IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, GQEBERHA)
CASE NO: CA&R03/2025
In the matter between
SIPHAMANDLA MATSHA Appellant
and
THE STATE Respondent
___________________________________________________________________
JUDGMENT
___________________________________________________________________
KRüGER AJ:
The ground of appeal
[1] The appellant, Mr Siphamandla Matsha, approached this court in an appeal
against the refusal of the Motherwell District Magistrate’s Court to admit him to bail
on 19 December 2024.
[2] The appellant maintained that he established exceptional circumstances
which, in the interests of justice, warranted his admission to bail. I was requested to
uphold the appeal and grant bail. The crux of his case was that the court a quo
erred in findin g that the state had a strong prima facie case against him, as it was
based on inadmissible evidence.
[3] The state opposed the appeal and contended that the magistrate exercised its
discretion correctly and that it did not misdirect itself in the refusal o f bail;
accordingly, I was asked to dismiss the appeal.
The legal approach to bail appeals
[4] Section 65(4) of the Criminal Procedure Act makes it clear that a court
hearing an appeal on the refusal of bail may only set that decision aside if it is
satisfied that the decision of the court a quo was wrong.
[5] Hefer J in S v Barber,1 explained the approach to be followed in 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. 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 magistrat e 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 disc retion to grant bail but exercised that discretion wrongly. . . .
Without saying that the magistrate’s view was actually the correct one, I have
not been persuaded to decide that it is the wrong one.’
[6] It must thus be determined whether the magistrate mate rially misdirected
himself in relation to law or fact. Only when such misdirection has been established,
1 1979 (4) SA 218 (D) 220E–H.
may the court on appeal determine whether bail ought to have been granted or not.
In the absence of a misdirection, the appeal must fail.2
[7] Determining whether there was a material misdirection, in view of the
challenge relating to the admissibility of the evidence presented in the bail
proceedings, requires a brief consideration of the nature of bail proceedings and the
information and evidence on which bail is adjudicated.
The nature of bail proceedings
[8] In S v Botha,3 the Supreme Court of Appeal characterised bail proceedings as
criminal rather than civil in nature. It did so in the context of determining the correct
procedure to follow in respect of a refusal of bail by a high court as the court of first
instance. In the course of its judgment, the SCA explicitly rejected earlier
characterisations of bail proceedings as civil in nature.4
[9] Kriegler J in S v Dlamini, S v Dladla, S v Jouber t, S v Schietekat 5 explained
that ‘a bail hearing is a unique judicial function’. Its interlocutory and urgent nature is
reflected in its procedures, which are less formal than a trial. In particular, the
learned judge noted that ‘the evidentiary materi al proffered need not comply with the
strict rules of oral or written evidence’. This is because a bail hearing is not
concerned with the guilt of the accused. It is for the trial court to determine whether
an accused is guilty. In bail proceedings, the court has to consider the possible guilt
of the accused only insofar as that may influence where the interests of justice lie.
The task of the court in a bail hearing is to decide whether it is in the interests of
justice to release the accused pending th e trial so as to protect the investigation and
prosecution of the case against interference.
The burden of proof, evidence and information in bail proceedings
2 S v Panayiotou 2015 JDR 1532 (ECG) para 27. See also S v Kara 2023 (2) SACR 171 (WCC)
paras 11-14.
paras 11-14.
3 Para 5 confirmed in S v Banger 2016 (1) SACR 115 (SCA) para 6.
4 The court specifically stated that the characterisation in S v Pienaar 1992 (1) SACR 178 (W), S v
Maki 1994 (2) SACR 630 (E) and S v Ndjadayi 1995 (2) SASV 583 (E) could not stand in the light of
its own finding.
5 S v Dlamini, S v Dladla, S v Joubert, S v Schietekat 1999 (4) SA 623 (CC) para 11.
[10] In bail proceedings, information and evidence are placed before the court by
means of ex parte submissions, oral evidence, and/or by way of affidavit. 6 Section
60(11) of the Criminal Procedure Act determines that an applicant for bail facing a
Schedule 6 charge must adduce evidence to demonstrate that exceptional
circumstances exist which, in the interests of justice, permit his release on bail.
