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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, BHISHO )

Case No: CA&R17/2025

In the matter between:

MONGAMELI TOM Appellant

and

THE STATE Respondent


JUDGMENT


ZONO AJ :

Introduction

[1] This is an appeal against the refusal of bail by the Mdantsane Magistrate ’s Court
under case number A149/25. The appellant was arrested by the members of South

African Police Service on 19 March 2025, and he was kept in custody since his date of
arrest . On 9 April 2025 an opportunity was made available to him to apply to be
admitted to bail. The appellant was legally represented. Bail application was eventually
refused by the Mdantsane Magistrate’s (District ) Court. The appellant deposed to an
affidavit s etting out all the facts he perceived to be relevant to secure his release on
bail. I will turn to this aspect late r in the judgment.

[2] The appellant is charged with fifty -one (51) counts of fraud which were allegedly
committed between Cape Town and Eas t London1, and fifty -two counts of theft which
were also allegedly committed between Cape Town and East London. However, the
preamble (and tables of committed offences) in the charge sheet reveals only fifty-one
(51) offences, four (4) of which appear to have been committed in the Eastern Cape
Province . Two (2) of the offences which were allegedly committed in the Eastern Cape
appear to have been committed within the Magisterial district of Mdantsane.

[3] I set out to detail the particulars of the offences allegedly committed in the
Magisterial district of Mdantsane. The offences appear to have been committed in
different ATMs at different times and dates in Mdantsane . On 12 March 2025 an amount
of R143 500.00 wa s taken from the Capitec ATM which bears the following identity
particulars: SASB1659 under the site name NK Service Station at 2126 Qumza
Highway, Mdantsane , Eastern Cape, 5219. Under the collum CIT Provider appears
Fidelity. On 21 February, under ATM identity number SASB1336 an amount of R236
900.00 was allegedly taken from Capitec ATM with site name Shell VXL Motors at
Mdantsane, Unit 1, Mdantsane, Eastern Cape 5219.

[4] From the onset it is apposite to state that Mdantsane Magistrate ’s (District) Court
had jurisdiction to adjudicate on the two (2) matters that took place on 21 February 2025
and 12 March 2025 respectively . I will deal with the rest of other s (which were allegedly
committed outside the jurisdiction of that court) during the course of this judgment. I will
do that because it is in respect of all the charges preferred against the appellant that the

1 As per the charge sheet.
bail application was refused. It is not clear what would be court a quo ’s position , stance
or view about the charges that were allegedly committed within its jurisdiction had it
considered only those offences . It is not apparent from the record that bail application
would be refused if the magistrate was to limit itself only to the offences allegedly
committed respectively on 21 February 2025 and 12 March 2025, upon which the court
a quo had jurisdiction.

Law and discussion

[5] It is now apposite to advert to the law that governs appeal s of this nature. Section
65 of the Criminal Procedure Act2 provides for appeals to the Superior Court with regard
to bail. The decision against which an appeal was brought can only be set aside if , in
the opinion of a judge , was wrong. In what follows I quote provisions of subsection 1
and 4 of the Act.

[6] Section 65 (1) and (4) of the Criminal Procedure Act provides as follows: -

“1.(a) An accused who considers himself aggrieved by the refusal by a lower
court to admit him to bail or by the imposition by such court of a condition relating
to the amount of bail money and including an amendment or supplementation of
a condition of bail, may appeal against such refusal or the imposition of such
condition to the superior court having jurisdiction or to any judge of that court if
the court is not then sitting.
2…
3…
4. 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 opi nion the lower court should have given. ”


2 Criminal Procedure Act 51 of 1977 as amended.
[7] In terms of section 65 (4) of the Criminal Procedure A ct, interference with the
magistrate’s decision to admit the accused to bail can only take place if the judge or
court is satisfied that the magistrate was wrong.3 Section 65 (4) of the Criminal
Procedure Act creates a jurisdictional fact for the exercise of the power to differ from
what the magistrate has decided. The following word are pivotal : -

