Malambi v S (Bail on Appeal) (CA & R 9/2025) [2025] ZANCHC 116 (21 November 2025)

Case Note

Case Name: Tshepo Malambi v The State
Citation: Malambi v The State (Case no CA & R 9/2025) (21 November 2025)
Date: 21 November 2025

Reportability

This case is reportable as it addresses significant aspects of criminal law, specifically regarding bail applications under the South African legal framework. The ruling highlights the importance of assessing exceptional circumstances for bail, particularly in connection with offenses listed under Schedule 6 of the Criminal Procedure Act 51 of 1977. The significance of this case lies in its affirmation that lower courts must provide a thorough analysis of evidence and reasoning in their decisions regarding bail.

Furthermore, the decision reinforces the standard of proof needed for an accused person to demonstrate that exceptional circumstances exist, thereby justifying their release from custody. The appeal court's ability to revisit and alter decisions made by lower courts reflects the checks and balances inherent in the criminal justice system, ensuring that justice is served while upholding the rights of the accused.

Cases Cited

Rudolph v S 2010 (1) SACR (SCA)
S v Jiyane 2018 JDR 1300 (GP)
S v Barendse and Another 2023 JDR 1714 (WCC)
S v Branco 2002 (1) SACR 531 (WLD)
Landela and Another v The State [2017] ZAGPPHC 930
Botha v S (Bail Appeal) [2025] ZALMPPHC 49
Rosen v S [2024] ZANCHC 101

Legislation Cited

Criminal Procedure Act 51 of 1977, Sections 60(4), 60(11), and 65
South African Constitution, Section 35

Rules of Court Cited

None noted.

HEADNOTE

Summary

The appellant, Tshepo Malambi, sought to challenge the refusal of bail made by the Kimberley Regional Court. The court determined that the appellant was charged with serious offenses classifiable as Schedule 6 offenses. The appeal was rooted in the appropriate application and analysis of exceptional circumstances warranting release on bail. The appeal court found that the lower court had failed to adequately assess the evidence and apply correct legal principles, leading to a misdirection in refusing bail.

Key Issues

The key legal issues addressed in this case included:

• The correct interpretation of what constitutes exceptional circumstances for bail under Schedule 6 offenses.
• The procedural fairness of the lower court’s refusal of bail without a thorough analysis of the evidence presented.
• The implications of the strength of the State's case in regards to the granting or refusal of bail.

Held

The appeal was upheld, with the High Court finding that the Magistrate had misdirected in refusing bail due to a lack of adequate reasoning and failure to analyze the evidence sufficiently. The court substituted the earlier decision with an order granting bail to the appellant, subject to specific conditions.

THE FACTS

The appellant, Tshepo Malambi, had been in custody since January 2022 facing numerous serious charges, including racketeering, gang-related offenses, murder, and attempted murder. During the bail proceedings at the Kimberley Regional Court, the appellant relied on an affidavit asserting his ties to the community, lack of prior convictions, and his willingness to comply with any bail conditions imposed by the Court. The State opposed bail, arguing that the appellant had connections to serious criminal activities and that there were risks to public safety.

The initial application for bail was dismissed by the lower court, which deemed it too risky to grant bail and cited the strength of the State's case against the appellant. The court did not consider the personal circumstances of the appellant adequately, nor did it engage with the evidence presented in favor of granting bail.

THE ISSUES

The court had to decide whether the lower court's refusal of bail was justified considering the legal requirements for detention under the Criminal Procedure Act, particularly Section 60(11). Central to this decision was whether the appellant had sufficiently demonstrated the existence of exceptional circumstances that would permit his release on bail in the interests of justice despite the seriousness of the charges he faced.

Another issue was whether the lower court provided a sufficient examination of the evidence and reached a balanced decision based on all relevant facts rather than merely relying on the perceived strength of the State's case.

ANALYSIS

The judgment meticulously analyzed the procedural errors made by the lower court. The High Court emphasized that the strength of the State's case, while a critical factor, should not by itself merit refusal of bail without a clear factual basis to support the conclusion that the accused would pose a risk if released.

The High Court found that the lower court did not sufficiently consider the appellant’s personal circumstances or the undertakings he provided regarding his conduct if released. There was no solid basis for the conclusion that the appellant would evade trial, intimidate witnesses, or otherwise undermine justice.

In regard to exceptional circumstances, the High Court reiterated that the appellant's continuous detention without trial for an extended period in substandard conditions also counted towards these circumstances. The appeal court pointed out that the continued detention lacked justification given the absence of evidence suggesting that the appellant was a flight risk or a danger to public safety.

REMEDY

The High Court upheld the appeal, set aside the earlier decision of the Magistrate refusing bail, and ordered that the appellant be granted bail in the sum of R5000. The court stipulated conditions for release that included regular reporting to a police station, attendance at all court dates, and restrictions on leaving the province or contacting witnesses.

LEGAL PRINCIPLES

The case establishes critical legal principles regarding bail applications, particularly:

• The necessity for courts to articulate clear reasons and analyze evidence adequately when deciding on the refusal of bail.
• The onus rests upon the accused to prove that exceptional circumstances exist justifying their release on bail, and courts must consider both the evidence presented by the accused and the potential risks posed by releasing them.
• Courts should not rely on speculative reasoning when making bail decisions, but rather require substantial evidence indicating the likelihood of risk if bail were to be granted.

This case reaffirms the principle that justice is best served when the rights of the accused are balanced against the need to protect public interest, as framed within the statutory guidelines.