Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Before: Ms Acting Justice Pangarker
Date of hearing: 18 April 2024
Date of judgment: 22 April 2024
REPORTABLE
Case No: A20/2024
SIYABONGA DYAKOPHU 1st Appellant
(1st Applicant in Court a quo)
ANELE KOMANISI 2nd Appellant
(2nd Applicant in Court a quo)
and
THE STATE Respondent
JUDGMENT
Judgment delivered by email to the parties’ legal representatives
PANGARKER AJ:
Introduction
[1] The appeal is against the dismissal by the Bellville Specialised Commercial
Crimes Court of the appellants' application for bail pending appeal. The appellants
(applicants in the Court a quo) were convicted of contravening section 4(1)(a)(ii) read
with sections 1, 2, 24, 25, 26(1)(a)(ii) and 26 (3) of the Prevention and Combatting of
Corrupt Activities Act 12 of 2004 in that they were public officers who accepted a
gratification. The appellants were on bail throughout the trial in the Court a quo and
were convicted on 23 November 2022.
[2] On 30 November 2022 each appellant was sentenced to 8 years' direct
imprisonment of which 3 years were suspended for 5 years. The ir application for
condonation for the late filing of the ir leave to appeal application was dismissed by
the Regional Court Magistrate (the Magistrate) and subsequently, on 12 April 2023,
2
they petitioned the Acting Judge President of this Division in terms of section 309C
of the Criminal Procedure Act 51 of 1977 (the Act) . O n 27 September 2023, two
Judges granted both appellants leave to appeal against conviction. It is notable
from correspondence received from the State Advocate on 16 April instant , and as
confirmed by both counsel during the bail appeal , that the appeal against conviction
is enrolled for hearing on 24 May 2024.
[3] On 30 November 2023, the appellants applied for bail before the Magistrate.
The record reflects that she determined that the application was governed by section
60 (11) (b) of the Act , hence the onus was on the appellants to show that it was in
the interests of justice that bail be granted pending the appeal. Neither of the
appellants testified , but rather relied upon the content contained in their affidavits
which were read into the record by their legal representative.
[4] Prior to arrest, the first appellant resided in Manenberg and the second
appellant resided in Du Noon . Both lived with their spouses. The appellants were
police officers at the time of arrest and were the sole breadwinners for their
respective families . The affidavits indicate that neither of the m had previous
convictions, nor outstanding warrants or pending matters. They were able to afford
R2 500 each for bail pending appeal.
[5] As a consequence of their conviction s in this matter , the appellants were
dismissed from the police service . Their affidavits indicate strong family ties to the
Western Cape; neither possessed a passport, nor did they have families outside the
province. Their contention was that they were not a flight risk . No corroborating nor
confirmatory affidavits of family members were provided during the bail application.
3
[6] The State relied on the testimony of Lt. Col. Amon, the Commander of the
Western Cape Anti -Corruption Unit and investigating officer , who opposed the
appellants’ release on bail on the following bases: each appellant was serving a
custodial sentence ; neither w as the owner of the residence s referred to as fixed
addresses and corruption within the police service was rife. He confirmed that the
appellants’ addresses were not visited by the police.
[7] In cross examination, the witness could not dispute the appellants’ versions
that they had fixed addresses nor was he able to deny that they had strong family
ties to the Western Cape. Furthermore, he confirmed that he had not opposed bail
after arrest nor did he have an issue with the appellants’ addresses after their arrest.
Lt. Col Amon regarded the appellants as a flight risk because, in his view, they would
evade the completion of their custodial sentence s as R2 500 bail could be forfeited
easily. He held the view that if bail pending appeal was fixed at R50 000 each, the
likelihood of the appellants’ absconding would be far less. In respect of the merits, he
confirmed that the first appellant was found in possession of two envelopes each
containing cash.
[8] During his submissions, the appellants’ counsel reiterated the content of the
affidavits and that his clients only had six months left to serve of their custodial
sentences, that they had attended the trial diligently while on bail and were not a
flight risk. The State’s view, on the other hand, was that the appellants were indeed a
flight risk and that the amount of bail suggested1 could readily be forfeited. The State
argued that the fact that leave to appeal was granted , was of itself not a basis for
granting bail especially as the appellants were convicted of a serious offence,
corruption was the order of the day and their prospects of success on appeal were
not good.
[9] The Magistrate’s judgment focused mainly on the merits of the case, her
findings on conviction and what she deemed to be errors in the Petition to this Court.
