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IN THE HIGH COURT OF SOUTH AFRICA
(EAST ERN CAPE DIV ISION, MTHATHA )
Case No: CA&R 04/25
Reportable YES
In the matter between:
ZILINDILE TABATHA Appellant
and
THE STATE Respondent
________________________________________________________________
JUDGMENT (BAIL APPEAL)
______________________________________________________________ __
Summary : bail appeal - domestic related case - wife allegedly shot multiple times -
whether the appellant is eligible to be released on bail where the complainant
requests to withdraw the charge against the appellant - the role of the state , the
defence and the court in bail proceedings - appeal against the refusal of bail by
the court a quo dismisse d.
Cengani -Mbakaza AJ
Introduction
[1] The appellant, an adult male person , faced a charge of attempted murder
for allegedly shooting his wife multi ple times, which he denied. The state
subsequently added two charge s, namely possession of unlicenced firearm (9mm
pistol) and possession of unlicenced 10 live rounds of ammunition. Both charges
were brought under ss 3 and 90 , read with the relevant provisions of the Firearms
Control Act of 60 of 2000 , respectively . Considering the pending robbery charge
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and the domestic nature of the dispute, the bail proceedings were held under
Schedule 5 as contemplated in terms of s 60 (11)(b) and (c) of the Criminal
Procedure Act 51 of 1977 (CPA), as amended .
[2] The appellant applied for bail which was refused by the magistrate sitting
at Lady Frere Magistrates’ court (the court a quo ). At the centre of the
proceedings before me is the appellant’s appeal against the decision of the
magistrate (the impugned judgment). The appeal is vigorously opposed by the
state.
Grounds of appeal
[3] In the notice of appeal dated 31 January 2025, the grounds upon which
the appellant rely in his appeal against the judgment a quo are as follows:
‘1. The Court a quo should have found that the Appellant a s required by the provisions
of section 60 (4) (a) to (e) of the Criminal Procedure Act 51 of 1977, disch arged the onus
rested upon him.
1.1 The Appellant is an adult male married person with four children whom their
mother is employed and that they are depending in him, of importance is that is a
well businessperson (sic) running same business within the area of Lady Frere
District, Eastern Cape Province.
1.2 The Appellant has a fixed addressed (sic) at Cacadu Location in the District of
Lady Frere, Eastern Cape Province, wherein he has resided therein since birth and
he owns his own dwelling.
1.3 He is the sole care giver to his children as their mother could not meet the daily
needs of the appellant’s children.
1.4 That the Appellant’s business was and is still not operating well now that the
appellant is in custody and this was brought to his honour through an affidavit but
has erred in ignoring same .
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1.5 The Appellant stays with the witness as they are ma rried, however the
complainant who is the wife to accused and the only witness has filed a withdrawal
statement that she cannot afford supporting her children in the absence of the
appellant.
1.6 That the Appellant has no previous convictions but has a pend ing case of
common robbery and the complainant is Cacadu Local Municipality .
1.7 The court erred in over emphasising that the accused committed serious
offences and that there is no strong case against him…’
The Law
[4] The peremptory provisions of s 60 (11)(b) of the CPA places an onus on the
accused to prove on a balance of probabilities that the interests of justice permit
his release . On 05 August 2022, the legislature put certain amendments to the
CPA into operation. The amendments aim to regulate the granting and
cancellation of bail in domestic -related offences. Furthermore, the amendments
seek to regulate sentences imposed for offen ces committed against vulnerable
persons. In terms of the bail legislation , the legislature places certain obligations
on the state, the accused persons and the presiding officers .
[5] According to s 59 of the CPA, an accused who is in custody for certain
offences may be released on bail by any police official of or above the rank of the
non-commissioned officer, in consultation with the police officer charged with
the investigation, before his/her first appearance in the lower court. Th e
significance of the provisions of s 59 (1)(a) (i), (ii) and (iii) in terms of the new
amendments is that the domestic violence and other domestic -related matters are
specifically excluded from the provisions that allow bail to be granted by police
offici als. This therefore implies that domestic -related offences are treated more
serious and have strictest bail requirements.
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[6] In Kula v S (Kula )1 Petersen J held :
‘[12] The introduction of s 59(1)(a)(i) and (ii) and (iii) has brought about a new
bail dispensation to deal with the scourge of gender -based violence which sadly
engulfed our nascent democracy. There are infact now four categories of bail
applications which a Court may be called upon to adjudicate. These include a bail
application in respect of offences identified in ss 60 11 (a), b and (c) and any other
bail application not falling within the ambit of the aforesaid sections. Section 59 (i)
(a)(ii) and (iii) must now be read conjunctively with the provisions of with the
newly introduced s 60 (11)(c) which provides that:
(60)(11) Notwi thstanding any provisions 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 so do, adduces evidence which satisfies the court
that the interests of justice permit his or her release .’ (emphasis added )
[7] In relation to the offences listed under s 60(11)(b), the public prosecutor
is in terms of s 60(2) (d) of the CPA compel led to furnish reasons for not opposing
bail. Following the provisions of s 60(2A) of the CPA, the court must before
reaching a conclusion on the bail application take into account the views of the
complainant regarding her safety concerns. The se ss read as follows:
‘Section (60)(2)(d) provides that in bail proceedings the court shall, where the
prosecutor does not oppose bail in respect of matters referred to in subsection (11)(a),
(b) and (c), require of the prosecutor to place on record the reasons for not opposing the
bail application.
