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

CASE NO.: CA&R62/25

In the matter between:

NCEDO ZENZISI Appellant

and

STATE Respondent


JUDGMENT

ZONO AJ:

Introduction

[1] This is a bail appeal emanating from Engcobo Magistrates (District) Court.
This appeal is against the decision of the learned Magistrate, Mrs Kakaza,
refusing the appellant to be admitted to bail. The decision refusing appellant
to be admitted to bail was taken on 04th October 2024.

[2] The appellant appeared before the court a quo facing a count of unlawful
possession of firearm, unlawful possession of ammunition, attempted murder
and a count of premeditated murder. It was accepted that the bail application
would be dealt with under Section 60(11) (a) of the Criminal Procedure Act 51
of 1977 (CPA) as amended as the appellant was facing schedule 6 offence.
The court a quo found that the appellant failed to dis charge the onus rested
on him to satisfy the court that exceptional circumstances exist which in the
interests of justice permit his release on bail. Aggrieved by that decision the
appellant noted the appeal against the court a quo’s decision of 04 th October
2024.

Brief Background

[3] Prior to its finalization appellant’s bail application in the court a quo
proceeded for several days. The appellant testified that he is a resident of No
1[…] S[...] Street, Dunoon, Cape Town since 2004. He is residing wi th his
child’s mother and his elder sister. The house they are staying in is his
father’s house. His father is staying in East London. He is unmarried with two
children. The first born was five years old and the second born was four years
eight months old. The first born is staying with her aunt in Johannesburg
whilst the other one is staying with her mother at Dunoon, presumably at the
same address he is staying. He testified that he is responsible for the
maintenance of the minor children. The appellant is a taxi driver. He is earning
R1000.00 per week.

[4] He was convicted and sentenced of drunken driving and a fine of R1000.00
was imposed. He never had a warrant of arrest. It transpired that he was
convicted and sentenced for robbery with aggravating circumstances. He was
released from imprisonment in respect thereof on medical parole which would
expire or end in 2027. He testified that if he is released on bail he will not
endanger the safety of the public or any particular person or commit schedule

endanger the safety of the public or any particular person or commit schedule
1 offence. He does not have passport; He will not intimidate state witnesses.
He will abide by the bail conditions. He will not disrupt the public order or
undermine the criminal justice system. He will not evade trial.

[5] The appellant testified that he was arrested on 20 th February 2024. Although
he does not know how other family members are holding up, he is aware that
his boy child dropped out of school because he was unable to pay his school
fees. His girl child seemingly has health problems as she g oes in and out of
medical clinics for medical care and attention. The appellant has a heart
problem for which he was receiving medical treatment, care and attention
before his arrest. In custody, he receives some of the medication and he is
unable to get some of other (tablets) medications. He testified that the medical
treatment he receives in custody thins or weakens his blood and when that
occurs, he bleeds. In the clinic and hospital in the correctional facility there is
no medical treatment and equip ment suited for his medical condition. He will
plead not guilty.

[6] During cross examination it transpired that the address he referred to as his
residential address in Dunoon, Cape Town was made up of a shack which
was recently burnt down at the time of his testimony on 16 th July 2024. No
date is mentioned when the shack was burnt down, but it can reasonably be
assumed that it was burnt down when he was in custody. That assumption is
based on the fact that the prosecutor put a version of the shack having been
burnt down on 16 th July 2024 and when putting a version, he stated that the
shack had recently burnt down, whereas the appellant was arrested on 20 th
February 2024. However, he further testified that the structure has been
rebuilt to a finish. After his arrest his child’s mother moved back to her home
after the shack was burnt down. He specified his father’s address in East
London as Thembisa Location in one of the localities of Kuni. Affidavits
proving the following were handed up in the court a quo: employment as a taxi
driver, that he is maintaining his children as their respective mothers are not
working together with children’s birth certificates.

working together with children’s birth certificates.

[7] The above represents a fair recordal of summary of appellant’s evidence in
the court a quo. The record before me does not show that there was a
countervailing evidence to the facts above. None was suggested or referred to
by the legal representatives when they were making oral submissions.

[8] Sergeant Nguni seemingly had testified that he was an investigating officer in
the case and was opposed to the appellant being released on bail as he held
that the appellant committed the offences he was facing while out on parole
for a robbery with aggravating circumstances. He violated parole condition
and it is being revoked. The appellant has previous convictions. He does not
have fixed address as his shack in Dunnon, Cape Town was burnt down. The
appellant could not go with the investigating officer to point out his East
London address as he mentioned tha t he left East London while he was still
very young. Appellant’s father mentioned (presumably to the investigating
officer) that the appellant could go and stay with him in East London. The
investigating officer testified that the appellant was unemployed and was not a
taxi driver on the day in question and the alleged taxi owner stated
(presumably to the investigating officer) that he was not employed by him.
The alleged taxi owner is a state witness. The investigating officer confirmed
that appellant’s fa ther is sickly but disputed that the appellant is the one who
is providing the medication for him as he is receiving the treatment from the
mobile clinic. On the date of his arrest the appellant was not delivering
passengers when he came to Ngcobo. This is the evidence of the
investigating officer as recorded by the learned Magistrate.

