2
[2] The Appellant (Robin T. Nhepera), a Zimbabwean citizen, is charged with eight
counts of theft totalling R2,064,720 from her former employer, Mtanga Bulk
(owned by Jonathan Mtanga, a family member), where she worked as a legal
Administrator for three years. She resigned in October 2024 and returned to her
parental home in Harare, Zimbabwe (where her claimed residential address was
not supplied).
[3] She returned to South Africa on 18 April 2025 on a three -month visa. The
Appellant was arrested on 23 April 2025 at OR Tambo International Airport while
attempting to board a flight back to Zimbabwe. Her legal status in South A frica
expired on 17 July 2025 while she was in custody.
APPROACH
[4] As this is a bail appeal the approach 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 or judge shall give the
decision which in its opinion the lower court should have given.”
In S v Barber 1979 (4) SA 2 18 (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.”
ANALYSIS
[5] The learned Magistrate refused the applicants bail on the singular ground. This
finding is in terms of Section 60 (4) (b) CPA which states:
3
“where there is the likelihood that the accused, if he or she were
released on bail, will attempt to evade his or her trial:
[6] He came to this conclusion by stating the following cumulative flight risk factors
which he regarded as “fatal for the applicant” – them being her lack of assets and
unemployment in RSA , as well as her struggle and proven failure to obtain a
verifiable address where she would stay trial awaiting. She also indicated her
intention to study in RSA , but no proof of this was provided. The Magistrate
therefore considered various of the ten factors2 listed under Section 60 (6) CPA
which speaks to his ultimate finding on the ground mentioned supra under
Section 60 (4) (b) CPA.
[7] One of the core issues argued in this appeal centres on th e Magistrates finding
regarding the strength of the State's case, a factor under Section 60(6)(g) CPA,
which was used as a prominent determining factor.
[8] This as the Magistrate held: "I appreciate that these are bail proceedings, and I
am not the trial Court," and that his function was only to "prima facie assess and
determine the relevant strength of the state's case ". He however the n made a
definitive finding that the evidence (the "fake stamp") "fatally" compromised the
Applicant's case. This language use was argued to have blurred the line between
a prima facie assessment and a de facto conclusion on the merits of guilt,
thereby usurping the function of the trial court.
2 Section 60 (6) Act 51 of 1977 “factors” for consideration under Section 60 (4) (b) Act 51 of 1977 are:
(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 document s held by the accused, which may enable him or her to leave the
country;
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 shoul d 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;
(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.
4
[9] I agree that the Magistrates overzealous wording may be an overstatement for
enquiring on one factor under section 60 (6) ( g), but strongly disagree that he
made a de facto conclusion on the merits of guilt. This was a bail application and
the factor consideration and ruling about the “fake stamp” holds no consequence
to the theft charges the appellant faces. It can therefore not be held on this point
that the Magistrates ultimate decision was wrong and replaceable.
[10] Magistrates must ensure their bail judgments are concise and adhere strictly to
the language of the legislation, clearly identifying which of the five grounds listed
in Section 60(4)(a)-(e) CPA established that releasing the applicant would not be
in the interest of justice; it is critical not to elevate a mere factor for consideration
(such as the strength of the State's case, listed under S 60(6)(g)) to the status of
a conclusive, independent ground, though it remains essential that the judgment
indicates which specific factor(s) (listed under S 60(5)-(8A)) were considered to
support the established ground.
[11] We seem to have reached a stage where “the strength of a case” which is but a
singular factor, to establish a ground, of what would not be in the interest of
justice to grant bail, have been elevated to a ground (and not just a factor) for
consideration of justice interest. This should be guarded against , by all decision
makers and representatives seeking to question or challenge, the decision made.
[12] It is recognised that the factor of a State case being strong or weak is an
extremely important issue for the bail court to consider. However, in this case, it
is one of ten possible factors to consider, in getting to a decision if the ground
of there being a likelihood that the accused, if released on bail , will attempt to
evade her trial.
[13] The strength or weakness of a State case still under investigation , it being
[13] The strength or weakness of a State case still under investigation , it being
challenged by a bail applicant either viva voce or on affidavit, and the
requirements that such a challenge must meet to be successful , have already
been extensively pronounced upon in case law – See Mathebula v S 2010 (1)
SACR 55 (SCA) paragraphs 11-12 and more recent Matlala v S (A67/2025)
[2025] ZAGPJHC 1099 (27 October 2025) paragraphs 48-51.
