IN THE HIGH COURT OF SOUTH AFRICA
( 1)
(2)
(3) REV ISED . YES
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D AT E
SAMUEL DUMISANI KHUMALO
NOZIPHO PRECIOUS MADONDO
MAPEREMISA JOSIAS LEKALAKALA
AND
THE STATE
Case Number: A296/25
Mag istrate Court Case No: A16/463/2025
1 ST APPLICANT
2ND APPLICANT
3RD APPLICANT
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 deem ed to be 4 December 2025.
JUDGMENT
1. The three applicants' application is for the following order to be granted by this
court:
a. Condonation of the late filing of the notice of bail appeal and costs
against the respondent in the event the condonation application is
opposed;
b. The bail condition imposed by the Learned Magistrate Mahlangu (court
a quo) that the appellants are prohibited from being at any premises of
Crime Intelligence within the Republic of South Africa while their criminal
trial is pending be set aside.
2. The respondent's opposition is confined solely to the relief sought in 1 (b).
3. The bail proceedings to which this appeal relates pertains to the criminal
prosecution of the three appellants, together with four co-accused, in the
Pretoria Magistrates' Court.
4. The three appellants are each charged with the following offences and the
proceedings are still pending at the Pretoria Magistrate 's court:
a. Count 2- Contravening the provisions of S3(b) of the Prevention and
combatting of Corrupt Activities Act 12 of 2004 read with
S1 ,2,24,25,26(1)(a)(ii) and 26(3) of the Act and further read with Section
269A of the Criminal Procedure Act 51 of 1977(CPA).
b. Count 4- Contravening the provisions of S4(b) of the Prevention and
combatting of Corrupt Activities Act 12 of 2004 read with
S1 ,2,24,25,26(1 )(a)(ii) and 26(3) of the Act and further read with Section
269A of the Criminal Procedure Act 51 of 1977(CPA).
c. Count 7- Fraud read with the provisions of S51 (2) of the Criminal Law
Amendment Act 105 of 1997.
5. The appellants are all officers in the South African Police Service (SAPS). The
first appellant holds a rank of a Lieutenant General Head (Divisional
Commissioner, Crime intelligence, the second appellant is a Major General
(Component Head : Intelligence Analysis and Co-ordination, Crime intelligence)
and the third appellant is a Major General (Provincial Head: Crime Intelligence,
Gauteng Province).
AD CONDONATION
6. The bail judgement forming the subject of this appeal was granted on the 27th
of June 2025. The appeal process was initiated by the appellants on 07
November 2025.
7. Subsequent to the filing of the notice of appeal, the applicants filed an
application for condonation on 19 November 2025 deposed to by the second
applicant on behalf of all the applicants.
8. She states on paragraph 8 of the condonation application that she was advised
that in terms of Rule 51 A (3) that the appeal should have been noted within 14
days of the judgement dealing with bail. There is no Rule 51 A (3) in the Uniform
rules of Court.
9. Appeal of bail conditions in the High Court is in terms of S65(1) of CPA i as well
as Clause 8.4.2 of the Practice Manual of Gauteng Local Division, the latter
states that states that once the bail proceedings and the magistrate's judgment
have been transcribed, the Director of Public Prosecutions must be approached
to arrange the enrolment of the appeal. The Director of Public Prosecutions will
then request the Deputy Judge President, or if unavailable, the senior judge on
duty, to allocate a date and time for the appeal hearing. After a date and time
have been set, the Director of Public Prosecutions must notify all parties
accordingly.
10. The transcriber 's certificate indicates that the transcription was completed on
21 October 2025, 17 calendar days before the appeal was lodged.
11.1 find that the application for condonation was unnecessary, as the application
was brought within a reasonable period after receipt of the transcribed records.
There is no order as to costs.
GROUNDS OF APPEAL
12. The grounds of appealing the bail condition imposed by the court a quo that the
appellants are prohibited from being at any premises of Crime Intelligence
within the Republic of South Africa while their criminal trial is pending are that:
12.1 The learned Magistrate wrongly and unnecessarily imposed the aforesaid
condition when same was unnecessary;
12.2. The respondent i.e. the State, did not seek to impose such a condition;
12.3. There was no evidence to suggest that the appellants had or would
interfere with witnesses who may be members of the South African
Police Services ("SAPS"), Crime Intelligence;
12.4. The court did not take into consideration that no evidence was led in
respect of any allegation that any of the appellants had or would interfere
with potential State witnesses;
12.5. The learned Magistrate failed to consider in imposing such a condition
that there was no evidence to the effect that the appellants would destroy
or tamper with evidence;
12.6. The court failed to consider that the respondent failed to lead any
evidence to the effect that it would not be in the interest of justice for the
appellants, high ranking members of the SAPS , to return to their duties
as members of Crime Intelligence;
12.7. The court failed to take into consideration that no evidence was led by the
respondent to the effect that the appellants would utilise the resources
at their disposal, being members of the Crime Intelligence Unit, in any
unlawful manner or a manner which would amount to defeating or
obstructing the course of justice giving the charges that they were facing;
12.8. The court did not consider, at all, the effect of the condition imposed which
as akin to effectively suspending the appellants from their place of
employment and more especially in light of the fact that their employer,
the SAPS had not suspended them and did not seek to impose
restrictions similar to that imposed by the court;
12.9. The learned Magistrate imposed a condition which is vague and appears
contradictory in that the court imposed a restriction prohibiting the
appellants from being at any premises of Crime Intelligence which would
appear to suggest any police station which has a Crime Intelligence Unit
or component but, on the other hand, the court imposed a condition that
the appellants make contact with the investigating officer in order that
they remove any matters or items of a personal nature wh ich they may
have left at their premises of employment which would appear to suggest
the office or centre where they were based as opposed to any Crime
Intelligence office within the entire country.
