IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO : A129/2025
(1) REP O RTABL E: N O
(2) O F INTER EST TO O TH ER JUDGES : N O
(3) REVISED . ../
15 AU G UST 2025
SIG NATU RE DA TE
In the matter between
DUMISANI JOHANNES SHONGWE APPELLANT
V
THE STATE RESPONDENT
JUDGMENT ON BAIL APPEAL
THOBANEAJ ,
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Introduction
[1] The appellant, appeals against the refusal of his formal application to be admitted
to bail by the magistrate Mr. Wessels at the Regional Court, Pretoria North on 03
December 2024.
[2] He is standing trial which at the hearing of this bail appeal is partly-heard, on two
counts. In count 1 the state alleges that on 27 February 2020 the appellant committed
a crime of robbery with aggravating circumstances read with the provisions of section
51(1) of the Criminal Law Amendment Act1. I must hasten to add that I do not believe
it is accurate to read robbery with aggravating circumstances with section 51(1). The
correct section should be section 51(2)2. The state further alleges that aggravating
circumstances are that a firearm/s was/were used by those accused of the crimes.
In Count 2 it is alleged that the appellant together with two others including those that
are unknown to the state, unlawfully and intentionally contravened the provisions of
section 18(2)(a) of the Riotous Assemblies Act3 by conspiring to commit robbery with
aggravating circumstances.
[3] The appellant did not give oral evidence during his application to be admitted to
bail. His counsel read into the record his affidavit after confirming that the appellant
was facing a schedule 6 charge and that he accepts that the appellant must show
1 Criminal Law Amendment Act 105 of 1997.
2 (2) Notwithstanding any other law but subject to subsections (3) and (6), a regional court or a High Court
shall sentence a person who has been convicted of an offence referred to in—
(a) Part II of Schedule 2, in the case of—
(i) a first offender, to imprisonment for a period not less than 15 years;
(ii) a second offender of any such offence, to imprisonment for a period not less than 20
years; and
(iii) a third or subsequent offender of any such offence, to imprisonment for a period not less
than 25 years;
3 Riotous Assemblies Act 17 of 1956.
than 25 years;
3 Riotous Assemblies Act 17 of 1956.
18. (1) Any person who attempts to commit any offence against a statute or a statutory regulation shall be
guilty of an offence and, if no punishment is expressly provided thereby for such an attempt, be liable on
conviction to the punishment to which a person convicted of actually committing that offence would be liable.
(2) Any person who-
(a) conspires with any other person to aid or procure the commission of or to commit; or
(b) incites, instigates; commands, or procures any other person to commit,
any offence, whether at common law or against a statute or statutory regulation, shall be guilty of an
offence and liable on conviction to the punishment to which a person convicted of actually committing
that offence would be liable.
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that there are exceptional circumstances and that it is in the interest of justice that he
be released on bail.
Applicant’s case
[4] The appellant placed the following facts before court;
a. He was arrested 29 April 2020 at his place of residence in Wadeville where he
resides with his wife and two kids;
b. He has been in custody since the day of arrest, which at the time the bail
application was heard added up to four years and five months. This he
identified as his first ground of an exceptional circumstance;
c. On his arrest he had been out on parole which parole was thereafter revoked,
because of the arrest. As a result, he had to serve the remaining part of his
sentence which he did until 10 July 2024;
d. He was tortured on his arrest, which is against the law;
e. Part of the reasons for the delay in the case was because his legal
representative took ill. In addition, the appellant had no funds to immediately
appoint a new legal representative after the then legal representative withdrew;
f. The case was beset by delays and long postponements due to among others
the unavailability of the prosecutor and at times the unavailability of legal
representatives of his co-accused and at times the co-accused themselves;
g. The appellant’s torture is identified as the second ground of exceptional
circumstance;
h. He wants to sue the Minister of Police and believes he cannot do so while he
is incarcerated,
i. The third ground is that the state has a weak case against him. He was
however told by his co-accused that the state has a strong case and if
convicted the sentence will be severe thus making the risk of absconding high;
j. The appellant refers to the facts of the case and asserts that to the allegation
that a cellphone of the complainant was found at his place, his defence is that
12 policemen searched his place without a warrant therefore such evidence is
not admissible;
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k. He referred to the confession he is alleged to have made and argued that it
was obtained after he was assaulted;
l. The fourth ground of exceptional circumstance is that it is difficult for him to
consult with his witnesses while in custody. He needs to be let out so that he
can, in addition, take them to his legal representative’s offices for consultation.