5
[14] The Appellants legal representative in the bail proceedings indicated that she
intends to plea d, not guilty, and took on the strength of the States ca se in that
she was not the only administrator receiving cash at the business, and that she
has a provable alibi for some of the date s where allegations of theft are made
against her. There were also allegations made of a bias and a possible corrupt
friendship, between the investigating officer and the complainant. The owner was
also accused of looking for a scapegoat as he was having serious tax issues with
SARS.
[15] Before this court Adv . Mureriwa for the appellant , also referred to the
documentary evidence placed before the court a quo and said it meant nothing
as it was merely delivery notes, invoices and statement of cash , which only
proves something was ordered and delivered an invoice was generated and a
cash payment was made. There is no evidence of any of the people invoiced to
say I paid x- amount in cash to the Appellant, but the statement shows y-amount
indicating a theft may have been committed.
[16] All of these aspects can be viewed in light of the findings made in the cases
referred to in paragraph 13 supra, and it all comes down to this; A bail applicant
must prove on a balance of probability that they will be acquitted of the charge,
and until they set up a prima facie case of the prosecution failing, the state has
no duty to rebut their evidence (S v Botha 2002 (1) SACR 222 (SCA); S v Viljoen
2002 (2) SACR 550 (SCA)). I find this was not achieved by the Applicant.
[17] The main thrust of the Appellant's grounds of appeal is that the Magistrate
committed legal misdirection ’s and factual overreaching conclu sions, primarily
by disregarding the presumption of innocence and the right to liberty . The
Appellant contends that the Magistrate erred in law by disregarding the
presumption of innocence and Appellant’s rights to liberty and dignity.
presumption of innocence and Appellant’s rights to liberty and dignity.
[18] This ground of appeal must be viewed in the light of the findings made by our
Apex Court in the matter of S v Dlamini, S v Dladla and Others; S v Joubert;
S v Schietekat 1999 (4) SA 623 (CC)
[19] In paragraphs [45] to [50], the Constitutional Court held the t erm “interest of
justice” means: “a value judgment of what would be fair and just to all
6
concerned” and importantly further that the phrase "the interests of justice" has
two distinct meanings within the CPA bail legislation and must be interpreted
consistently with the Constitution.
[20] In the overarching context of Section 60(1)(a), which determines whether bail
should be granted at all, "the interests of justice" is given a wider meaning that
requires weighing the State's (societal) interests against the accused's right to
liberty.
[21] However, in Section 60(4), which lists the adverse grounds (like evading trial or
witness intimidation) that permit the refusal of bail, the phrase takes on a
narrower meaning, referring specifically to the societal interests themselves.
[22] This wider and narrowed meaning distinction ensures the court does not solely
focus on the State’s case . This as Section 60(9) CPA creates an all-important
mandated judicial exercise, which is the weighing of the right of the accused to
personal freedom, in particular the prejudice (listed in Section 60(9)(a) to (g)]
likely to be suffer if detained in custody , against the unfavourable / harmful
societal ground(s) established under Section 60(4), which was determined, after
consideration of the relevant factors in Sections 60(5-8A) by the bail court.
[23] Only if the societal interest grounds (60 (4) (a-e)] clearly outweigh the accused's
right to freedom and prejudice (60 (9)], after conducting this weighing (balancing)
act, can the court legitimately refuse bail. This interpretation harmonises the CPA
with the Constitutional right to be released from detention if the interests of justice
permit, preventing an automatic refusal based merely on the existence of a risk.
[24] The Appellant argues the Magistrate failed to execute th is statutory duty under
Section 60(9) CPA . This as he failed to balance the established ground being,
the likelihood the Appellant will evade her trial Section 60(4)(b) , against the
personal freedom and prejudice the Appellant may suffer by being detained until
personal freedom and prejudice the Appellant may suffer by being detained until
the matter is finalised.
[25] The Appellant submits that even where the Schedule 5 onus has not been fully
discharged by the Applicant, the court must still consider and impose stringent
bail conditions (such as house arrest or high bail which cannot be afforded to be
7
forfeited) to mitigate the established ground(s) risk, before resorting to an outright
refusal of bail. The Appellant submits this failure to explore such stringent release
conditions is a substantive legal misdirection contradicting binding High Court
authority (Sureia Faquir v S)3.
