1 SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED
2 MAY 2025
CASE NUMBER: A23/2025
DPP REF. NUMBER: 10/2/5/2 -2025/009
In the matter between :-
J[…], R[…] APPELLANT
versus
THE STATE RESPONDENT
__________________________________________________________________
JUDGMENT
Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to Parties / their legal representatives by email and by uploading it to the electronic file of this matter on Case Lines. The date of the judgment is deemed to be 2 May 2025.
A INTRODUCTION
2
1. This is an appeal against the Magistrate at Randburg's refusal to grant bail to
the appellant pending his trial.
2. On April 4, 2025, the Appellant appeared before Magistrate Mathopa in the
District Court of Randburg, situated within the Johannesburg Central Division, where a bail application was adjudicated . On the same day the application was considered,
the Appellant's request for bail was denied. 3. The Appellant approaches this c ourt to appeal against the bail court’s denial
of bail. 4. The appellant is charged with violat ing a protection order.
PRELIMINARY ISSUE 5. The respondent present ed an initial concern that warrant s examination by this
court. It asserted that the court’s function is to determine whether the bail court was
“wrong” in its discretionary decision to deny the Appellant bail.
6. In order to arrive at an informed conclusion regarding the potential error made
by the bail court , it is essential for this court to possess complete access to the entire
record of the bail proceedings . Both parties agreed that the pertinent section of the
Magistrate’s judgment is distinct. Indeed, the entirety of the Magistrate’s judgment section was either omitted or inaccurately represented in the transcript.
7. The transcribed record indicates that the judgment of the bail court
encompasses several ambiguous annotations, leading to a disjointed account of the judgment.
8. A court typically prefers a complete record when considering an appeal,
including appeals relating to bail. An incomplete record may lead to complications,
as the court must have all the relevant information to make an informed decision.
3 However, there are situations where a court may still proceed even if the record is
not fully complete f or this bail appeal .
9. This is referenced to: S v Chabedi7, at paragraph 5:
‘‘On appeal, the record of the proceedings in the trial court is of cardinal
importance. After all, that record forms the whole basis of the rehearing by the
Court of Appeal. If the record is inadequate for a proper consideration of the
appeal, it will, as a rule, lead to the conviction and sentence being set aside.
However, the requirement is that the record must be adequate for proper
consideration of the appeal, not that it must be a perfect record of everything
that was said at the trial. As has been pointed out in previous cases, records
of proceedings are often still kept by hand, in which event a verbatim record is
impossible .”
10. I’ve looked for essential elements such as evidence and submissions made
for the initial bail and the arguments provided by both parties.
11. This court not es that crucial parts of the record were captured that relate to
the affidavits of both parties, namely the appellant ’s and the complainant ’s affidavits ,
which were relied upon during the bail hearing at the court.
12. In sequence, on 7 April 2025, the appellant submitted a letter requesting
written reasons from the Magistrate ; however, to date, none have been receiv ed.
Both parties acknowledge that they have been informed of the Magistrate’s leave of
absenc e, and it is unequivocally established that the Magistrate is aware of this
request. Both parties have participated in the efforts to secure the written reasons.
13. I respectfully disagree with the respondent`s assertions that the appellant
played no role in bringing this significant issue to the magistrate's attention.
However, it is well- established that the appellant is required to submit the record of
appeal to the appellate court. He is expected to take an active and proactive role in
overseeing and managing the proceedings.
4 14. It is disconcerting that the Magistrate was apprised of this discrepancy yet
chose not to take action. A letter was dispatched for his consideration; furthermore,
the respondent's legal representative made attempts to reach out to the pertinent officials but was met with failure. Ultimately, we ascertain that the Magistrate is currently on leave. 15. A comprehensive bail record is indispensable for the appeal process. All
parties involved, including the presiding judicial officer, are unequivocally obligated to uphold accurate trial records in reference to: Mompati v S (A86/2018) [2018]
ZAFSHC 129 (30 July 2018) at paras 9-11.
16. The court must ensur e that all parti cipant s have access to a comprehensive
record in order to uphold justice. The representative for the appellant argued that the
absence of the complete record does not significantly impai r the assessment of the
case. They persuaded the court to proceed without all the information, asserting that
the conclusions of the Magistrates ar e founded on evidence present ed by both
parties through affidavits included in the compilation.
17. The appellants also argued that requesting a delay or alternative solutions to
obtain the reasons would be detrimental to them. Bail is inherently urgent and should
be regarded as such. The accused is self -employed, and any postponement in these
proceedings will have a significant financial effect on him. He needs to gather legal
fees to secure a fair trial and effectively present his case.