The consultation room in the awaiting trial section of the prison, where he is
kept, is not well lit,
m. The fifth ground of exceptional circumstance is the constant intimidation by the
investigating team and those that escort him to court and stand in court with
rifles. He is tortured by their presence in court. During his torture, he wet his
pants and soiled himself. Their presence in court is traumatic;
n. He does not have a passport and has no relatives outside South Africa;
o. He has no outstanding cases;
p. He has previous convictions but has served out the sentence. The previous
convictions are three counts of robbery with aggravating circumstances and
possession of ammunition;
q. He did not enjoy the benefits of parole;
r. He is not a danger to the public;
s. He will not evade his parole;
t. If released he will not commit a schedule 1 offence;
u. He cannot influence or intimidate witnesses;
v. He will not disturb or undermine the proper functioning of the criminal justice
system;
w. He is not enjoying good health. He did not disclose in what sense.
[5] Attached to the appellant’s affidavit was the affidavit by his wife who related in
detail events of the day of his arrest and how the appellant was treated by the police.
She also gave an account of how they did not have an idea of where the appellant
was taken after the arrest. She indicated that the appellant was a businessman who
earned R6 000-00 per month.
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[6] Jabu Masibuko also deposed to an affidavit in which he stated that he was
arrested after being pointed out by the appellant. The appellant informed him, among
others, that he was severely assaulted. He also mentioned in his affidavit that he also
was tortured to a point where he “messed his pants”. He did not institute a civil claim
because he fears for his life. He together with the appellant were at the same section
in prison.
Respondent’s case
[7] The respondent opposed the application and tendered into evidence the affidavit
of the erstwhile investigating officer David Mashaba. He confirmed the appellant’s
physical address. He also confirmed the appellant’s previous convictions and
indicated that the appellant received 15 years imprisonment for each of the three
counts of aggravated robbery he was convicted of. On the facts of the case, he
indicated in his statement that the complainant was accosted when he arrived at his
residence from work and robbed at gunpoint, of his belongings. His watches,
television set, cellphones and a laptop were taken during the robbery. The assailants
then tied him with some wire and fled the scene. Subsequently, the complainant
positively identified the appellant at a formal identification parade and was able to
detail roles played by all the co-perpetrators. A cellphone belonging to the
complainant, which was robbed during the robbery was allegedly found in the
appellant’s possession and the state alleges the appellant failed to give a satisfactory
explanation of the possession. In addition, it is alleged that he made a confession
which is being considered at a trial within a trial, where after the admissibility of
evidence of the identification parade will also come up for consideration later.
[8] The parties then made submissions, with counsel for the appellant relying on
numerous cases in support of his argument. He also attacked admissibility of the
confession among others on the basis that the appellant was tortured. State counsel
confession among others on the basis that the appellant was tortured. State counsel
submitted that although the appellant says he has been in custody for over four years,
sight must not be lost of the fact that there was the COVID-19 pandemic lockdown
and that after parole was revoked, the appellant had to serve out his sentence. That
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period is to be considered but should not be accounted for as contributing the long
period of incarceration for the appellant.
Submissions
[9] Before me counsel for the appellant raised a few other points;
a) That the magistrate did not take all the evidence into account;
b) That the statements of the appellant’s wife and that of his co-accused Jabu
Mazibuko were ignored by the magistrate;
c) That the state does not allege that the appellant was a flight risk;
d) That the state did not allege that he will intimidate witnesses;
e) That the only witness who has testified so far at the trial was a civilian and only
police witnesses remained to give evidence;
f) That there is no evidence that the appellant will abscond;
g) That there is no allegation about the appellant interfering with investigations
primarily because investigations are complete.
[10] In the end however counsel summarized three grounds as being pivotal, namely
the long delays, that the accused has a fixed address and was not a flight risk as a
result, that his address was confirmed by the police and lastly, that the magistrate
simply looked at his previous convictions and was “blind-sided”.
[11] State counsel submitted that the appellant;
a) Has not pointed to any misdirection;
b) That the three previous convictions of robbery show that the appellant has a
propensity to commit crimes;
c) Was a flight risk because in light of the previous convictions of aggravated
robbery (three counts), if convicted he stands to receive a severe sentence;
d) That he might be inclined to evade his trial as a result.
The judgment and analysis
[12] The magistrate delivered a judgment in which he dealt with the issues raised by
both counsel. He in fact dealt with the submissions made by counsel for the appellant
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among others to the effect that there are exceptional circumstances present. I shall
return to the magistrate’s judgment in due course.
[13] The offence of which the appellant is charged is an offence listed in Schedule 6
to the Criminal Procedure Act, 51 of 1977. The appellant therefore had to persuade
the Court a quo on a balance of probabilities that exceptional circumstances exist
which are permissive of his release on bail. Among other tools at the court’s disposal
is an assessment of the strength of the state’s case, which I believe is germane to
an enquiry as to the existence of exceptional circumstances. (See S v Kock4).