[26] I agree that the Magistrate failed to properly execute his statutory duty under
section 60(9) CPA. He mentioned it, but didn’t comply with it. The Magistrate’s
judgment, in the evaluation section thereof, focus heavily on the Section 60(6)
factors that supported his finding of the ground under Section 60(4)(b). He did
not balance the applicant’s personal freedom and prejudice faced under the
Section 60(9) factors, against the unfavourable / harmful societal ground found
not to be in the interest of justice for release, established under Section 60(4)(b).
[27] His ultimate findings were that the Appellants lack of assets,4 unemployed status5
lack of emotional, family and community ties6; the gravity of the charge and the
penalties likely to be imposed 7 and the strength of the State ’s case8 "militate
against the acceptance of her submission that she is not a flight risk and will
stand trial".
[28] Due to the Magistra te’s failure to execute this mandatory statutory duty under
Section 60(9) he erred and was wrong. This finding does not mean that his final
decision to refuse bail was wrong, but it does mean that this court hearing the
appeal, is now empowered to give the decision that in its opinion should have
been given.
[29] The evidence establishes a likely and substantial risk against granting bail. The
applicant is a foreign national with no legally verified South African address –
although Adv. Mureriwa, her counsel in this court, offered she could come and
stay at his house if bail is granted – an issue I will speak to later in this judgment.
[30] Her address in Zimbabwe was never presented in the papers and her legality
[30] Her address in Zimbabwe was never presented in the papers and her legality
(Visa) in RSA lapsed on 17 July 2025 after her arr est in this matter . S he i s
3 (A73/2013) [2013] ZAGPPHC 523 (12 May 2013)
4 Section 60(6)(b)
5 Section 60(6)(j)
6 Section 60(6)(a)
7 Section 60(6)(f&h)
8 Section 60(6)(g)
8
unemployed, and lacks substantial assets or family (not complaining against her)
ties within RSA.
[31] She was unreachable to the investigating officer where she was in Zimbabwe ,
which led to the issuance of a J50 warrant of arrest , which was executed at the
airport, due to a tip-off that she was in RSA and was leaving for Zimbabwe. The
charges are serious Schedule 5 offen ces, eight counts of theft, with minimum
sentences applicable, justiciable in the Regional Court, creating a sign ificant
incentive for her to abscond.
[32] Considering the weighing factors under Section 60(9) t he period already in
custody awaiting trial carries a low weight, as the State confirmed investigations
would be completed "without undue delay." Some of the delays thus far was
found by the Magistrate to be due to the applicants request and is evident from
the record . Financial loss similarly carries a low weight due to the applicant's
unemployed status, and her s tate of health carries no weight as no critical
medical issues were raised. Whil st the impediment to her defence carries
moderate weight, it is not unique to RSA as this type of difficulty is faced by many
trial awaiting accused.
[33] The Applicant's side of the weighing factors supra as per Section 60(9)(a)-(g),
which measures her freedom rights and prejudice of detention, is weak. Her
constitutional right to freedom (Section 35(1)(f)) is legitimately curtailed when the
interests of justice are shown to be in greater peril. Personal freedom is
permitted unless it conflicts with a fundamental interest of justice.9 This
entire phrase represents the constitutional balance point established by the CPA.
[34] On the issue of bail conditions, I was referred to the decision of Cachalia AJ (as
he then was) in S v Branco 2002 (1) SACR 531 where I was specifically referred
to the quotation on page 537 where he held:
“Finally, a court should always consider suitable conditions as
an alternative to the denial of bail. Conversely, where no
an alternative to the denial of bail. Conversely, where no
consideration is given to the application of suitable conditions as
9 Matlala v S (A67/2025) [2025] ZAGPJHC 1099 (27 October 2025) par. 53
9
an alternative to incarceration, this may lead to a failure to
exercise a proper discretion.”
[35] With all due respect to now, Cachalia JA, this I find is not a conclusion that can
be made, if the bail provisions in Chapter 9 - Sections 58-70 is carefully looked
at and read with the Constitutional Courts decision of Dlamini.