18. Legal principles regarding bail indicate that it is important to assess the
reasons for urgently handling bail applications.
19. In Magistrate Stutterheim v Mashiya 2003 (2) SACR 106 (SCA) , p. 113 c-d,
the Supreme Court of Appeal emphasised that 'the right to a prompt decision is thus
a procedural right independent of whether the right to liberty actually entitles the accused to bail.'
20. In this case, the record's inadequacy, which does not include a transcription of
the Magistrate's judgment segment, does not render it insufficient for a
5 comprehensive evaluation of the appeal. This court concludes that the record
permits an adequate assessment of the appeal, taking into account the relative
urgency associated with these types of proceedings.
C. BAIL APPEAL
21. It is trite that a court considering an appeal cannot overturn the previous
decision unless it believe s it was incorrect. If this is the case, the court must provide
the ruling it think s the lower court should have made.
22. Therefore, the fundamental issue is whether the presiding magistrate
improperly exercised their discretion in denying bail. As Hefer J stated in S v Barber:
“In consideration of the authorities, it is acknowledged that it is an established
principle of law that appeal courts possess limited jurisdiction in matters concerning
bail appeals. Irrespective of the court's perspective, the primary issue is whether the
lower court m aterially misdirected itself in relation to the pertinent facts or legal
principles ”.
23. The Court of Appeal is permitted to reassess the matt er of bail solely under
particular conditions. Furthermore, intervention on appeal may be deemed
appropriate if the lower court has neglected to consider substantial factors during its
decision- making process. This stance has been corroborated by Van Zyl J in S v
Yanta 2000 (1) SACR 237, which stated, " Like any other appeal, an appeal against
the refusal of bail must be determined on the material on record."
24. According to section 65(4) of Act 51 of 1977, the court reviewing the appeal
will only overturn the decision if it determines that the original decision was incorrect.
24. In S v Dlamini 1999(2) SACR 51 (CC) , Justice Kriegler, representing a
unanimous panel of the Constitutional Court, articulated the following significant observations:
“Furthermore, a bail hearing is a unique judicial function. It is obvious that the
peculiar requirements of bail as an interlocutory and inherently urgent step were kept in mind when the statute was drafted. Although it is intended to be
6 a formal court procedure, it is considerably less formal than a trial. Thus, the
evidentiary material proffered need not comply with the strict rules of oral or
written evidence. Also, although bail, like the trial, is essentially adversarial,
the inquisitorial powers of the presiding officer are greater. An important point
to note here about bail proceedings is so self -evident that it is often
overlooked ”
25. Furthermore, it was determined that ‘ The interests of justice in regard to the
granting or refusal of bail therefore focus primarily on securing the attendance of the accused at the trial and on preventing the accused from interfering with the proper investigation and prosecution of the matter.’
26. In the case of S v Smith and Another, 1969 (4) SA 175 (N) the Court
determined that: ‘The Court will always grant bail where possible, and will lean in
favour of and not against the liberty of the subject provided that it is clear that the interests of justice will not be prejudiced thereby’
27. Consequently, this court needs to evaluate all pertinent factors to assess if
they, either alone or together, support a conclusion that the interests of justice necessitate the appellant’s release.
28. This litigation arises from a case of domestic violence. It is undisputed that
both parties have protection orders against each other.
29. It is therefore essential to pay attention to section 60(11B)(a)(iii) of the CPA,
which states:
‘(11B) (a) In bail proceedings, the accused, or his or her legal adviser, is
compelled to inform the court whether - …
(iii) an order contemplated in section 5 or 6 of the Domestic Violence
Act, 1998, section 3 or 9 of the Protection from Harassment Act, 2011, or
any similar order in terms of any other law, was issued by a court to protect the person against whom the offence in question was allegedly committed, from the accused, and whether such an order is still of force; and
7 30. Section 60(11)(c) of the CPA reads as follows:
‘(11) Notwithstanding any provision of this Act, where an accused is charged
with an offence (c) contemplated in section 59 (1) (a) (ii) or (iii), 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, presents compelling evidence illustrating that justice is upheld
through the granting of his or her release.
31. As previously noted, the applicant in a bail application concerning a domestic
violence offence must present evidence that persuades the court that the interests of justice permit their release on bail.
32. The inclusion of domestic violence offences in the same subsection as the
most serious offences listed in Schedules 5 and 6 highlights how seriously the legislature views these crimes.