To elaborate, she found that Mr Sityata, the appellants’ counsel in the bail
application and drafter of the Petition, had committed “a negligent error or an
intentional distortion of the truth to the high court” 2 when he submitted (in the
Petition) that there was no offer to accept nor any acceptance of the cash
gratification on the date of the offence.
1 R2500 each
2 Record, page 56
4
[10] Furthermore, the Magistrate found that Mr Sityata had wrongly referred in the
Petition to section 4(1)(b) of Act 12 of 2004, when the appellants were never charged
nor convicted of the offence referred to in this sub-section, but were charged and
convicted of contravening section 4(1)(a) of the said Act. The judgment refers to the
authorities Beetge v S3, Rohde v S4 and Mosoanganye v S5 and in passing to the
factors mentioned in section 60(6) of the Act which require consideration in an
application for bail pending appeal is a flight risk.
[11] In applying the law to the facts, the Magistrate then made the following
findings in her judgment:
“1. had the defence advocate not made these three errors in law and in fact in
applicant’s favour as mentioned above the petition would in all probability not be
granted. This Court/presiding officer was al so not approached for a response to the
petition application. It seems the magistrate’s certificate on the transcribed record
was signed by a clerk of the court without permission from the magistrate.”6
[12] The Magistrate relied on section 60(6)(j) of the Act, in that she found that
during the trial before her, the appellants gave different versions as to why they were
found in possession of the R2 000 cash in two envelopes at the time of arrest. She
held that this was a factor which she t ook into account in the bail application. She
found that the appellants were not in possession of passports, had family and fixed
addresses in the Western Cape, and that these factors together with the granting of
leave to appeal, counted in their favour. The judgment then returns to the merits of
the trial and the findings during the judgment on conviction.
[13] The Magistrate f ound that the possibility of a convicted person absconding
when on bail pending appeal increases and concludes that “evidence only in affidavit
form together with the grant of leave to appeal do not satisfy this Court that the
interests of justice permit their release on bail”7.
[14] The main attack on the Court a quo’s judgment and findings is that the
Magistrate focused most of her judgment on the merits of the conviction; that she
3 [2013] ZASCA 1
4 [2019] ZASCA 193 – the appeal judgment against the refusal of the Western Cape High Court to
grant bail pending appeal
5 2012 (1) SACR 292
6 Record, page 62
7 Record, page 65
5
failed to consider that Lt. Col. Amon did not give a reason why he considered the
appellants a flight risk; that she failed to make a finding that they were indeed a flight
risk; that she failed to consider that the appellants qualified for a remission of
sentence, and that the Magistrate failed to consider that the appellants had
reasonable prospects of success on appeal.
[15] The submissions during the appeal follow the submissions made during the
bail application in the Court a quo. Counsel were ad idem that the appellants’ status
changed when they were convicted and aspects which were relevant during a bail
application prior to a conviction, now took on a different complexion. The appellants’
counsel submitted that the Magistrate wrongly focused on her findings on conviction
and the merits of the case, and ignore d the question of whether his clients were a
flight risk, the fact that leave to appeal was granted and furthermore, that the
Magistrate paid scant regard to the remission of their sentences as being a factor in
the interests of justice consideration.
[16] The State concentrated on the seriousness of the offence, the offer and
acceptance issue 8, aspects addressed in the judgment insofar as the Petition was
concerned, as well as the frequency of corruption in the police service. The State
advocate, however, was of a similar view as her opponent that it was not the
Magistrate’ prerogative to address the Petition “errors” nor question Mr Sityata’s
bona fides when he drafted the Petition. Ultimately, the State was of the view that the
appellants had not discharged the onus of proving that the interests of justice
warranted their release on bail, and requests that the appeal in relation to both
appellants be dismissed.
[17] To commence the discussion, issues such as interference with witnesses and
considerations related to the investigation of the matter are irrelevant when
considering to grant bail pending appeal 9. The relevant considerations are whether
the appellants were a flight risk or not, the increased risk of abscondment, the
section 60(6) factors, the fact that the appellants’ status changed after conviction and
that leave to appeal was granted 10. Included in the consideration of bail were the
further factors that the evidence was that the appellants received a remission of
8 This aspect relates to the merits
9 See section 60(7) of the Act
10 Rohde supra, minority judgment, para 5-8, 13
6
sentence and were due to be considered for parole within months after the bail
application before the Regional Magistrate.