While a bail application will be unsuccessful where the applicant does not adduce
any evidence (i.e. does not present oral evidence or evidence in the form of an
affidavit),7 there is no similar obligation on the state to adduce evidence in opposing
the application. 8 However, where the state fails to counter the evidence of the
applicant through submissions or evidence, that omission favours the applicant’s
case for bail.9
[11] Where evidence is submitted in the form of a statement made by a person
who is not called as a witness as proof of the content of the statement, that evidence
is hearsay evidence. While hea rsay evidence is generally not permitted in criminal
proceedings, it is established practice for hearsay evidence to be permitted in bail
hearings.10 In the presentation of the state’s case, it is usual for the investigating
officer to testify at the hear ing regarding the statements of the witnesses implicating
the applicant in the commission of the offence.11 The investigating officer’s evidence
can also be introduced in the form of an affidavit, read into the record. The weight to
be attached to eviden ce presented in the form of an affidavit may be less than that
6 S v De Kock 1995 (1) 299 (T) 306h -307b; S v Hartslief 2002 (1) SACR 7 (T) 11d -e. Section 60(3)
refers to ‘sufficient information and evidence’ being available to the court.
7 S v Dlamini, S v Dladla, S v Joubert, S v Schietekat para 61: ‘such detainees … must adduce
evidence’.
8 S v Schietekat 1998 (2) SACR 707 (C) 713h.
9 S v Hartslief 12f-i.
evidence’.
8 S v Schietekat 1998 (2) SACR 707 (C) 713h.
9 S v Hartslief 12f-i.
10 S v Maki 1994 (2) SACR 630 (E) 638c. Froneman J held that bail proceedings were civil in nature
for purposes of section 3 of the Law of Evidence Amendment Act 45 of 1988 and further added that,
even if he were wrong, its use in bail proceedings was well establis hed. Insofar as S v Botha
overturned Maki regarding the nature of bail proceedings, reliance is placed on the established
practice as noted. Van den Berg Bail: A Practitioner’s Guide (1986) 114 -115 explains that there
seems to be no authoritative reason for the admission of hearsay evidence in bail proceedings. The
author ‘tentatively suggests that the practice may have evolved on policy grounds owing to the sui
generis nature of the proceedings’.
11 MT Mokoena A Guide to Bail Applications 2nd ed (2018) 40 placing reliance on S v Yanta 2000 (1)
SACR 237 (Tk).
attached to oral evidence. 12 At the same time, it must be borne in mind that a bail
hearing is not a full-scale dress rehearsal for the trial.13
[12] The applicant has a formal onus that must be d ischarged on a balance of
probabilities to demonstrate that exceptional circumstances exist which, in the
interest of justice, permit his release on bail. 14 In Dlamini’s case, Kriegler J
explained that the onus is ‘geared [not] to arriving at factual conc lusions but
designed to make informed prognoses’.15
‘Exceptional circumstances’
[13] Van Zyl J in S v Petersen 16 explained that the phrase ‘exceptional
circumstances' is usually interpreted to mean something out of the ordinary and that
there are degrees of e xceptionality. What is ‘exceptional’ must be considered in
context and in relation to the circumstances of the particular case. The learned
judge continued:
‘In the context of s 60(11) (a) the exceptionality of the circumstances must be
such as to persuade a court that it would be in the interests of justice to order
the release of the accused person. This may, of course, mean different things
to different people, so that allowance should be made for a certain measure of
flexibility in the judicial approac h to the question. See S v Mohammed 1999
(2) SACR 507 (C) ([1999] 4 All SA 533) at 513 f 515f. In essence the court will
be exercising a value judgment in accordance with all the relevant facts and
circumstances, and with reference to all the applicable leg al criteria. See in
this regard the judgments in S v H 1999 (1) SACR 72 (W) at 77 b i ; S v
Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999 (2) SACR
51 (CC) (1999 (4) SA 623; 1999 (7) BCLR 771) paras 75 79 at 89 a 90h
(SACR); S v Herbay [1999] 2 All SA 216 (W) at 222 d j; S v Botha en 'n Ander
12 S v Tshabalala 1998 (2) SACR 259 (C) 265g, as clarified in S v Kula 2023 2 SACR 52 (NWM)
paras 63-64.
