IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, MAKHANDA
Not reportable
CASE NO. CA&R 211/2024
Magistrates’ Court case no. A 356 / 24
In the matter between:
UYANDA MBANYE Appellant
and
THE STATE Respondent
______________________________________________________________________
JUDGMENT
______________________________________________________________________
LAING J
[1] This is an appeal against the decision of the court a quo to refuse bail to the
appellant, pending trial. The state charged the appellant with three counts: robbery with
aggravating circumstances; money -laundering, as envisaged under the Prevention of
Organized Crime Act 121 of 1998 (‘POCA’); and forgery. It was alleged that the
appellant was involved in the theft of a motor vehicle on 6 June 2024, in Cape Town,
accompanied by the assault of the driver and the theft of items that he was transporting.
Furthermore, it was alleged that the appellant was involved in a money -laundering
operation on 25 September 2024, at Cradock, that included the disposal of the motor
vehicle in question . It was alleged , finally, that the appellant forged a driver’s licence,
purportedly issued in Lesotho.
[2] In her bail application, the appellant relied on a sworn statement in terms of
which she set out , in some detail, her personal circumstances and addressed the
factors listed in sections 60(4) to (9) of the Criminal Procedure Act 51 of 1977 (‘CPA’) .
To that effect, she contend ed that there were exceptional circumstances that warranted
her release. It would, she argued , be in the interests of justice for bail to be granted.
[3] The court a quo, in its judgment, raised concerns about the information that the
appellant provided regarding her residential address in Cape Town. It seemed that a
third party had been able to gain access to the address , possibly for the sake of
destroying incriminat ing evidence. The appellant’s mother, moreover, informed the
police that she was unwilling to accommodate her daughter because of her alleged
involvement in criminal activities. The court a quo also mentioned that the appellant had
produced no evidence to support her allegations that she suffered from a heart
condition and depression , and that she was pregnant. The police had found images on
the appellant’s cellphone that depict ed her carrying a handg un and attempting to
procure automatic rifles. After her deten tion at the Cradock police station , she was
found, in side her cell, to have been in possession of a large amount of cash , as well as
bank cards and a smart watch.
[4] There were , said the court a quo , no exceptional circu mstances to warrant the
appellant’s release. Furthermore , her previous convictions and factors mentioned above
indicated that there was a likelihood that she would commit a Schedule 1 offence .1 It
was not in the interests of justice for the court a quo to grant bail.
[5] The appellant listed several grounds of appeal. She argued that the court a quo
had erred in allowing the matter to proceed as if the appellant had been charged with a
1 The schedules are included in the CPA. They list offences that are arranged in degrees of increasing
severity.
Schedule 6 , not Schedule 5, offence . There was also no basis, she said, to the finding
that there was a likelihood that she would commit a Schedule 1 offence. The court a quo
had, moreover, failed to properly consider her personal circumstances.
[6] The main issues to be decided are conveniently set out in the appellant’s appeal.
The test, ultimately, is to determine whether the magistrate’s decision to refuse bail was
wrong . A brief overview of the relevant principles follows.
[7] As a starting point, section 65 of the CPA deals with bail appeals from a lower
court. The proper approach is indicated under subsection (4), which provides that:
‘[A] court or judge hearing the appeal shall not set aside the decision against
which the appeal is brought , unless such court or judge is satisfied that the
decision was wrong , in which event the court or judge shall give the decision
which in its or his opinion the lower co urt should have given.’
[8] Du Toit observe s that the functions or powers of a court hearing an appeal in
terms of section 65 are like those in an appeal against conviction and sentence.2 In an
oft-quoted passage from S v Barber ,3 Hefer J remarked as follows:
‘It is well known that the powers of this Court are largely limited where the matter
comes before it on appeal and not as a substantive application. This Court has to
be persuaded that the magistrate exercised the discretion w hich he has wrongly.