“Unless such court or judge is satisfied that the decision was wrong .” The
satisfaction of the appeal court or judge about the fact that the magistrate was
wrong is a pre -condition or a condition precedent to the exercise of the power to
set aside magistrate ’s de cision refusing to admit an accused to bail. The
necessary pre -conditions that must exist before power can be exercised , are
referred to as jurisdictional facts.4 These facts are jurisdictional because the
exercise of the power depends on t heir existence or absence as the case may
be.5

[8] Section 65(4) of the Criminal Procedure Act brings into sharp focus the
distinction between the two categories of jurisdictional facts.6 The first category is
described as ‘objective jurisdictional facts’ which include the type of fact or state of
affairs that must exist in an objective sense before the power can validly be exercised.
The second category is ‘subjective jurisdictional facts ’. In this category the empowering
statute has entrusted the repository of the power itself with the function to determine
whether in its subjective view the prerequisite fact or state of affairs existed or not.
Expressions often used by the legislature to express this intent are, e.g., ‘in his or her
opinion’ or ‘if he or she is satisfied that’ the particular fact or state of affairs exists.
Applicable in this case is the second category . In the absence of subjective jurisdictional
facts, this court cannot have power to set aside the decision of the magistrate. This
court can only interfere where it is shown that the repository of the power, the
magistrate , in deciding the bail applicati on was wrong.

3 S v De Abre u 1980 (4) SA 94 (W) 96(W ) – 97A.
4 Kimberly Junior School and Another v Head of the Northen Cape Education Department and Others
2010 (1) SA 217 (SCA); 2009 (4) All SA 135 (SCA) para 11.
5 Meyer v South African Medical and Dental Council 1982 (4) SA 450 (T) at 454E -H.
6 President of the Republic of South Africa v South African Football Union 200 (1) SA 1 (CC) para168.

[9] In S v Barber7 Hefer J remarked as follows in a matter involving interpretation of
section 65(4) of the Criminal Procedure Act:

“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. This court has to
be persuaded that the magistrate exercised the di scretion which he has wrongly.
Accordingly, although this court may have a different vie w, it should not
substitute its own view for that of a 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 but
exercised that discretion wrongly. ”

[10] Whether or not the magistrate was wrong in refusing to admit the appellant to bail
will be adjudged by what served before him and how that information or evidence was
dealt with. In the preceding paragraphs I have indicated that the appellant in making this
bail application , deposed to an affidavit, contents of which were read into the record.
The actual affidavit in support of bail application was admitted as exhibit A. I set out to
deal hereinafter with the material or relevant fact s in the appellant’s affidavit.

[11] The appellant resides at No 6[...] S[...] M[...] , Mitchell’s Plain. He was born on 18
April 1987 and a director in two companies, namely , Abakwazidenge Trading (Pty) Ltd
registered as such on 20 August 2021; and Khundulu Holdings (Pty) Ltd registered as
such on 28 November 2023. Both companies carry on business in the Western Cape.
Both businesses came to a standstill after his arrest. The appellant averred that both
companies were respectively making a net profit ranging between R30 000.00 to R50
000.00 monthly.


7 S v Barber 1979 (4) SA 218 (D) 220 E -H.
[12] With his fiancée or future wife he has one (1) child. In addition to this child, the
appellant has further three (3) children from different women. Two birth certificates were
annexed to the affidavit in support of the application. The app ellant stated that his
children are not recipients of child support grant (SASSA grant ), and he is responsible
for their maintenance. He is staying with one child and his fiancée. Other children are
staying with their mothers. He pays R1500.00 for each child per month depending on
his income.

[13] About his business es, the appellant states that he has two employees who are
weekly paid. He has been unable to pay their salaries or wages as his businesses are
not operating since his arrest.

[14] The appellant att ests to the fact that he has no family ties outside the Republic of
South Africa as his friends and family members reside within the borders of South
Africa . He concludes in this regard by saying he is not a flight risk, and he will stand his
trial. He has no previous convictions nor pending cases. He has never offended any bail
legislat ion provisions .8 He further states that he is well known in his community and that
he does not have a tendency of fleeing and undertakes to co operate.

