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[1] This is an appeal against the judgment of the Learned Magistrat e MS Mfulwane , sitting
at Pretoria Magistrat e court , in which the court dismissed the appellant’s application to
be released on bail. The appellant was legally represented at the bail hearing before the
magistrate.
[2] The Appellant is a Congolese National who was charged for assaulting her seven -year -
old son, and for contravening the provisions of section 49(1)(a) of the Immigration Act
13 of 2002 . According to the charge sheet , the assault charge is specifically identified as
“child abuse ; neglect ; and assault ”, while contravention of the Immigration Act relates
to “entering the Republic at any place other than at a port of entry”.
[3] It is common cause that on the day of her arrest, the ap pellant’s application for asylum
was rejected by the department of Home Affairs .
[4] The grounds of appeal as noted in the Notice of Appeal are as follows:
(1) The Learned Magistrate erred and misdirected herself in finding that the appellant
did not discharge the onus to establish any exceptional circumstances. Further
that the Learned Magistrate erred in failing to consider all the exceptional
circumstances raised.
(2) The Learned Magistrate erred in failing to consider that the bail application was
not opposed by the State.
(3) The Learned Magistrate failed to consider the impact of credible evidence that the
appellant will not evade trial in that:
She has established her family ties in RSA and her children are schooling in the
republic .
irrespective of the appellant being a DRC national when she ente red into the
republic of South Africa, she applied for asylum seeking permit and after
expiry of her asylum document, she had applied for a renewal of asylum -
seeking document and after her arrest, she discovered that her asylum -
seeking application was reje cted, and she further reviewed the same
rejection.
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(4) The Learned Magistrate erred in dwelling in the possible outcome of the review
application for the rejected application for asylum seeking permit which is to be
decided by the Home Affairs.
(5) The Learned M agistrate failed to consider that the appellant is not a flight risk, the
appellant count leave to DRC (sic) where there is political instability and civil unrest
and leave her family in the Republic of South Africa.
(6) The Learned Magistrate failed to consi der that the interest of justice permit the
release of the appellant on bail.
[5] It is clear from the first ground of appeal raised that the appellant had the duty or the
onus to prove on a balance of probabilities and adduce evidence to satisf y the
magistrate that exceptional circumstances exist ed, which in the interests of justice ,
entitle d her to be released on bail, failing which she would be detained in custody. What
is of importance is that the grant or refusal of bail is a discretional decision under judicial
control and as such, judicial officers have the ultimate decision as to whether or not, in
the circumstances of a particular case, bail should be granted.
[6] The jurisdictional requirement for the appeal court to interfere with the decision of the
learned magistrate is set out in Section 65(4) of the Criminal Procedure Act 51 of 1977
(“the CPA”) which provides that: “ 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”.
[7] It should be noted that in a bail application, the enquiry is whether the interest of justice
permits the release of the accused on bail. The “interests of justice” criterion requires a
weighing up of the interest of the accused’s liberty, against those factors which suggest
that bail be refused , unless ‘exceptional circumstances’ are shown by the accused to
exist. This exercise is one which departs from the constitutional standard set by s ection
35(1)(f). Its effect is to add weight to the scales against the liberty interest of the
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accused and to render bail more difficult to obtain than it would have been if the
ordinary constitutional test of the ‘interests of justice’ were to be applied1.
[8] Accordingly, this court as a court of appeal must determi ne whether the appellant has
discharged the burden placed on her and most importantly, whether the learned
magistrate exercised her discretion wrongly. This principle was expressed by the court
in S v Barber2 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. 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
interference with the magistrate’s exercise of his discretion. 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”.
[9] It is clear from the reading of the record of the bail proceedings that when the
application was made on behalf of the appellant, the defence never addressed the court
on any of the aspects referred to in section 60 of the CPA which deals with bail
applications. Neither was the aspect relating to the interest of justice addressed on
beha lf of the appellant, nor the factors referred to in section 60(4) canvassed by either
the State or the defence.