[14] In his judgment the magistrate mentions that the incident took place in 2020 and
that the appellant was arrested the same year. He also mentions that because of the
arrest, parole was revoked and he had to serve out his sentence until mid-20245.
When dealing with the delays, he mentioned also the following; for some time
investigations took place when the matter was in the District Court before it was
eventually transferred to the Regional Court; at some stage the trial was supposed
to proceed in the High Court but that never materialized, so it was transferred to the
Regional Court instead; the trial started on 19 May 2022 when the accused pleaded,
that for more than a year and under COVID-19 protocols, at times the accused were
not brought to court due to COVID-19 restrictions; that legal representatives did not
at times turn up in court including the appellant’s own legal representatives who was
for some time indisposed; the prosecutor took up employment at the DPP’s office
and as a result was and remains not readily available to attend the matter. All the
above reasons and/or factors were mentioned by the magistrate in his judgment to
show that the delay in the matter was the fault of no one particular person and that
many factors contributed to the delay. At some point the appellant did not have funds
many factors contributed to the delay. At some point the appellant did not have funds
to engage a legal practitioner and that accounted for further delays. Lastly, that the
issue of the delayed trial, as an exceptional circumstance as alleged by the appellant,
carried minimal weight and was in actual fact not minimal.
4 See in this regard: S v Kock [2003] 1 ALL SA 551 (SCA) at par 15 (11 i – 12 b) and cases cited there.
5 Page 73 of the appeal record line 7 to line 25.
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[15] The magistrate on the submission that the appellant was tortured, acknowledged
that he has heard what was said before him and had placed it on record6. He advised
the appellant to engage services of the Independent Police Investigative Directorate
in South Africa (IPID) and complain about the torture. Further, that IPID is easily
accessible and that the allegations that are made are serious in nature and should
be handled by IPID. I must pause to state that the appellant mentioned many
instances of torture, from his arrest to when he was said to be unaccounted for (while
in custody) and also when the confession was obtained from him. The confession it
would seem is being considered at a trial within a trial that is ongoing. Counsel for
the appellant however rushed it before this court and stated that he was prepared to
guarantee that it will not be found to be admissible at the end of a trial within a trial
because among others the appellant states in it that he was assaulted. Counsel
picked apart evidence that is alleged to exist against the appellant, such as the
discovery of the cellphone. He argued before this court that it will not pass muster of
the doctrine of recent possession; further that the police did not have a search
warrant and of course that the admissibility of the confession is suspect. It is
impermissible to second guess the trial court, particularly in a partly-heard matter that
is on-going. In answer to a question by the court on the status of the trial within a trial
counsel indicated that the appellant is yet to testify at the trial within a trial and that
admissibility of a pointing out will equally be challenged. It is my view that the court
of appeal is simply not well suited to enter the arena of the trial court and make a
determination about admissibility which question is being dealt with at the trial within
a trial. The magistrate was in my view correct when he opined that he was not going
a trial. The magistrate was in my view correct when he opined that he was not going
to make a finding on the confession, because that is not his province.
[16] The state flagged three different issues to support its contention that the case
against the appellant was strong. Firstly, that the appellant was positively identified
at an identification parade. Secondly, that the appellant confessed and thirdly that a
cellphone belonging to the complainant was, using a cellular app, traced to the
appellant’s house and he failed to give a satisfactory explanation of the possession
upon being requested on his arrest to provide one. It is accepted that all the pieces
6 Page 77 Line 5 to 12.
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of evidence will still have to be tested. In fact, admissibility of the confession is
currently being dealt with at a trial within a trial and counsel for the appellant has
given an indication that it will equally be challenged. It may in the end be found
wanting, but it is the trial court that will have to make that determination.
[17] In my view, the magistrate assessed the strength as well as the weakness of the
State case, he then concluded that the State case against the appellant was strong.
In the context of s 60(11) (a) of the Act, the strength of the State case has been held
to be relevant to the existence of ‘exceptional circumstances’7. In S v Kock (supra)
the following is said at paragraph 15;
“When the State has either failed to make a case or has relied on one which is so lacking in
detail or persuasion that a court hearing a bail application cannot express even a prima facie
view as to its strength or weakness the accused must receive the benefit of the doubt. The
case presented to the court of first instance fell into the second category. That should have
been an important factor in the magistrate's evaluation of the application. Because of her
misdirection no proper attention was paid to it.”
I do not believe that the case presented by the state in the lower court was lacking in
detail or persuasion as to be said to be weak.
[18] In the course of a bail application the magistrate need not make a finding, even
on a provisional basis, as to the guilt or innocence of an applicant for bail. All the
Court has to do is to weigh the prima facie strength or weakness of the State’s case
and such a subsequent decision ought not be made with reference to credibility
findings in order that bail proceedings do not become a dress rehearsal for the trial
itself8. I conclude that the Court a quo did not misdirect itself and that it did in fact
weigh, on a prima facie basis, the strength and weakness of the State case. It is self-
weigh, on a prima facie basis, the strength and weakness of the State case. It is self-
evident that the summary by the magistrate contains what is necessary.
