2
integrity of the judicial process is maintained, and that justice is administered to
all parties without fear, favour, or prejudice, uninfluenced by public opinion or any
considerations outside the law.
BACKGROUND OF THE MATTER
[2] The Appellant's and State's affidavits indicate that the he will be charged with
conspiracy to commit murder, attempted murder, and money laundering.
[3] Advocate Hodes prepared for the bail application in the court a quo, believing it
would be heard under Schedule 6 of the Criminal Procedure Act, which places a
heavier burden on the appellant to prove, with evidence, that his release is in the
interests of justice due to the existence of exceptional circumstances .1
However, at the start of the proceedings, Adv Hodes, on behalf of the Appellant,
and Adv le Roux, for the State, confirmed their agreement that the application
should be heard under the less stringent Schedule 5, which only requires the
applicant to adduce evidence to show his release is in the interests of justice.2
[4] Adv Hodes, apologetic for having drafted his application on a Schedule 6 basis,
was then allowed to present it, as is, without correction.
[5] Existing reported case law is clear that while parties in a bail application may
make submissions on the applicable schedule, and even indicate an agreement,
as in the present matter, it remains the presiding officer's duty at every bail
hearing to determine the schedule, make such a ruling, and let the process
run from there in accordance with this court ruling, and not the parties'
agreement.3 The only exception being section 60 (11A) (c) 4 where a written
confirmation by the Director of Public Prosecutions having jurisdiction, is prima
facie proof upon production thereof at the application or proceedings of the
charge to be brought.
1 Section 60 (11) (a) Act 51 of 1977
2 Section 60 (11) (b) Act 51 of 1977
1 Section 60 (11) (a) Act 51 of 1977
2 Section 60 (11) (b) Act 51 of 1977
3 S v NEL AND OTHERS 2018 (1) SACR 576 (GJ) – par 7 “In the ordinary course of an application for
bail, a timeous ruling should be made on the applicable schedule or section, whether placed in dispute
or not.”
4 Criminal Procedure Act 51 of 1977
3
[6] Ignoring this binding authority and then allowing the bail application to proceed
in the wrong format (a Schedule 6 -prepared affidavit when it should have been
Schedule 5) is a recipe for confusion, which did occur, and must never be allowed
by any presiding officer in bail proceedings.
[7] Due to this error by the Regional Magistrate, who otherwise wrote a well -
considered judgment, the opening line in her judgment defeats all the hard work
and considerations, as it reads: “This is a bail application brought in terms o f
Schedule 6 of the Criminal Procedure Act 51 of 1977.” An obvious and immediate
misdirection, which is the appellants first ground of appeal, and which was
immediately conceded by the State (Respondent).
[8] The Regional Magistrate concluded, in refusing bail , that the Appellant, bearing
the onus, did not satisfy the court on a balance of probabilities that “exceptional
circumstances exist” to justify his release. Basing these findings on the facts
that, Appellant is:
8.1 a flight risk,5
8.2 he didn’t dispel the risk of interfering with witnesses or obstructing justice, 6
8.3 that the nature and seriousness of the offences demonstrates a clear danger
to community safety,7 and
8.4 that the State’s case cannot be described as weak.8
[9] The approach to a bail appeal is governed by section 65(4) of the Criminal
Procedure Act 51 of 1977 (CPA) which provides that:
“The court or judge 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
5 Section 60 (4) (b)
6 Section 60 (4) (c) & (d)
7 Section 60 (4) (a)
8 Section 60 (4) (b)
4
or judge shall give the decision which in its opinion the lower court
should have given.”
[10] In S v Barber 1979 (4) SA 218 (D) the above was probably best articulated by
Heher J (as he then was) when he held:
“… the powers of this Court are largely limited where the matter
comes before it on appeal … This Court has to be persuaded that
the magistrate exercised the discretion which he has wrongly. …
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.”
[11] The Regional Magistrate's use of the wrong schedule constitute d a clear
misdirection on a point of law. Any court considering bail and refusing it, which
places a higher legal burden than required by law on an applicant, prima facie
failed to properly exercise its judicial discretion, and its decision will most likely
be viewed by a court of appeal as wrong, and should be replaced with the
decision that should have been given.