[10] It can be gleaned from the reading of the record that the only focus in the bail
application was that the appellant had already lodged her review application in respect
of her asylum permit, and that the court should as such admit her to bail. Be that as it
may, it does not appear anywhere on the transcribed record − that this aspect formed
the basis on which bail was sought as an exceptional circumstance , or whether it was
only stated in passing.
1 S v Dlamini; S v Dladla & Others; S v Joubert; S v Schietekat [1999] ZACC 8 ; 1999 (2) SACR 51 (CC). at para
64.
2 1979 (4) SA 218 (D) at 220E -F
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[11] It is indisputable that t he court a quo declined to entertain the issues which were the
subject of the review before the high court and stated the following:
“That can be dealt with in the high court, not in this court, but for now,
unfortunately, she − (referring to the appellant) − wants to be released on
bail. The application is still pending in the high court, and we do not know
what t he high court will do….. The Home Affairs rejected it ….. Me sitting
here, I am here if she is a flight risk or not (sic).
[12] It is trite that in any bail application, evidence can be presented through oral testimony
or in an affidavit which will address the applicant's circumstances such as , amongst
other things, the detail s of the applicant's address, employment, family and community
ties, including giving reasons why the applicant should be released on bail and wh ether
the applicant is not a flight risk.
[13] As indicated above, none of the factors relating to bail as outlined in section 60 of the
CPA were addressed or placed before court. Mr Netshilaphala appearing for the
appellant conceded that these factors were not placed on record before the learned
magistrate, and neither were they addressed during argument because “it was not
necessary to do so” as they were noted in the appellant’s bail statement (“affidavit ”)
admitted by the court as exhibit A .
[14] It is common cause that the alleged affidavit of the appellant is not attached to the
record of the bail proceedings before this court, and neither is it referred to in the
“Index ” which forms part of the appellant’s documents attached to her application − to
show that such a n affidavit existed.
14.1 Ironically, a perusal of the record shows that the only affidavit admitted by the
court a quo as exhibit A is the affidavit of the investigating officer , constable
Lufuno Winnie Mutavhasindi dated 18 February 2025 titled “bail statement ”.
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14.2 Just as with the record of the bail proceedings, none of the crucial factors to be
considered by the court in a bail application in terms of section 60 of the CPA were
address ed in this affi davit.
14.3 In light of the above, the only inference to be drawn is that the appellant did not
depose to an affidavit in support of her bail application before the magistrat e, but
most importantly, she did not place any evidence or exceptional circumstances
before the magistrate to satisfy the court that it would be in the interest of justice
that she be released on bail.
14.4 In my view, if it were indeed true that the appellant had deposed to an affidavit
where in she addressed all the pertinent issues to be addressed during the bail
application, same would have been highlighted in her heads of argument. I say
this being mindful of the phrase repeatedly used in the appellant’s heads of
argument , which is: “the appellant explained through her attorneys ….”, rather
than using the words : “the appellant stated in her affidavit” .
[15] It is common cause that only one exhibit A was admitted by the court a quo , and that is
the affidavit referred to above. Before this court, w hen the court enquired from the
appellant’s counsel about the alleged affidavit of the appellant, counsel indicated that
he was informed by the clerk of the court at the magistrate court that all the relevant
documents were attached to the record of the proceedings and sent to th e high court
for purposes of bail appeal , and that there was no affidavit of the appellant on th e court
record.
[16] Mr Netshilaphala asked the court to give him a chan ce to approach the clerk of the
appeal section at the magistrate court to check once more, if the appellant’s bail
affidavit is in their possession , and he was granted that opportunity. When the court
resumed after two days, counsel informed the court that the clerk of the appeal section
at the magistrate court searched and could still not find the appellant’s affidavit. This is
confirmed by an affidavit dated 13 May 2023 deposed to by ANTHOLINE FERREIRA
NIEMANDT wherein the following is stated:
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“I am an admin clerk at the Appeal Section, stationed at Pretoria
Magistrate Court. A bail appeal was sent to the high court on
04/04/2025 – S v Fanny K Ilunga.
