2
The appellant’s appeal is dismissed.
_________________________________________________________
JUDGMENT
_________________________________________________________
DOSIO J:
Introduction
[1] This is an appeal against the denial of bail in the Tembisa Magistrate Court.
The bail application commenced on 30 July 2025 and was concluded on 14
August 2025.
[2] The appellant is charged with murder of his girlfriend.
[3] The court a quo dealt with this matter as a schedule 5 offence in terms of the
Criminal Procedure Act 51 of 1977 (‘Act 51 of 1977’).
Grounds of appeal
[4] The appellant contends that the court a quo erred in finding that the appellant
had not discharged the onus in terms of ss 60(11)(b) of Act 51 of 1977.
[5] Further, that the court a quo erred in not directing in terms of s60(3) read with
s60(9) of Act 51 of 1977 that the statements of the state witnesses, which the
state relied upon, be handed into the court and/or be read on record during
the bail proceedings . Due to this failure on the part of the court a quo, the
appellant was denied the opportunity to have access to the witness statements
or hear them being read before court , thereby disallowing the appellant to
adequately defend his application to be released on bail.
[6] That the court a quo erred further in that it found that:
(a) the appellant will influence or intimidate state witnesses, which were mere
speculations of the investigative officer;
3
(b) the appellant will temper with the evidence of the state;
(c) the safety and wellbeing of the appellant would be jeopardized by the
community of Kanana if the appellant is released on bail.
(d) the appellant will evade trial.
Evidence
[7] In support of the bail application, the appellant submitted an affidavit. The
contents of the affidavit stated that:
(a) he is a 42-year-old adult male
(b) he is a South African citizen, residing at the Kanana section in Midrand,
Gauteng.
(c) he was employed as a gardener at a construction company and earned
R2500.00 per month.
(d) he was resident in the area with his brother for approximately 19 years.
(e) if he was granted bail he would continue to reside in Centurion.
(f) he has movable assets in excess of R15 000.00.
(g) he has no passport and has never been out of the country.
(h) he has no previous convictions, pending cases or protection orders against
him.
(i) on the day in question he left in the morning to go and collect funds. He saw
his girlfriend sleeping on the couch and he left her there as she had been out
drinking the previous night.
(j) he was aware that some community members were against his release on
bail.
[8] The respondent, in opposing the granting of bail, called the investigating
officer to give evidence, He stated that he has 21 year ’s experience in the
South Africa Police and that his rank was that of a sergeant. He indicated that
there are 6 witness statements available and one of the witnesses saw the
appellant assaulting the deceased with a chain and throwing the deceased
against a wall.
4
[9] The investigating officer stated that it is not the first incident that was reported
in respect to the appellant and this deceased, in that a case was opened
previously against the appellant for assault of the deceased under CAS
146/5/2023 at the Rabie Rid ge Police Station in 2023 for assault common
under domestic violence. The matter was not withdrawn, it was merely not
placed on the court roll as the public prosecutor had requested certain queries
to be attended to before placing it on the court roll.
[10] The investigating officer opposed bail on the following grounds:
(a) He stated that the appellant is familiar with the identity of the witness who
came to stop the assault of the deceased by the appellant.1
(b) The appellant was arrested at a taxi rank after the community had created
a WhatsApp group circulating pictures of the appellant.2
(c) This is a femicide crime.
(d) The community signed a petition with 400 members requesting that bail
not be set and that the prosecution be expedi ted. Furthermore, that the
appellant be sentenced with the maximum sentence. 3 Accordingly, he stated
that the appellants life is in danger if released on bail.4
(e) The appellant is not a suitable candidate to get bail.5 The police had to act
swiftly to arrest the appellant at the taxi rank as the community were already
ganging up to take the law into their own hands. The taxi owners even had to
place the appellant in an office to prevent him from being assaulted by the
community.6
Evaluation
[11] The provisions of ss60(4)-(9) of Act 51 of 1977 apply. These subsections must
be construed consistently with s35(1)(f) of the Constitution, which guarantees
1 Caselines 003-71 line 15-16
2 Caselines 003-11 line 18-20
3 Caselines 003-72
4 Caselines 003-21 line 22-23
5 Caselines 003-68 line 19 and 23-24
6 Caselines 003-21line 22-23
5
the right of an arrested person ‘to be released from detention if the interests
of justice permit, subject to reasonable conditions’.