[12] It however needs to be remembered that Sections 60 (11) (a, b and c) of the CPA
all, respectively, places an onus on an applicant that must be discharged through
evidence on a balance of probability. Section 60 (11) (b) does so by requiring
evidence which satisfies the court that the interests of justice permit release.
[13] Retired Justice Kriegler , writing on behalf of a unanimous Constitutional court
bench in S v Dlamini, S v Dladla and Others; S v Joubert; S v Schietekat
(CCT21/98, CCT22/98 , CCT2/99 , CCT4/99) 1999 (4) SA 623 , concluded that
the term " the interests of justice " is a broad but expressive phrase used to
articulate a value judgment of what constitutes a fair and just outcome for
all parties involved.9
[14] The Apex court also found the term “interest of justice” is used inconsistently
throughout Section 60 of the CPA. It bears a broad meaning in some
9 Paragraph 46
5
subsections, where it signifies the overall value judgment of fairness that includes
the accused's liberty rights, thus mirroring the constitutional norm for bail.
However, in other crucial subsections concerning the bail evaluation process,
namely subsections (4), (9), and (10), it must be given a narrower meaning that
is similar to the "interests of society" or the State's interests, specifically so that
it can be logically weighed against the accused's right to personal freedom in
determining whether bail should be granted.
[15] The Constitutional Court further, by interpreting Section 35(1)(f))10 found that the
ultimate conclusion in our Constitution is that, a detained person does not have
an automatic right to be released on bail; instead, the burden is on the accused
to establish that the interests of justice permit their release.11
[16] Based on Dlamini supra, this Court will proceed from the premise that, due to a
misdirection on a point of law and concessions made by the State, as well as
new submissions introduced on the presented facts, the totality of evidence
supporting the refusal of bail must be re-assessed to determine if the bail refusal
can still be sustained.
SUMMARY OF THE EVIDENCE IN THE REGIONAL COURT
[17] The Appellant, is a 48-year-old married man who supports nine children, is self-
employed as a director of four companies ( CAT VIP Protections, Lux of Africa
Investments, Black AK Trading, and Medi Care 24 Tshwane) that pays 94
employees almost R2 million in wages per month. He earns a combined monthly
income of approximately R250,000, with movable and immovable assets
exceeding R13 million. He has a prior conviction from 2001 for housebreaking
and theft, for which he served four years imprisonment. His only foreign interest
is the Wacko and JR Tru st registered in Mauritius in January 2025. All of these
details related to his personal circumstances are common cause.
10 35. Arrested, detained and accused persons (1) Everyone who is arrested for allegedly committing an offence
has the right … (f) to be released from detention if the interests of justice permit, subject to reasonable conditions
11 Paragraph 45 where it held: “whereas previously the starting point was that an arrestee was entitled to be
released, the position under s S35(1)(f) is more neutral. Now, unless there is sufficient material to establish that
the interests of justice do permit the detainee’s release, his or her detention continues.”
6
[18] A key point of dispute is the Wacko and JR Trust in Mauritius, which was recently
opened to invest in Mauritius, and which investment the Appellant undertook to
suspend until the matter is finalised . The State contends this foreign trust
information was initially hidden and only provided after the State's evidence
revealed the trust's existence after finding it on the confiscated cellular phone of
the appellant. They also allege the appellant has a boat in Mauritius and owns a
private jet, which is denied.
[19] The State further presented evidence of a WhatsApp message on 18 March from
the phone of appellant requesting his wife (accused 4) a photo of his Eswatini
identity card . Official records reflect that this identity card, which displays the
name Vusimuzi Dlamini, is not only irregularly issued and fraudulent but was
also used for departing to Eswatini in February and on 19 April 2024 “on foot,”
with no record of return after 19 April 2024. The Appellant said in court the
investigation team has his passport, and he used it to enter and return from
Eswatini on 19 April 2024 and 20 April 2024, respectively, denying the existence
of the Eswati ni identity card. This identity card reflects the same birth date as
Appellant and carries a picture of him, the police could however never find the
original, and only have the WhatsApp picture thereof . The prosecutor was
unaware if the investigating team had the Appellant's passport.