[18] Having regard to the section 60(6) factors relevant to the appellants , the
record of proceedings in the Court a quo certainly indicates that the Magistrate found
that the appellants had fixed addresses, no passports and strong family ties in the
Western Cape. The Magistrate dealt extensively with the merits of the offence and
facts related to the appellants’ arrest, the seriousness of the offence in light of the
epidemic of corruption in the country and her findings on conviction. The fact that
these appellants were already serving their sentences received little attention in the
judgment.
[19] Notwithstanding a finding that the appellants had fixed addresses and were
previously police officers, thus easily traceable and known to the police, the
judgment nonetheless failed to consider whether any conditions for bail could be
imposed pending appeal11.
[20] The Magistrate referred to and relied upon the Nicholls JA judgment in
Rohde, which is insightful in that it informs the reader of some of the aspects t o
consider when dealing with a bail pending appeal application. Having relied upon the
minority judgment, it must therefore be presumed that the Magistrate also took note
of the majority judgment in Rohde and was alive to the fact that the Judges
considering the Petition do not provide reasons for granting leave to appeal12.
[21] In the majority judgment in Rohde, Van der Merwe JA (with Maya P 13
concurring) stated as follows at paragraph [23]:
‘[23] First, on the facts of this matter, leave to appeal could only have been granted
on the merits thereof. Therefore we have to accept that, after having specifically
applied their minds to this question, our Colleagues concluded that there are
reasonable prospects that the convictions may be overturned on appeal. They no
doubt applied the test set out in S v Smith 2012 (1) SACR 567 (SCA) para 7:
‘What the test of reasonable prospects of success postulates is a dispassionate
decision, based on the facts and the law, that a court of appeal could reasonably
arrive at a conclusion different to that of the trial court. In order to succeed, therefore,
the appellant must convince this court on proper grounds that he has prospects of
11 Section 60(6)(i)
12 See paragraph 8 of Rohde supra
13 As she then was
7
success on appeal and those prospects are not remote, but have a realistic chance
of succeeding. More is required to be established than that there is a mere possibility
of success, that the case is arguable on appeal or that the case cannot be
categorised as hopeless. There must, in other words, be a sound, rational basis for
the conclusion that there are prospects of success on appeal.’
(my emphasis)
[22] My reference to paragraph [23] in Rohde must be seen in the context of the
following: the Magistrate found that, had the appellants’ counsel not made errors or
intentionally distorted the truth in the Petition, the Petition would in all probability not
have been granted. This was not a comment in passing or a discussion in the
judgment, but a finding and conclusion which the Magistrate had reached after
hearing the bail application. It is a problematic conclusion to draw for two main
reasons: firstly, it was not within the Magistrate’s authority to consider the bases of
the Petition, and I address this below. Secondly, the Judges who considered the
Petition in chambers had the benefit of the trial record, the Magistrate’s judgment ,
and the Petition.
[23] Furthermore, following on from Van der Merwe JA’s finding in Rohde supra, it
is apposite to emphasise that the Judges seized with the Petition must have applied
their minds to the merits of the matter as contained in the record of the Court a quo
when they decided to grant the Petition . Consequently, they saw fit to grant leave to
appeal the conviction, and in coming to such decision, it must therefore be accepted
that the Judges were of the view that the appellants have reasonable prospects of
success on appeal.
[24] Considering the above, I hold the view that the Magistrate erred when she
revisited in the bail judgment, the facts and findings in the trial in order to address the
perceived or real errors in the Petition to the High Court . With respect to the
Magistrate, she was seized with a bail application pending appeal and her judicial
task related to adjudicating that application which encompassed a consideration of
the various factors mentioned above in order to come to a dispassionate finding as
to whether the interests of justice warranted the granting of bail pending appeal.
[25] As a reminder, section 309C(2)(a) gives an accused person a discretion to
apply to the Judge President 14 of the High Court having jurisdiction to grant, inter
14 In this instance, the Acting Judge President of the Western Cape High Court
8
alia, an application for leave to appeal. This is exactly what transpired here and it
was therefore not appropriate for the Magistrate in the bail application to have
considered the Petition. Furthermore, the error was exacerbated by her further
finding that but for these errors and/or intentional misleading of the Judges, the
Petition would not have been granted. The Magistrate’s approach and findings in this
regard were incorrect.