[36] The heart of this judgment is that the factors contained in Sections 60 (5 -8A),
speak to their respective grounds, to be est ablished of what will not be in the
interest of justice to grant bail, per Sections 4 (a-e). Once such grounds are
found, the mandated judicial weighing exercise with Section 60(9) must be
conducted. If a court then concludes bail is to be refused, as it w ill be in the
interest of justice to do so, there is nothing in the bail legislation or Dlamini that
warrants the finding that “a court should always consider suitable conditions as
an alternative to the denial of bail.”
[37] I say this, as a bail court who properly went through the whole bail consideration
process (grounds, factors and weighing of accused’s interests), has now made
a finding to grant or refuse bail using their inherent judicial discretion.10
[38] This is a decision that a bail court when refusing bail can make, as S v Dlamini,
S v Dladla and Others; S v Joubert; S v Schietekat 1999 (4) SA 623 (CC) par
79 held:
“It should of course never be forgotten that the Constitution does
not create an unqualified right to perso nal freedom and that it is
inherent in the wording of s 35(1)(f) that the Bill of Rights
contemplates - and sanctions - the temporary deprivation of
liberty required to bring a person suspected of an offence before
a court of law. The hypothesis, indeed t he very reason for the
existence of s 35(1)(f), is that persons may legitimately and
10 S v Dlamini, S v Dladla and Others; S v Joubert; S v Schietekat 1999 (4) SA 623 (CC) par 74 “… the
grant or refusal of bail is under judicial control, and judicial officers have the ultimate decision as to whether
or not, in the circumstances of a particular case, bail should be granted.”
10
constitutionally be deprived of their liberty in given
circumstances11.”
[39] If bail is refused in the interest of justice by a bail court who properly attended to
all considerations, there is no other provision in Chapter 9 of the CPA or Dlamini
or the Constitution , that held: “suitable conditions must be considered as an
alternative to refusing bail.”
[40] The pronouncement quoted of the learned judge, tends to read into the bail and
constitutional considerations12 dealt with extensively in this judgment, something
non-existent.
[41] This, as bail conditions and their appropriateness in Chapter 9 is never elevated
to this level, that when a court has decided to refuse bail,13 now it must go further
and consider “conditions as an alternative to incarceration”
[42] While bail conditions are listed as factors14 a court may consider when
determining if the statutory grounds,15 these bail conditions are not elevated to
a requirement that the court must treat them as an alternative to incarceration. It
then follows also that a court will not risk failing to exercise proper discretion
simply by refusing to grant bail with conditions, when it outright decided to refuse
bail.
[43] I therefore respectfully disagree and hold that if a bail court properly went through
the whole bail consideration process (grounds, factors and weighing of accused’s
interests) and refused bail, there is no obligation on it in the CPA, to further
consider conditions as an alternative to incarceration. It cannot be said also such
a failure (to consider conditions) is indicative of an improper judicial discretion
exercised. The only time such a finding of improper judicial discretion may be
made is if the factors related in footnote 14, dealing with bail conditions, was not
properly considered to establish one of the grounds as per footnote 15.
11 Especially the Section 60(11) (a-c) circumstances (My emphasis on the quotation)
12 Section 60(9) CPA
12 Section 60(9) CPA
13 Contra when GRANTING bail but it cannot be paid – Section 60(2) (2B) (b)(i-ii) CPA
14 Section 60 (6)(i); Section 60 (7)(e); Section 60 (8)(c)
15 Section 60(4)(b); Section 60(4)(c); Section 60(4)(d);
11
[44] There are two further issues that needs to be ventilated in this judgment
stemming from the submissions in the appea l. The first was the submission of
Adv Mureriwa that there cannot be a rule that if you are a foreigner in South
Africa, and you get arrested you, will not get bail.
[45] I agree with this submission as section 9(1) of the Constitution states:
“Everyone is equal before the law and has the right to equal
protection and benefit of the law.”
[46] It must however be remembered what Heher JA held in S v Savoi 2012 (1)
SACR 438 (SCA), at par [22]:
“courts must determine cases according to the facts, and
whether an accused person will or will not attend in due
course is entirely a question of fact and inference from
fact”.