1 (CAB 02/2023) [2023] ZANWHC 35; 2023 (2) SACR 52 (NWM; [2023] 3 All SA 218 (NWM ) 4 April
(2023).
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(2A) The court must, before reaching a conclusion on the bail application, take into
consideration -
(a) any pre -trial service report regarding the desirability of releasing an accused on
bail, if such a report is available ; and
(b) the view of any person against whom the offence in question was allege dly
committed regarding his or her safety. ’
[8] Pursuant to s 60(10 ) of the CPA amendment, in a case where bail is not
opposed by the state, the court is obligated under s 60(9) to weigh the accused
person’s interests against the interest s of justice, provided that the interests of
justice would be interpreted to include , but not limited to, the safety of any person
against whom the offence in question has allegedly been committed.
The facts
[9] In the court a quo , the appellant elected not to adduce oral evidence but
filed an affidavit in support of his bail application. In his affidavit, t he appellant
provided the following information, that:
(a) He is a 43 -year-old married person;
(b) is self -employed in the logistics industry, earning R15 000 monthly;
(c) owns two taxis, a truck and a house in Cacadu Extension; and
(d) has no previous convictions against him.
The succeeding paragraphs of the appellant’s affidavit simply regurgitate the
provisions of s 60(11)(4)(a -e) of the CPA without adding new material
information to the application.
[10] The release of the appellant on bail pending trial was initially opposed by
the public prosecutor . However, Seargent Ncethelo, the investigating officer (I/O)
did not object t o the release of the appellant on bail. She testified that:
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(a) As a result of the alleged incident, t he complainant had left the marital
home and was staying at her parent al home;
(b) No protection order was ever granted in favour of the complainant.
(c) There was no evidence to suggest that the appellant would commit a
Schedule 1 offence, if released;
(d) The complainant had filed a withdrawal statement, indicating she wanted
to withdraw the case against the appellant;
(e) There was no evidence to suggest that the appellant would, if released on
bail, evade his trial; and
(f) That the state’s case was not strong primarily because the complaint ha d
filed an application to withdraw the charges against the appellant.
The impugned judgment
[11] In arriving at a conclusion, the magistrate applied all the principles
governing bail legislation including the new amendments. She relied on the
provisions of s 6(4)( a)-(e) which provide guidance on assessing the interest s of
justice criterion. Section 60(4) of the CPA provides that:
‘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 endanger 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 evade 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 intimidat e witnesses or conceal or destroy
evidence; or
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(d) where there is the likelihood that the accused, if he or she were released on
bail, will undermine or jeopardi se the objectives or the proper functioning of the
criminal justice system, including the bail syst em;
(e) w here in exceptional circumstances there is the likelihood that the release of the
accused will disturb the public order or undermine the public peace or security. ’
[12] The magistrate specifically referenced to s 60(4)(a), (b) and (d) . She then
noted that the complainant had been allegedly shot multiple times, and the
appellant had a pending case involving violence in the regional court. Despite
being released on bail in the robbery matter, the magistrate concluded that if
released again, the appellant would possibly commit a Schedule 1 offence . He
will intimidate witnesses including the complainant and undermine the integrity
of the criminal justice system as well as the bail system.
In this court
[13] The primary issue is whether the decisi on of the magistrate was wrong.
Section 65 (4) of the CPA, which is framed in peremptory terms, stipulates that
the appeal court may only set aside the magistrate’s decision if it is satisfied that
the decision was wrong. Once the court has determined that the magistrate’s
decision was wrong, it shall substitute its own decision, which in its opinion, the
lower court should have given.
[14] The court i n S v Barber2 explicitly set a legal tone and the correct
approach to be adopted in bail appeal matters. It held that:
‘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. The court
has to be persuaded that the magistrate exercised the discretion which he has
wrongly. A ccordingly, 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
2 1979(4) SA 218D at page 220 E -H.
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interference with the magistrate’s exercise of his discretion. I think it should be
stressed that, n o matter 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 his
discretion wrongly.’
Discussion
[15] During my engagement with Mr Mengo , counsel for the appellant , he
conceded that the magistrate did not overly emphasise the seriousness of the
offence , as alleged in the appellant’s notice of appeal. In my view, this concession
is well -founded as it resonates with the observations by the court in Kula3 as well
as the amendments to domestic -related matters in bail proceedings.
[16] Notwithstanding this, it remains to be assessed whether the magistrate had
struck a balance between the interests of justice as well as the appellant’s personal
circumstances , as required in terms of the law . In my view, the magistrate was
well versed with all the principles of bail legislation, the factors of the case ,
including the appellant’s personal circumstances. Although it was argued that the
appellant is a businessperson , it is cle ar that his business continues to operate,
managed by his elder son. The concern about the lack of supervision in the
business sector cannot be viewed in isolation. Notably, the complai nant who is
the appellant’s wife cannot be said to be lacking the neces sary skill to manage the
business .
