REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT O F SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO .: BA17 /2025
(1) REPORTABLE : ,¥.!;S/NO
(2) OF INTEREST TO THE JUDGES : ¥ES/NO
(3) REVISED .
DA TE )Jl'.:1 \.2°:,: NAlURE. ~ ~
In the matter between:
THE DIRECTOR OF PUBLIC PROSECUTIONS ,
POLOKWANE
-and-
TAKALANI ERIC MATHELEMUSA
Delivered 29 S eptem ber 2025
APPELLAN T
RESPONDENT
T his judgment was handed down electronically by circulation to
the parties' legal representatives by e-mail. The date and time
for hand down of the judgment is deemed to be 29 S eptemb er
2025 at 14HO0 pm .
Date heard
Coram
PILLAY AJ
Introduction
2
23 September 2025
Pillay AJ
JUDGMENT
[1) This is an appeal sought by the State following the order by the Musina Magistrate's
Court on 20 June 2025 releasing the respondent on bail of Ten Thousand Rand (R
10000,00) consequent on the respondent's application for bail on new facts.
[2] The respondent was indicted on the following charges.
[2.1] Robbery with aggravated circumstances as defined in Section 1 of Act 51 of
1977 read with the provisions of Section 51 (2) of Act 105 of 1997 as amended.
[2.2) Robbery with aggravated circumstances as defined in Section 1 of Act 51 of
1977 read with the provisions of Section 51 (2) of Act 105 of 1997 as amended.
[2.3) Attempted Murder
[2.4) Unlawful possession of a prohibited firearm-a fully automatic firearm-in
contravention of Section 4(1 )(a) read with Sections 1, 103, 117, 120(1 )(a) and
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121 read with Schedule 4 and Section 151 of act 60 of 2000 and further read
with S ection 250 of Act 51 of 1977 and Section 51(2) of Act 105 of 1997-
possession of a prohibited firearm: a fully automatic firearm.
(2.5] Unlawful possession of a prohibited firearm-serial/identifying mark altered
without permission of the registrar-in contravention of Section 4(1 )(f)(iv) read
with Sections 1, 17, 19, 20, 103, 117, 120(1)(a) and 121 read with Schedule 4
and Section 151 of Act 60 of 2000 and further read with Section 250 of Act 51
of 1977-possession of a prohibited firearm: serial numbers/identifying marks
altered without permission of the registrar.
(2.6] Unlawful possession of a firearm in contravention of Section 3 read with
Sections 1, 103, 117, 120(1)(a) and 121 read with Schedule 4 and Section
151 of Act 60 of 2000 and further read with Section 250 of Act 51 of 1977 and
Section 51 (2) of Act 105 of 1997-unlawful possession of a firearm(s).
[2. 7] unlawful possession of ammunition in contravention of Section 90 read with
Sections 1, 103, 117, 120(1)(a) and 121 read with Schedule 4 and Section
151 of Act 60 of 2000 and further read with Section 250 of Act 51 of 1977-
unlawful possession of ammunition.
(2.8] Unlawful possession of stolen property in contravention of the provisions of
Section 36 of the General Law Amendment Act 62 of 1955.
(2.9] Unlawful possession of stolen property in contravention of the provisions of
Section 36 of the General Law Amendment Act 62 of 1955.
4
[3] As the charges against the respondent was of offences listed in Schedule 6 to the
Criminal Procedure Act 51 of 1977, the respondent undertook the task of adducing
evidence which would satisfy the Court that exceptional circumstances existed which
in the interests of justice permitted the Court to release the respondent on bail in terms
of Section 60(11)(a) of Act 51 of 1977as amended.
[4] The State opposed the respondent's release on bail due to the State's case
concerning a cash in transit heist, alleged to have been comm itted by the respondent
and others. The respondent had a previous conviction of Robbery with aggravating
circumstances wherein he was sentenced to 23 years imprisonment. It was alleged
that this offence was committed whilst the respondent was on parole. The respondent
was arrested in Musina in breach of his parole conditions of not leaving
Thohoyandou. The State opposed both bail applications as the circumstances relied
upon by the respondent, were not exceptional to warrant his release from custody.
[5] The Presiding Magistrate found the following to be the new facts on which the
respondent was released on bail namely;1
"In view of the provisions of Section 60(g) and 60(10) of the Criminal
Procedure Act 51 of 1977 which give me power to use my discretion, I have
come to the following conclusion. In my view the issue of the delay to resume
1 See Vol 6 page 570 to 571.
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trial by handing him an indictment nine months after the dismissal of the first
bail application constitute new facts.
