REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG DIVISION, PRETORIA
CASE NO. A249/2025
(1) REPORTABLE: ¥ES/ NO
(2) OF INTEREST TO OTHER JUDGES :~ NO
(3) REVISm ~
'1~o\%~s .
DAT SIGNA
In the matter between:
Gift Msimango Appellant
and
The State Respondent
This judgment was handed down electronically by circulation to the parties' and or
the parties' legal representatives by email and by being uploaded to Caselines. The
date for the hand down is deemed to be 17 October 2025.
Judgment - Bail Appeal
Thupaatlase, AJ
Introduction
[1] This is a bail appeal following a refusal by the regional magistrate sitting in
Brakpan regional court to grant the appellant bail who has been arrested and who is
in custody. The parties agreed that the offences fall under schedule 5 and that the
provisions of section 60 (11) (b)1 of the Criminal Procedure Act2 (the Act) are
applicable. The bail application was heard on 03/01/2025 and judgment wherein bail
was refused was delivered on 26/01/2025.
[2] The appellant appeared charged with contravention of section 17(1) (a) of the
Domestic Violence Act3 (OVA). The allegation against the appellant was that he
violated the conditions of the protection order which was obtained by his wife on
24/06/2024. It is alleged that such contravention took place on 16/12/2024.
[3] The introduction of s 59(1 )(a)(ii)4 and (iii) (aa)5 of the Act has brought about a new
bail dispensation to deal with the scourge of violence against women and children
which has sadly engulfed our nascent democracy. The effect of these amendments
have the effect of categorising domestic violence offences as Schedule 5 offences
and therefore requiring formal bail application. The so-called 'police bail' is no more
available for people accused of these offences.
[4] Section 59(1 )(a)(ii) and (iii) must now be read conjunctively with the newly
introduced s 60(11 )(c) which provides that:
'60(11) Notwithstanding any provision of this Act, where an accused is charged with
an offence -
(c) contemplated in section 59(1 )(a)(ii) or (iii), 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 the interests of justice permit his or her
release'.
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(b) in Schedule 5, but not 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 wh ich satisfies the court that the interests of justice permit his or her
release.
2 Act 51 of 1977 as amended.
3 Act 116 of 1998.
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(ii) against a person in a domestic relationship, as defined in section 1 of the Domestic Violence Act, 1998 (Act
116 of 1998).
5 (iii)(aa) section 17 (1) (a) of the Domestic Violence Act, 1998
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Evidence
[5] The appellant is employed by Ekurhuleni Metropolitan Police Department (EMPD)
as a superintendent. He is married and has two children. He lists five other children
that he is supporting. He has a fixed property in the jurisdiction of the court. He stated
that he has no record of previous convictions. He stated that the complainant in this
matter obtained a protection order in order to settle their family dispute. On the other
hand, he stated that the complaint was willing to pay bail for him. He undertook that
he'll abide by the bail conditions and that he'll not evade trial nor interfere with
investigations. There is also an undertaking by the appellant not to intimidate
witnesses.
[6] The affidavit of the investigating officer confirms the charge that the accused is
facing. The investigating officer also states that the appellant was informed on the
16/12/2024 that a case was opened against him and that he was required to contact
the investigating officer. He didn't respond to the request, and he was again contacted
on 18/12/2024. On that day he avoided communicating with the police officer who was
calling him by dropping calls.
[7] The investigating officer stated further that as a result of the appellant being
uncooperative, a warrant of arrest (J50) was applied for and same was issued on the
19/12/2024. Thereafter the supervisor of the appellant was informed, and he brought
the appellant to the police station and he was charged and detained. The investigating
officer confirmed that the appellant owns fixed property and also his marital and
employment status. He also confirmed that appellant has no record of previous
conviction.
[8] The investigating officer stated that the appellant was abusing alcohol and is an
aggressive person. She stated that should the appellant be granted bail, he'll
intimidate the complainant. She stated that the appellant had threatened the children.
Grounds of Appeal
Grounds of Appeal
[9] The appellant lodged the appeal and has assailed the refusal to grant him bail on
various grounds and principally that the court a quo misapplied the applicable legal
provisions as set out in section 60(4) (a) (e) of the Act. It was further argued that the
magistrate failed to take into account the personal circumstances of the appellant
including that he was married with children. It was also alleged that he failed to take
into account the appellant owned fixed property in the jurisdiction of the court.
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[1 OJ The appellant further took issue with the fact that the magistrate foiled to take into
account the fact that he was gainfully employed and has no record of previous
convictions
Law Applicable
[11] The application is in terms of Section 65 (1) of the Act which provides that:
'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 superior court having jurisdiction or to any judge of that court if the
court is not then sitting.'
[12] The section directs how the appellate court should deal with such an appeal by
providing in section 65 (4) of the Act that:
'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".
[13) The approach stated in S v Barbe~ at page 220 E-H has been widely accepted
as the correct approach to the test contemplated in section 65( 4) of the Act that: "
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 that would be an unfair interference with
the magistrate's exercise of his discretion. I think it should be stressed that, no matter
what this Court's own views are, the real question is whether it can be said that the
magistrate who had the discretion to grant bail exercised that discretion
magistrate who had the discretion to grant bail 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.'