SUMMARY OF DOCKETS
[20] Regarding the three dockets at issue the following:
20.1 The Thobejane Case (Sandton CAS 436/10/2023) — Attempted Murder
Incident: 17 October 2023, Bryanston. Ms. Tebogo Thobejane was the target of
a shooting, and her passenger, Anele Malinga, was wounded and left paralysed.
They were three in the vehicle.
State's Evidence (Financial Link): The State relies on a voice note between
Accused 1 and 2 mentioning the Appellant's nickname and company name
Accused 1 and 2 mentioning the Appellant's nickname and company name
("CAT") in the context of needing "work." The State produced bank statements
showing the Appellant transferred R20,000 and R15,000 to Accused 5’s account
on 12 October 2023. Critically, an amount of R100,000 was transferred on 18
7
October 2023 (the day after the shooting), of which R50,000 was subsequently
moved to Accused 2’s account by Accused 5. The State alleges this was
payment/funding for the shooting.
State's Evidence (Interference): Ms. Thobejane feeling threatened fled the
country after receiving calls from individuals allegedly aligned with the Appellant,
warning her of his dangerousness and urging her to withdraw the charges.
Appellant's Defence: The Appellant denied any communication with his co -
accused during the relevant period of the voice note. He explained the payments
as legitimate financial support to Accused 2's family, asserting the R100,000 was
for funeral costs of Accused 2's late mother . She always gave him emotional
support and was involved in his upbringing, therefore the contribution. The State
challenged this, arguing the payment was made before the deceased passed
and that the funeral invoice supplied as proof was backdated (issued in a 2025
invoice book for a 2023 service) to conceal the true purpose of the payment.
20.2 The Lyttelton Case (Sibanyoni) — Attempted Murder
Incident: 10 August 2022. Mr. Sibanyoni, a prominent taxi businessman , and
others, was shot at from a white BMW outside a Centurion golf estate.
State's Evidence: Ballistic evidence linked a recovered rifle (found in a stolen
vehicle on Accused 1's premises) to the shooting scene. The white BMW used
is linked to Accused 5 the daughter of accused 2 . The Appellant allegedly
arranged for this BMW to be kept overnight in his former girlfriend's garage
shortly after the shooting.
Motive: The Appellant's company, CAT Security Services, provided protection
to a rival (Mr. Jotham Zanemvula Msibi) of Mr. Sibanyoni in the taxi industry.
Appellant's Defence: The Appellant denies any involvement, emphasising his
lack of connection to the taxi industry and the rivalry therein.
20.3 The Pretoria West Case (Mokubong "DJ Wetties") — Attempted Murder
8
Incident: January 2024. Mr. Mokubong ("DJ Wetties") was the victim of a
shooting incident.
State's Evidence (Admission): The State confirmed evidence of a
conversation where the Appellant allegedly admitted to the complainant (Mr.
Mokubong) that he was responsible for orchestrating the attempted murders in
all three cases (Thobejane, Sibanyoni, and Mokubong).
Appellant's Defence: The Appellant unequivocally denies making any such
admission or confession to Mr. Mokubong.
SUBMISSIONS ON APPEAL
[21] The appellant, at the bail appeal hearing, abandoned the alternative request to
refer the matter back to the court a quo for reconsideration under Schedule 5.
The Appellant submitted that the appeal court should, due to the lower court's
misdirection, replace the Regional Magistrate's wrong decision by granting bail .
The State concurred only on the misdirection —that the wrong schedule was
applied—but contended that bail should still have been refused regardless of
whether Schedule 5 was correctly applied.
[22] Adv Hodes explained the unfairness of the situation in the facts of this matter.
He submitted there are 5 accused. They are accused 1 – Musa Kekana; accused
2 – Tiega Floyd Mabusela (father of accused 5); accused 3 – Vusimuzi “CAT”
Matlala (Appellant); accused 4 – Tsakani Matlala (appellants wife), accused 5
Nthabiseng Nzama (daughter of accused 2).