[26] The Magistrate’s further fin ding was that as the presiding officer 15, she was
not approached for a response to the Petition 16. This finding in the judgment drew
criticism from both counsel during the bail appeal. To address this, I refer to section
309C(6)(a) which states the following:
309C Petition procedure
…
(6) Judges considering a petition may –
(a) call for any further information from the magistrate who refused the application in
question, or from the magistrate who presided at the trial to which the application
relates, as the case may be; or
(b) … 17
(my emphasis)
[27] It is apparent from section 309C(6)(a) that, generally speaking, Judges seized
with a Petition are vested with a discretion to call on the Magistrate for further
information regarding the matter. In this instance, there is no indication that the
Judges requested the Magistrate to provide further information as envisaged by the
above legislation. When I have regard to the finding that she was not approached for
a response to the Petition, I am left with an impression that the Magistrate harboured
an expectation that she should have been asked or requested for her response
thereto because of the counsel’s apparent errors or intentional misleading of the
Judges.
[28] It is unfortunate that the Magistrate held this view . Section 309C(6)(a) does
not create a situation where the Magistrate who refused condonation and/or leave to
appeal, plays a role by being called upon to respond or reply to the Petition. As
15 It is accepted that the Regional Court Magistrate was the same presiding officer in the trial and bail
application
16 Record, page 62
17 This sub-section is excluded as it is not relevant to the issue addressed above
9
indicated above, the discretion to Petition the High Court vests solely with the
accused person. I f the Judges seized with the Petition deem it necessary or
appropriate, in the exercise of their judicial discretion, then they may call on the
Magistrate who refused the leave to appeal application or in this case, the
condonation application, to provide information18 to them.
[29] In this matter, the Judges did not do so and it was not the Magistrate’s place
therefore to question or query in her findings, that she was not approached for her
response to the Petition. In concluding this point, I hold the view that the Magistrate’s
finding was incorrect. Her further finding regarding a clerk of the court signing off the
Magistrate’s certificate is ultimately irrelevant to the bail appeal; hence I need not
address it in this judgment.
[30] The Magistrate’s finding that the appellants’ evidence 19 was only in affidavit
form is difficult to understand, especially as it is clear that section 60(11)(b) does not
limit the adducing of evidence to overcome the onus, to only oral
testimony/evidence. It is a daily occurrence in bail applications throughout South
Africa that applicants may supply their information for purposes of bail in an affidavit.
Returning to the bail application, it is notable from her judgment that the Magistrate
made no f indings that the affidavits contained any falsehoods, so I fail to see the
basis upon which she viewed the provision of affidavits in the application in a
negative light and concluded that this was a factor supporting a finding that the
interests of justice did not permit the appellants’ release on bail.
[31] Furthermore, section 60(11B)(b) of the Act provides that information regarding
previous convictions and pending charges are to be submitted by an applicant for
bail, either orally or in writing . In view of this legislative provision , it is difficult to
understand the Magistrate’s issue with the appellants’ providing evidence in the form
of an affidavit, particularly where the record of proceedings does not indicate , nor
does her judgment make , negative findings regarding the appellants’ personal
information, fixed addresses, previous convictions and the like. In my view, the
negative finding regarding evidence in the form of an affidavit was not justified in the
circumstances.
[32] I have already found that the Magistrate did not make a finding that the
appellants were a flight risk, as is required when one has regard to the dicta in
18 My emphasis
19 Record, page 65
10
Beetge20 and Rohde. Having regard to Lt. Col. Amon’s testimony and the
submissions, I am in agreement with the appellants’ counsel that the witness could
provide no cogent reason why he believed the appellants to be a flight risk other than
stating that the risk of absconding is greater when the bail amount is only R2500 or
thereabouts. The argument by the State which follows the witness’s view, is
unconvincing because it is based on conjecture and not on fact.
[33] Unlike the appellant in Beetge, who was convicted of murder and sentenced
to 15 years’ imprisonment, and thus had to show exceptional circumstances
warranting her release on bail pending appeal, these appellants are required to show
that the interests of justice permit their release on bail pending appeal. In my view,
even absent confirmatory affidavits by the appellants’ spouses, the facts before the
Court a quo were such that their addresses were not in issue , they had strong family
ties to the Western Cape and were easily traceable. Secondly, even accepting that
the risk of abscondment increases after conviction 21, one must not forget that every
application should be dealt with on the merits and circumstances peculiar to it and its
applicants for bail. Thus, the risk of abscondment should surely be considered with
reference to the facts and evidence during the application.
[34] In this matter, the risk of abscondment, or flight risk (which the Magistrate
made no finding on ) should have been considered in contemplation of the following
factors: firstly, the appellants were convicted of a serious, non -violent crime and
already serving their effective 5 year sentence of imprisonment 22. Secondly,
consideration should have been given to the remission of sentence, a factor which
was not considered nor mentioned in the Magistrate’s judgment.