[14) This approach was endorsed with added qualification in the case of S v Porthen
& Others7 at para [16) that:
'Insofar as the quoted dictum in S v Barber might be amenable to be construed to
suggest that the appellate court's power to intervene in terms of Section 65 (4) of the
6 1979 (4) SA 218 (D&CLD)
7 2004(2) SACR 242 (CPD)
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CPA is strictly confined, in the sense of permitting interference only if the magistrate
has misdirected him or herself in the exercise of his or her discretion in the narrow
sense, I consider that it would be incorrect to put such a construction on the subsection;
certainly in respect of appeals arising from bail applications made in terms of s60 (11)
(a) of CPA. I am fortified in this conclusion by the manner in which the Supreme Court
of Appeal dealt with the bail appeal in Botha's case supra. See paras [21]-[27] of the
judgment. It is clear that the Appeal Court undertook its own analysis of the evidence
and came to its own conclusion that the appellants had not discharged the onus on
them in terms s 60 (11) (a) of the CPA .'
[15] It is axiomatic that Section 65(4) of the Act is couched in peremptory terms. This
is made clear by the use by the Legislature of the word 'shall'. The decision of the
magistrate cannot be set aside unless it is found to be wrong, and if this Court is
satisfied that the decision was wrong, this Court shall give the decision which in its
opinion the magistrate should have given. The Barber decision is a pre-constitution
decision and the modification of it in Pothen is to be welcomed as it infuses
constitutional flavor to it.
[16] In terms of s 65 (4) of the Act interference with the decision of the court aquo can
only be done if the appellate court is satisfied that the decision to refuse bail was
wrong. In order to succeed the appellant will have to show that the court a quo
overemphasized aspects which militate against the granting of bail, whilst aspects in
favour of the appellant to be granted bail were not given sufficient weight.
[17] In S v Zondi8 at para [12] the court stated that:
'It speaks for itself that if this court cannot conclude that the court a quo wrongly
weighed up the points for and against the granting of bail, this court would not be at
liberty to consider the issue afresh. The court's decision will have to stand.'
liberty to consider the issue afresh. The court's decision will have to stand.'
[18] The purpose of the bail proceedings had been crystallized in a number of
decisions and in the case of S v Motsisi 20239 at para [28] stated that:
' the essentials of a bail application include addressing relevant offence if the applicant
so elect and such particulars as may be reasonably sufficient to satisfy the court, in
this instance that the interest of justice permit the release of the applicant.'
[19] The unfortunate part is that the magistrate in one and a half page ex temporae
judgment didn't deal and analyse the evidence that was led by the state and defence.
The magistrate merely regurgitated the applicable legal principle. This was also done
8 2020(2) SACR 436 (GJ)
9 2023 (1) SACR 218 (WCC)
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bail without interrogating the evidence. The failure by the magistrate to deal with
evidence presented and to give reasons is a classic case of misdirection by a judicial
officer. In the premises this court is at liberty to interfere and consider if on the
evidence bail could be granted or not.
[20] There was no attempt to give effect to the applicable law in coming to the
conclusion whether bail should be granted or not. There was mention that the
complainant had submitted a withdrawal statement. The affidavit of the appellant
states that the complainant was the person who had undertaken to pay bail if the
court was inclined to grant bail.
[21] The court didn't probe this allegation further so as to inform itself of all factors.
Section 60 (2A) of the Act provides that:
The court must, before reaching a decision on the bail application, take into
consideration-(a) any pre-trial services report regarding the desirability of releasing
an accused on bail, if such a report is available; and (b) the view of any person
against whom the offence in question was allegedly committed, regarding his or her
safety'.
[22] The court must keep in mind that prima facie case, in itself is not a basis for
refusing to admit an applicant to bail. This was made clear in the S v O/amini; S v
O/adla and others; S v Joubert; Schietekat10 where the following is stated at para [11 ]:
'Furthermore, a bail hearing is a unique judicial function. It is obvious that the
peculiar requirements of bail as an interlocutory and inherently urgent step were kept
in mind when the statute was drafted. Although it is intended to be a formal court it is
considerably less formal than a trial. Thus, the evidentiary material proffered need
not comply with the strict rules of oral evidence or written evidence. Also, although
bail, like the trial, is essentially adversarial, the inquisitorial powers of the presiding
officer are greater. An important point to note here about bail proceedings is so self
officer are greater. An important point to note here about bail proceedings is so self
evident that it is often overlooked. It is that there is a fundamental difference between
the objective of bail proceedings and that of the trial. In a bail application the enquiry
is not really concerned with the question of guilt. That is the task of the trial court.
The court hearing bail application is concerned with the question of possible guilt
only to the extent that it may bear on where the interests of justice lie in regard to bail.
The focus at the bail stage is to decide whether the interests of justice permit the
release of the accused pending trial; and that entails, in the ma in, protecting the
investigation and prosecution of the case against hindrance'.