The issue of his health which is deteriorating, where it is confirmed that
applicant has a chronic disease in the form of hypertension and not rebutted
and confirmed by the Correctional Services, a/so in my view constitute bail on
new facts.
The issue of the applicant losing his cattle and goats and crumbling business,
which was not happening before the initial bail application, which also the
statement from the bank were attached, in my view also constitute new facts,
as decided in the case of S v Mathebula2010(1) SACR 55(SCA).
During the bail on the new facts as the facts were presented to me the state
did not lead any evidence to establish the ground in section 60(4) of the
Criminal Procedure Act 51 of 1977. The new facts proven together with the
facts proven in the previous bail application cumulatively constitute
exceptional circumstances.
And whereas having given a detailed account of the events none of the
evidence presented by the State for refusing bail had been established in
terms of section 60(4) of the Criminal Procedure Act 51 of 1977.
As a result, the Court finds that the interest of justice permits the release of
the applicant on bail. Consequently, an order is hereby made as to the
applicant is admitted to bail".
6
The State aggrieved by these findings, sought to appeal the decision of the Presiding
Magistrate based on the misdirection that exceptional circumstances were proven to
exist, to warrant the release of the respondent on bail.
[6] The grounds of appeal relied upon by the State were the following;
(6.1] The learned magistrate erred in finding the respondent bail application on new
facts were dealt with in terms of Section 60(10) of Act 51 of 1977.
[6.2] The learned magistrate erred in allowing respondent to testify viva voce after
respondent had closed his case wherein, he testified through affidavit.
[6.3] The learned magistrate erred in not affording the appellant the opportunity to
respond to new issues raised by the respondent in his viva voce evidence.
(6.4] The learned magistrate erred in referring to bank statements and school report
documents which were not disclosed to the appellant.
[6.5] The learned magistrate erred in finding that respondent compliance with
Section 144 of Act 51 of 1977 constituted a new fact. The error is supported
by the Court conceding that the indictment was handed to the respondent on
the day he was transferred to the H igh Court for trial.
[6.6] The learned magistrate erred in finding that the respondent's health
(hypertension) was deteriorating in the absence of evidence from a medical
practitioner confirming same .
(6. 7] The learned magistrate erred in finding that the alleged loss of cattle and goats
constituted a new fact. This despite respondent in the initial bail application
confirming that the said cattle and goats were in a farm with farm workers and
his wife could take care of the stock in his absence.
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[6.8] The learned magistrate erred in finding that the respondent's crumbling
business constituted a new fact. The respondent is allegedly involved in tender
business and non-continuation in that business cannot constitute crumbling
but cessation of business interest.
[6.9] The learned magistrate erred in finding that the appellant should have led
evidence to establish the grounds in Section 60(4) of act 51 of 1977 despite
such evidence being led in the initial bail application.
[6.1 0] The learning magistrate erred in finding that the respondent could be
subjected to bail conditions, despite his violation of a parole condition not to
commit any offence whilst on parole.
[7] Section 60(11 )(a) of the CPA provides that 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 interest of
justice permit his or her release.
[8] It is clear from the aforesaid provisions that where an accused is charged with the
commission of a Schedule 6 offence, a court will be entitled to grant bail only in those
instances, where the accused advanced exceptional circumstances why he should
be released. The effect of this provision shifted the onus to the accused to convince
the Court on a balance of probabilities that such exceptional circumstances exist. As
stated before, the bail application under consideration resorted under s 60(11 )(a) of
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the Criminal Procedure Act. The second bail application was brought on the basis
that new facts had come to the fore which required a re-consideration of bail. It was
those circumstances that resulted in the State appealing to this Court.
[9] Regard was had to the provisions of Section 65(A)(1 )(a) of the Criminal Procedure Act
which indicated that the State may appeal to this Court against the decision of the
Lower Court to release an accused on bail. Section 65(A)(1 )(b) cross-references to
Section 310A , which provides for the procedures to follow, and to Section 65, which
provides for the test to apply when considering a bail appeal.
[1 0] Section 65(4) provides that the Court hearing the appeal shall not set aside the
decision against which the appeal is brought, unless such Court is satisfied that the
decision was wrong, in which event the Court shall give the decision which in its opinion
the Lower Court should have given. The approach of a Court hearing a bail appeal is
trite. In S v Barber1979 (4) SA 218 (0) at220 E-H it was said:
"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 because it
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 exercised that discretion wrongly ... "
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(11) Thus, even if this Court finds that the Magistrate was wrong, this Court must consider
the facts before it afresh and determine whether the appellant has discharged the
applicable onus. In this Court, both parties filed detailed heads of argument
concerning whether the Court a quo erred in respect of its finding to adm it the
respondent to bail, and cognizance is taken of their contents. The Magistrate granted
the respondent bail following his finding as highlighted above, which according to the
Magistrate, the respondent established exceptional circumstances whereby the
respondent was able to discharge the onus placed on him.
