IN THE HIGH COURT OF SOUTH AFRICA
(EAST ERN CAPE DIV ISION, MTHATHA )
Case no : CC130/10
Reportable: NO
In the matter between:
MZOLISI MKHANGELI Applican t
and
THE STATE Respondent
________________________________________________________________
JUDGMENT (BAIL PENDING APPEAL)
______________________________________________________________ __
Cengani -Mbakaza AJ
Introduction
[1] There are multitude of cases that demonstrate that before a conviction, the
primary purpose of bail application is to strike a balance between the interests of the
society, the rights of the accused as entrenched in the Constitution particularly the
presumption of innocence .1 After conviction, the presumption of innocence no longer
1 Minister van Wet en Orde en Andere v Dipper 1993 (3) SA 591 (A). This proposition is also fortified
by interconnection between sections 60(4) and 60(9) of the CPA.
applies .2In instances where the application for leave to appeal has been granted, as
in the present case, the offender is eligible to apply for bail, and his rights will in this
regard be considere d.
[2] Despite the offender’s rights to apply for bail pending his appeal, the
governing legislation in bail proceedings , the case law and the Constitutional
prescripts will remain key indicators in examining whether he /she is eligible to be
admitted on bail , the interests of justice being the culmination of all things .
[3] On 03 October 2024 the applicant filed a notice of motion seek ing an order
that he be released on bail on certain conditions pending the prosecution of his
appeal. In addition, the applicant sought an alternative relief which is elaborated at
paragraph 8 of this judgment.
The background facts
[4] In his founding affidavit , the applicant asserts that after his conviction on the
crimes including murder and robbery with aggravating circumstances dated 2017 ,
and subsequent to his application for leave to appeal which was granted, he
struggled to obtain a transcribed record. He then lodged an application to compel the
Minister of Justice and Constitutional Development (DoJ) to provide the transcribed
record. On 08 June 2021, the application to compel was withdrawn by agreement
between the parties. The withdrawal of the application followed the DoJ’s compliance
in obtaining the transcribed record .
[5] Despite the DoJ’s compliance , it transpired that some parts of the record
were missing, these are: the evidence that was collated by the trial court on 13 to 17
November 2017 and that of 29 November to 04 December 2017. There was an
exchange of e -mails between the office s of the Dire ctor of Public Prosecutions ( DPP)
and the State Attorney. These correspondences aimed at finding a solution to obtain
the missing parts of the record, however the problem was n ot resolved. As a
consequence of that , on 17 July 2024 , the applicant instructed his legal
representatives to lodge an application for bail pending appeal.
2 S v Bruintjies 2003(2) SACR 565 (SCA) at paragraph 5 .
[6] Although the state filed a notice to oppose the application for bail pending
appeal, no opposing papers were filed. In light of the fact that bail proceedings are
inquisitorial in nature , on 07 February 2025, when the matter was allocated to me, I
directed the investigating officer to file an affidavit and indicat e his views regarding
the status of the applicant. The matter was the n postponed to 14 February 2024 to
allow the parties including the applicant to submit further information that will a ssist
the court on his eligibility to be released either on bail or on warning.3
The parties’ legal submissions and the analysis by the court
[7] Considering the fact that the applicant was convicted in the High Court on
charges of murder and robbery with aggravating circumstances and further
sentenced to life imprisonment, during bail proceedings the parties agreed that the
matter falls under schedule 6 in terms of bail legislation. On the basis of what the
Criminal Procedure Act (CPA) , 51 of 1977 provides, I endorsed this proposition.
[8] Both parties filed heads of argument and further amplified their submission s
orally. Mr Calaza, counsel for the applicant argued that the delay in obtaining the
missing parts of the transcribed record violates the applicant’s rights to prosecute the
appeal. Referring to the applicant’s founding affidavit, he argued that the applicant
was released on bail in the district court before the mat ter was transferred to the
High Court for trial. Therefore, so he argued, it is unlikely that the applicant’s release
on bail would jeopardise the proper functioning of the criminal justice or bail system.
He further argued that if the court is hesitant to grant the applicant bail due to
concerns that he may drag his feet in prosecuting the appeal, it could impose
specific conditions. For instance, so he contended, the parties could be put on terms,
such as mandating the state to obtain the missing parts of the record and directing
the applicant to prosecute the appeal within a specified time period.
