IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION , MBOMBELA
CASE NO: BA 02/25
In the matter between:
RALPH MALAMBE APPELLANT
and
THE STATE RESPONDENT
BAIL APPEAL JUDGMENT
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
04/03/2024
SIGNATURE DATE
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[1] Mr Ralph Malambe was born on 01 September 1988 and turned 36 years old on
01 September 2024. It was also on this day of his birthday that the state alleges that he
murdered Ms Phumla Maphanga by shooting her with an unlicensed firearm. The
shooting took place in front of members of his family and those of the deceased.
[2] Immediately after the shooting, he disappeared and re -surfaced after two to three
days when he presented himself at the police station accompanied by his lawyer. He was
arrested and charged with one count of murder and one count of contravention of the
provisions of the Firearms Control Act 60 of 2000 read with section 250 of the Criminal
Procedure Act 51 of 1977 (“the CPA”) , possession of a prohibited firearm. The state
further alleges that the murder was premeditated.
[3] He instituted bail proceedings and same was opposed by the state. Both parties
agreed that the charges the appellant is facing fall within the ambit of Schedule 6 of the
CPA. It was therefore incumbent upon the appellant to place before the court facts upon
which he relies to prove the existence of the exceptional circumstances which would in
the interests of justice permit his release.
[4] The appellant deposed to an affidavit in which he sets out his personal
circumstances including parental obligations to his three minor children. He has business
interests in two enterprises through which he earns his living and take s care of his family.
He has one employee who will not be able to take care of the business if he is not granted
bail. He disclosed his previous convictions as well as other charges he was arrested for
that were later withdrawn. He submitted that he will not evade trial and in support of that
contention said that he handed himself to the authorities and co -operated with the police
by pointing out to them the firearm used in the commission of the offence. He i ntends to
plead not guilty should the matter proceed to trial. If the court grants bail, he will neither
interfere with witnesses nor undermine the administration of justice.
[5] The state opposed bail and presented oral evidence through the investigating
officer. It was averred on behalf of the state that the appellant’s release on bail will
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undermine the administration of justice. He killed the deceased in the presence of his
family members and there is likelihood of interfering with them as witnesses. The case
against the appellant is overwhelming and if convicted he is likely to be sentence d to a
long period of imprisonment. It is therefore likely that if admitted to bail, he will evade trial.
It is therefore not in the interests of justice that he be granted bail.
[6] The learned magistrate after weighing up the evidence tendered by both the
appellant and the state concluded that the appellant had failed to establish exceptional
circumstances required to justify his release from custody pending trial. He consequentl y
refused to grant bail.
[7] The appellant appeals against the decision of the magistrate and contends that his
finding that he failed to discharge the onus to prove that exceptional circumstances exist
to permit his release on bail is wrong. It was submitted on his behalf that th e magistrate
committed an error of law by emphasizing the protection of witnesses against interference
and failed to balance it against other factors such as the poor health of the appellant, the
fact that he handed himself to the authorities and co -operat ed with the police. By denying
the appellant bail, so the submission went, the learned magistrate has effectively
convicted him , and this runs contrary to the established principles of our law that every
person is entitled to bail unless the interests of justice dictates otherwise.1
[8] The state opposed the bail appeal and predictably supported the decision of the
learned magistrate. Mr Zindela, counsel for the state, submitted that the appellant killed
the deceased who was his wife in the presence of her family. All the witnesses are known
to him and if gran ted bail he is likely to interfere with them. His release on bail will also
undermine the administration of justice as the appellant has not established exceptional
circumstances justifying his release. He urged me not to interfere with the decision of the
magistrate as it is well -reasoned and correct.
1 See section 35(1)(f) of the Constitution.
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[9] The principles governing bail appeal are trite. An appeal court can only interfere
with the finding of the lower court if satisfied that the decision is wrong. Section 65(4) of
the CPA provides as follows:
“The court or judge hearing an 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 the judge shall give the decision which in its opin ion the lower
court should have given. ”
[10] In S v Barber ,2 the court formulated the proper approach to be adopted by the court
hearing a bail appeal 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. ”
[11] The approach in Barber was given approval by the Supreme Court of Appeal in
S v Masoanganye and Another ,3 where the court said:
“It is important to bear in mind that the decision whether or not to grant bail is one entrusted
to the trial judge because that is the person best equipped to deal with the issue , having
been steeped in the atmosphere of the case … [The appeal court] has to defer to the
exercise of the trial court’s decision unless that court failed to bring an unbiased judgment
to bear on the issue, did not act for substantial reasons, or exercised its discretion
capriciously or upon a wrong principle. ”
2 S v Barber 1979 (4) SA 218 (D) at 220E -F.
3 S v Masoanganye and Another 2012 (1) SACR 292 (SCA) para 15 .
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[12] The starting point in any application involving Schedule 6 offence s is to appreciate
that the law allows that certain categories of offenders suspected of having committed
serious offences be kept in custody pending trial. An accused person charged with a
Schedule 6 offence should be kept in custody until the court is satisfied that it is in the
interests of justice that he be released. The court has a duty to make the necessary
enquiries to establish where the interests of justice lie. This duty is imposed on the judicial
officer by the provisions of the constitution whic h states that every accused person has a
right to be released on bail. In relation to Schedule 6 offences, an accused person has a
duty to place facts upon which the court would after careful analysis arrive at a conclusion
that it is in the interest of justice that he/she be released. Once the court is so satisfied,
there is no legal basis upon which the accused should be detained. The court should in
performance of its duties uphold the Constitution and the Bill of Rights enshrined in it and
release him/her from custody.