(12) It took some time before these proceedings could be finalized, due to the concerns
raised by the respondent, in respect of being released on parole. The appeal was
postponed to address this issue, which was scheduled for determination by the
Parole Board on the 19 September 2025. In as much as this was a factor affecting
the respondent and his continued detention, am idst being released on bail in this
matter, the consideration by the Parole Board, was ancillary to the appeal
proceedings.
(13] The state took exception to various findings made by the Court a quo, however from
the reading of the record of proceedings, it was clear that three crisp issues featured
in respect of the reconsideration by the Court a quo, in its decision to release the
respondent on bail.
(14] The first consideration pertained to the duration of the time, spent by the respondent
awaiting trial in the High Court. The respondent highlighted in his application on new
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facts that he had spent a period of more than 27 months in detention since his arrest
which was 15 September 2022, and that to date he was not served with any
indictment, whereas it was alleged by the state that there was a watertight case
against him and his constitutional right to speedy trial was violated which impacted
his family negatively.2
(15] The Court a quo noted the following in consideration of this aspect;
"In my view the issue of the delay to resume trial by handing him an indictment nine
months after the dismissal of the first bail application constitute new facts."
(16] From the accepted evidence the dismissal of the respondent's first bail application was
on the 4 January 2023. The respondent did not appeal this decision. The indictment
was handed to the respondent on 21 September 2023, when the matter was
transferred from the District Court to the High Court. It was on this date that the
respondent was informed of the charges, that he faced and that his trial would proceed
on 27 May 2024 to 16 June 2024 in the High Court Polokwane. The application for bail
on new facts was granted on the 20 June 2025.
[17] The State was at pains to highlight that the Court erred in finding that "the delay to
resume trial by handing him an indictment nine months after the dismissal of the first
bail application" was a new fact for bail to be considered. The appellant indicated the
fact that in terms of Section 144 of the Criminal Procedure Act, an indictment was to
2 See affidavit of respondent page 49 paragraph 9 and 10.
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be served on an accused at least 10 days before the date appointed for trial. The
indictment was served long in advance, and the respondent had misled the Court a
quo, that he had not received the indictment. That reliance on this aspect as a new
fact was a misdirection by the Court a quo.
[18] The respondent indicated that the delay to proceed with trial in the High Court
constituted a new fact. Moreover, amidst the bail appeal the matter had still not
proceeded to trial in the High Court and a period of more than two years had elapsed
since the respondent's arrest. It was indicated that the Magistrate exercised his
discretion judicially and took this aspect into account as a new fact.
[19] From the record it appeared that there was no evidence placed before the Court a quo,
in respect of the delay and the reasons why the trial in the High Court had not
proceeded. This was a bold allegation by the respondent and without further
investigation and information before the Court a quo, it was not equipped to make the
finding which it did, concerning this aspect being a new fact, to warrant the
respondent's release.
[20] The Respondent's right enshrined in terms of Section 35(3)(d) of the Constitution3
providing that every accused person's trial begins and is concluded without
3 See the Constitution of SA 108 of 1996
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unreasonable delay, and the mechanism provided for in terms of Section 342A of the
Criminal Procedure Act4, was designed to deter unreasonable delays on the
commencement, continuation and finalisation of criminal proceedings. In the
application on new facts no evidence was presented concerning there being any
enquiries held in terms of S342A, and the Orders made by the High Court or the Court
a quo in respect of any delays, for same to have been considered as a factor, for the
finding made in respect of this being a new fact. This was a misdirection by the
Presiding Mag istrate to endorse this as a new fact without properly ventilating on what
basis it qualified to be such.
(21] The second aspect was the finding by the Court a quo to the effect that the
respondent's medical condition was a new fact as indicated;
"The issue of his health which is deteriorating, where it is confirmed that
applicant has a chronic disease in the form of hypertension and not rebutted
and confirmed by the Correctional Services, a/so in my view constitute bail on
new facts."
[22] The appellant highlighted that the learned Magistrate erred in finding that the
respondent's health(hypertension) was deteriorating in the absence of evidence from
a medical practitioner confirming same. There was no evidence led that the respondent
was ever admitted in hospital because of hypertension.