3 The directive conforms with section 60 (2) ( b) of the Criminal Procedu re Act 51 of 1977 which
provides―
“In bail proceedings the court -
(a)…
(b) may, in respect of matters that are in dispute between the accused and the prosecutor,
acquire in an informal manner the information that is needed for its de cision or order regarding
bail;
(c)…”
[9] Conversely, Mr Makhubalo, counsel for the state submitted that the applicant
is a flight risk, given his life imprisonment sentence and a potential motive to flee.
This proposition, so he argued, is motivated by the applicant’s previous conduct.
Referring to the investigating officer , Sergeant Cabane ’s affidavit (I/O), counsel
pointed out that the applicant was previously granted bail in the district court. Despite
the conditions imposed by the court specifically the warning to frequent ly attend the
court when called upon to do so, he failed to appear in court on an unspecified date,
resulting in a warrant for his arrest and a subsequent convi ction for contempt of
court. Mr Makhubalo argued that amongst his co -accused, the applicant was the only
one who was detained until the matter was finalised in the High Court due to his
conduct. He therefore contended that if released , the applicant may ab scond and not
prosecute his appeal.
[10] Section 321 of the CPA provides ―
‘321 When execution of sentence may be suspended
(1) The execution of the sentence of a superior court shall not be suspended by
reason of an y appeal against a conviction or by reason of any question of law
having been reserved for consideration by the court of appeal , unless -
(a) ……
(b) the superior court from which the appeal is made or by which the question
is reserved thinks fit to order that the accused be released on bail or that he be
treated as an unco nvicted prisoner until the appeal or the question reserved has
been heard and decided: Provided that when the accused is ultimately
sentenced to imprisonment the time during which he was so released on bail
shall be excluded in computing the term for which he is so sentenced: Provided
further that when the accused has been detained as an unconvicted prisoner ,
the time during which he has been so detained shall be included or excluded in
computing the term for which he is ultimately sentenced, as the court of appea l
may determine .’
In my view, t his provision aims to safeguard the interests of the society , the rights of
the convicted prisoners including the rights of the victims, who are also at the centre
of the criminal justice system. Therefore, when considering applicant’s release on
bail pending the appeal, the court must conduct a thorough analysis of the facts,
striking a balance between those affected by the crime and the rights of the
convicted prisoner . This provision gives a court a wide discretion to dec ide whether
the interests of justice permit the release of the applicant. Such discretion must be
exercised objectively in light of the fact that the execution of sentence is not
automatically suspended by the reason of an appeal against the conviction or a
question of law reserved.
[11] Section 60 ( 11) ( a) of the CPA which governs bail proceedings in casu ,
contains a peremptory provision which empowers the court to detain th e applicant
unless he shows the existence of exceptional circumstances which in the interests of
justice permit his release. This two -pronged enquiry places the onus on the applicant
and the test is on a balance of probabilities.
[12] It is well-established that exceptional circumstances are not defined,
however the court is guided by the specific facts of each case. In examining whether
the interest s of justice permit the release of the applicant, section s 60(4)4 of the CPA
serve as a guide. In accordance with the principles governing bail proceedings our
courts have reiterated that the reasonable prospects of success should not be taken
into isolation when determining the applicant’s eligibility to be admitted on bail.
4 Section 60(4) of the CPA provides,
“The interests of justice do not permit the release from detention of an accused where one or more of
the following grounds are established:
(a) Where there is the likelihood that the accused, if he or she were released on bail, will
enda nger the safety of the public, any person against whom the offence in question was
allegedly committed, or any other particular person or will commit a Schedule 1 offence;
(b) where there is the likelihood that the accused, if he or she were released on bail, will attempt
to ev ade his trial; or
(c) where there is the likelihood that the accused, if he or she were released on bail, will attempt
to influence or intimidate witnesses or conceal or destroy evidence; or
(d) where there is the likelihood that the accused, if he or she were rel eased on bail, will
undermine or jeopardise the objectives or the proper functioning of the criminal justice
system , including the bail system;
(e) Where in exceptional circumstances there is the likelihood that the release of the accused
will disturb the publ ic order or undermine the pu blic peace or security. ”
[13] In the present matter, after engagement with Mr Calaza , he conceded that
the responsibility in ensuring the completeness of the record before appeal is
prosecuted lies with the applicant. This concession is well-founded as it accords with
the e stablished principle that in criminal appeals the ultimate responsibility in
ensuring that the complete and proper copies of the record are placed before the
appeal court lies with the appellant especially where he/she is represented.