[47] Legal visitors to RSA should not fear, that as a matter of course their bail will be
refused. They are however here as visitors and are not expec ted to break the
law. If , however they get arrested, especially for serious offences (like the
Appellant), whilst having been in or busy visiting our shores, they will face the
same challenges an arrested South African national will face, when applying for
bail. Unfortunately, with the added hinderance, like in this matter, that their lives,
their assets, family, employment and earning capacity lie outside the borders and
jurisdiction of RSA.
[48] Thus, when a court apply these Constitutionally validated bail provisions16 in the
CPA, the ground found in this matter, not to be in the interest of justice to grant
bail Section 60(4)(b), will be a very difficult hurdle to clear for any foreigner, due
to the factors listed for consideration under Section 60 (6).
[49] Whilst it is not impossible for a foreign national to be granted bail , all courts
hearing bail applications must first comply with the mandated judicial weighing
16 S v Dlamini, S v Dladla and Others; S v Joubert; S v Schietekat 1999 (4) SA 623 (CC)
12
exercise (for nationals and foreigners alike) before exercising their judicial
discretion to arrive at a final decision on bail.
[50] Illegal foreigners (undocumented or overstaying their legal entry) are another
issue and will only be referred to briefly. Not disregarding an illegal foreigner’s
entitlement to apply for asylum , the mere expression to do s o does not entitle
release from detention, especially if the Immigration Act was contravened by
entering and remaining in the country illegally.
[51] Where the detention of an illegal foreigner is solely for deportation then the
detention is authorised by section 34 of the Immigration Act and requires judicial
oversight and detention confirmation. However, where the detention is in regard
to a criminal offence in terms of section 49(1), the further detention may also be
authorised by the CPA.
[52] If you are an undocumented illegal foreigner the Immigration Act 13 of 2002 in
Section 32 (1) says you shall “depart” whilst subsection (2) clearly state such
people “shall” be deported. The proviso being that Section 32 (1) states
“unless authorised by t he Director -General in the prescribed
manner to remain in the Republic pending his or her application
for a status”
[53] Due to these provisions an illegal foreigner who has not been given indulgence
to stay by the Director-General of Home Affairs pending status determination on
a submitted application, must depart or be deported.
[54] In the absence of such authorised indulgence there is an even bigger problem
when it comes to bail, as it was held in Mulumba Tresor Yuma v S A09/2022
Ratshibvumo J (as he then was) paragraph [18]
“The court a quo held a view that if the appellant was unable to
produce a document that makes him legal in the country, he
would be committing a crime the moment he stepped out of a
courtroom if so released. I do not find any misdirection in this
view. I therefore agree with the finding that it would not be in the
13
interests of justice for the appellant to be released on bail as there
is a likelihood that he could evade trial.”
[55] The last issue requiring ventilation is Adv. Mureriwa’s offer to this court, and the
court a quo, that if the Applicant is granted bail, his verified home address can
be used for the Appelant’s stay or ordered house arrest. The Magistrate
extensively dealt with the “affidavit” filed by Adv Murariwa and found it not to be
one. On this address offer made he concluded in his judgment17 in regard to the
address:
“Murariwa’s home means nothing to her. If she were to abscond,
if she were to abandon that residence and flee, she loses nothing
in regards to that home.”
[56] When this offer was repeated before this court, I immediately enquired if it does
not cross professional ethical boundaries. Adv. Mureriwa immediately defended
his position, stating it does not. I disagree.
[57] Counsel at the Bar in Johannesburg are not even permitted to pay the bail bond
for their client (s), so as to preserve the strict line between professional and
private conduct / assistance. This offer of housing the Appellant , in my view ,
crosses the ethical boundary line, and I would urge Adv. Mureriwa to in future
seriously reconsider his position in such matters . This, as his passion and
enthusiasm with which he prosecuted this appeal was exceptional, and it would
be a shame if such an ill consideration in future robs him of representing other
clients.
ORDER
[58] I accordingly make the following order:
The appeal against the denial of bail by the court a quo is dismissed
17 Pages 26-28 of the typed record dated 02 September 2025 (00.3-265 to 00.3-267)
15
For the Applicant:
For the Respondent:
Hearing:
Judgment:
Adv. I Mureriwa instructed by
Machingura Inc. Attorneys
Adv. MJ Morule instructed by DPP
Gauteng Johannesburg
31 October 2025
12 November 2025