[17] The paramountcy of the best interests of the minor children are well
protected . The children are in the care of their mother, who currently resides at
her parental home due to the consequences of this alleged incident. The
allegations that the appellant is a sole caregiver of the minor children is not
3 Fn 1 above.
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supported by the facts. The complainant is employed as a clerk at the Department
of Social Development and therefore capable of taking care of their needs.
[18] Mr Mengo strongly raised a contention regarding the complainant’s
apparent lack of interest in the matter as well as the investigating officer’s failure
to object to the appellant’s release on bail. Mr Qebey i, counsel for the state
emphasised that despit e the complainant’s request to withdraw the case, the
Director of Public Prosecutions (DPP) will continue to pursue prosecution of the
case. For this reason, inter alia , counsel argued that the state opposes the bail
appeal, contending that the magistrate’s decision was correct.
[19] Considering the submissions by the appellant’s counsel , it needs to be
examined whether the appellant is automatically eligible to be released on bail in
cases where the complainant has apparently lacked interest in the case. To provide
context, it is apposite to revisit and emphasise the role of the prosecution in the
criminal justice system. Section 25(1) (a) to (c) of the National Prosecuting
Authority Act4 (NPA Act) provides that :
‘(1) A prosecutor shall exercise the powers, carry out the duties and perform the
functions conferred or imposed on or assigned to him or her -
(a) under this Act and any other law of the Republic ; and
(b) by the head of the Office or Investigating Directorate where he or she is
employed or a person designated by such head; or
(c) if he or she is employed as a prosecutor in a lower court, by the Director in
whose area of jurisdiction such court is situated or a person designated by such
Director .’
[20] Furthermore, s 20(1) of the NPA Act provides that the prosecutor has the
power as contemplated in s 179(2) of the Constitution5 and all other relevant
sections of the Constitution, to institute criminal proceedings on behalf of the
4 32 of 1998.
5 Act 108, 1996 (the Constitution) .
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state, and to carry out any necessary functions incidental to instituting criminal
proceedings.6 Pursuant to section 20(1)(c), the prosecutor has the power to
discontinue the criminal proceedings. The Constitutional’s establishment of a
single and independent prosecuting auth ority unequivocally underscores that the
prosecution of criminal offences is a constitutional imperative. Therefore, the
state’s power to institute criminal proceedings enables the state to fulfil its
constitutional obligation to prosecute those cases that threaten or infringe the
rights of the citizens.7 This obligation must be fulfilled without fear, favour or
prejudice.
[21] The complaint’s wish es to withdraw the case is not unusual for domestic
violence victims who may feel embarrassed, intimidated, guilty of fearful of their
partner’s resentment. Given the vulnerable nature of domestic violence victims,
the interest s of justice may necessitate prosecution, even if such is contrary to the
complainant’s wishes. Thus, it is known that at this juncture that by virtue of
powers vested in him , the DPP still pursues prosecution of the appellant .
Therefore, it is logical to conclude that, in this instance the bail application and
the complainant’s wishes are distinct considerations, each evaluated on its own
merit rather than inextricably linked.
[22] I now proceed to examine the role of the I/O in the matter under
consideration. In bail proceedings , unlike in trial proceedings which are
adversarial in nature, the court adopts an inquisitorial approach and plays an
active role.8 As contemplated under s 59 of the CPA, police official s have no
authority to grant bail in domestic -related matters. Even in bail proceedings, the
I/O lacks the authority to di ctate to the court to release the accused on bail. The
6 Brown v National Director of Public Prosecutions and Others (1800/2011) [2011]ZAWCHC 386; [2012]1 All
SA 61 (WCC) (28 September 2011) at para 27.
7 S v Basson 2007(1) SACR 566 (CC) at 144.
8 S v Bruinders 2012(1) SACR 25 (WCC).
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I/O’s role is limited to providing information to assist the court in arriving at a
just decision.
[23] As a consequence of th ese basic principles , the court’s function is not to
rubber -stamp the submissions of the public prosecutor, the defence and the I/O.
The court’s function is to exercise an independent assessment of the facts
presented before it. As evident in the proceedings before me, the magistrate
correctly determined that the I/O’s opinion h olds no probative weight. The
argument challenging the decision of the magistrate is without merit , both
factually and legally. Furthermore, the magistrate correctly found that the
appellant had failed to discharge the onus rested on him. Therefore, the interests
of justice do not permit the release of the appellant on bail.
[24] In the result , the application must fail.
Order
[25] The ap peal against the refusal of bail is dismissed.
______________________ _
N CENGANI -MBAKAZA
ACTING JUDGE OF THE HIGH COURT
Appearances :
For the Appellant : Adv: W. Mengo
Instructed by : MNIKELO DALASILE & ASSOCIATES
MTHATHA
For the Respondent : Adv: T. Qebeyi
Instructed by DIRECTOR OF PUBLIC PROSECUTIONS
MTHATHA
Date Heard : 14 March 2025
Date Delivered : 27 March 2025