4 See A ct 51 of 1977
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[23) Moreover the respondent in his affidavit for bail on new facts misled the court by
alleging that he was not getting medication for hypertension5. The letter from the
Department of Correctional Services dated 25 March 2025 confirmed that the
respondent was collecting medication monthly for hypertension.
[24] In response the respondent indicated that as it was not disputed that the respondent
was suffering from chronic hypertension, same was confirmed by the appellant and
the Court considered the illness as one of the grounds subm itted to constitute
exceptional circumstances, considered cumulatively with the other new facts, as
highlighted by the Court a quo.
[25) The respondent's affidavit was misleading concerning not receiving medical attention
whilst in custody. The fact that the appellant provided written confirmation of the
respondent's illness as well as the treatment been provided to the respondent, rebutted
the version of not receiving medical attention, whilst incarcerated. The Court a quo
misdirected itself instead, by concentrating on the medical condition, as deteriorating
without any medical basis for that conclusion. The Court a quo should have
acknowledging that the illness was being addressed, whilst the respondent was in
custody.
5 See affidavit paragraph 9.8 on page 49
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(26] The issue of the respondent's cattle and goats getting lost and his business crumbling
was relied upon as a further new fact, considered by the Court a quo as follows;
"The issue of the applicant losing his cattle and goats and crumbling business,
which was not happening before the initial bail application, which also
statement from the bank were attached, in my view also constitute new facts,
as decided in the case of S v Mathebula2010(1) SACR 55(SCA)".
(27] The appellant highlighted that at the first bail application the respondent indicated to
the Court a quo, that the cattle and goats would be housed on a farm and that his wife
would be responsible for supervising same. The respondent in his affidavit placed
great emphasis on receiving information, that his livestock was lost. It was apparent
from the affidavit of the respondent's wife, who clarified the issue of the lost cattle and
goats, in that on her visit to the farm, on that specific date, she was unable to find the
aforesaid livestock. No evidence was placed before the Court a quo, that harm had
befallen the said animals, which would have at least been verified by the employees
working on the farm, responsible for the livestock. The respondent failed to explain in
his affidavit in what context, was the said livestock lost and if this was a permanent or
a temporary situation. Without more evidence and investigation, this allegation could
not be considered in the context of a new fact justifying exceptional circumstances.
The Presiding Magistrate erred by placing weight on such unsubstantiated information.
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[28] The bank card and school reports which were relied upon by the respondent were
disputed by the appellant as same were not discovered to the State, prior to the bail
application proceeding. Moreover, the appellant indicated that there was no evidence
in the first bail application, which could be compared with the current documentation,
for justification that the circumstances of the family of the respondent as well as his
business were being unduly prejudiced due to his incarceration.
[29] The respondent indicated that individually these circumstances may not have
warranted intervention from the Court a quo, but cumulatively they would constitute
new facts. This was considered by the Court a quo to warrant the release of the
respondent on bail. It was further indicated that bail conditions concerning reporting to
the police on a weekly basis was also included as part of the conditions to be complied
with by the respondent when released on bail. This was a further issue of dispute
between the parties.
[30] Regard was had to the case of S v Yanta6 where the Court noted as follows
"The approach adopted by Krieg/er J in the Dlamini case suggests that the
exceptional circumstances as envisaged by subsection (11)(a) are not to be
construed as requiring an accused to place before a court factors or
circumstances in addition to those provided for in subsections (4), (9) and (10)
of the act. The enquiry remains the same , namely, a weighing of the
considerations referred to in subsections (4), (9) and (10) of Section 60 and
6 See 2000 (1) SA CR 237 (Tk) at 243H --244 a
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then to exercise a value judgment according to all the relevant criteria on the
facts placed before a court. At the end of the day the court has to decide if those
factors which have been found to exist and which favour the release of an
accused from detention are such, weighed against the interests of justice, so
as to constitute exceptional circumstances for the purposes of subsection
(11 )(a). There can be as many circumstances which are exceptional as the term
in essence implies. So, for example factors such as an urgent serious medical
operation, terminal illness or the lack of evidence implicating the accused in the
charge may constitute exceptional circumstances when weighed against the
factors set out in subsection (4)." H aving regard to same on this point there was
misdirection on the part of the Court a quo, as correctly highlighted by the
Appellant.
[31] The Court a quo noted the following concerning Section 60(4) and the failure by the
State to lead evidence as follows;
"During the bail on the new facts as the facts were presented to me the state
did not lead any evidence to establish the ground in section 60(4) of the
Criminal Procedure Act 51 of 1977. The new facts proven together with the
facts proven in the previous bail application cumulatively constitute
exceptional circumstances.