13 S v Viljoen 2002 (2) SACR 550 (SCA) para 25.
paras 63-64.
13 S v Viljoen 2002 (2) SACR 550 (SCA) para 25.
14 S v Dlamini, S v Dladla, S v Joubert, S v Schie tekat paras 61; 78-79. S v Rudolph 2010 (1) SACR
262 (SCA) para 9.
15 S v Dlamini, S v Dladla, S v Joubert, S v Schietekat para 78.
16 2008 (2) SACR 355 (C) paras 55-56.
2002 (1) SACR 222 (SCA) (2002 (2) SA 680; [2002] 2 All SA 577) para 19 at
229i 230d; S v Yanta 2000 (1) SACR 237 (Tk) at 241 f 242d; S v Bruintjies
2003 (2) SACR 575 (SCA) para 6 at 577c.’
[14] Personal circumstances and a weak state case, considered cumulatively,
may, as was submitted for the appellant, constitute exceptional circumstances.
[15] Personal circumstances put forth as such, must not, as held by Hancke AJA
in S v Scott-Crossly17 be ‘commonplace’.
[16] Where a bail applicant relies on a weak state case as exceptional
circumstances, the bar is set high. Heher JA in S v Mathebula18 explained:
‘But a State case supposed in advance to be frail may nevertheless sustain
proof beyond a reasonable doubt when put to the test. In order successfully to
challenge the merits of such a case in bail proceedings an applicant needs to
go further: he must prove on a balance of probability that he will be acquitted
of the charge: S v Botha en 'n Ander 2002 (1) SACR 222 (SCA) (2002 (2) SA
680; [2002] 2 All SA 577) at 230 h, 232 c; S v Viljoen 2002 (2) SACR 550
(SCA) ([2002] 4 All SA 10) at 556 c. That is no mean task, the more especially
as an innocent person cannot be expected to have insight into matters in
which he was involved only on the periphery or perhaps not at all. But the
State is not obliged to show its hand in advance, at least not before the time
when the contents of the docket must be made available to the defence; as to
which see Shabalala and Others v Attorney -General, Transvaal, and Another
1995 (2) SACR 761 (CC) (1996 (1) SA 725; 1995 (12) BCLR 1593). Nor is an
attack on the prosecution case at all necessary to discharge the onus; the
applicant who chooses to follow that route must make hi s own way and not
expect to have it cleared before him. Thus it has been held that until an
applicant has set up a prima facie case of the prosecution failing there is no
call on the State to rebut his evidence to that effect: S v Viljoen at 561f g.’
call on the State to rebut his evidence to that effect: S v Viljoen at 561f g.’
17 2007 (2) SACR 470 (SCA) para 12. See also S v Jonas 1998 (2) SACR 677 (SE) 678e-f.
18 2010 (1) SACR 55 (SCA) para 12.
[17] An applicant for bail may succeed in proving exceptional circumstances of this
nature on a balance of probabilities where he proves, for example, a cast -iron alibi,19
or provide other independent evidence pointing to his innocence.20
[18] It is against the backgro und of the purpose and nature of bail proceedings,
and the articulated standard that I must consider whether the court a quo misdirected
itself.
The judgment of the magistrate’s court and the submissions considered
[19] The court outlined that the appellant (a ccused 2), together with three others,
faced 15 charges, ranging from murder charges, attempted murder charges, charges
of conspiracy to commit murder, and charges relating to unlawful possession of
firearms and ammunition.
[20] In brief, the state’s case, a s set out in the affidavit of the investigating officer,
is that accused 4 approached accused 1, her boyfriend, to engage the services of
accused 2 and 3 to kill her brother for payment. Accused 4 changed the instruction
and indicated her mother as the ta rget. Accused 4 stood to benefit from her
mother’s policies, from whose death she would benefit, as her mother held policies in
which she was named as beneficiary. The group of accused met to discuss the
terms of their agreement and to make arrangements. After a failed attempt by
accused 2 and 3 in April 2024 to kill accused 4’s mother (leaving her seriously
injured and blind), the group met again and conspired to kill several family members
of accused 4. On 9 October 2024, accused 2 and 3 entered the h ome of accused
4’s mother and fired multiple shots, killing two family members and seriously
wounding two others. This second attack, in the view of the state, demonstrated that
the appellant posed a danger to the witnesses who survived the attack.