[15] The appellant states that he does not know the identity of the state witnesses,
therefore he will not interfere with them. He will not disturb the public order and or
undermine the proper functioning of the Criminal Justice System. He will not inte rfere
with the investigations . He will not commit Schedule One (1) offence whilst out on bail.
He will not conceal or destroy any evidence. In conclusion he states that he will comply
with the condition s as may be imposed on him and it is in the interests of justice that he
be released on bail. He requested an amount of R1000.00 to be fixed.

[16] The magistrate did not deal at all in its judgment with the aforesaid contents of
appellant’s affidavit in support of bail application. Judicial accountability impels the
judiciary officers to account to the parties in a litigation and to the public at large through

8 Section 60 (4) (a-e) of the Criminal Procedure Act 51 of 1977.
their judgments. The judgment must account for all the evidence presented before it.
The cou rt must not deal only with the evidence it thinks it is relevant or it supports his or
her order , it is enjoined to deal also with the evidence it is rejecting. The court must
account for its judgments otherwise its decision will be arbitrary.

[17] There is not a single reason in the magistrate’s judgment why the appellant’s
case or version has not been accepted or rejected. We may only assume that it was
rejected for the fact that it is not re ferred to in the judgm ent. In fact, the magistrate’s
failure to accept or reject appellant’s case is rooted in his failure to consider same. One
cannot accept or reject something he has not considered. No balancing act has been
made by the magistrate.

[18] In GMSA Financi al Services9 Mbenenge JP referred with approval to the case of
M v M10 thus:

“5. It has also been held that the core principle of the rule of the law include the
right of a litigant to be given reasons by a court . “Absent such a right,
transparency is cloaked in darkness , accountability is honoured in the breach .”
Accountability and transparency are incidences of proper judgment writing .

[19] In Dr AB Xuma Local Municipality11 the court cited with approval the case of
Mvumbi NO12 thus:

“4. It is elementary that litigants are ordinarily entitled to reasons for a judicial
decision following upon a hearing, and when a judgment is appealed, written
reasons are indispensable. Failure to supply them will usually be a grave lapse of
duty, a breach of litigants’ rights, and an impediment to the appeal process,”

9 GMSA Financial Services: A Division of West Ban k: A Division of First Rand Bank Limited v PBF
Investors (Pty) Ltd and Another (2358/2017) [2019] ZAECMHC 15 (12 March 2019) para 5 .
10 M v M (20350/2012) [2015] ZAWCHC 197 (24 November 2015) .
11 Dr AB Xuma Local Municipality and Another v Local Resident Under Consolidated Case Number
988/2023 [2025] ZAECMHC 19 (20 March 2025) para 4 .
12 Strategic Liquor Services v Mvumbi NO and Others 2010 (2) SA 92 (CC) para 15.

[20] Baxter : Administra tive Law at 228 puts thus:

“A duty to give reasons entails a duty to rationalize the decision. Reasons
therefore help to structure the exercise of discretion, and the necessity of
explaining why a decision is reached and requires one to address one’s mind to
the decisional referents which ought to be taken into account. Secondly,
furnishing reasons sat isfies an important desire on the part of the affected
individual to know why a decision was reached. This is not only fair – it is also
conducive to public confidence in the administrati ve decision -making process.
Thirdly – and probably a major reason for the reluctance to give reasons –
rational criticism of a decision may only be made when the reasons for it are
known .”

Although this dictum was made in the context of administrative decision making, it
applies with equal or more force in the context of judicial decision, especial in the
context of Criminal Justice System, where right to freedom and security13 is in the
balance.

[21] In the case of Macingwane14 Gwala AJ aptly remarked thus:

“39. In my view it is irregular for a magistrate not to give reasons for his or her
judgment. It is also unfair to the accused person. It creates doubt whether the
trial was fair or not”

[22] The Constitutional Court in Mphahlele15 observed as follows:

“[12] There is no express constitutional provision which requires judges to furnish
reasons for their decisions. Nonetheless, in terms of section 1 of the Constitution,