[12] In the matter of S v Smith and Another,7 the court held that:
‘The Court will always grant bail where possible, and will lean in favour of and not
against the liberty of the subject provided that it is clear that the interests of justice
will not be prejudiced thereby.’8
[13] In the matter of S v Dlamini,9 the Constitutional Court held that:
‘The interests of justice in regard to the granting or refusal of bail therefore focus
primarily on securing the attendance of the accused at the trial and on preventing the
accused from interfering with the proper investigation and prosecution of the matter.’
[14] In terms of s65(4) of Act 51 of 1977, 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.
[15] This court must consider all relevant factors and determine whether
individually or cumulatively they warrant a finding that the interests of justice
warrant the appellant’s release.
[16] In so far as the weakness of the State’s case in a bail application is concerned,
the Supreme Court of Appeal in the matter of S v Mathebula10 held that:
‘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…’11
[17] In the matter of S v Bruintjies,12 the Supreme Court of Appeal stated that:
‘(f) The appellant failed to testify on his own behalf and no attempt was made by his
counsel to have him testify at the bail application. There was thus no means by which
7 S v Smith and Another 1969 (4) SA 175 (N)
8 Ibid page 177 para e-f
9 S v Dlamini 1999 (2) SACR 51 (CC)
10 S v Mathebula 2010 (1) SACR 55 (SCA)
11 Ibid para 12
12 S v Bruintjies 2003 (2) SACR 575 (SCA)
6
the court a quo could assess the bona fides or reliability of the appellant save by the
say-so of his counsel.’13
[18] In the matter of S v Mathebula,14 the Supreme Court of Appeal stated that:
‘In the present instance the appellant’s tilt at the state case was blunted in several
respects, first, he founded the attempt upon affidavit evidence not open to test by
cross-examination and, therefore, less persuasive.’15
[19] The appellant bears the onus to satisfy the court, on a balance of probabilities,
that it is in the interests of justice to permit his release on bail. A mere denial
of the considerations and/or probabilities of events, as contained in s60(4) (9)
of Act 51 of 1977, w ill not suffice in order to succeed in convincing the court
that it is in the interests of justice to be released on bail.
[20] After the investigating officer testified, setting out in detail that there is a
witness who saw the appellant hitting the deceased with a chain and throwing
her against the wall, the appellant could have re-opened his case to rebut this.
He did not re-open his case.
[21] The appellant’s counsel argued that in terms of s60(3) of Act 51 of 1977, the
court a quo erred in not requesting that the respondent place these witness
statements before the court and that the court erred in relying on the hearsay
evidence of the investigating officer. Reference was made to the case of S v
Green & Another16 (‘Green’) where the Supreme Court of Appeal held that:
‘…. On a proper consideration of the case on which the state relied any reasonable
court must have concluded that it lacked reliable and important information necessary
to reach a decision, notwithstanding that such information was apparently readily
available….’17
13 Ibid para 7
14 Mathebula (note 10 above)
15 Ibid page 59 B-C
16 S v Green & Another 2006 (1) SACR 603 (SCA)
17 Ibid para 23
7
[22] The matter of Green18 is distinguishable from the matter in casu, in that in the
matter of Green the defence attorney applied for access to the police docket,
which application was refused by the magistrate. The defence attorney also
applied for access to the closed-circuit television tapes. This application was
also opposed by the state and was subsequently dismissed by the magistrate.
The Supreme Court of Appeal in the matter of Green19 was correct to state
that the magistrate should have granted the defence access to the video tapes
and the witness statements. In the matter in casu, no application was brought
by the defence to obtain contents of the docket and witness statements. When
asked by this court why such application was not made, the counsel for the
appellant stated he had no instructions in this regard.