[23] Accused 1 and 2 were arrested respectively on 23 April 2024 and 14 May 2024
and remained in custody until the matter against them was removed from the roll,
on 08 November 2024 due to an outstanding ballistic report. Gauteng Organised
Crime Unit took over the docket and re -enrolled it on 31 March 2025 through
summons using J175, meaning accused 1 and 2 came on own accord to court
and was released on warning. They are the two gunmen in this matter, according
to the State, facing attempted murder charges whic h fall under Schedule 5, yet
they were not arrested, but summoned and released on warning.
9
[24] The CPA is abundantly clear that where an accused is charged with schedule 6,
5 and section 59 (1) (a) (ii) or (iii) offences 12 “the court shall order that the
accused be detained in custody until he or she is dealt with in accordance with
the law”
[25] There is also the case of S v Hewu and Others 2017 (2) SACR 67 (ECG) (6
April 2017) a judgment of Revelas J where it was held in par 23 “…. Once again
it will all depend on the facts. Mr Marais gave the example of instances where
charges are provisionally withdrawn against an accused for purposes of awaiting
forensic test results. If the tests are positive and the prosecution has a case to
prosecute, there is no reason why t he re -arrest of the accused should be
impermissible, simply because the accused had appeared in court before.”
[26] I quoted the above, because the appellant now argues the unfairness of this
situation where accused 1 and 2 the two “gunmen” with direct evidence against
them, are on warning. Yet, the evidence against him, so admitted by the State,
is circumstantial, meaning evidence that indirectly suggests a fact, rather than
directly proving it.13 He further submits this circumstantial evidence will not stand
admissibility and constitutional challenges at trial and will lead to his acquittal.
His wife accused 4 was granted R20 000 bail and accused 5, R10 000 bail. He
therefore feels bail must be granted to him also.
[27] The other submissions made before me in the appeal was the voice note he had
no part of and was between accused 1 and 2 will be inadmissible against him.
[28] He gave his full cooperation to the investigating team since he became aware of
the case in December 2024 and was always found by them either at home or at
work.
[29] He submits the investigating officer misled the court a quo on three aspects. That
he 1 - owns a boat in Mauritius; and also 2 - a private jet. He denies this and
basically says if the State places no probative evidence of such allegations
basically says if the State places no probative evidence of such allegations
12 Section 60 (11) (a-c)
13 Circumstantial evidence has specific requirements before it can be accepted, in simple terms for a person
to be found guilty based only on circumstantial evidence, the evidence must be completely consistent with
their guilt and must leave no other reasonable possibility other than their guilt. (R v Blom 1939 AD 188)
10
before court, how will he be able to disprove an unsubstantiated and false
allegation.
[30] The 3 rd and biggest false allegation against him by the investigating officer,
according to the appellant, is the payments of R20 000 on 12 October 2023 and
R100 000 on 18 October 2023 made into the account of accused 5 apparently
for the “hit” on Ms Thobejane. The State alleges the R100 000 payment made at
11h39 was made BEFORE the passing, which they allege was at 12h36; and
that the invoice he provided is a 2023 invoi ce which was generated in a 2025
invoice book, because the invoices just before and just after his are 2025 dates,
an alleged forgery to give substance to his explanation.
[31] The Appellant on this point has, however, shown in the appeal hearing, and it
was conceded by the State, that there are two affidavits in the docket the State
disclosed to them, that confirm the passing of Accused 2's mother at between
02:30 and 03:00 on the morning of 18 October 2023. He therefore made the
R100 000 funeral contribution payment at 11:39, well after the death, and not
before it, as the State alleges.
[32] Due to this concession, the “invoice” as is referred to by the State actually fades
into insignificance, according to the Appellant, for two reasons. It is not an
“invoice”, but actually a receipt requested from the Elegance Funeral Group due
to this matter. They issued this receipt from their currently in-use booklet as proof
of the money they received and that according to him explains the situation which
the State regards as suspicious and fraudulent.