This office was approached and informed that the bail affidavit is
outstanding. There is no bail affidavit attached to the documents in our
possession. The original charge sheet w as also checked, there is also
no bail affidavit attached to it ”.
[17] In light of the above, it is undeniable that the appellant did not depose to an affidavit
during the bail hearing because the only “bail statement marked as exhibit A” is that of
the investigating officer and not the appellant. (emphasis added)
[18] With that being said, w hat is rather strange is that after this court raised serious
concerns about the total failure to address the court a quo with regards to the
requirements of bail as set out in section 60 of the CPA, and failure to present evidence
and exceptional circumstances, this court is handed an affidavit which is allege d to be a
copy of the affidavit that was given to the magistrate in support of th e bail application ,
and it contains the very aspects which this court canvassed with counsel that they were
not addressed in the court a quo .
18.1 The red flag and worrying issue about this affidavit is that some of the words and
sentences have been deleted, and those changes were not initialled as it should
be. One example is at paragraph 4 where typed words were deleted by striking
them out with a pen and were replaced by inserting handwritten information , and
no initials were made to these changes. Furthermore, the appellant did not initial
every page of this affidavit, because the only initial (“JM”) that appears at the
bottom of each page seems to be that of the commissioner of oath , as it appears
next to his full names whe re he administered the oath.
18.2 In my view, this affidavit was only presented to close the gap and correct the
errors which this court has highlighted when it engaged counsel about failure to
address the requirements of section 60, and other issues of concern.
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18.3 Accordingly, this affidavit will not be taken into account, particularly because it is
clear from the record that only one affidavit was admitted into the record .
[19] The CPA provides in section 60(4)(a) to (e) a checklist of th e main criteria to be
considered against the granting of bail , which any accused or his/her representative
should address , and this was not done. On the other hand, sub -section 6(a-j) which is
more relevant to the case of the appellant was never addressed by her counsel.
[20] It appears from the reading of the record that after it was disclosed to the court that
the appellant is illegal in the country, the State could not make a decision as to whether
or not to oppos e bail because upon enquiry by the court , the prosecutor was unable to
give a clear answer and informed the court that she wanted to “address the court off
record” . The prosecutor further indicated that she “does not have to oppose the bail
application” but acknowledged and conceded that the court had the discretion to
decide whether to grant bail or not . The defence also confirmed that the court is vested
with t hat discretion.
20.1 It should be noted that when the learned magistrate asked the State if the
appellant was a flight risk, the State was still not able to respond to the court’s
question but instead opted to inform the court that the appellant’s review
application regarding her asylum permit has been launched with the high court,
and that − it is yet to be decided by the high court.
20.2 The following is the interaction between the court and the State:
Court : “It is a flight risk.
Prosecutor : I do not have to sound like I am defending the accused person before
court, Your Worship.
Court : But ….
Prosecutor : Because going ahead, I will sound like I am defending her.
Court : Let me see what is happening on the charge sheet. What did I say? I am
not sure if the State is opposing or not. Can I hear you?
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Prosecutor : Your Worship, is not it (sic) that even if I say I oppose or I do not
oppose, court can overrule me.
Court : No, I want to be sure. Are you opposing?
Prosecutor : Your Worship, my view is that I do not have to oppose this application.
The reasons are those that I advan ced”.
[21] Having regard to the second ground of appeal raised, the appellant’s contention that
the State did not oppose bail is misplaced because it is evidence from the record of the
proceedings that the court repeatedly enquired whether bail was opposed, and the
State was undecided .
[22] Similarly, the appellant’s contention that the learned magistrate failed to consider that
she is not a flight risk as alleged on the fifth ground is without merit and has no basis. I
have already indicated that there was no evidence place d before the court to make a
finding that the appellant is not a flight risk.
[23] With regards to the third and fourth grounds of appeal , the se grounds are misleading
and misplaced because it can be gleaned from the record of the proceedings that the
defence was very insist ent that the learned magistrate should consider granting bail
because the review application for asylum permit has been filed with the high court,
and stated the following: “ … I believe that the high court will rule in her favour ”.
