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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: A 34/2025
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES
DATE 14-04-2025
SIGNATURE PD. PHAHLANE
In the matter between:
MAHLATSI SAMUEL MOKGETSI APPELLANT
and
THE STATE RESPONDENT
Delivered: This judgment was handed down electronically by circulation to the
parties' representatives by email. The date and time for hand -down is deemed to be
10H00 on 14 April 2025.
Judgment – Bail Appeal
PHAHLANE, J
[1] This is an appeal against the judgment of the Learned Magistrate Mrs De La
Rey, sitting at Welbekend District court, in which the court dismissed the
appellant’s application to be released on bail pending his trial.
[2] It is common cause that the appellant was charged with one count of rape. At
the commencement of the bail hearing before the magistrate , the State and the
defence agreed that the bail application fell within the ambit of Schedule 5 of the
Criminal Procedure Act1 (“CPA”) and had to be dealt with in terms of section
60(11)(b)2. This section saddles the appellant with the onus to prove on a
balance of probabilities that it is in the interests of justice that he be released on
bail, failing which he must be detained in custody.
[3] The question to be determined in this appeal is whether the appellant has
discharged the burden placed on him by 60(11)(b) of the CPA to be admitted to
bail and whether the magistrate has indeed erred and exercised her discretion
to refuse bail wrongly .
[4] The jurisdictional requirement for the appeal court to interfere with the decision
of the magistrate is set out in Section 65(4) of the CPA which reads as follows:
“The 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 court should have given ”.
[5] The appellant was legally represented a t the bail hearing before the magistrate .
He present ed his evidence in the form of an affidavit and placed the following
circumstances before the court:
5.1 He is 20 years of age.
5.2 The appellant resides at F […] Avenue, Plot […].
• It is not indicated in the appellant’s affidavit in which area this Plot is
situated, but he stated that h is alternative address i s 1[...] M[...] ,
Extension 46, Daveyton , where he will be residing until the matter is
finalised.
5.3 He is employed at Victus Bio (Pty) Ltd .
5.4 He h as no pending cases nor previous convictions .
1 Act 51 of 1977
2 The section provides: “Notwithstanding any provision of this Act, where an accused is charged with
an offence 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”.
5.5 In compliance with section 60(4) of the CPA, t he appellant undertook that
should he be granted bail, he will not endanger the safety of any person or
the public and will not disturb public order ; he will not commit any
Schedule 1 offence ; will comply with all bail conditions ; will not influence
or intimidate state witnesses or ‘interfere’ with the complainant .
5.6 The appellant indicated that he is not a flight risk and undertook to attend
court at all times and stated that he does not have any travelling
documents. He further indicated that he would lose his employment if bail
is denied .
5.7 He submitted in his affidavit that he ‘was arrested in his room while
sleeping, and he will plead not guilty during his trial ’.
[6] In opposing the bail applicati on, the State relied on the affidavit of the
Investigating officer, Sergeant Mogothe wherein she stated, amongst other
things, that the appellant is originally from Limpopo and his address is
unknown, but that his alternative address has been verified. A brief summary of
facts which can be gleaned from th is affidavit is that:
6.1 The complainant was at her place of residence sleeping and had properly
locked all windows and doors before going to bed. While still asleep, she
was awoken by the accused who was on top of her. The accused had
apparently switched on the torch and hit the complainant with a fist on her
face and took the cooking oil from the cupboard and poured it over the
complainant from her waist downwards. The complainant tried to fight
him, but she was overpowered.
6.2 The accused took her to a sofa next to the bed and put his penis inside
her vagina and penetrated her…. He then fell asleep on top of the
complainant, and she managed to remove him and went to her neighbour
for help.
6.3 When she returned to her room, she hit the accused with a stick on his
face and recognised who he was. The accused woke up and ran away.
The police were called, and the accused was then pointed out by the
complainant and arrested. He had blood stains on his face and on his All-
Star sneakers which the compliant had told the police about.
6.4 It is further noted that the accused gained entry through the cracked door
at the complainant ’s reside nce − which is at her workplace . It is alleged
that the accused knows the complainant’s place very well because he
once worked in that area and as such, the complainant does not feel safe
and has been traumatized.
6.5 The accused’s alternative address in Daveyton is not very far from the
complainant’s place of residence .