And whereas having given a detailed account of the events none of the
evidence presented by the State for refusing bail had been established in
terms of section 60(4) of the Criminal Procedure Act 51 of 1977.
17
[32] In S v Vermaas 7 it was held that in a bail application brought based on the alleged
existence of new facts, the court entertaining that application should consider all facts
before it, new and old and on the totality of the evidence determine whether the bail
should be granted or refused. The same view was echoed by the court in the case of
S v Mohamed 8• These two cases were cited with approval by the full court in the case
of S v Petersen9• The Court a quo did not consider all the evidence specifically those
relied upon by the State in the first bail application wherein bail was refused. This
was a further misdirection as the application for bail on new facts were clearly
considered in isolation, having regard to the new facts without weighing it up against
the evidence previously placed before the Court.
[33] The respondent in his affidavit drew the attention of the Court a quo to the fact that
the State's case was based on circumstantial evidence and the strength thereof was
doubtful regard was had to S v Mathebula10 where it was held as follows:
"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 2002 (1) SACR 222 (SCA) at 230h, 232c; S v Viljoen
2002 (2) SACR 550 (SCA) at 556c. That is no mean task, the more especially
as an innocent person cannot be expected to have insight into matters in which
1 1996(1) SACR 528(1)
8 1999(2) SACR 507 (C).
9 2008(2) SACR 355 (C).
10 See 2010 (1) SACR 55 (SCA) at paragraph 12
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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
Shabala/a & Others v Attorney-General of Transvaal and Another [1995]
ZACC 12; 1996 (1) SA 725 (CC). 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 his 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."
[34] The Court a quo misdirected itself by placing weight on the abovementioned
circumstances, without highlighting how these new facts impacted the totality of the
bail proceedings, since no mention was made , concerning the factors relied upon, in
his first decision, refusing to admit the respondent to bail. It is based on these material
m isdirection's that this Court can revisit the new facts raised by the respondent in
considering whether the respondent established exceptional circumstances to warrant
his release from custody.
[35] The respondent is presumed innocent till proven guilty in respect of these offences.
From the accepted facts the respondent was on parole when the offences were
committed, and he was arrested at Musina in breach of his parole condition. The
respondent faces various serious charges as contained in the indictment The
appellant raised the apprehension of the commission of further offences and or
evading of his trial. The appellant was concerned that the bail conditions would not
19
suffice to enforce compliance, since the respondent failed to comply with his parole
condition. The appellant highlighted that the respondent was only in custody on
account of the breach of his parole, as bail was set on 20 June 2025.The new facts
as highlighted by the respondent were reconsidered in context of the provisions of
Section 60 of the Criminal Procedure Act.
[36) The respondent's medical condition was being appropriately addressed by the
Department of Correctional Services. The respondent received medication monthly
and was being monitored. If there was a potential of deterioration in his medical
condition same would be addressed by them, and feedback by them and or
respondent to Court would ensue, if for any reason the Department of Correctional
Services, were not equipped to help the respondent medically.
[37) The allegation of his animals being lost, his business interests and children's
education as highlighted above were bold allegations without substance on which
same could be relied as justification for his release, outside of the fact that his wife
had the responsibility of the welfare of the livestock, his business interests and family,
when offset against these serious allegations these factors, individually as well as
cumulatively, did not strengthen the respondent's case to be released on bail. Some
were also previously highlighted in his first bail application and ventilated at that
application.
[37) Having taken all that has been placed before this Court I am satisfied that the
Magistrate failed to exercise his discretion judicially in granting the admission of the
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respondent to bail. The new facts as highlighted by the respondent were w ithout merit
individually and cumulatively. The respondent failed to place facts before this Court to
find that exceptional circumstances existed in the interest of justice to permit his
release on bail. The evidence presented by the respondent when measured against
the provisions of Section 60(11 )(a) read with Section 60(4)(a)-(e) and Section 60(9)(a)
(g) of the Criminal Procedure Act 51 of 1977. The new facts did not qualify as grounds
for the admittance of the respondent to bail.
138] In the result the follow ing order is made:
[38.1] The appeal is upheld
[38.2] The decision of the court a quo is set- aside and replaced with the following.
[38.3] The application for bail on new facts is dismissed.
R~ -----
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
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APPEARANCES:
FOR THE APPELLANT Adv M P Mudau
INSTRUCTED BY Director of Public Prosecutions Limpopo
FOR THE RESPONDENT Adv P Sengan i
INSTRUCTED BY Simphiw e Manenzhe Attorneys