Applicable Legal Framework

[9] Section 35(1) of the Constitution provides that:

“Everyone who is arrested for allegedly committing an offence has the
right-
…..
(f) t o be released from detention if the interests of justice permit,
subject to reasonable conditions.”

[10] Section 36(1) of the Constitution provides for limitation of rights thus:

“(1) The rights in the Bill of Rights may be limited only in terms of law of
general application to the extent that the limitation is reasonable and
justifiable in an open and democratic society based on human dignity,
equality and freedom, taking into account all relevant factors, including-
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose”.

[11] The decision sought to be appealed is an outcome of bail proceedings which
were conducted in the court a quo in terms of section 60 (11)(a) of CPA which
provides thus:

“(11) Notwithstanding any provision of this Act, where a n accused is
charged with an offence-
(a) referred to in Schedule 6, 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 do so, adduces evidence which satisfies the court that exceptional
circumstances exist which in the interests of justice permit his or her
release”.

[12] Appeal to Superior Court with regard to bail is governed by Section 65 of
CPA. Of importance is Sectio n 65(1) (a) and Section 65(4) of the CPA.
Section 65(1)(a) of the CPA provides:

“(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 of bail, including a c ondition 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.”

……..
(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 judg e shall give the decision which in its or his opinion the lower
court should have given.”

Discussion and Analysis

[13] Appellant’s version in the court a quo was largely a common cause. The only
aspect in his evidence that called for clarity was the fact that his shack at No
[...] S[...] Street, Dunnon, Cape Town was burnt down when the appellant was
in custody, but the evidence that a structure in the same add ress has been
built to a finish was not controverted. Notwithstanding that he testified that the
structure in his Cape Town address has been completely built, he further
testified that he would stay in his father’s address in East London for the
duration o f his trial should he be released on bail. The investigating officer
corroborated that evidence or testimony by testifying that appellant’s father
confirmed and showed willingness to stay with the appellant for the duration of
the trial. The evidence did not show that the factors to be taken into account in
terms of section 60(4) of CPA were not established or satisfied. Both in the
court a quo and in this court it was not shown that the applicant fell below the
threshold set or prescribed by section 60(4) of CPA to establish that interests
of justice permit the release of the appellant on bail. I am also satisfied,
guided by the evidence, that the interests of justice do permit the release of
the appellant on bail. However, in the light of the offences the appellant is
facing and the schedule within which those offences fall require more than
showing that interests of justice in terms of section 60 (4) of CPA permit the
release of the appellant on bail.

[14] The bail applicant has a dual responsibility in terms of which he does not only

[14] The bail applicant has a dual responsibility in terms of which he does not only
have to show that interests of justice permit his release on bail, but also that
exceptional circumstances exist. In terms of section 60(11) (a) of CPA the bail
appellant must adduce evidence which satisfies the court that e xceptional

circumstances exist which in the interests of justice permit his release. The
provisions require synergy between the two requirements which points to the
co-existence of the two important jurisdictional factors. The two jurisdictional
factors m ust contemporaneously exist 1. In the event that the bail applicant
succeeds to prove one jurisdictional fact, but fails to establish the other, he
may not succeed in his application to be released on bail. Absence of one
requirement may not avail the app licant to be admitted to bail 2. By way of an
example, if the bail applicant succeeds in showing that interests of justice
permit his release, but fails to demonstrate that exceptional circumstances do
exist also permitting his release, he may not be relea sed for want of another
requisite. I have found above that the appellant has succeeded in establishing
that interests of justice permit his release as there is no gainsaying that the
factors referred to in section 60(4) of CPA have been established.

[15] The appellant demonstrated that he suffers from heart conditions. He is on
record to say not all the necessary treatment is available within the prison
facility for his condition. He does not receive some of the medication inside
the correctional or prison facility. He further states that some of the medication
(tablets) he is taking thins or weakens the blood. Once his blood gets weak or
thin, he bleeds. The hospital inside the correctional centre or prison does not
have the kind of medication and equipme nt for such a condition. He is not
taken to the outside medical centres for this condition. In addition, he testified
under cross examination that he was released from custody in respect of an
offence of robbery with aggravating circumstances on medical pa role in 2017.
It was contended that he was considered for medical parole in respect of the
same ailment of heart condition. I take judicial notice of the fact that it was

same ailment of heart condition. I take judicial notice of the fact that it was
after all the necessary investigations and examinations by medical experts
that it was concluded that the prison environment is inimical to his health and
is life threatening that he was released on parole. In any event, that evidence
is not in any way controverted.