[24] The learned magistrate made it abundantly clear and repeatedly stated that the issue
of an alleged pending review application will not be dealt with during the bail hearing,
but that it is an issue that will be deal t with by the high court . It is on this basis that the
magistrate declined to entertain this aspect because no application was made before
the court a quo for consideration in that regard.
[25] Mr Netshilaphala submitt ed at paragraph 4 of his heads of argument that the learned
magistrate erred by disregarding the interpretation of section 21(4) of the Refugee Act3,
3 130 of 1998
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and holding that the appellant is an illegal immigrant . The section counsel referred to
provides as follows:
(4) Notwithstanding any law to the contrary, no proceedings may be instituted
or continued against any person in respect of his or her unlawful entry into
or presence within the Republic if —
(a) such person has applied for asylum in terms of sub section (1), until a
decision has been made on the application and, where applicable, such
person has had an opportunity to exhaust his or her rights of review or
appeal in terms of Chapter 4
(b) such person has been granted asylum.
[26] Unfortunately, Mr Netshilaphala put reliance on the old Refugee Act which has now
been repealed because section 21(4)(a) was substituted by section 15(d) of Refugees
Amendment Act 11 of 2017 which came into effect from 1 January 2020 [and updated
on 4 January 2023] . The ame nded paragraph (a) now reads as follows :
(a) such person has applied for asylum in terms of subsection (1), until a
decision has been made on the application and, where applicable , such
application has been reviewed in terms of section 24A or where the
applicant exercised his or her right to appeal in terms of section 24B .
[27] The amended portion of the above provision of the Refugee Act changes the trajectory
of the interpretation which the appellant wanted to use and rely on. Be that as it may,
it is important to note that any argument or submission made by counsel from the bar
is not evidence. What this court cannot comprehend is why counsel would attack the
magistrate ’s decision not to entertain a non -existent application by submitting that the
magis trate disregarded the interpretation of section 21(4)(a) − while the very same
provision which counsel relies on has been invalidated and replaced since 2020.
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[28] As already indicated, there was no evidence placed before the magistrate and there was
certai nly no proper application made that would have enabled the magistrate to
consider the provisions of the Refugee Act. Consequently, I do not agree with the
submission made on behalf of the appellant − that the learned magistrate misdirected
herself in disregarding the interpretation of the Refugee Act.
[29] In refusing to grant bail to the appellant, the learned magistrate stated that the court
must be cautious of granting bail where the risk of absconding remains high because
the appellant lacked documentation to remain in the country. In this regard, the learned
magistrate held that the appellant poses a flight risk, and that the interest of justice
does not favour the appellant’s release on bail.
[30] It was submitted on behalf of the appell ant that the magistrate misdirected herself in
coming to that decision because there was no evidence brought before court to prove
that the appellant is a flight risk.
[31] On the other hand, the respondent submi tted , and correctly so, that the magistrate
properly exercis ed her discretion and was correct in coming to a finding that it would
not be in the interest of justice to grant bail to the appellant, especially where the
appellant had a duty to prove that she is entitled to be released on bail .
[32] Reading through the judgment of the learned magistrate, there is nothing which suggest
that the magistrate misdirected herself . The fact that the appellant is an illegal
immigrant is a factor which the magistrate had to consider , especially where there is a
risk that the appellant may abscond.
[33] It may very well be that the appellant’s children attend school here in South Africa , thus
making it imp robable for her to go back to her country of origin, the Democratic
Republic of Congo as submitted in the appellant’s heads of argument, but what cannot
be avoided is the fact that the appellant failed to discharge the onus of proof to establish
exceptional circumstance s that favours her release on bail − in the interest of justice.
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APPEARANCES
Counsel for the Appellant : Mr Netshilaphala
Instructed by : Netshilaphala RE Attorneys
Email: enquiry@nreattorneys.co.za
Counsel for the Respondent : Adv. C Pruis
Instructed by : National Director of Public Prosecutions , Pretoria
Heard on : 09 May 2025
Date of Judgment : 19 May 2025