Accordingly, although this Court may have a different view, it should not
substitute its own view for that of the magistrate because that would be an unfair
interference with the magistrate’s exercise of his discretion. I think it should be
stressed that, no matter what this Court’s own views are, the real question is
2 Du Toit ( et al), Du Toit: Commentary on the Criminal Procedure Act (Jutastat e -publications, RS 66,
2021), ch9-p101. See, too, S v Ho 1979 (3) SA 734 (W), at 737H.
3 1979 (4) SA 218 (D).
whether it can be said that the magistrate who had the discretion to grant bail
exercised that discretion wrongly .’4
[9] The powers of the court were clarified, further, in S v Porthen and Others ,5 where
Binns -Ward AJ stated that:
‘…it is …necessary to be mindful that a bail appeal, including one affected by the
provisions of s 60(11)(a), goes to the question of deprivation of personal liberty .
In my view, that consideration is a further factor confirming that s 65(4) of the
CPA should be construed in a manner which do es not unduly restrict the ambit of
an appeal Court’s competence to decide that the lower court’s decision to refuse
bail was “wrong”.’6
[10] The test was confirmed by the Supreme Court of Appeal in S v Sewela ,7 where
Bosielo JA held:
‘It is not as if the court of appeal ha s carte blanche . A court of appeal can only set
aside such a decision if it is satisfied that it is wrong. ’8
[11] The above principles constitute the basic framework that applies in the present
matter. The provisions of section 60 are particularly relevant, too, but these will be
addressed separately in the discussion that follows.
[12] Regarding the issue of whether the court ought to have permitted the matter to
proceed as if the appellant had been charged with a Schedule 6 , not Schedule 5,
offence , the provisions of section 60(11) stipulate that:
4 At 220E -F.
5 2004 (2) SACR 242 (C).
6 At paragraph [17].
7 2010 JDR 1471 (SCA).
8 At paragraph [12].
‘(11) Notwithstanding any provision of this Act , where an accused is charged
with an offence –
(a) referred to in Schedule 6 , 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;
(b) referred to in Schedule 5, but not in Schedule 6, 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 the interests of justice permit his or her release…’
[13] Count 1 of the charges against the appellant was robbery , involving the taking of
a motor vehicle .9 The alleged offence is clearly listed in Schedule 6. From the record, it
is apparent that different charges were initially prepared, but by the time that the
application commenced, counsel for the appellant had been informed of the amended
charge sheet and had prepared his client’s sworn statement accordingly. The parties
were ad idem in this regard.
[14] The investigating officer, Sgt Zolandiwe Mbizweni testified that there was
evidence t hat someone had delivered a stolen vehicle to the guesthouse at which the
appellant and her co -accused , Mr Zolile Sombo, had been staying . The individual in
question had enquired ab out the appellant and subsequently handed over the key. The
appellant had left with the vehicle on the following day . Whereas it emerged during the
proceedings that there was little at that stage of the police investigation to implicate the
9 It appears that the Director of Public Prosecutions added ‘with aggravating circumstances’ to the count
in question.
appellant in count 1, it cannot be said that the court a quo erred in allowing the matter to
proceed as if she had been charged with a Schedule 6 offence. The appellant ha d been
so charged . Whether there is sufficient evidence to sustain the charge remains to be
seen, but it cannot be disputed that she bore the onus at the time to satisfy the court a
quo that there were exceptional circumstances which , in the interests of justice ,
permitted her release .
[15] In S v Petersen ,10 Van Zyl J described the meaning of exceptional circumstances
as follows:
‘On the meaning and interpretation of “exceptional circumstances” in this context
there have been wide -ranging opinions , from which it appears that it may be
unwise to attempt a definition of this concept. Generally speaking, “exceptional”
is indicative of something unusual , extraordinary, remarkable, peculiar or simply
different. There are, of course, varying degrees of e xceptionality , unusualness,
extraordinariness, remarkableness , peculiarity or difference. This depends on
their context and on the particular circumstances of the case under
consideration.’11
[16] For the appellant, possibly the most obvious factors in this re gard would have
been the allegation that she was pregnant, as well as the allegation s that she suffered
from a hear t condition , depression , and a broken ankle . These were, nevertheless ,
entirely unsupported . No medical confirmation accompanied her application ,
notwithstanding the relative ease with which such proof could have been obtained, with
or without the assistance of the appellant’s counsel . Of more serious concern , however,
was Sgt Mbizweni’s testimony to the effect that the appellant never mentioned these to
him at the time of her arrest or at any time afterwards. Curiously, this assertion was
never challenged by counsel.