10 [1999) ZA CC 8; 1999 (4) SA 623 (CC); 1999 (7) BCL R (03 June 1999) 1999 (2) SACR 51 (CC)
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(23] The bail proceedings are inquisitorial and therefore allowing the court to ask for
further information if needs be. This is clearly illustrated by section 60 (3) of the Act
which provides:
'If the court is of the opinion that it does not have reliable or sufficient information or
evidence at its disposal or that it lacks certain important information to reach a
decision on the bail application, the presiding officer shall order that such information
or evidence be placed before the court'.
(24] In S v Acheson 11 177E-F the court emphasised that:
'accused person cannot be kept in detention pending his trial as a form of
anticipatory punishment. The presumption of the law is that he is innocent until his
guilt has been established in court. The court will therefore ordinarily grant bail to
accused unless this is likely to prejudice the ends of justice.'
(25] The court must be satisfied that there is a probability and not a possibility of one
or more of the factors mentioned in section 60(4) happening. This can only happen if
the court deals with all the evidence in order to justify its conclusion. The point was
emphasised in S v Diale and Another12 at para (14] where it is stated that:
'A court cannot find that refusal of bail is in the interest of justice merely because
there is a risk or possibility that one or more of the consequences mentioned s60(4)
will result. The court must not grope in the dark and speculate; a finding on the
probabilities must be made. Unless it can be found that one or more of the
consequences will probably occur, detention of the accused is not in the interest of
justice and accused should be released'.
[26] I am satisfied that in this matter the magistrate misdirected himself by refusing
bail without providing reasons for such a decision. The failure to provide reasons has
been dealt with in a number of judgments by our superior courts. In the case of
Vodacom (Pty) Ltd v Makate and Another13 at para 46 the court stated that:
Vodacom (Pty) Ltd v Makate and Another13 at para 46 the court stated that:
'The court speaks through its judgment. It is thus in the judgment that one expects to
find evidence that the court discharged the duty of proper consideration the way it
should. An indicative factor -albeit not exclusive- of the performance of the duty of
proper consideration is providing adequate reasons for a judgment ( the duty to
provide reasons).Woefully lacking reasons are symptomatic of a flawed assessment
of facts and issues. For present purposes, flawed in the sense that amounts to failure
of justice. We must not lose sight of the fact the adequacy of reasons relate to a
11 1991 (2) SA 805 (NM)
12 2013 (2) SACR 85 (GNP)
13 (2025] ZACC 13
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proper consideration of the evidence and issues and - based on that-taking a
reasoned decision. That in no way , means that the reasons must be correct. I accept
that unsatisfactory reasoning does not necessarily equal to discharge the duty of
proper consideration'.
[27] Vodacom at para 54 court went further to underscore the importance of
providing reasons despite the simplicity of the facts to be decided. The court
continued to state:
'Reasons given for a court's decision help demonstrate that there was or wasn 't
proper performance of the duty of proper consideration. If the facts are simp le and
straightforward, not much may be required by way of reasons to support the
conclusion reached. But the reasons must still be enough to demonstrate sufficiently
that there compliance the duty'.
[28] The above quoted captures what happened in this case. I find that there was a
failure of justice and the taking the conspectus of evidence, the appellant is entitled
to be admitted to bail.
Order
[29] In the circumstances it is ordered as follows:
1. Appeal against refusal of bail is upheld.
2. The appellant is granted bail in the sum of R 2 000.00
3. Upon payment of the said sum of money , the appellant shall be released from
custody on condition that:
3.1. That the appellant attend court on the next date and any further date to
which this matter is postponed and remain in attendance until excused
by the court or dealt with in accordance with justice.
3.2. He informs the investigating officer of his whereabouts at any stage
that he has to leave Johannesburg metropolitan municipal area and
also when he for reason whatsoever changes his residential address.
3.3. The appellant is informed that in terms of section 67(1) Act 51 of 1977,
if after his release on bail, he fails to appear at the place and on the
date and at the time appointed for his trial or to which the proceedings
are adjourned, or fails to remain in attendance at such trial or at such
are adjourned, or fails to remain in attendance at such trial or at such
proceedings, or fails to comply with the above conditions, the relevant
Court shall declare the bail provisionally cancelled, and the money
provisionally forfeited to the State, and issue a warrant for his arrest.
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The appellant is further informed that it is also a punishable offence for
failing to appear or for non-compliance with a stipulated condition.
3.4. A copy of this order with the bail conditions must be served on the
appellant personally by the Investigating Officer before his release on
bail. A copy of such service duly signed as acknowledgment by the
appellant certifying that he is fully conversant with the conditions of his
release in bail must be filed as part of the record in the Clerk of Court,
N igel.
Date of Hearing:
Date of Judgment:
Appearances:
For the Appellant
For the Respondent:
Instructed:
10 October 2025
17 October 2025
Adv. NT Motsisi
Adv. Pruis
OPP (Pretoria)
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ACTING JUDGE OF TH E H IGH
COURT PRETORIA