13 Section 12(1) of the Constitution .
14 Macingwane v S (CA&R20/18) [2019] ZAECMHC 76 (20 November 2019) para 39 .
15 Mphahlele v First National Bank of South Africa Ltd 1999 (2) SA 667; 1999 (3) BCLR 253 para 12.
the rule of law is one of the founding values of our democratic state, and the
judiciary is bound by it. The rule of law undoubtedly requires judges not to act
arbitrarily and to be accountable. The manner in which they ordinarily account for
their decisions is by furnishing reasons. This serves a number of purposes. It
explains to the partie s, and to the public at large which has an interest in courts
being open and transparent, why a case is decided as it is. It is a discipline which
curbs arbitrary judicial decisions. Then, too, it is essential for the appeal process,
enabling the losing pa rty to take an informed decision as to whether or not to
appeal or, where necessary, seek leave to appeal. It assists the appeal court to
decide whether or not the order of the lower court is correct. And finally, it
provides guidance to the public in resp ect of similar matters. It may well be, too,
that where a decision is subject to appeal it would be a violation of the
constitutional right of access to courts if reasons for such a decision were to be
withheld by a judicial officer.

In these circumstance s I am unable to assess the correctness of the magistrate’s
decision refusing to admit the appellant to bail .

[23] In Macingwane16 Gwala AJ made the following compelling and instructive dictum:

“32. There is a plethora of authori ties to the effect that in the process of
reasoning and analysis of evidence presented before court, in reaching its
conclusion (whether it be to convict or to acquit) the court must account for all the
evidence. Some of the evidence might be found to be unreliable, and some of it
might be found to be only possibly false or unreliable ; but none of it may simply
be ignored.

33. The magistrate did not account for the judgment he gave. He did not analyse
the evidence before arriving at his conclusion. He did not explain why the
evidence of the accused persons was not accepted and why that evidence did

16 Macingwane supra .
not meet the standard of being reasonably possibly true. He did not even explain
on what basis he found that the state had discharged its onus of proof and why
its evidence was accepted.

35. Whilst it is accepted that the magistrate’s court is generally a busy court,
justice still requires that he or she who sits to make judgment about the live s of
the people must account for his or her judgment . A presiding officer , accounts for
his or her judgment by giving an analysis of the fact s before him or her leading to
a conclusion ultimately reached. This is fair to both the complainant and the
accused. Certainly , the accused person is entitled to know on the basis of what
evidence i s he or she found guilty and by what evidence did the state managed
to discharge the onus resting on it. Sadly, it does not appear from the judgment
of the magistrate how the court was satisfied that the guilt of the appellant was
proved beyond a reasonable doubt .”
I align myself with these observations.

[24] A judgment without reasons is arbitr ary. Equally a judgment that does not
account for all the evidence is arbitrary. A judgment without balancing exercise between
the two opposing versions or evidence lacks proper analysis and is consequently
arbitrary.

[25] Section 12 of the Constitution provides for Freedom and Security of the person
as its heading suggests. Subsection 1 provides as follows:

“12. (1) Everyone has the right to freedom and security of the person, which
includes the right -
(a) not to be deprived of freedom arbitrarily or without just cause …”

Magistrate’s refusal to admit the appellant to bail is arbitrary and consequently
unconstitutional for it offends the provisions of section 12(1) ( a) of the Constitution.

[26] Another important constitutional provision is section 165 of the Constitution which
deals with judicial authority. Courts are enjoined by the Constitution to be impartial.
Subsection 2 provides thus:

“2. The courts are independent and subject only to the Constitution and the law,
which they must apply impartially and without fear, favour or prejudice.”

Partiality is apparent in the judgment of the magistrate when it glaringly omits to
consider appellants assertions or evidence. It would be different if appellant’s evidence
was referred to and rejected and reasons for such rejection are provided. It is unknown
why appellant’s evidence was at least not referred to in the magistrate’s judgment.

[27] It is noteworthy f rom the record that appellants’ evidence is not rebutted, save for
the fact that it is stated that state ’s case is strong and appellant ’s case is weak. The
evidence embodied in the appellant ’s affidavit relates to the factors a court must take
into account when considering bail applications. The magistr ate should have considered
them in its decision whether or not to grant bail.17

[28] Mbenenge J (as he then was) now JP in Sinqu18 had this to say:

“9. The magistrate’s conclusion that no weight could be attached to the evidence
tendered by way of evidence by the appellant is not substa ntiated. The evidence
embodied in the affidavit related to the factors a court is normally called upon to
consider in its decision whether or not to grant bail. That evidence was neither
controverted nor contended by the prosecution . Those factors were elicited by
the accused’s attorney and not placed in dispute when Sgt Piet ers testified. For
this reason , the magistrate ought to have accorded the evidence due and proper
consideration and weighed the evidence in determining whether the interests of
justice warranted the appellant ’s admission to bail.”