D. BACKGROUND FACTS
The following are common causes:
33. The complainant and the appellant are a married couple currently in the
process of divorcing.
34. In the year 2020, the complainant obtained a protection order against the
appellant.
35. Currently, there is maintenance litigation regarding their two children, who are
in the complainant's custody while the parties are separated.
36. In terms of s60(6)(b) of Act 51 of 1977, the appellant has a fixed address as
he lives with his partner.
8 37. The Appellant contends that the bail court did not adequately comprehend
the nature of the proceedings and the corresponding burden of proof.
38. The Appellant additionally contends that the court made an error in not
presuming that the complainant acted with ulterior motives, considering that the court had previously determined his guilt in relation to an offence during a bail proceeding.
39. The appellant's representative also argued that the bail court failed to
consider his version of events, instead solely accepting that of the complainant.
40. The respondent contended that the court assessed the submissions from both
the applicant and the complainant. The record indicates no evidence suggesting that the court overlooked the Appellant, placing exclusive emphasis on the complainant's statements. This Appellant did not submit or reference any component of the bail proceedings from which this assumption could be inferred, nor could the Respondent identify any such evidence within the record.
41. Additionally, it is emphasised that the bail court is not required to address
every factor considered in its decision.
42. This court must evaluate all relevant factors and determine if, either
individually or collectively, they support the conclusion that the interests of justice necessitate the appellant’s release.
43. Further , in terms of section 65(4) of Act 51 of 1977, the court hearing the
appeal shall not set aside the decision against which the appeal is brought, unless
such court is satisfied that the decision was wrong.
44. The appellant, a 41- year-old South African male, resides at [ …] H[…] L[…] in
B[…], Gauteng. He has called this property his home since 2018, viewing it as his
permanent residence.
9 45. He is the father of three children, aged one, five, and six, who are financially
dependent on him. Currently self -employed, he manages various projects; however,
he lacks a stable income.
46. He demonstrates financial responsibility by ensuring the payment of school
fees, school uniforms, stationery, food, medical bills, clothing, and the day -to-day
needs of all his children and extended family members. He resides solely within the Republic of South Africa, does not possess travel documents, such as a passport, and lacks any assets outside the Republic of South Africa.
47. He does not possess the case docket; however, he is acquainted with the
details outlined in the charge sheet. He is fully aware of the allegations against him as stipulated in his constitutional rights documentation. He is ready to proceed to trial should the case advance; he has no intention of fleeing the country or avoiding justice either within South Africa or internationally. He is committed to participating in the proceedings until their conclusion. Furthermore, he can remit the bail amount indicated in R1000.
48. The respondent opposed the granting of bail by submitting the affidavit of the
complainant. The complainant, a 37 -year-old individual currently married to the
appellant, formally requested that the court deny bail to the appellant.
49. The applicant has experienced numerous instances of physical abuse during
their marriage. Allowing him bail poses a significant risk to her and the children’s lives.
50. Their safety is at risk due to his unending threats. For the last four years, he
has been absent from his children's lives and has not provided them with financial support.
51. On two separate occasions , the appellant attempted to kill her, and that was
in April 2018. He strangled her and he locked her in the house where he left her with the children with no electricity.
10 52. On the 5th of October 2019, he again pushed her down to the ground and
wrestled her, knocking her with his fist.
53. The appellant fails to adhere to the existing parenting plan.
54. On March 28, 2025, at approximately 12:00 PM at the Randburg Magistrate
Court, the appellant demonstrated behavior that necessitated an immediate arrest.
During the proceedings, it became evident that the accused posed a significant risk to her personal safety due to the erratic nature of his actions, which encompassed various threats and a documented history of violence.
55. The appellant attempted to forcefully take her witness file, coming
dangerously close to her. She could feel his grip and fingers, leaving her unsure if he intended to harm her. In fear, she screamed for security to assist her as a woman alone without any support.
56. He subsequently proceeded on foot to his vehicle and departed. The situation
was rather intimidating, as he was dissatisfied with the outcome of the rule nisi
application. He wished to avoid waiting for assistance with the bundle. This behavior
culminated in the detention of the appellant.
E. EVALUATION
57. It is well established that supplementary factors outlined in sections 60(2A),
(2B), and (4) -(9) of Act 51 of 1977 must be collectively considered.
58. It is important to note that while the state case may be significant, it is not the
sole factor a court should evaluate when deciding whether to approve or reject bail.