1 Lategan v S 2025 (1) SACR 513 (ECMK) Para 43, 44 and 45.
2 Cele v S (CA & R13/2024) [2025] ZAECMHC 2 (21 February 2025) Para 31, 32 and 33.

[16] The court a quo accepted that the appellant is suffering from a hea rt condition
and that he is receiving treatment or medication in custody. It further accepts
the fact that such a condition enjoys a feature of an exceptional circumstance.
However, it summarily dispels that evidence by simple saying there is no
evidence t hat, should the appellant remain in custody, his condition will
deteriorate. In what follows, I quote the court a quo in its judgment for the
sake of completion.

[17] The learned Magistrate deals with this aspect as follows:

“I do not intend again summari se the personal circumstances of the
applicant, but the applicant suffered from a heart condition[?] he
receives medication whilst he is in custody. The applicant confirmed to
the court that he is receiving treatment while he is in custody. Should
he remain in custody his health will deteriorate. No evidence appeared
before this court to confirm such. The factor that enjoys [?] as an
exceptional circumstance is the heart condition of the person before
court” (sic)

Elsewhere in judgment the learned Magist rate seems to confirm that the
prison authorities do take the appellant to outside medical facilities, for
example to Nelson Mandela Academic Hospital for the same heart condition.
That is incongruous with the earlier statement suggesting that the correcti onal
facility has sufficient capacity to deal with appellant’s ailment of heart
condition.

[18] There is simple no basis to find that there is no evidence that the appellant is
suffering from the ailment of heart condition as the learned Magistrate herse lf
refers to the medical certificate which was marked as exhibit A attesting to the
same heart condition. Whilst the learned Magistrate finds that there is no
evidence that the appellant would not be treated inside prison, a far cry from
what the appellant says, she does not state the kind of treatment or
medication the appellant received and how effective that medication was to

medication the appellant received and how effective that medication was to
the appellant’s heart condition. It just cannot be fathomed how the appellant

could have been released on medical parole for the s ame heart condition by
the prison authorities of this country if that condition was manageable inside
the prison. In my view, based on the above, appellant’s heath condition is
capable of deteriorating in custody.

[19] The question of appellant’s address appears to be forming part of the ratio
decidendi of the court a quo . The appellant answered satisfactorily that his
shack was burnt down when he was already in custody but there was no
gainsaying that it had been rebuilt to a finish now. In any event the
investigating officer is on record to state that appellant’s father showed
willingness to stay with the appellant once released on bail. The appellant
himself gave direct evidence that if he is released on bail he will stay in East
London with his father. That put paid to the question of the appellant’s place
of abode.

[20] The learned Magistrate makes moment of the fact that the appellant
breached his parole condition. She says that in the context of this case. That
approach is frightening, regard being had to a celebrated fundamental
principle of our Law that “ everyone has a right to be presumed innocent until
proven guilty.” Section 35(3)(h) of the Constitution provides that:

“(3) Every accused person has a right to a fair trial, which includes the right-
…………
(h) to be presumed innocent…….”
The learned Magistrate proceeds from the premise that the appellant has
committed the offences he is accused of. The learned Magistrate’s remark is
an infraction to the aforesaid constitutiona l provision as it has an effect of
prejudging the appellant. At this stage it is unknown if the unmentioned parole
condition was broken.

[21] The basic reason the court a quo refused to grant appellant bail is because it
found the appellant had failed to discharge the onus resting on him to show
that exceptional circumstances do exist. She comes to that conclusion in the
following words:

“And therefore, the court after careful considering the evidence before
this court, the court is unable to find that the applicant discharged the
onus rest upon him, that the court cannot find any exceptional
circumstances adduced by the applicant before this court and therefore
the court issues the following order:
That bail is refused against the applicant before this court.” (sic)
Now we know why she refused to grant appellant bail. She found that no
exceptional circumstances were shown to exist.

[22] The exceptionality of the circumsta nces must be such as to persuade a court
that it would be in the interests of justice to grant bail 3. It must be borne in
mind that the scale of proof is on a balance of probabilities 4. Proof by the bail
applicant that continued detention will seriously prejudice his or her health
may constitute an exceptional circumstance for purposes of section 60(11) of
CPA. Evidence regarding an alleged illness will have to be clear and
preferably corroborated5. Where the case against the accused appears to be
weak a nd the accused’s medical condition is not good, bail should be
granted6. Detention is not ideal for a person in a weak physical position. The
medical condition of the accused must be weighed against other factors and
must not be considered in isolation7.