10 2008 (2) SACR 355 (C).
11 At paragraph [55].
[17] Another factor that could have played a role in demonstrating the existence of
exceptional circumstances was the allegation that the appellant and her co -accused, Mr
Sombo, were the parents of four young children , aged 10, 13, 14, and 1 9 years . Sgt
Mbizweni refuted this, however, saying that the appellant had subsequently admitted
that they were not hers ; they were M r Sombo ’s children . Similarly , this was never
challenged by counsel. Even if the children could be said to have fallen under the
appellant’s care by reason of her alleged marriage (six months) to Mr Sombo,12 then
there was still no evidence that they depended on her; she indicated in her statement
that the children ‘resides with friends and family ’.13
[18] A further possible factor was the impact of the appellant’s incarceration on her
business , but she admitt ed that she had no employees. Furthermore, s he provided no
support for the allegation that she realised a profit of between R 20,000 and R 30,000
per month . Details of the nature and extent of her business were, overall, scant.
[19] In S v Jonas ,14 Horn AJ held that exceptional circumstances are established
when an accused person can present acceptable evidence that the case against him or
her is non-existent or subject to serious doubt.15 The principle was reiterated by the
Supreme Court of Appeal in Woji v Minister of Police ,16 where Swain JA held that proof
by an accused person tha t he or she will probably be acquitted can serve as
‘exceptional circumstances’.17 No such proof can be said to exist in the present matter.
It cannot be said that the available evidence point ed to the fact that the appellant was in
no way involved in the robbery of the motor vehicle . If anything, then the delivery of the
stolen vehicle to the appellant at her guest lodge in Komani and her possession thereof
in the company of her co -accused at th e time of her arrest raise d more questions than
answers. Quite simply, the appellant was unable to mention any factors, whether viewed
individually or cumulatively, that could have given rise to exceptional circumstances.
12 This was a point raised by the appellant’s attorney on appeal. He pointed out that , in terms of the
appellant’s cultural practices, the children should be regarded as her own .
13 Sic.
14 1998 (2) SACR 673 (SEC).
15 At 678e -i.
16 2015 (1) SACR 409 (SCA).
17 At paragraph [3].
[20] Even if it could be held that the appellant had not been charged with a Schedule
6 offence , then it was common cause that Schedule 5 would have been applicable. This
means that the appellant would have been required to satisfy the court a quo that the
interests of justice permitted her release . In this regard, the appellant faced a formidable
set of hurdles .
[21] In terms of section 60(4) , the interests of justice do not permit the release from
detention of the accused where one or more of the grounds listed thereunder is or are
established . These comprise the so -called ‘likelihoods’ , including, under subsection (a),
the likelihood that the accused would endanger the safety of the public , any person
against whom the offence was allegedly committed , or any other particular person, or
would commit a Schedule 1 offence.
[22] The appellant’s legal representative referred , in argument, to S v Diale and
Another ,18 where the court , per Kubushi J, dealt with the subject of the refusal of bail
and held as follows:
‘A court cannot find that the refusal of bail is in the interest of justice merely
because there is a risk or possibility that one or more of the consequences
mentioned in s 60(4) will result. The court must not grope in the dark and
speculate; a finding on the probabilities must be made. Unless it can be found
that one or more of the consequences will probably occur, detention of th e
accused is not in the interest of justice, and the accused should be released. ’19
[23] The court a quo in the present matter focused on the appellant’s past
convictions, the images found on her cellphone , and her having been found in
possession of various items while incarcerated. These factors, together with the
18 2013 (2) SACR 85 (GNP).