[14] Guided by the case law, I acknowledge that the non -availability of a proper
and well -prepared record for the appeal is a breach of the applicant’s right to a fair
trial. However, considering the history of this matter the applicant failed to take
reasonabl e steps to ensure that the record was properly reconstructed after
obtaining the transcribed record f rom the DoJ in June 2021. In my engagement with
the parties , it was specifically placed on record that the trial judge, the applicant’s
legal representativ e as well as the Public Prosecutor who prosecuted the trial are still
available. Despite guidance from a plethora of case law,5 the applicant and his legal
representatives failed to engage the trial judge to prepare a date for the
reconstruction of the missing parts of the record.
[15] In Schoombie and Another v S6, the Constitutional Court referred to the case
of Gora v S and held ―
‘The obligation to conduct a reconstruction does not fall entirely on the court. The
convicted accused shares the duty (my emphasis ). When a trial record is
inadequate, “both the State and the appellant have a duty to try and reconstruct
the record ”. While the trial court is required to furnish a copy of the record, the
5 The Constitutional Court in Schoombee and Another v S 2017 [5] BCL R 572 (CC);2017 (2) SACR1
(CC) referred to a number of authorities that deals the duty to reconstruct a record. A t paragraph 20,
the court held―
“If a trial record goes missing, the presiding court may seek to reconstruct the record . The
reconstruction itself is “part and parcel of the fair trial processes ’. Courts have identified different
procedures for a proper rec onstruction , but have all stressed the importance of engaging both the
accused and the State in the process. Practical m ethodology has differed. Some courts have
required the presiding judicial officer to invit e the parties to reconstruct a record in open court.
Others have required the clerk of the court to reconstruct record based on affidavits from parties
and witnesses present at trial and then obtain a confirmatory affidavit from the accused. This
would reflect the accused’s position on the reconstruct ed record. In addition, a report from the
presiding judicial officer is often required .” [accentuation added]
6 Ibid at para 21.
appellant or his/her legal representative carries the final responsibility to ensure
that the appeal record is in order .’ [footnotes omitted]
Therefore, the applicant’s approach of shifting the blame to the DPP and State
Attorney’s offices is illogical. Borrowing the words of Makgoka AJ (as he then was) ,
in the case of S v Nto pane7 (although the facts and the outcome of that case differ
from the one under consideration ), if a substantial part of the blame for the delay in
reconstructing the trial record can be attributed to the applicant, he is not
automatically entitled to be admitted on bail as of right.
[16] Furthermore, the applicant failed to respond to the averments made by the
I/O regarding his failure to appear in court after being released on bail in the district
court . This information was not known to the defence , however Mr Calaza confirmed
that the applicant was det ained until his trial in the High Court was concluded. Taking
all these factors into account, releasing the applicant on bail given the history of
defaulting court proceedings in the district court and his failure to engage a trial
judge in preparation for the reconstruction of the record would be absurd. Gleaning
from the trial record, a witness that testified pursuant to the provisions of section 204
of the CPA in addition to other pieces of evidence implicated the applicant in the
commission of the offences of murder and robbery with aggravating circumstances .
That witness was found to be credible and reliable by the trial court. Although the
trial court ha d already pronounced on the reasonable prosp ects of success on
appeal, it is not a verifiable conclusion that his admission on bail should follow .
Therefore, i t is my finding based on the facts presented that the applicant , if released
on bail may abscond.
[17] Considering all these factors cumulatively , I conclude that the applicant has
shown no exceptional circumstances which in the interests of justice permit his
release either on bail or on warning. Consequently, the application must fail.
Order
[18] The application for bail pending the appeal is dismissed.
7 2009 JDR 0177 (GPN) at para graph 14.
______________________ _
N CENGANI -MBAKAZA
ACTING JUDGE OF THE HIGH COURT
APPEARANCES:
For the Applicant : Adv: Calaza
Instructed by : S REXE INC.
34 Stanford Terrace
MTHATHA
Ref.: S. Rexe
Tel.: 078 4725 869
For the Respondent : Adv: Makhubalo
Instructed by DIRECTOR OF PUBLIC PROSECUTIONS
(MTHATHA )
94 Sisson Street
Fortgale
MTHATHA
Ref.: M. L. Mak hubalo
Tel.: 047 – 502 9900
Date Heard : 14 February 2025
Date Delivered : 04 March 2025