[23] Section 60(3) of Act 51 of 1977 states that:
‘(3) 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 information to reach a decision on a
bail application, the presiding officer shall order that such information or evidence be
placed before the court.’
[24] The court a quo had a detailed explanation from the investigating officer as to
what had transpired and what a certain witness saw the appellant doing to the
deceased. Had the legal representative requested the statements of the
witnesses prior to the launch of the bail application they would have had all
the information they needed to dispute what the investigating officer put on
record. To now argue that the blame sits on the shoulders of the court a quo
for not calling for the witness statements is misplaced. The onus rested on the
appellant to request the witness statements and to prove it is in the interests
of justice to be released on bail.
[25] As stated previously, the appellant never re -opened his case after the
investigating officer testified. As stated in the matter of S v Mathebula20, the
investigating officer testified. As stated in the matter of S v Mathebula20, the
18 Ibid
19 Ibid
20 Mathebula (note 10 above)
8
appellant must go further in bail proceedings to show on a balance of
probabilities that the case is weak and he will be acquitted. This was not done.
[26] Subsection 60(4) of Act 51 of 1977 states:
‘(4) The interests of justice do not permit the release from detention of an accused
where one or more of the following grounds are established:
(a) Where there is the likelihood that the accused, if he or she were released on
bail, will endanger the safety of the public or any particular person or will
commit a Schedule 1 offence;
[Para (a) substituted by s. 4 (c) of Act 85 of 1997 (wef 1 August 1998 and by s 4 (c)
of Act 12 of 2021 (wef 5 August 2022).]
(b) where there is the likelihood that the accused, if he or she were released on
bail, will attempt to evade his or her trial; or
(c) where there is the likelihood that the accused, if he or she were released on
bail, will attempt to influence or intimidate witnesses or to conceal or
destroy evidence; or
(d) where there is the likelihood that the accused, if he or she were released on
bail, will undermine or jeopardise the objectives or the proper functioning of
the criminal justice system, including the bail system;
(e) where in exceptional circumstances there is the likelihood that the release
of the accused will disturb the public order or undermine the public peace
or security.’
[27] Subsection 60(5) of Act 51 of 1977 states that:
‘(5) In considering whether the grounds in subsection (4)(a) have been established,
the court may, where applicable, take into account the following factors, namely—
(a) the degree of violence towards others implicit in the charge against the accused;
(b) any threat of violence which the accused may have made to a person against
whom the offence in question was allegedly committed or any other person;
(c) any resentment the accused is alleged to harbour against a person against whom
the offence in question was allegedly committed or any other person;
the offence in question was allegedly committed or any other person;
(d) any disposition to violence on the part of the accused, as is evident from his or
her past conduct;
(e) any disposition of the accused to commit—
(i) offences referred to in Schedule 1;
9
(ii) an offence against any person in a domestic relationship, as defined in section
1 of the Domestic Violence Act, 1998; or
(iii) an offence referred to in—
(aa) section 17(1)(a) of the Domestic Violence Act, 1998;
(bb) section 18(1)(a) of the Protection from Harassment Act, 2011; or
(cc) any law that criminalises a contravention of any prohibition, condition,
obligation or order, which was issued by a court to protect the person against
whom the offence in question was allegedly committed, from the accused, as
is evident from his or her past conduct;
(f) the prevalence of a particular type of offence;
(g) any evidence that the accused previously committed an offence—
(i) referred to in Schedule 1;
(ii) against any person in a domestic relationship, as defined in section 1 of the
Domestic Violence Act, 1998; or
(iii) referred to in—
(aa) section 17(1)(a) of the Domestic Violence Act, 1998;
(bb) section 18(1)(a) of the Protection from Harassment Act, 2011; or
(cc) any law that criminalises a contravention of any prohibition, condition,
obligation or order, which was issued by a court to protect the person against
whom the offence in question was allegedly committed, from the accused, while
released on bail or placed under correctional supervision, day parole, parole or
medical parole as contemplated in section 73 of the Correctional Services Act,
1998; or
(h) any other factor which in the opinion of the court should be taken into account .’