19 At paragraph [14]. The court referred to S v Swanepoel 1999 (1) SACR 311 (O).
information conveyed by the appellant’s mother, led the court a quo to conclude that she
would endanger the safety of others or commit a Schedule 1 offence.
[24] The reasoning cannot easily be faulted . The appellant has three previous
convict ions for theft, fraud, and a drug offence, covering the period of 2007 to 2019 ; she
is no stranger to crime and past sanctions imposed on her have clearly had little or no
effect . Sgt Mbizweni’s testimony concerning cellphone images of the appellant carrying
an unmarked handgun and attempting to procure automatic rifles suggest s, worryingly,
that she is an individual who is not averse to using violence or the threat thereof against
others. Possibly the factor of greatest concern, however, is the information subsequently
convey ed by the state that the appellant was , while detained at the Cradock police
station , found in possession of R 9,700 in cash, three different bank cards, and a
smartwatch capable of transmitting to and receiving communication from anyone
outside . There was an affidavit to that effect from the investigating officer. Counsel for
the appellant never challenged this information . The inference that the appellant was
engaged in illegal conduct , despite her incarceration, is not difficult to draw.
[25] If the above factors are considered cumulatively, together with what the
appellant’s mother is alleged to have said to the p olice about her daughter’s criminal
activities , then a cluster of red flags was on full display in the court a quo . This was not
a situation where the magistrate was speculating or groping in the dark. The probability
existed that the appellant would, if released on bail, endanger others or commit a
Schedule 1 offence.
[26] The court a quo went on to mention the appellant’s lack of emotional, family,
community or occupational ties with the Eastern Cape, as well as the ease with which a
third party had gained access to her Cape Town address , possibly concealing or
destroying eviden ce. These were factors that clearly persuad ed the magistrate that the
ground s stipulated under sections 60(4)(b) and (c) had also been established . Any
finding in that regard was, however, superfluous considering the evidence presented in
relation to section 60(4)(a).
[27] When considering the section 60(4) likelihoods, a court is also required , under
subsection (9), to weigh the interest s of justice against the right of the accused to his or
her personal freedom. The cou rt must consider the prejudice that the accused will
suffer, including possible financial loss and his or her state of health. The negative
impact that the appellant’s continued detention would have on her business cannot be
denied . So, too, is the effect that her custody would have on her health if she indeed
suffered from the conditions that she mentioned. Nevertheless, t he lack of supporting
evidence where the appellant bore the onus envisaged under section 60(11) pose s a
serious impediment . When measured against the appellant’s numerous previous
convictions, her possession of dangerous weapons, and the probable commission of a
further offence while incarcerated, factors such as potential financial loss and health
risks fail to tip the scales in her favour, especially when entirely unsu bstantiated. The
appellant’s personal freedom, in the circumstances of the present matter, does not
outweigh the interests of justice.
[28] Consequently, the court is not persuaded that the magistrate ought to have found
that the appellant had met the requirements of section 60(11) . There is no basis upon
which to find that the decision of the court a quo was wrong.
[29] In the circumstances, the appeal is dismissed .
_________________________
JGA LAING
JUDGE OF THE HIGH COURT
APPEARANCES
For the appellant: Mr Klaas
Instructed by: Sipho Klaas Attorneys Inc
Office 2, No. 26 North Street
EAST LONDON
Our RefS K/MBANYA/2024/11
Tel: 043 008 5003
Cell: 061 412 2930
Email: sipho.klaas05@gmail.com
c/o Mgangatho Attorneys
7 Somerset Street
MAKHANDA
For the respondent: Adv De Vos
Instructed by: The Director of Public Prosecution
94 High Street
MAKHANDA
Date of hearing: 17 January 2025.
Date of delivery: 28 January 2025.