[23] I am satisfied that the court a quo was wrong in not considering appellant’s
health condition as an exceptional circumstance. It is not gainsaid that the
appellant is suffering from the heart problem and he is not receiving sufficient
medical treatment from the prison facility. It is important to note that when the
appellant testified to the effect that he is only taken to attend the clinic or
hospital inside prison where they do not have all the necessary medication
and equipment for his heart cond ition, it was never put to him that he was
taken to the outside medical facility for purposes of medical treatment.

3 S v Petersen 2008 (2) SACR 355 (C) Para 56.

3 S v Petersen 2008 (2) SACR 355 (C) Para 56.
4 S v Yanta 2000(1) SCAR 235 (TK).
5 S v Yanta 2000 (1) SACR 237 (TK) at 250 C-D.
6 K v S 2003 (1) SA 551 (SCA); 2003 (2) SACR 5 (SCA) Para 24.
7 S v Van Wyk 2005 (1) SACR 41 (SCA) Para 9.

However, the learned Magistrate seems to have relied on the evidence that
was never put to the appellant when he was on the witness stand, that he was
taken to Nelson Mandela Academic Hospital. We do not even know what kind
of treatment did the appellant receive, if at all he was taken there. It is
unknown what appellant’s answer would be to that proposition.

[24] In Small8 Classen J had the following to say about cross examiners failure to
put the version of his witness to the opposing witness whilst on the witness
stand:

“It is, in my opinion, elementary and standard practice for a party to put
to each opposing witness so much of his own case or defence as
concerns that witness and if need be to inform him, if he has not been
given notice thereof, that other witnesses will contradict him, so as to
give him a fair warning and an opportunity of explaining the
contradiction and defending his own character. It is grossly unfair and
improper to let a witness’s evidence go unchallenged in cross -
examination and afterwards argue that he must be disbelieved.”9
The institution of cross examination imposes an obligation to direct wit ness’s
attention to the fact it is believed that he is not speaking the truth to afford that
witness an opportunity while still on the witness box to defend himself or
proffer an explanation10.

[25] It was again wrong of the learned Magistrate to rely in her judgment on an
evidence that was never put to the appellant when he was still in the witness
box. That amounted to litigation by ambush, which is impermissible. That
conduct rendered those proceedings unfair as they were an affront to the
section 35(3) of the Constitution. On the conspectus of all this, I am satisfied
that appeal must succeed. During the hearing of this matter parties agreed
that an amount of R3 500.00 is an appropriate amount to be fixed as bail for
the release of the appellant.

8 Small v Smith 1954 (3) SA 434 (SWA) at 438.

the release of the appellant.

8 Small v Smith 1954 (3) SA 434 (SWA) at 438.
9 DT Zeffett: The South African Law of Evidence, Second Edition, Page 112-914
10 President of RSA and others v SA Rugby Football Union and Others 2000 (1) SA; 1999 (1)
BCLR 1059 Para 61

[26] I am therefore justified to substitute Magistrate’s decision as I am satisfied
that she was wrong. In Faye11this court found as follows:

“9.These provisions leave no room for any doubt that the appeal Court
can justifiably interfere with the decision of the court of first instance
only if it is satisfied that the decision of the Judicial Officer who was
seized with the bail application and refused it 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.”12

Order

[27] In the result I make the following order

[27.1] The appeal is upheld.
[27.2] The decision of the Magistrate, Ngcobo Magistrates Court refusing
to admit the appellant to bail is set aside and substituted with the
following order:
27.2.1 The appellant is admitted to bail and shall be released upon
payment of R3500.00 (Three Thousand Five Hundred Rand).
27.2.2 The appellant shall appear and present himself at court at
08:30 or at such time as the Presiding Judicial Officer may dictate
on every date to which the case may be or is postponed.
27.2.3The appellant is ordered not to:
(a)interfere with state witnesses, or to co nceal 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.

11 S v Faye 2009 (2) SACR 210 (TK) Para 9
12 Section 65(4) of the CPA

(d)not to endanger the safety of the public or any particular
person or commit a schedule 1 offence.
27.2.4 The appellant is directed to report once in a fortnight at
Fleet Street Police Station, East London until his trial is finalized.


________________________________
A.S ZONO
JUDGE OF THE HIGH COURT (ACTING)


APPEARANCES:

For the Appellant : Mr DALASILE
Instructed by :Mnikelo Dalasile & Associates
No 84 King Edward Road
Mthatha
Ref :MD/0809/19
Tel: 047 050 008
Cell: 061 528 8701
Email:mwdalasile@gmail.com

For the State : ADV QEBEYI
Instructed by : Office of the Director of Public Prosecutions
94 Sission Street
Fortgale
Mthatha
Tel: 047 501 2671
Cell :078 595 8969
Email:TQebeyi@npa.gov.za

Matter heard on : 15 August 2025
Delivered on : 26 August 2025