[my emphasis]
[28] The appellant’s counsel relied on the cases of S v Koch 21 and S v D v and
others22 to suggest that since the investigating officer already had all the
witness statements, that accordingly, there could not be any interference or
intimidation of witnesses by the appellant if released on bail.
[29] In considering the grounds in ss60(4)(a) of Act 51 of 1977 it appears great
[29] In considering the grounds in ss60(4)(a) of Act 51 of 1977 it appears great
violence was perpetrated against the deceased . Even though there is no
protection order opened against the appellant there was a charge of assault
21 S v Koch [2003] 1 All SA 551 (SCA)
22 S v Dv and others 2012 (2) SACR 492 (GNP)
10
common in respect to the appellant’s girlfriend which was opened against the
appellant under CAS 146/5/2023 at the Rabie Ridge Police Station. The
respondent’s counsel addressed this court stating that the key witness is
Angel Vonela Mgolwane and that when she tried to intervene to prevent the
appellant from assaulting his girlfriend further, the appellant warned her to stay
away. As a result, it is clear the appellant does know who the main witness
will be. This witness will also attest to the continued fo rceful violence
perpetrated against his girlfriend, even though this witness told the appellant
to stop assaulting his girlfriend.
[30] The charge which the appellant is facing is murder of his girlfriend, which is a
case of femicide, which is particularly prevalent in the community.
[31] Subsection 60(6) of Act 51 of 1977 states that:
‘(6) ‘In considering whether the ground in subsection (4)(b) has been established, the
court may, where applicable, take into account the following factors, namely—
(a) the emotional, family, community or occupational ties of the accused to the place
at which he or she is to be tried;
(b) the assets held by the accused and where such assets are situated;
(c) the means, and travel documents held by the accused, which may enable him or
her to leave the country;
(d) the extent, if any, to which the accused can afford to forfeit the amount of bail
which may be set;
(e) the question whether the extradition of the accused could readily be effected
should he or she flee across the borders of the Republic in an attempt to evade his
or her trial;
(f) the nature and the gravity of the charge on which the accused is to be tried;
(g) the strength of the case against the accused and the incentive that he or she may
in consequence have to attempt to evade his or her trial;
(h) the nature and gravity of the punishment which is likely to be imposed should the
accused be convicted of the charges against him or her;
accused be convicted of the charges against him or her;
(i) the binding effect and enforceability of bail conditions which may be imposed and
the ease with which such conditions could be breached; or
(j) any other factor which in the opinion of the court should be taken into account.’
[my emphasis]
11
[32] The appellant has no immovable property and no children attending school.
The nature and gravity of the charge on which the appellant is to be tried is
also extremely serious. The strength of the case against the appellant is also
strong.
[33] The appellant’s counsel has referred this court to the matter of Landela and
Another v The State 23, where the court held that even if the state’s case is
strong on the merits, it does not mean that the other factors can no longer be
considered by the court to determine whether an applicant can stand trial if
released on bail.
[34] The matter of Landela24 is distinguishable from the matter in casu, in that in
the matter of Landela,25 the appellants were charged with a contravention of
s57(1) of the National Environmental Management Biodiversity Act 10 of 2004,
for killing a white rhino. The sentence for such a contravention is R10 million
or imprisonment for a period not exceeding ten years or to both such a fine
and such imprisonment. The charge on which the appellant is to be tried is
murder. If the state decides to charge the appellant with murder in terms of
s51(1) of the Criminal Law Amendment Act 105 of 1997 (‘Act 105 of 1997’) ,
then a mandatory sentence of life imprisonment is to be imposed, unless there
are substantial and compelling circumstances not to impose it. If the state
decides to charge the appellant with a charge of murder in terms of s51(2) of
Act 105 of 1997, then the mandatory sentence for a first offender is 15 years
imprisonment.