13. The state is opposing the application. In the filed heads of argument, the above
grounds of appeal are addressed as follows:
a. The respondent's counsel denies that it was a misdirection for the court
a qua to impose bail conditions on its own volition without a request from
the prosecutor. It is submitted that the court a qua is empowered by
S60 (2) of CPA to impose appropriate conditions whenever releasing an
accused on bail, provided such conditions are necessary to ensure that
the interests of justice are upheld.
14 According to the State, the absence of a specific request from the prosecution
does or not limit the court's authority to act proactively in safeguarding the
proper administration of Justice. Therefore, the imposition of the conditions in
question cannot be regarded as wrong unnecessary.
15. The respondent further submits that the imposed conditions were in the
interest of justice as:
-they aimed at ensuring the ongoing investigations were not hampered or
interfered with by the appellants and their co-accused;
-They were a balancing act which was aimed at ensuring that the interests
of justice are attained.
-They were not aimed at and did not result in the suspension of the three
appellants from their employment or infringe their rights in their
individual capacity or as employees . (bolding own emphasis)
16. Proceedings in the court a quo relevant to this application:
16.1 It is common cause that the offences the appellants are charged with, fall under
Schedule 5 of the CPA. Consequently, bail could be granted bail only if they
demonstrated to the Court that their release would be in the interests of justice.
In this context, Section 60(11 )(b) of the CPA 1iplaced the burden on them to
prove, on a balance of probabilities, that their release on bail was justified.
16.2 They submitted their bail application by way of affidavits. It is not necessary for
purposes of this appeal set out what was stated on the affidavits.
16.3 The State did not oppose the application, nor drd it request the court a quo to
impose any bail conditions. The State Advocate informed the court that the
State was not opposing bail because the residential addresses and
employment details of all the accused had been verified. The investigations
were complete .. and the State did not consider the accused to be flight risks. iii_
(bolding own emphasis)
16.4 The Mag istrate sought clarification from the State on the reasons it had
given for not opposing the bail application.1v
17. The following extractions of the engagement between the state and the
Magistrate are worth mentioning (bolding own emphasis):
17.1 Court: Let me hear your witnesses, are they individual citizens, ordinary
citizens? Who are they? I do not need their names . I just need to know.
17.2 Prosecutor: Our worship, the witnesses in this matter, Your Worsh ip,
most of them, they are also in the employ of the SAPS based in crime
intelligence. So , they are not just members of the public.
17.3 Court: You say most of them. What about the list of them?
Prosecutor: There are very few that are members of the public, you
Worship.
17.4 Court: Yes, that is why I am saying, what about the list of them? Am I not
endangering them?
17.5 Prosecutor: Your worship, we do not intend to publish their names at this
stage, your worship, because we do not want to endanger them.
17.6 Court: What about the list of members of the public, not members of the
SAPS? A re they. the profile of their safety?
17.7 Prosecutor: Your worship, at this stage, the State is not going to
list the witnesses because there are other investigations still
ongoing.
17 .8 Court: I thought the investigations are complete.
17.9 Prosecutor: Not this matter, your worship, on other matters where
some of the accused are involved.
17.10 Court: You are speaking like in Biblical times, you know [indistinct]
to understand some cases, some ... [intervenes]
17 .11 Prosecutor: There are other cases that are ongoing investigations
are still ongoing, Your worship.
17.12 Court: Yes.
17.13 Prosecutor: And some of the accused before court they are
implicated in those matters. That is why I am saying we are not
going to adduce the names of the witnesses.
17.14 Court: The accused. Let me put it in a proper context so that you
The State says you do not oppose bail, that the seven accused be
released on bail. Beautiful. But I have to know the sway that they
hold in relation to their high ranking. I do not know what, senior
management over the juniors or those that will be witnesses
without knowing their names are safe. And those that are in the
public sphere, are not in the South African Police service, are
equally safe when they are released. That is the context of my
question.