17 Section 60(4)(a – e) of Criminal Procedure Act 51 of 1977 as amended.
18 Sinqu v S (CA&R31/2016) [2016] ZAECBHC 14 (21 December 2016) para 9.

The appellant’s affidavit contained evidence that is worthy of consideration. The fact
that such evidence may be less persuasive does not me an that it ha d to be
disregarded.19

[29] There is a concerning finding made by the magistrate in his judgment. He found
as follows:

“In his affidavit the accused only states that he does not bear any knowledge of
these offences and he is going to plead not guilty. As the onus is upon the
accused to convince the court that it will be in the interest of justice for him to be
released, the court must look at section 6 0(4) …”

[30] It is not true that the appellant only stated in his affidavit that he does not bear
any knowledge of the offences. I have summarised above what constituted appellant’s
affidavit. It was disingenuous of the magistrate to falsely state that the accused , in the
affidavit , only stated that he bears no knowledge of the offences he was accused of.
The magistr ate knew, as the affidavit was in front of him, that all the relevant factors
envisaged in section 60(4) (a – e) of the Criminal Procedure Act were addressed in the
affidavit. If one ties up or couples magistrate’s failure to consider the contents of the
appellant’s affidavit and the incorrect statement that the appellant only stated in his
affidavit that he bears no knowledge of the offences with which he was charged, one
easily comes to a conclusion that the judgment of the magistrate is dishonest. That
buttress es a point about magistrate’s lack of impa rtiality alluded to above . Dishonest
judgment cannot sit comfortably with a constitutional principle of impartiality and that
invariably offends provisions of section 165(2) of the Constitution. This explains how
wrong the magistrate ’s judgment is. A judgment that offends constitutional principles is
utterly wrong. Mr Soga wisely con ceded that the magistrate’s judgment is indefensible,
and he is commended for his helpful submissions.


19 Mfeketho and 2 Others v The State (CA&R 193/2014 [2014] ZAECGHC 67 (21 July2014).
[31] Having found that the decision of the magistrate is wrong, I also find that the
appellant must be admitted to bail. Mr Soga for the state suggested that bail amount
should be fixed at R3 500.00 , whereas Mr Maseti for the appellant suggested an
amount of R2 000.00 . Both counsel submitted that normal bail conditions should be
imposed.

[32] In the result I accordingly make the following order:

32.1 The appeal is upheld.
32.2 The decision of the magistrate , Mdantsane Magistrate’s Court, refusing to
admit the appellant to bail is set aside and substituted with the following
order:
32.2.1 The appellant is admitted to bail and shall be released upon payment of
R3 000.00 (Three Thousand Rand) .
32.2.2 The appellant shall appear and present himself at court at 08:30 or at such
time as the presiding officer may dictate, on every date to which th e case
may be or is postponed.
32.2.3 The appellant is ordered not to : -
(a) interfere with state witnesses; or to conceal or destroy evidence, and
not to interfere with the investigations.
(b) not to disturb the public order or undermine the public peace or
security.
(c) not to undermine or jeopardise the objectives or the proper functioning
of the Criminal Justice System.
(d) not to endanger the safety of the public or any particular person or
commit a Schedule 1 offence.


_________________________________
AS ZONO
JUDGE OF THE HIGH COURT (Acting)


Appearances

For the Appellant : Mr Maseti
Instructed by: P Melapi Attorneys
c/o Ronny Lesele Attorneys
46 Leopold Street
KING WILLIAMS TOWN
Contact: 072 197 4535

For the Respondent : Adv Soga
Instructed by: Director of Public Prosecutions
BHISHO

Date heard 29 May 2025
Date delivered 12 June 2025