19 S v Jonas 678g.
20 S v Mohammed 1999 (2) SACR 507 (C) 517I-J; S v Viljoen para 14.
[21] Accused 4 was arrested on 10 October 2024 and immediately confessed to
her involvement. She led the police to accused 1, 2 and 3, who were then arrested.
Accused 1 similarly confessed to his involvement on his arrest.
[22] The judgment recorded that the police were in possession of the confessions
of accused 1 and 4, section 204 statements, and a letter written by one of the
accused, implicating the appellant in the commission of the offences. It further
recorded that the state intended to obtain financial rec ords and cell phone records to
bolster its case.
[23] The core contention in the current appeal is that the magistrate misdirected
himself by placing reliance on the confessions made by the co -accused of the
appellant in making the finding that there was a str ong prima facie case against him.
The state’s case, it was submitted, was based on inadmissible confessions of two
co-accused persons. Since a confession is only admissible as evidence against the
person who made that confession, no reliance could be pla ced on the confessions to
implicate the appellant. Furthermore, it was submitted that the court erroneously
held that there were section 204 witnesses in the matter, whilst they were in fact co -
accused. Additionally, it was also submitted that the magist rate failed to attach due
weight to the appellant’s alibi.
[24] It is established practice for hearsay evidence to be adduced in bail hearings
as canvassed above, given the sui generis nature of the proceedings. 21 Such
hearsay includes evidence regarding the section 204 statements. In Rajjab v S, 22
the High Court, in a bail appeal, considered the hearsay evidence of the section 204
witnesses against the appellant in assessing whether exceptional circumstances had
been established.
[25] In S v Magawu ,23 the High Court, in a bail appeal, was urged to fi nd that the
magistrate failed to take into consideration that the successful prosecution of the
magistrate failed to take into consideration that the successful prosecution of the
appellant would largely depend on the evidence of a section 204 witness in the trial,
21 Para 11 above.
22 (CA&R 11/2016) [2016] ZAECPEHC 64 (22 September 2016) para 23.
23 (CA&R139/2016) [2017] ZANCHC 12 (9 January 2017) paras 30-34
whose evidence might not satisfy the requirements of section 204. In reje cting the
argument, the court relied on Panayiotou as authority for the proposition that the
admissibility of such evidence must be determined by the trial court.
[26] The Panayiotou,24 Goosen J (as he then was) held:
‘The only basis upon which it was argued that there is some doubt about the
strength of the state case was in relation to the reliability of the Siyoli [who
made a section 204 statement] as a witness. That issue, of course, is a matter
that no doubt will b e canvassed fully at the criminal trial. It is after all, at that
point that critical questions of the admissibility and reliability of evidence will
be tested. What the court is called upon to consider, in a bail application, is
the nature of the evidence that is available to the prosecution and, absent a
challenge in the bail proceedings to the admissibility or reliability of that
evidence, the court will accept the evidence. It is upon this acceptance that
the court decides whether the case is strong or weak.
In this instance there was no admissibility challenge founded upon convincing
evidence calling into question the admission of Siyoli’s evidence or the evidence of
the meeting that occurred between him and the appellant.’
[27] The appellant specifically raised the issue of the inadmissibility of the
evidence of his co -accused against him in the bail hearing. While the dictum from
Panayiotou quoted above indicates that a challenge to the admissibility of evidence
may result in its rejection by the bail c ourt, it should be read to mean that every
admissibility challenge should necessarily result in a rejection of that evidence at the
stage of the bail hearing. A bail hearing, after all, is not a dress rehearsal for the
trial.
[28] In S v Mpulampula,25 Jones J, in considering an argument that the accused’s
own confession should be inadmissible evidence in his bail application, commented
as follows:
24 Paras 53-54.
‘The magistrate decided not to go into the admissibility of the evidence for the
purpose of the application for ba il, but expressed the view that the evidence
on the point did not prove exceptional circumstances justifying his release on
bail. Mr Daubermann's argument is that the magistrate misdirected himself in
this regard. He should have regarded the appellant's uncontested evidence on
affidavit as sufficient proof to cast serious doubt on the admissibility of the
State evidence. I do not agree. While I accept that a court considering the
question of bail may in appropriate circumstances give weight to convincing
evidence to show that the State case against the accused is weak, that is not
the position here. The appellant's evidence of assault, which could not be
tested in cross-examination, does not amount to convincing evidence that the
confessions will be held to be inadmissible at the trial. That can only be
determined on trial. I do not accept the argument that the evidence of assault
carries greater probative weight because it was not directly challenged by the
State, which chose not to embark on a quasi trial-within-a-trial during the
course of the bail application. There is no onus on the State to disprove the
existence of exceptional circumstances.