17.15 Prosecutor: Okay, Your Worship. For accused number 1.2.3.4.6 &
7, they are in the executive management on the entire crime
intelligence in South Africa.Yes. So far the members of the crime
intelligence or their colleagues, it would be dangerous for us to
enlist their names now as witnesses, because they have to be
protected, Your worship.
17.16 Court: So if they have to be protected, then they are in danger, but
what we ... [intervenes].
17.17 Prosecutor (Mr Serunye): We did not view the witnesses to be in
danger, but we ... [intervenes]
17.18 Court Pleases Your Worship, what we are trying to portray to the
Court is that the accused being in senior positions and in
management, and we are having witnesses in the same department,
and there are other investigations that are ongoing in relation to
other matters, some of the accused being subject of those. We do
not want to compromise these other pending investigations by
listing the names of the witnesses involved in this case. However,
we are confident that the witnesses are not in danger .. [intervenes]
17.19 Court: What informs the confidence?
17.20 Prosecutor: The investigations that we have done and the
mechanisms that we have put in place to ensure their safety, Your
Worship. But then, if we list them, put their names up, then we are
compromising that safety. That is why we would rather not list their
names.
17 .21 And what our issue is, if we are asking the Court that the accused
should not have contact with certain witnesses or with witnesses,
then we would have been compelled to issue the list and say to the
court, we asked the Court to make an order that the accused should
not communicate and/or contact witness one, two, three, four, five.
This does not arise in this case. That is why we are saying, because
of these other pending investigations, we are of the view that to list
them would lead this eventually that we put them in a position
where we do not want to. The issue of the list of witnesses does not
necessarily arise in this application, Your Worship. We have put up
our own measures to ensure their safety. And we can guarantee the
court that based on the mechanisms that we have put, and I am not
speaking on behalf of the accused . That they are not in a position
to harm or cause any danger to our witnesses. But if we are to list
them, then we will be compromising investigations.
18. Heads of argument filed and submissions made in court
18.1 Advocate Jorgensen appearing for the appellants submitted that the Magistrate
's discretion to impose the bail condition was not supported by facts or evidence
led by the appellants. At the time the bail application was heard, the
investigations in the matter had been concluded, from which it may be inferred
that the witnesses had given their statements and the police were in possession
thereof. There was no indication which of the seven accused were under
investigation for other matters.
18.2 Advocate Serunye submitted that the appealed bail condition was imposed
because some of the witnesses were the appellants' colleagues and ongoing
investigations in other cases would not be hampered with.
18.3 Both counsel agree that the court did not seek submissions from them about
the condition it intended to impose.
19. Analysis of the appeal
19.1 Section 65(4) of the CPA sets out how an application under section 65(1) must
be handled. It provides that:
19.2 "The court or judge hearing the appeal may not overturn the decision being
appealed unless satisfied that the decision was incorrect. If the court or judge
is so satisfied, it must then issue the decision that, in its view, the lower court
should have made."
19.3 The legal issue to determine in these proceedings namely whether the
Magistrate erred in imposing the bail condition must be assessed based on the
material that was before him and the way he dealt with that information or
evidence.
19.4 The respondent has requested that I consider that the bail condition did not
result in the suspension of the appellants as they allege, and they have not
been prejudiced in any manner .
19.5 I was referred to previously decided cases, but without any context regarding
what had been placed before those courts that led them to conclude that a
similar bail condition was not vague, ambiguous, or prejudicial to the appellants
in those mattersv. The facts in those cases are distinguishable to this one in
that this bail condition was not sought by any of the litigants from the court a
quo.
19.6 The ex tempore judgment of the court a quo provides no reasons for the
imposition of the condition being appealed. The Magistrate further indicated in
the notice filed on 12 November 2025 that he has nothing to add to the reasons
for the bail conditions stated in the judgment. All the parties (myself included)
in the bail appeal ended up having to infer from the record which of the four
circumstances contemplated in section 60(4) of the CPA the Magistrate
intended the condition to cover.
19.7 Judges and Magistrate are expected to give reasons to ensure accountability,
transparency, fair appeals, guidance in future cases, and the public's access to
justice, even though the Constitution does not explicitly require it.vi Where a
condition is imposed without any party requesting it, the reasons should be
recorded so parties understand the decision. Stating reasons deters
unnecessary appeals and helps the appellate court assess the correctness of
the decision.
19.8 The respondent submits in the heads of argument as well as in court that the
court a quo is empowered by section 60(12)(a) of CPA to release an accused
on bail subject to conditions which in the court 's opinion is in the interest of
justice. The words 'in the court 's opinion' in the subsection denotes that the
law gives the court a quo the authority to determine, based on his own opinion
or satisfaction, whether the condition it imposes when granting bail is in the
interest of justice.