[35] Thirdly, while corruption is indeed serious and as correctly submitted by the
State, rife within the police service, these appellants were not serving sentences akin
to those in Beetge and Rohde, which the Magistrate and the parties referenced.
Fourthly, their attendance during the trial while out on bail and their looming appeal,
should also have factored into the question of the risk of abscondment, but the
record is silent on this. Fifthly, the appellants’ personal circumstances should have
weighed more heavily in the determination as to whether they were a flight risk, and
20 Supra, par [5]
21 Rohde supra, par [6]
22 At the time of the bail application, the appellants had served a year of their sentence
11
in this matter, the facts should have dictated a finding that they were not at risk of
absconding23.
[36] The last aspect relates to the granting of leave to appeal. It is apparent from
the authorities referred to that the grant of leave to appeal is an important
consideration in an application for bail but does not of itself form a ground to grant
bail24. I am in no position to anticipate nor guess the outcome of the appeal on
conviction which is due to be heard in May. Except to point out that the appellants
were police officers who were convicted of a serious, non -violent offence, it would be
inappropriate to delve into the merits of the matter and address any further facts
relevant to the offence.
[37] In my view, the likelihood of the appellants’ absconding from serving the rest
of their sentence should not only have been balanced against the prospects of
success on appeal, but also against the appellants’ circumstances in order to reach
a finding as to the interests of justice 25. Here, leave to appeal was granted and it
follows that the prospects of success on appeal were considered not to be remote ,
but more importantly, the facts and evidence before the Court a quo in the bail
application were such that the appellants showed that they were not at risk of
absconding. Thus, even if the Magistrate were of the view that the prospects of
success on appeal were poor, she should have found that the appellants had
succeeded in showing on a balance of probabilities, that they were not at risk of
absconding in respect of the completion of their sentences should the appeal not
succeed.
[38] These aspects should have weighed favourably with the Magistrate in her
consideration of bail and had she taken the m into account, she should have found
that the appellants had discharged the onus of proving on a balance of probabilities
that it was in the interests of justice to grant bail pending appeal. Based on the
above, I am of the view that the Magistrate erred when she dismissed the application
for bail pending appeal. As a consequence, in terms of section 65(4) of the Act, there
is room for interference with the Court a quo’s decision. Accordingly, the appellants
are to be admitted to bail pending appeal.
23 Masoanganye supra, par [19]
24 Rohde supra par [8]
25 See S v Williams 1981 (1) SA 1170 (A)
12
[39] As a final point, the State submitted that because the appeal on the merits will
be heard soon and the appellants are to be considered for parole sometime in May ,
this should also dictate a refusal of the appeal. In my view, the balance of
convenience is not the threshold nor yardstick in a bail application such as this and
to elevate it above the interests of justice would be contrary to what section 60 of the
Act prescribes.
[40] It is notable that the appellants filed their Notice of Appeal on 31 January
2024 and their actions indicate that they wished to pursue an application for bail after
conviction. This gives me an indication that, whatever the outcome of the appeal,
they consider bail seriously and this cannot be held against them. By the time the
appeal comes around, the appellants may well be on parole , or not. In the event that
the appeal is dismissed and they are found not to be eligible for parole, the
appellants would then have to serve the remainder of their sentence26.
[41] . For all the above reasons, I grant the following orders:
1. The appeals of both appellants (applicants in the Court a quo) are upheld.
2. The order of the Court a quo is set aside and replaced with the following orders:
(a) The applicants’ application for bail pending appeal is granted.
(b) The first and second applicants’ release is subject to payment of R3 000 each which
shall be paid at the Registrar of the Western Cape High Court or any correctional
facility/facilities, as the case may be, where the applicants are currently serving their
sentences.
(c) The applicants, on release on bail, shall report to their nearest police stations twice a
week, between the hours of 6am to 6pm, every Wednesday and Saturday , until
conclusion of their appeal (appeal against conviction).
(d) In the event that their appeals are unsuccessful and the applicants are to continue to
serve the remainder of their sentence s imposed by the Court a quo, the applicants
are, with the assistance of their legal representative (s), required to report to the
Department of Correctional Services immediately.
(e) While on bail pending finalisation of the appeal, the first applicant, Siyabonga
Dyakophi, shall reside at 50 Hex Crescent, Manenberg , and the second applicant,
Anele Komanisi, shall reside at 203 New Rest, Du Noon . The applicants may not
change their residence without first informing the investigating officer.
26 I take account the remission
13
M PANGARKER
Acting Judge of the High Court
APPEARANCES
Appellants’ counsel: Mr P Sityata
Respondent’s counsel: Ms A Harmse