Fikeni v S (A80/19) [2019] ZAGPJHC 249 (25 June 2019)

Fikeni v S (A80/19) [2019] ZAGPJHC 249 (25 June 2019)

The court held that the refusal of bail was justified, interpreting the right to bail through the lens of constitutional obligations to protect women as a vulnerable group. The judge found, on a balance of probabilities, that the appellant posed a threat to the complainant, supported by affidavits, photographs, and message evidence. The court emphasized the imperative to protect women under both the Constitution and international law, specifically referencing Carmichele and CEDAW. The appellant's personal circumstances were considered but found insubstantial compared to the risks identified. The judge explicitly stated that fair discrimination in favour of female complainants is...

Citation
[2019] ZAGPJHC 249
Parties
Appellant: Thandile Fikeni; Respondent: The State
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
25 June 2019
Case Number
A80/19
Procedural Posture
Criminal Appeal / Appeal Against Refusal of Bail
Outcome
Appeal dismissed; bail refused.
Judges
Grant
Legal Topics
Bail Application, Section 60 Criminal Procedure Act, Gender Based Violence, Constitutional Rights, Fair Discrimination
Criminal Law Constitutional Law Bail Application Section 60 Criminal Procedure Act Gender Based Violence Constitutional Rights Fair Discrimination

Case Brief

Summary, issues, holding and outcome

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Parties

Thandile Fikeni

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Refusal of Bail

Legal Issues

  1. 1 Whether the Magistrate erred in refusing bail to the appellant.
  2. 2 Whether the right to bail should be interpreted in light of constitutional obligations to protect women.
  3. 3 Whether the appellant's personal circumstances outweigh the risks to the complainant and public safety.

Ratio Decidendi

The court held that the refusal of bail was justified, interpreting the right to bail through the lens of constitutional obligations to protect women as a vulnerable group. The judge found, on a balance of probabilities, that the appellant posed a threat to the complainant, supported by affidavits, photographs, and message evidence. The court emphasized the imperative to protect women under both the Constitution and international law, specifically referencing Carmichele and CEDAW. The appellant's personal circumstances were considered but found insubstantial compared to the risks identified. The judge explicitly stated that fair discrimination in favour of female complainants is...

Court Disposition

Appeal dismissed; bail refused.

Orders

  • Bail appeal dismissed.