[19] The magistrate was at pains to deal, in point form, with the factors that the
appellant advanced as exceptional. What he also accentuated which is of importance
7See S v Botha en 'n Ander 2002 (1) SACR 222 (SCA) at para [21], S v Viljoen 2002 (2) SACR 550 (SCA) at
para [11])
8 S v Van Wyk 2005 (1) SACR 41 (SCA)
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is that at the commencement of the bail application, appellant’s legal representative
confirmed that the bail application was brought on the basis that the appellant was
facing a Schedule 6 charge or offence. He submitted that the appellant bore the onus
to show that exceptional circumstances were present. Which is why the argument
that the state does not or did not allege that the appellant was a flight risk; that the
state does not or did not allege that he will intimidate witnesses; that no allegation is
made by the state that he will interfere with investigations, is untenable because the
onus to allege and prove those factors rests with the appellant. What matters the
most is whether the appellant advanced those factors which meet the yardstick set
by legislation and case law.
[20] This Court is called upon to determine whether the appellant was able to prove
the existence of exceptional circumstances within the meaning of Section 60(11)(a)
of the Criminal Procedure Act, 51 of 1977, before the Court a quo. In order to
establish whether the appellant did discharge this onus, the magistrate was
constrained to determine whether on the facts of the case, the circumstances placed
before him can be said to be “exceptional”. This entailed the making of a value
judgment on the part of the magistrate9.
[21] The approach to be adopted in bail appeal matters is well settled in our law. It is
not the same as an application to be admitted to bail. The appeal to this court
therefore must strictly follow the Criminal Procedure Act, which provides among
others as follows;
“65 Appeal to superior court with regard to bail
(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 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
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.
(b) The appeal may be heard by a single judge.
9 S v Porthen and others 2004 (2) SACR 242 (C)
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(c) A local division of the Supreme Court shall have jurisdiction to hear an appeal under
paragraph (a) if the area of jurisdiction of the lower court in question or any part thereof falls
within the area of jurisdiction of such local division.
(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 opinion the lower
court should have given.”
This court must therefore be satisfied that that the decision of the court a quo was
wrong.
[22] In S v Barber10, the court remarked as follows in respect of the context of
deciding an appeal in terms of section 65(4) of the CPA:
“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. Accordingly,
although this Court may have a different view, it should not substitute its own view for that
of the magistrate 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 exercised that discretion wrongly.”
[23] Thus, even if this Court finds that the Magistrate was wrong, this Court must
still consider the facts before it afresh and determine whether the appellant has
discharged the applicable onus.
[21] The appellant placed certain facts such as the fact that he will not commit a
schedule 1 offence if released on bail. The magistrate indicated that such a statement
has a ring of hollowness to it because while on parole, the appellant was arrested
and the allegations are that he committed robbery with aggravating circumstances.
and the allegations are that he committed robbery with aggravating circumstances.
The magistrate was not pronouncing on his guilt but was simply stating the facts.
That much is said in his judgment. Other factors that the appellant relied on such as
10 S v Barber 1979 (4) SA 218 (D) at 220E–H
the fact that he is "tortured" by the presence of rifles in court, he w ants to be admitted
to bail so that he can take his w itnesses to the offices of his legal representative for
consultation and lastly that the consultation area for aw aiting trial inmates at the
correctional facility w as not w ell lit, are simply not exceptional.
[22] In summary , before the C ourt a quo w as the appellant against w hom there w as
assessment of the strength or w eakness of the state case; there w as a w ell-grounded
reason to believe that he may commit a schedule 1 offence, that the case against
him w as strong. I am of the view that the facts placed by the appellant before the
mag istrate, w hen considered cumulatively, bearing in mind the state case, are not
exceptional. I conclude that the magistrate correctly refused the release of the
appellant on bail. The appeal m ust therefore fail.
[23] I therefore make the follow ing order;
23.1. The appeal is dismissed
SATHOBANE
ACTING JUDGE OF THE HIGH COURT, PRETORIA
ON BEHALF OF THE APPELLANT
ON BEHALF OF THE RESPONDENT
Date of the hearing : 16 July 2025
MR . MOLDENHAUER
MR . SH IBURI
Date of judgment : 15 August 2025 - This judgment was handed down
electronically by circulating to the parties' legal representatives by e-mail, by being
uploaded to the CaseLines platform of the Gauteng Division and by release to
SAFL/1. The date and time of hand down is deemed to be 10:00 on 15 August 2025.
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