59. During the bail proceedings , neither the appellant nor the complainan t
testified . Affidavit s were filed in support of the bail proceedings.
60. This Court is unable to draw a negative inference from the use of affidavits by
either party. The fact remains that the appellant could not be subjected to cross -
11 examination regarding his aggressive efforts to obtain a witness's file from the
complainant.
61. Interference is considered justified if the lower court ’s ‘overlooked some
important aspects" when deciding to refuse bail as referenced in Alehi v S [2021]
ZAGPPHC 492 ; 2022 (1) SACR 271 (GP) para 21.
62. The complainant has expressed her view that she does not want the appellant
to be released on bail as he poses a significant risk to her personal safety , given the
volatile nature of his behaviour , including all threads and history of violence.
63. Section 60(5) of Act 51 of 1977 states that: ‘(5) In considering whether the
grounds in subsection (4)(a) have been established, the court may, where applicable, consider the following factors, namely —
(a) The degree of violence towards others implicit in the charge against the
accused;
(b) any threat of violence which the accused may have made to a person
against whom the offence in question was allegedly committed or any other
person;
(c) any resentment the accused is alleged to harbour against a person
against whom the offence in question was allegedly committed or any other
person;
(d) any disposition to violence on the part of the accused, as is evident from
his or her past conduct;
(e) any disposition of the accused to commit —
(i) offences referred to in Schedule 1;
(ii) an offence against any person in a domestic relationship, as defined
in section 1 of the Domestic Violence Act, 1998;
(cc) any law that criminalises a contravention of any prohibition, condition, obligation or order, which was issued by a court to protect the person against whom the offence in question was allegedly committed, from the accused, as is evident from his or her past conduct;
(f) the prevalence of a particular type of offence;
(g) any evidence that the accused previously committed an offence—
12 (i) referred to in Schedule 1;
(ii) against any person in a domestic relationship, as defined in section 1 of
the Domestic Violence Act, 1998; or
(iii) referred to in —
(aa) section 17(1)(a) of the Domestic Violence Act, 1998;
(bb) section 18(1)(a) of the Protection from Harassment Act, 2011; or
(cc) any law that criminalises a contravention of any prohibition, condition,
obligation or order, which was issued by a court to protect the person against
whom the offence in question was allegedly committed, from the accused, while released on bail or placed under correctional supervision, day parole, parole or medical parole as contemplated in sectionv73 of the Correctional
Services Act, 1998; or
(h) any other factor which in the opinion of the court should be taken into
account.’
64. The appellant does not dispute that there is a protection order against him
that was filed in 2020.
65. It is evident that from 2020 to the present, no complaints or charges have
been filed against the appellant for violating the current protection order.
66. The complainant only mentions incidents from 2018 and 2019, which
happened before the protection order was granted against the appellant.
67. The appellant has consistently adhered to the protection order issued by the
court.
68. Furthermore, it is important to note that once the appellant was notified by an
investigating officer regarding the expectation to report to the police station, he did
not exhibit any reluctance. He handed himself to the police. That is how he was
arrested and detained.
69. With regard to the incident at the Randburg Magistrate Court, it is evident, as
stated by the complainant, that the appellant sought access to the maintenance file,
13 which served as the location of the altercation between the parties involved. The
appellant and the complainant found themselves in the same location at the
maintenance court. Their encounter was prompted by a court order requiring them to share the file's contents, leading to the altercation.
70. To date, there is no evidence that the appellant violated the protection order
issued between 2020 and the present .
71. Following a meticulous review of the submitted documentation, it appears that
the esteemed magistrate, at a certain juncture, mistakenly perceived himself to be presiding over a criminal trial rather than evaluating a bail application. Consequently, he did not adequately contemplate the fundamental objective of bail. I believe the
lower court significantly misjudged both the facts and the applicable legal principles.
It evidently neglected to address the primary issue, namely, 'safeguarding the
investigation and prosecution from hindrances.
72. In the matter of S v Dlamini 1999(2) SACR 51 (CC) , the Constitutional Court
held that:
‘The interests of justice in regard to the granting or refusal of bail therefore
focus primarily on securing the attendance of the accused at the trial and on preventing the accused from interfering with the proper investigation and prosecution of the matter.’
73. The magistrate neglected the fundamental purpose of bail and approached
the appellant's situation as if it were being adjudicated in a trial court. It failed to account for the possibility that, even in the event of a guilty verdict, the trial court might ultimately decide to impose a fine rather than direct imprisonment, contingent upon the nature of the appellant's charges.