[33] The appellant indicated he can afford R100 000 as bail and if more is fixed he
has family that can assist. He is also prepared to submit to any bail conditions
including house arrest, where he has surveillance cameras , to which he is
amenable to giving the police full access to, for monitoring purposes.
[34] The state re -iterated that they agree the schedule used by the Regional
[34] The state re -iterated that they agree the schedule used by the Regional
Magistrate was wrong, but that the findings to refuse bail was not. They submitted
that if the facts in the regional court and those raised in the appeal are considered
under schedule 5, bail should still be refused.
11
[35] The State says even under schedule 5 the onus remains on the Appellant to
show through evidence the averments he makes. He says he has a chronic
medical condition of asthma and tonsillitis for which he uses chronic medication
and he fears for his health in prison suggesting the State can easily verify same.
The state doesn’t need to as he has to show it is so.
[36] The state says it is untrue that he ga ve his co -operation in the matter since
December 2024. His narrative has always been that the police was malicious
and acted unlawfully entering his home without warrants and even stealing his
Rolex watches, a matter that was never taken further. He also c ommunicated
with his then attorney, asking if he c ould “come out of hiding.” This was in the
period when his security services company was being scrutinised by the police
for compliance especially in regard to the firearms they possess.
[37] The state further submits his unsigned first bail affidavit disclosed to them, but
not presented didn’t indicate his trust in Mauritius, clearly intent on hiding that
fact from the court if he didn’t see in the states disclosed affidavit they knew about
it, finding the evidence on his cellular phone. This phone is also where they found
the picture of the fraudulent Eswatini identity document which he denies and
allege was planted by the police. They however submit as per their evidence the
request that he made on WhatsApp to his wife was answered by her within a
minute and that is visible on both devices. The devices show also communication
activity after this interaction and the State submit there is no technology they
know of that can implant such communication on two phones in and on a specific
date to falsely implicate the appellant.
[38] The State conceded the time of death issue indicated above as a “mistake”, but
still remains suspicious about the receipt and how it was issued.
[39] The State asserts that the appellant's possessi on of a cell phone while
[39] The State asserts that the appellant's possessi on of a cell phone while
incarcerated for this matter, combined with the fact that the phone's contact list
contained names of individuals relevant to the Madlanga Commission (The
Judicial Commission of Inquiry into Criminality, Political Interference and
Corruption in the Criminal Justice System), points to his connections, disregard
for the law and his ability to communicate with outside parties. This unauthorised
12
access is a serious concern, as it directly poses a risk of witness intimidation,
threats, or the coordination of harm relevant to this matter.
[40] They submit the appellant will most probably eventually face 11 counts of
attempted murder 5 from the Sibanyoni matter, 3 from Wettie and 3 from
Thobejane.
[41] It was conceded that the State's case is circums tantial and may face various
admissibility challenges, but it was submitted that the bail appeal court should
only concern itself with whether there is a case, and not try to evaluate evidence,
which remains the duty of the trial court.
[42] The reply by the Appellant to the above was basically a restatement of what was
already tendered, apart from stating that the State's concession on the reason
for the R20 000 and R100 000 payments disproved their own theory that it was
money paid for the “hit.” It therefore on the Thobejane matter leaves them without
any direct or circumstantial evidence against the appellant and they will also not
be able to prove money laundering as a result. They reiterated their call for bail,
alluding again to the unfairness of the gunme n, against whom direct evidence
exists, being on warning, yet the Appellant is in custody in a matter that they are
sure they will be acquitted on.
RE-EVALUATION OF ALL THE EVIDENCE
[43] This Court will adopt the premise established in paragraph 15, namely t hat "a
detained person does not have an automatic right to be released on bail; instead,
the burden is on the accused (appellant) to establish that the interests of justice
permit his/her release." Consequently, the Court will apply Section 60(11)(b) of
the CPA, using the evidence presented before the court a quo (lower court),
along with the submissions and concessions made in this Court, to determine if
the release is in the interests of justice. This determination will consider both the
broad and narrower interpretations of "the interests of justice" as enunciated by
broad and narrower interpretations of "the interests of justice" as enunciated by
the Constitutional Court in Dlamini supra.