[35] The possible sentence the appellant is facing is much higher than the
sentence the appellants were facing in the Landela26 matter. The stronger the
case and punishment upon conviction, the more the incentive and chance of
an accused absconding. As stated previously, the appellant has no immovable
23 Landela and Another v The State [2017] ZAGPPHC 930 (30 November 2017)
24 Ibid
25 Ibid
26 Ibid
12
property or school -going children which would decrease his necessity to
remain where he resided prior to being arrested , or the new address
suggested.
[36] Subsection 60(8A) of Act 51 of 1977 states that:
‘(8A) In considering whether the ground in subsection (4)(e) has been established,
the court may where applicable, take into account the following factors, namely-
(a) whether the nature of the offences or circumstances under which the offence was
committed is likely to induce a sense of shock or outrage in the community where
the offence was committed;
(b) whether the shock or outrage of the community might lead to public disorder if the
accused is released;
(c) whether the safety of the accused might be jeopardized by his or her release;
(d) whether the sense of peace and security among members of the public will be
undermined or jeopardized by the release of the accused;
(e) whether the release of the accused will undermine or jeopardize the public
confidence in the criminal justice system; or
(f) any other factor which in the opinion of the court should be taken into account.’
[my emphasis]
[37] The appellant himself is aware from the contents of his affidavit that
‘a large number of people and taxi drivers arrested [him] at the taxi rank ’ [my
emphasis]. Due to the high levels of gender-based violence and femicide in
our country, it is clear that the community in the matter in casu were outraged.
[38] The appellant’s counsel referred this court to the decision of Nel and Others v
S27 and argued that this court need not be influenced by the public to deny
bail, due to such public outrage. It was also argued that the appellants safety
and wellbeing will not be jeopardised by the said community , as he will be
residing at 4676 Oliven Extension 19, Centurion. The respondent’s counsel
addressed this court and stated that even though there is no statement to such
effect, the investigating officer had informed him that members of the
effect, the investigating officer had informed him that members of the
community who were against the appellant getting bail, were sitting in court
27 Nel and Others v S 2018 (1) SACR 576
13
on the day the new address was mentioned by the appellan t’s legal
representative. The respondent’s counsel addressed this court further by
stating that the community will follow the appellant to the new address
suggested and his life is in danger if released on bail. The investigating also
testified in the bail application that the police had to respond swiftly when the
appellant was arrested by the community and taxi drivers. The community
were already ganging up to get the appellant themselves when the taxi drivers
intervened and locked the appellant in an office to safeguard him from being
assaulted by the community.28 Four hundred members of the community have
also signed a petition to request that the appellant ’s matter be expedited and
that the highest sentence be imposed on him.
[39] This court has considered the provisions of ss60(9) of Act 51 of1977 pertaining
to the appellant’s personal freedom and prejudice he will suffer should he
remain in custody. Having weighed the provisions of ss60 (8A) and 60(9) of
Act 51 of 1977, as well as the matter of Nel and Others,29 there are objective
facts in the matter in casu, as well as the likelihood th at if the appellant is
released, he will be injured and probably killed.
[40] There are many aspects that the appellant could have dealt with after the
respondent closed its case, as well as factors suggesting that his welfare
would not be affected if released on bail. The appellant never led any evidence
in this regard.
[41] The appellant did not present viva voce evidence in order to discharge the
onus. He sought to rely on an affidavit accepted as an exhibit in the bail
proceedings. As stated in the case of Bruintjies30 and Mathebula,31 evidence
on affidavit is less persuasive than oral evidence. The denial of the appellant
rested solely on his say -so with no witnesses or objective probabilities to
strengthen it. As a result, the State could not cross -examine the appellant to
28 Caselines 003-21 line 22-23
28 Caselines 003-21 line 22-23
29 Nel and Others (note 27 above)
30 Bruintjies (note 12 above)
31 Mathebula (note 10 above)
15
APPEARANCES
ON BEHALF OF THE APPELLANT: Adv. T.G Ngobeni
Instructed by Sehunane Incorporated
Attorneys
ON BEHALF OF THE RESPONDENT: Adv. A.K Mathebula
Instructed by the Office of the National
Director of Public Prosecutions