[7] The appellant contends that the magistrate erred in denying him bail on the
basis that he was charged with a prevalent offence , and on what the magistrate
referred to as a “ disposition of violence on the part of the accused as is
evidence from his past conduct in terms of section 60(5)(d) of the CPA”.
[8] Mr Kgagara submitted on behalf of the appellant that the magistrate
misdirected herself in refusing to admit the appellant to bail because her
decision was based on conjecture and speculation. Th is submission is based
on the following remarks made by the magistrate in her judgment:
“The court can find that based on the actions of the accused , females in
general may be in danger and t his court must obey the law and judge
the accused’s liberty interests against the interests of society and guard
against the potential that someone else might get seriously injured or
even worse by this person who showed so much violence and cruelty in
the commission of this offence. That is a chance this court will not take,
and it is not in the interests of justice to release a person back into
society under these circumstances”.
[9] On the other hand, the State (the respondent) submitted that the magistrate
took all the factors placed before the court into consideration and did not
misdirect herself.
9.1 Relying in the decision of S v Barber3 the respondent submitted that the
magistrate was not wrong in exercising her discretion because the release
3 1979 (4) SA 218 (D) at 220E -F
of the appellant on bail is not in the interest of justice for the following
reasons: (1) the offence with which the appellant has been charged with is
of a serious nature and has a prescribed minimum sentence , (2) that the
court found more than one factor as stipulated in section 60( 5) which the
court had to take into account when considering the grounds in subsection
(4)(a).
9.2 In this regard, the respondent avers that the factors stipulated in
subsection (5)(a)(b) and (f) of the CPA were more relevant in determining
whether it was in the interest of justice to permit the appellant to bail.
9.2.1 With regards to the degree and threat of violence as noted in
paragraph s (a) and (b) , the respondent submitted that the
magistrate took into account that there was violence used because
it appears from the record that the complainant was assaulted with
fists on the face before the rape, hence the magistrate’s questions
posed to the prosecutor and the affirmative response thereof. It
was placed on record before the magistrate that some of the
injuries noted on the J88 are consistent with the assaults I referred
to above.
9.2.2 The respondent argued that th is aspect of violence was never
disputed before the magistrate, and it was as such important for the
court a quo to take it into consideration as required by subsection
(5)(a) and (b).
9.2.3 With regards to paragraph (f) relating to the prevalence of a
particular type of offence , the respondent submitted that the
offence of rape is prevalent in the country and that the magistrate
did not misdirect herself by having regard to the crime statistics and
the fact that gender based violence (GBV) is on the increase and
was even declared by the President to be a pandemic.
9.2.4 The respondent further submitted that this court should take judicial
notice of the current sexual offence perpetrated on a minor which
has led the entire country to be up in arms in a fight against rape
cases and GBV which has escalated at an alarmingly high rate.
9.3 Furthermore, t he respondent submitted that rape is of such a serious
nature that if the court easily releases the perpetrators on bail, there may
be a sense of shock in the community, not only where the offence was
committed but in communities faced with the scourge of sexual offences
and GBV. Further that the release of the appellant on bail under
unsuitable circumstances such as the present, will undermine and
jeopardize public confidence in the criminal justice system, and put the
administration of justice into disrepute.
[10] It should be noted that in a bail application, the enquiry is not primarily
concerned with the question of the guilt of the accused. The focus at the bail
stage is to decide whether the interest of justice permits the release of the
accused pending trial. Usually, bail will be denied to protect amongst other
things, the investigation and society against the possible future life -threatening
criminal acts of an accused.
[11] In applying the “interests of justice” criterion, there is no doubt that the trial-
related factors such as the strength of the State's case and the severity of the
crime must be taken into account in determining where the interest of justice lie
− for the purpose of s ection 60(11)(b). This criterion requires a weighing up of
the interest of the accused’s liberty, against those factors which suggest that
bail be refused in the interest of society4.
[12] Reading through the judgment of the magistrate, there is nothing which suggest
that the magistrate misdirected herself because the factors stipulated in
subsection (5)(a)(b) and (f) as highlighted by the respondent were taken into
consideration . The magistrate correctly stated that the court needs to find a
balance between the liberty interests of the appellant and the interests of
society in determining whether it would be in the interest of justice to grant bail
to the appellant. The magistrate did this by making a value judgment based on
the information and the evidence placed before the court, as well as the
strength of the State’s case , while also considering whether the appellant will
evade trial if released on bail.