[44] As indicated the Regional Magistrate's judgment demonstrates a structural
compliance with Dlamini supra by balancing principles, but fundamentally fails to
13
comply with the framework by applying the wrong, higher standard constituting a
fatal misdirection in law. On the structural compliance she correctly canvassed
and recorded the accused's very strong personal circumstances which should be
given significant weight. However, by focusing on the exceptional standard, the
Magistrate may have ignored the Dlamini principle of proportionality, failing to
determine if the facts warranted release on Schedule 5's lower standard, perhaps
with stringent bail conditions.
[45] She systematically addressed and made findings on the key factors weighing
against release, concluding that the accused failed to dispel the risks indicated
in 8.1 - 8.4 supra. This was done unaware of the concession the State made on
the money transfer aspect before this court, which to my mind makes a very big
difference to her factual findings on the Thobejane matter.
[46] She didn’t mention the medical condition the appellant raised before her on
affidavit and again before this court. I also see no consideration of the issue that
Accused 3–5 were arrested to be brought before the court and had to apply fo r
bail, whilst Accused 1 and 2, who have direct evidence implicating them in these
crimes, were summoned to court and then warned.
[47] All these issues that should have been determined at trial arose because there
has already been full disclosure of the docket s involved in this matter and
centralisation was granted . This led to the Magistrate being bombarded with
evidence that may or may not hold up at trial or may or may not be admissible
as per the appellant’s submissions in challenging the strength of the State’s case.
[48] The bail court's duty in assessing the strength of the State’s case is to adopt a
prima facie, common -sense approach focused on the nature, availability, and
ostensible reliability of the evidence,14 as presented by the prosecution. The bail
court treats the Applicant's version as evidence that must be evaluated for its
court treats the Applicant's version as evidence that must be evaluated for its
inherent probability and credibility in the context of the specific bail inquiry, but it
14 S v Kula 2023 (2) SACR 52 NWM at 56 and S v Panayiotou Unreported ECG CA 06/2015 (28 July 2015)
par 53
14
does not treat it as a decisive defence to be tested beyond a reasonable doubt ,
as only a balance of probability suffices15.
[49] A bail application is not a trial, and the bail court must not usurp the trial court’s
function by definitively ruling on issues of admissibility, legality (e.g., search
warrants), or complex credibility disputes.16 Ultimately, the strength of the State’s
case is but one factor used to inform the central constitutional value judgment17
of what constitutes a fair and just outcome for all parties involved having
considered the tendered evidence.
[50] Courts hearing bail applications must be careful in not entertaining a “mini -trial”
In this matter full disclosure was made according to the submissions made to this
court. I however note from the Appellants affidavit that when it was drawn that
was not the case (Paragraph 29 Caseline s 004 -7) The Appellant however
decided to embark on a path that was cautioned about many times before in our
case law – challenging the supposed “frail” State’s case.
[51] The matter of Mathebula v S 2010 (1) SACR 55 (SCA) is apposite, as in
paragraph 12 thereof is held: “ 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 proceedi ngs
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. … . Thus it has been held
that until an a pplicant 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.” Adv. Hodes did submit this matter is not applicable as it relates to
Schedule 6 “exceptional circumstances” I however disagree and find it applicable
in all matters, especially those in which an onus exists.
in all matters, especially those in which an onus exists.
[52] It must be emphasised, and noted as often overlooked, that Section 60(4) of the
CPA clearly states: “The interests of justice do not permit the re lease from
15 S v Panayiotou Unreported ECG CA 06/2015 (28 July 2015) par 53
16 S v Udeobi (unreported, ECG case no 158/2018, 13 July 2018) at [9] and S v Mququ 2019 (2) SACR
207 (ECG) at [19]
17 S v Dlamini, S v Dladla and Others; S v Joubert; S v Schietekat 1999 (4) SA 623 (CC) at [8] and S v Kula
2023 (2) SACR 52 NWM at [56]
15
detention of an accused where one or more of the following grounds are
established.” It is therefore the logical conclusion that the use of the negative
phrase ("do not permit the release") means that once the court has concluded,
after weighing all factors in Section 60(4) against Section 60(9), that a single
ground for refusal has been established, the court's discretion ends, and the
result is a refusal of bail.