[13] The Constitutional Court underscored this point emphatically in S v Dlamini ; S v
Dladla and Others; S v Joubert ; S v Schietekat ,4 when it said:
“[6] Section 35(1)(f) , in its context , makes three things plain. The first is that the
Constitution expressly acknowledges and sanctions that people may be arrested for
allegedly having committed offences, and may for that reason be detained in custody. The
Constitution itself therefore places a limitation on the liberty interest protected by
section 12. The second is that notwithstanding lawful arrest, the person concerned has a
right, but a circumscribed one, to be released from custody subject to reasonable
conditions. The third basic propos ition flows from the second… [and] it is that the criterion
for release is whether the interests of justice permit it. ”
[14] It is therefore incontrovertible that an arrested person is entitled to be released on
bail. There are however instances where the law requires an arrested person to satisfy
the court that it is in the interests of justice that she/he be released on b ail. If the arrested
person fails to provide facts which when considered objectively establish exceptional
4 S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999 (4) SA 623 (CC) para 6 .
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circumstances in Schedule 6 offences, the court should refuse bail and order that he/she
be detained.
[15] In determining whether exceptional circumstances have been established, the
court takes into account various factors listed in section 60(4) of the CPA, including any
disposition to violence on the part of the accused as is evident from his/her past conduct,
the prevalence of the offence and the likelihood of it inciting violence and public disorder
as well as the likelihood of the accused person evading t rial incentivised by the
penalty/sentence the court is likely to impose if found guilty.
[16] In the bail application, the appellant sought to prove exceptional circumstances by
adducing evidence through an affidavit. In the affidavit he stated that he intends to plead
not guilty when the matter goes to trial. This was despite the fact that he shot the
deceased with an unlicensed firearm whose serial numbers are obliterated. The
maximum sentence the court may impose for illegal possession of a firearm is 25 years.
During the appeal hearing I engaged Mr Maseko on this glaring omission and failur e by
the appellant to take the court into his confidence and explain the circumstances under
which the alleged offence was committed including how it came about that he possesse d
an unlicensed firearm. Mr Maseko readily conceded that the appellant did not deal with
this crucial aspect in his bail application.
[17] It was therefore important for the appellant to explain the basis upon which he
believes that he will be acquitted if the matter were to proceed to trial. An applicant who
challenges the strength of the state’s case and wants the court to objectively take this
factor into account needs to pr ove on a balance of probabilities that he will be acquitted
of the charge.5
[18] In Killian v S ,6 Binns -Ward J deprecated the practice of adducing evidence through
affidavit more especially in matters involving Schedules 6 offences. He said:
5 S v Mathebula 2010 (1) SACR 55 (SCA ) para 12.
6 Killian v S [2021] ZAWCHC 100 para 13 .
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“Bail applications are sui generis . To an extent they are inquisitorial and , in general, there
is no prescribed form for introducing evidence at them. But in cases where s 60(11) applies
and there is consequently a true onus on the applicant to prove facts establishing
exceptional circumstances, an applicant w ould be well advised to give oral evidence in
support of his application for bail. This seems to me to follow, because – differing from the
position in which the Plascon -Evans rule is applied – the discharge of the onus is a central
consideration in s 60(11) applications. If t he facts are to be determined on paper, the
state’s version must be accepted where there is a conflict, unless the version appears
improbable. ”
[19] On the facts of this case, it is clear that the learned magistrate applied his mind
correctly and took into account all the relevant factors in the determination of whether the
interests of justice required the release of the appellant on bail. The appella nt shot the
deceased in full view of the members of his family. He used an unlicensed firearm. The
circumstances under which the firearm got to be in his possession had not been disclosed
to the court. The appellant has a history of violence when one consi ders that he was
previously charged with assault and rhino poaching , which was later withdrawn.
[20] Our country is battling with gender -based violence and that is the harsh reality the
court had to deal with in S v Dlamini supra . It would have been irresponsible for the
magistrate to ignore this harsh reality and grant bail to the appellant. As Kriegler J said
more than 25 years ago :
“crime is a serious national concern, and a worrying feature for some time has been public
eruptions of violence related to court proceedings... There is widespread
misunderstanding regarding the purpose and effect of bail. Manifestly , much must still be
done to instil in the community a proper understanding of the presumption of innocence
and the qualified right to freedom pending trial under s 35(1)(f). The ugly fact remains,
however, that public peace and security are at times endangered by the release of persons
charged with offences that incite public outrage. ”7
7 S v Dlamini supra para 55.