74. The court overlooked the fact that the complainant and appellant remain
married and have children to support. Even though the complainant secured a
protection order in 2020, it is clear that no complaint was ever lodged against the appellant.
14 75. The complainant indicated that the appellant was ‘confronted with serious
allegations of intimidation directed at her in an extremely aggressive manner. While
this certainly seems like a grave accusation, there is no evidence of physical force being employed against the complainant or presented to the lower court. Ultimately, this decision will rest with the trial court.
76. Bail applications are distinct and unique, as they do not fall strictly under civil
or criminal proceedings. As a result, the rules of evidence typically followed in trial actions are not rigidly enforced, and the presiding officer possesses greater
inquisitorial powers . To quote Kriegler J: S v Dlamini 1999(2) SACR 51 (CC), S v
Joubert; S v Schietekat (CCT21/98, CCT22/98, CCT2/ 99, CCT4/99) [1999] ZACC 8;
1999 (4) SA 623; 1999 (7) BCLR 771 (3 June 1999)
“It is that there is a fundamental difference between the objective of bail
proceedings and that of the trial. In a bail application, the enquiry is not really
concerned with the question of guilt. That is the task of the trial court. The
court hearing the bail application is concerned with the question of possible guilt only to the extent that it may bear on where the interests of justice lie in regard to bail. The focus at the bail stage is to decide whether the interests of
justice permit the release of the accused pending trial; and that entails in the main protecting the investigation and prosecution of the case against hindrance”.
This court notes that the Magistrate overlooked the fundamental difference between
the objective of bail proceedings and that of the trial. In a bail application, the enquiry
is not really concerned with the question of guilt. That is the task of the trial court. The focus of the Magistrate was to decide whether the interests of justice permit the
release of the accused pending trial; and that entails, in the main, protecting the
investigation and prosecution of the case against hindrance.
77. This c ourt holds the view that approving bail for the appellant, contingent upon
stringent conditions, will effectively restrain him from communicating with the complainant. He complied with a protection order issued in 2020 until the recent occurrence involving the complainant .
15 78. The record shows that the Magistrate did not adequately consider the relevant
factors , taken together, these factors suggest that the likelihood of the appellant
attempting to evade trial or threatening the complainant, if released on bail, is very
low.
79. Upon reviewing the lower court's record and considering the parties'
submissions, this court concludes that the lower court's decision to deny bail was wrong.
ORDER
80. The following orders are issued:
1. The appellant’s appeal against the refusal of his bail application is
upheld.
2. The order of the court a quo is set aside and substituted with the order
set out as follows:
3. Bail is granted to the appell ant in the amount of R2000.00 (two
thousand rand) under the following conditions:
4. He shall report to the Randburg Police Station twice a week, nam ely on
Mondays and Fridays between 06:00 and 17:00, with the first report scheduled for Monday, 5 May 2025;
5. He shall attend his trial and all related postponements, remaining in
attendance until excused, and ultimately until a verdict is rendered regarding the charge this case pertains to.
6. He is required to refrain from any form of communication with the
complainant, either in person or through WhatsApp or cellular phone, until the
resolution of the criminal case against him;
7. He should not communicate with any state witnesses, obstruct them, or
intimidate any individuals, including the complainant.
8. He is prohibited from visiting the Bromhof Randburg magisterial district,
where the complainant lives, until the conclusion of the criminal case against him, except on days when he must appear in the Randburg Magistrate’s Court.
16 9. He shall not exit the Gauteng province without obtaining written
consent from the Investigating Officer. T o receive this authorisation, he is
required to submit a valid itinerary detailing his movements and continuously
inform the Investigating Officer of his whereabouts.
10. The appellant’s residence is officially recorded as [ …] H[…] L[…],
B[…], Gauteng. Should he update this address, it is imperative that he inform
both the clerk of the court in Randburg and the Investigating Officer within 24
hours; and 11. The Investigating Officer is required to personally deliver a copy of this
order, which includes the conditions of bail, to the appellant prior to his release on bail. Furthermore, a written acknowledge ment from the appellant,
affirming his comprehension of the conditions of the bail release, must be submitted to the clerk of the Randburg Magistrate’s Court as an integral component of the official record.
T. BOKAKO
Acting Judge of the High Court
Gauteng Local Division, Johannesburg
APPEARANCES
Counsel for the Appellant ADV MOLAFI
Counsel for the Respondents ADV. EHLERS
Date of Hearing: 29 APRIL 2025
Date of Judgment: 2 MAY 2025