[53] The ultimate logical conclusion is that the accused's constitutional right to
freedom (Section 35(1)(f)) is legitimately curtailed when the interests of justice
are shown to be in greater peril. The entire phrase represents the constitutional
balance point established by the CPA: Personal freedom is permitted unless
it conflicts with a fundamental interest of justice.
[54] The question all bail courts must ultimately ask themselves is: “Will the accused
stand trial if granted bail?” This is a decision (value judgment) left solely in the
hands of the bail court as section 60 (1) (a) clearly states: “An accused who is in
custody in respect of an offence shall, subject to the provisions of section 50(6),
be entitled to be released on bail at any stage preceding his or her conviction in
respect of such offence, if the court is satisfied that the interests of justice so
permit.”
[55] This is strengthened by Section 60 (10) of the CPA, that states: “Notwithstanding
the fact that the prosecution does not oppose the granting of bail, the court has
the duty, contemplated in subsection (9), to weigh up the personal interests of
the accused against the interests of justice: Provided that the interests of justice
should be interpreted to include, but not be limited to, the safety of any person
against whom the offence in question has allegedly been committed.”
[56] It is therefore not strange to find that a court exercising this duty it holds, often,
even if the State is not opposing bail or change their attitude in regard to bail
even if the State is not opposing bail or change their attitude in regard to bail
during the application,18 will still refuse to grant bail.
[57] It is clear that the Regiona l Magistrate considered the mosaic of evidence
presented to her, and adequately dealt with it, although she applied the wrong
18 Chilwane v S (A43/2025) [2025] ZAGPJHC 690 Dosio J at [41]
16
test. She considered the appellants grounds which were; Family and personal
ties; Business interest and employment; Assets; Passport and foreign interests;
Prior conviction being old; The various disputes the appellant has with the facts
of the State’s case, versus, the grounds on which the State was opposing bail
which were: The seriousness of the charges; Flight risk; Unlawful
communications with cell phone in prison; Potential interference with witnesses;
The strength of the State’s case; Danger to the community.
[58] I am unable to differ with her findings in the judgment made in regard to the
appellant being a flight risk and specifi cally the conclusion where it was stated:
“… the applicant (appellant) has both the means and the potential opportunity to
evade trial.”19
[59] When the evaluation of the interference with witnesses and the administration of
justice was considered, there were th ree considerations: previous threats,
discovery of a cell phone in the Appellant's possession whilst in custody, and in
relation to the "Wetties" matter, the denied admissions made . She then
concluded that: “ Taken cumulatively, these circumstances create a material
risk that, if released, the applicant would have both the motive and the means
to interfere with witnesses or to obstruct the administration of justice. The
applicant's denials and explanations do not sufficiently dispel the reasonable
concerns raised by the State.”20 The only criticism of this finding, with which
I concur, would be that she should have held: “… these circumstances create
a likelihood 21 that, if released, …”
[60] In evaluating the danger to the community, she correctly concluded that the trial
court will be better positioned to deal with the state’s allegations and appellants
denials whilst stating: “ The pattern of allegations across three separate
incidents - the Thobejane shooting, the Sibanyoni shooting, and the
Mokubong (DJ Wetties ) shooting - suggests a repeated modus operandi
Mokubong (DJ Wetties ) shooting - suggests a repeated modus operandi
involving targeted violence. Even accepting that the applicant (appellant)
disputes the allegations, the gravity and consistency of the State's version
19 Caselines 006-13
20 Caselines 006-14
21 In line with the CPA wording in section 60 (4) (a-e) which all refer to a “likelihood”
17
create a substantial risk that his release would endanger the safety and
security of the complainants and the wider community.”22 The only criticism
of this finding, with which I concur, would be that she should have held: “…the
gravity and consistency of the State's version create a likelihood 23 that his
release …”
[61] She then concludes: “ This Court is therefore not persuaded that the applicant
has established exceptional circumstances which overcome the presumption
that his release would pose a danger to the community.” Here there is a clear
misdirection in the onus used as indicated supra, but this court finds that if
the “interest of justice” onus is used on these conclusions, the finding of being
a danger to the community if released is correct.
