Prosecutions, Cape Town

Director of Public Prosecutions, Bloemfontein

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:

Status:
Immediate

Please note that the media summary is intended for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal.

* * *

The Supreme Court of Appeal, this morning, refused the release on bail of Mr Abdul
Mutalied Rudolph, thereby confirming the refusal of bail by the magistrate at Goodwood and
the Western Cape High Court.

On 30 March 2009 Mr Rudolph, who was on bail of R2000 pending charges of attempted
murder and rape of his former wife, was served with an interdict obtained by his current wife,
who separated from him a month before, to prevent him from, amongst other things,
threatening, contacting or visiting her at her home or place of employment. On 29 April 2009
Mr Rudolph, despite the interdict, went to his wife’s place of employment, where he
allegedly attacked her in barbarous fashion. He allegedly slit her throat with a carpet knife,
poured petrol over her and tried to set her alight. When his attack on her was interrupted by
her colleagues, he proceeded to slit his own throat and left. Both survived the incident.

During May 2009 Mr Rudolph, at the age of 30, suffered two major heart attacks and a stroke
which left him with permanent damage to his heart. During June 2009 he applied for bail,

advancing his fragile physical condition as an exceptional circumstance that warranted his
release on bail.

The Supreme Court of Appeal found that Mr Rudolph’s medical needs are adequately taken
care of despite his imprisonment. His appeal to be released on bail was refused because he at
no stage explained any of the allegations against him and as a result the court was unable to
find that he would not in future act in accordance with his illustrated propensity to violence
and to ignore court orders.