Court upholds bail denial for man who allegedly encouraged a four-year-old boy to light and smoke a drug pipe

A JOHANNESBURG man has failed in his appeal against bail denial after being charged with attempted murder and child abuse for his role in a viral video showing a four-year-old boy allegedly being encouraged to smoke drugs.

The High Court ruled that his admitted involvement in recording and sharing the footage justified continued detention pending trial.

The video showed a young boy allegedly being asked to light a “drug pipe” , and then encouraged to smoke it.

The man, who is one of three accused, including the four-year-old boy’s mother, were arrested and charged for attempted murder and child abuse, or alternatively deliberate neglect of a child, in July last year. 

He was denied bail in August last year. 

The man took the regional court’s magistrate’s bail refusal on appeal to the Johannesburg High Court. 

According to the judgment handed down this week, his main contentions for the appeal was that the State’s case against him was weak because he was not seen in the video smoking drugs or handing drugs to the child.

He said that he was not a flight risk as he has strong family ties, visited overseas twice, and is willing to surrender his passport.

The man said that the magistrate speculated about public outrage and failed to distinguish between possibility and probability in terms of Section 60(4) of the Criminal Procedure Act (CPA). 

He said that he provided an alternative address away from the area of the witnesses and the community outcry.

According to the court papers, the State, in opposing the appeal, argued that the man failed to discharge the onus placed on him.

“The evidence against him is strong. He admitted taking the video of the child smoking what is alleged to be drugs, and the video went viral. He did not testify viva voce and his affidavit was not tested under cross-examination,” it read. 

The State further stated that the magistrate correctly considered the factors under section 60(4) of the CPA, including the seriousness of the offence, the risk to public safety, and the potential undermining of public confidence in the justice system.

Acting Judge Matodzi Nemavhidi, in handing down judgement, said he had considered the record, the magistrate’s judgment, and the detailed submissions of both parties.

He said the charges against the man were extremely serious.

 “They involve a four-year-old child being exposed to drugs and allegedly being given drugs to smoke. The appellant (the man) admitted to recording the incident and distributing the video. This is not a case of mere presence; it is active participation in the recording and dissemination of an act that constitutes child abuse.”

Acting Judge Nemavhidi said the magistrate found, on the evidence before her, that the man failed to show that his release would not endanger the safety of the public or the child. 

He said she also found a likelihood that he would evade trial given the seriousness of the charges and potential sentence. 

Acting Judge Nemavhidi said the magistrate further considered that his release could undermine public peace and confidence in the justice system, given the public outrage and protests at court.

“I am not persuaded that the magistrate was wrong in these findings.”

Acting Judge Nemavhidi said in Schedule 5 matters, the court must be satisfied that the interests of justice permit release. 

He said the man’s affidavit did not adequately address the substantive allegations against him. 

“He did not deny being present, recording, or sharing the video. He did not provide any exculpatory explanation. His silence on these critical aspects weakens his case for release.”

Acting Judge Nemavhidi said the magistrate was entitled to consider the viral nature of the video, the public reaction, and the potential harm to the administration of justice. 

“Her reference to community protest was not speculative; it was based on evidence before her that protests occurred outside court. While the appellant argues that he is not seen in the video handing drugs to the child, his admitted role in recording and disseminating the video places him squarely within the alleged criminal enterprise. 

“His assertion that he is not a danger to the child or the public is not convincing in light of his admitted conduct,” he said. 

Acting Judge Nemavhidi said the magistrate did not misapply the “likelihood” standard. 

“She properly weighed the evidence and reached a conclusion that is reasonable and supported by the record.”

Acting Judge Nemavhidi added that the man’s right to be presumed innocent is not in question. 

“However, in a bail application, the strength of the State’s case is a relevant consideration. Here, the State’s case appears substantial, and the appellant did little to rebut it. I am not satisfied that the magistrate’s decision was wrong. The appellant has not shown that the interests of justice permit his release.”

Acting Judge Nemavhidi said the man’s appeal was dismissed and that he will remain in custody pending the finalisation of his trial.

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