[62] The Regional Magistrate then evaluates the strength of the State’s case against
the applicant (appellants) version by looking at the Thobejane, Sibanyoni and
Mokubong (JJ Wetties) matters respectively, and concludes that: “… the State’s
case cannot be described as weak or without substance …”.
[63] Despite the concessi on by the State before this Court on their “mistake” made
on the time of death, which gives credence to the Appellant's version that the
money paid was for medical and funeral purposes, which may remarkably
influence the State’s case against him in the Tho bejane matter, I agree with the
conclusion that: “On a cumulative assessment , the State’s case cannot be
described as weak or without substance. … The Applicant’s (Appellant’s) denials
and explanations will properly be tested during trial, but at this stage they do not
suffice to discharge the onus resting on him .”24 The Regional Magistrate used
the “exceptional circumstances” onus and not the correct one, which would have
been the “interests of justice” onus, but despite this misdirection, I find that if the
correct onus had been used, the same conclusion would have been reached .
See also my remarks supra in paragraph 51.
See also my remarks supra in paragraph 51.
[64] Although the appellants medical condition was raised in the papers, she didn’t
specifically deal with it. Probably because the Appellant didn’t provide onus -
22 Caselines 006-15
23 In line with the CPA wording in section 60 (4) (a-e) which all refer to a “likelihood”
24 Caselines 006-16
18
displacing proof of these chronic ailments, and it remains an unsupported
averment, as that of the State about the boat and jet . It is however trite that “a
medical condition on its own, cannot be the only factor to grant bail, especially if
there are other remedies available to the appellant.”25 This is also my finding on
the medical condition issue raised presented.
[65] The final consideration is the “unfairness” in that the two accused the State
clearly has the strongest case against, accused 1 and 2, who is on warning after
being summoned to court. This, whilst the Appellant (Accused 3), his wife
(Accused 4), and Accused 5 (who is Accused 2's daughter), against whom it
would seem only circumstantial evidence exists, were arrested to be joined and
had to bring bail applications.
[66] I have dealt with this issue extensively in paragraphs 25 and 26 supra and can
merely add, yes, the appearance of unfairness is there, however the State
secures attendance of accused at court by acting in accordance with sections 38
(1) and (2) of the CPA. The case of Hewu supra, is to my mind authority for the
fact that accused 1 and 2 could have been arrested to be re -enrolled, however
that was the choice of the State to summon them. Although, with the charges
they are facing, I doubt if any Magistrate on a proper application made in terms
of Section 43 (for an offence that is Schedule 5 or 6 or Section 59(1)(a)(ii) –
domestic relationship related – or (iii) – where an order for protection has already
been issued to protect a complainant) would have refused to sign such a warrant
applied for by a Director of Public Prosecutions, a delegated public prosecutor,
or a commissioned police officer.
[67] There is the case of Minister of Safety and Security v Sekhoto and another 26
which dealt with arrest without a warrant and held that the principle of "least
evasive way" is accommodated in the second jurisdictional requirement for a
lawful arrest: the exercise of discretion.
lawful arrest: the exercise of discretion.
[68] Sekhoto clarifies that the police official does not ha ve an absolute duty to use
the least evasive method if they reasonably believe it will not be effective. If the
25 Chilwane v S (A43/2025) [2025] ZAGPJHC 690 Dosio J at [38]
26 2011 (1) SACR 315 (SCA)
20
For the Applicant:
For the Respondent:
Heard:
Judgment:
Adv L. Hodes SC assisted by Adv. R.
Gissing instructed by Victor Nkhwashu
Attorneys
Adv EFH le Roux assisted by Adv.
Ngubane instructed by The Director of
Public Prosecutions Gauteng:
Johannesburg
20 October 2025
27 October 2025