[29] While the current matter is clearly distinguishable on the facts, the precedent
establishes that the state bears no onus to disprove exceptional circumstances and
that, as a rule, the trial court is the appropriate forum to determine the admissibility or
non-admissibility of evidence and the weight to be attached to evidence.
[30] In order to rely on a weak state case as exceptional circumstances, the
appellant bore the onus to prove, on a balance of probabilities, that he would be
acquitted of the charges.26
[31] The magistrate did not place reliance on the evidence of a section 204
witness but was careful to note that t he state had section 204 statements which
witness but was careful to note that t he state had section 204 statements which
could result in the testimony by section 204 witnesses against the appellant.
25 S v Mpulampula 2007 (2) SACR 133 (E) 135i -136a. See also Udeobi v S (158/2018) [2018]
ZAECGHC 55 (13 July 2018).
26 Paras 16-17 above.
Additional evidence, in the form of cell phone and banking records, would further
bolster the state’s case. The magistrate also pertin ently addressed the alibi
evidence of the appellant, noting, correctly in my view, that the affidavits submitted in
support of his alibi did not provide a strong or convincing alibi.27 The court noted that
the affidavit of the appellant’s girlfriend accou nted for his whereabouts after the time
of the murders, while the second affidavit lacked specific details. I agree. The
affidavit stated that the appellant assisted the deponent the whole day, working on
his car, yet this was not the appellant’s own ver sion.28 It is thus clear that little, if
any, weight can be attached to the alibi evidence. It does not amount to a cast -iron
alibi.
[32] I am satisfied that there was no misdirection on the part of the magistrate in
finding that the state established a strong prima facie case against the appellant. I
am also satisfied that the court correctly assessed that the appellant did not
discharge the onus to prove, on a balance of probabilities, that he would be acquitted
of the charges. 29 Accordingly, he failed to establish a weak state case as
exceptional circumstances.
[33] The appellant further submitted that the court failed to take due account of his
personal circumstances. However, the court pertinently took account of his personal
circumstances and noted that his position as a first -time offender and having a fixed
address do not amount to exceptional circumstances in view of the seriousness of
the offence. 30 Commonplace personal circumstances do not meet the required
threshold.
[34] In addition, the appellant submitted that the bail court erred in finding that he
was a flight risk, that he would undermine the public safety, or that his release on bail
would undermine confidence in the justice system. The appellant, it was contended,
adduced oral evidence, while the prosecution submitted an affidavit to which less
adduced oral evidence, while the prosecution submitted an affidavit to which less
weight should be attached. In all, the court, in the appellant’s view, erred in findi ng
27 Record page 209.
28 Record page 67 and page 78.
29 Record page 210.
30 Record page 207.
that the totality of evidence did not establish exceptional circumstances and erred in
refusing to admit him to bail.
[35] It is the appellant who must adduce evidence to prove exceptional
circumstances that warrant his release in the interests of justice. No similar burden
rests on the state, but it must at least counter the evidence of the applicant for bail.
It did so in this instance.
[36] In my view, the court a quo took a holistic view of the evidence before it and
did not misdirect itself in coming to its conclusion to deny the application for bail.
There is thus no basis for interference with the exercise of the discretion by the
magistrate, and the appeal must fail.
Order
[37] The appeal is dismissed.
R KRüGER AJ
ACTING JUDGE OF THE HIGH COURT
Date of hearing: 1 August 2025
Date of judgment: 21 August 2025
APPEARANCES:
For the appellant: Mr Z Ngqeza
Zolile Ngqeza Attorneys, Gqeberha
For the respondent: Adv. Andrews
Office of the Director of Public
Prosecutions, Gqeberha