4 S v Dlamini; S v Dladla and others; S v Joubert: S v Schietekat [1999] ZACC 8 ; 1999 (2) SACR
51 (CC)
[13] Having regard to what I noted in the preceding paragraph , I do not agree with
the appellant’s submission that the magistrate’s decision was based on
speculation and conjecture. It appears from the judgment that in considering
the degree of violence used on the complainant as required by subsection
(5)(a) and (b), the magistrate also made reference to paragraph (d) which
relates to a “ disposition of violence on the part of the accused from his past
conduct ”.
13.1 There is no evidence on record that the appellant had previously
conducted himself in a violent manner. This does not however mean that
all the other factors which were correctly considered by the magistrate
should be ignored or disregarded.
13.2 Be that as it may, one of the aspects which the magistrate took into
account is the fact that the appellant’s alternative address where he will
be residing if admitted to bail , is not far from the complainant's place of
residence where the offence took place .
[14] The magistrate found that the appellant had failed to prove on a balance of
probabilities as required by s ection 60(11)(b) that the interests of justice permit
his release on bail. An analysis of all the evidence before the magistrate
supports th is finding , and I cannot find any fault with this conclusion.
Accordingly, I am of the view that the magistrate ’s decision to refuse to grant
bail to the appellant was the correct one . I am also satisfied that the magistrate
properly exercised h er discretion properly in refusing bail .
[15] As indicated above, the powers of an appeal court to interfere with the
magistrate’s decision to refuse bail are circumscribed by s ection 65(4) of the
CPA. This court as th e court of appeal can only set aside such a decision if it is
satisfied that it is wrong. It should also be noted that even if this court has a
different view , it shall not substitute its own view for that of the magistrate who
properly exercised her discretion. This principle was expressed by the court i n S
v Barber5 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 for bail. This court has to be persuaded
that the magistrate exercised the discretion which 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
whether it can be said that the magistrate who had the discretion
to grant bail exercised that discretion wrongly”.
[16] It was also argued on behalf of the appellant that the magistrate disregarded the
appellant’s right to be presumed innocen t when she refused to admit the
appellant to bail. I agree that the appellant has the right to be presumed innocent
until proven otherwise, but the right referred to is not absolute. If the court were
to readily conclude that the rights of every suspect in detention are limited by
the refusal of bail, this may open flood gates and defeat the purpose which the
legislature had in mind when promulgating section 60(11) of the CPA. In Mafe v
S6 the court stated the following regarding the presumption of innocence:
“The presumption of innocence is one of the factors that must be
considered together with the strength of the State’s case.
However, this right does not automatically entitle an accused
person to be released on bail…. In reaching a value judgment in
bail applications, the court must weigh up the liberty interest of an
accused person, who is presumed innocent, against the legitimate
interests of society. In doing so, the court must not over -
emphasise this right at the expense of the interests of society ”.
5 1979 (4) SA 218 (D) at 220E -F
6 [2022] ZAWCHC 108 at para 95 (31 May 2022) ; See also: S v Mbaleki and another 2013 (1) SACR
165 at para 14 (KZD)
[17] In light of the above, I am not persuaded that the magistrate erred in refusing to
admit the appellant to bail when regard is had to the facts presented having
been considered against the authorities cited above. I am satisfied that the
magistrate properly exercised her discretion, and it is my considered view that
releasing the appellant on bail under these circumstances would not be in the
interests of justice as it is likely to seriously undermine the criminal justice
system including the bail system itself. I therefore cannot find any basis to
interfere with the decision of the magistrate. Similarly, I concur with the
magistrate’s finding that the appellant failed to satisfy the court that the interests
of justice permit his release.
[18] In the premises, the following order is made :
1. The appeal is dismissed .
PD. PHAHLANE
JUDGE OF THE HIGH COURT
APPEARANCES
Counsel for the Appellant : Mr Kgagara
Instructed by : Legal Aid South Africa
Counsel for the Respondent : Adv. Mafunisa
Instructed by : National Director of Public Prosecutions ,
Pretoria
Heard on : 03 April 2025
Date of Judgment : 14 April 2025