19.9 The Magistrate Court is a creature of statute, it has only the jurisdiction and
powers expressly or implicitly granted to it by statute. "Jurisdiction" refers to the
court's legal authority to hear and determine a matter. Although powers can be
court's legal authority to hear and determine a matter. Although powers can be
implied, they exist only where necessary to give effect to the jurisdiction
expressly conferred. If the Act is silent, the court has only those ancillary powers
implied by the grant of jurisdiction.vii
19.10 The Court's opinion on a condition to impose which is in the interest of justice,
must someone be guided by the empowering provision namely S60(4) of the
CPA. It lists circumstances in which the interests of justice do not permit an
accused's release on bail. The court applies the same factors in assessing
whether the applicant has discharged the onus of demonstrating that the
interests of justice warrant that bail be granted.
19.11 These include situations where release would likely endanger the public, lead
to evasion of trial, result in interference with witnesses or evidence, jeopardise
the functioning of the criminal justice system, or under exceptional
circumstances disturb public order or undermine public peace or security.
19.12 As mentioned above, Advocate Serunye submitted that the appealed bail
condition was imposed because some of the witnesses were the appellants'
colleagues and ongoing investigations in other cases would not be hampered
with(underlining won emphasis). The State knew , when it decided not to oppose
bail, which witnesses it intended to call in the prosecution of the appellants,
including the fact that some of those witnesses were the appellants' colleagues.
It was further not indicated to the Magistrate which of the accused appearing
for the bail application were still under investigation for other offences.
19.13 The prosecution expressly stated more than once to the Magistrate that the
investigations in the matter before court were complete and that measures had
been implemented to prevent any interference with witnesses. The Magistrate
was informed that the State regarded these measures as adequate. Any doubt
on the Magistrate's part about their adequacy could only have arisen if those
measures had been set out in detail to him which was not done.
19.14 The Sup reme Court of Appeal in the case of Four-Wheel Drive CC v Leshni
Rattan NO discouraged courts from mero muto dealing with disputes not raised
Rattan NO discouraged courts from mero muto dealing with disputes not raised
by parties. It stated that our adversarial system for resolving legal disputes is a
procedural framework in which parties are free to present their case fully before
an independent decision-maker. A key aspect of this system is that the parties
define the issues for determination, present their arguments, and leave the
court to act as a neutral arbiter of the matters raisedviii_
19.15 Although the court in S v Diale and another-ix dealt with refusal of bail, what was
stated thereon is equally applicable to this matter. It was held that there can be
no reliance on vague or unidentified risks, nor on the mere possibility that one
of the consequences listed in section 60(4) of CPA may occur. The court must
make a finding based on probabilities. It cannot speculate or operate in the
dark, as justice is not served through conjecture. Unless it can be shown that
one or more of those consequences will probably occur, continued detention is
not in the interests of justice, and the accused ought to be released.
19.16 Same applies here, if the Magistrate believed that a consequence was likely to
occur and that this justified imposing the bail condition, he ought to have raised
the issue with both parties before delivering judgment, allowing them an
opportunity to respond.
19.17 I am unable to find any judicial basis, on the evidence and submissions before
the court a quo, for the bail condition that was imposed. In exercising his judicial
discretion, the Magistrate did not confine his assessment to the facts presented
before court.
20. Finding:
20.1 The court a quo's decision to impose the bail condition appealed against was
made without identifying any supporting facts, it is arbitrary and incorrect, and
does not reflect a proper exercise of judicial discretion.
21. I issue the following order:
(a) The appeal is upheld.
(b) The bail condition imposed Acting Chief Magistrate Mahlangu that the
appellants are prohibited from being at any premises of Crime Intelligence
within the Republic of South Africa while their criminal trial is pending is set
aside.
Counsel for the Appellants:
Instructed by:
Counsel for the Respondent:
Instructed by:
Date heard:
Date of judgement:
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Adv J Jorgensen
MR Hlongwane Attorneys
Adv P Serunye
The State Attorney
3 December 2025
4 December 2025
1 (a) 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.
;; 'Notwithstanding any provision of this Act, where an accused is charged with an offence-
(b) referred to 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 which satisfies the
court that the interests of justice permit his or her release.'
m 560(1)(d)-In bail proceedings the court-shall, where the prosecutor does not oppose bail in
respect of matters referred to in subsection (ll)(a) and (b), require of the prosecutor to
place on record the reasons for not opposing the bail application.
iv In bail proceedings the court -
(b) may, in respect of matters that are not in dispute between the accused and the
prosecutor, acquire in an informal manner the information that is needed for its
decision or order regarding bail;
• Ntsasa v S (A61/2023) (2023] ZAFSHC 218 (29 May 2023), South African Municipal Workers Union obo
Tumelo Makofane v Matjabeng Municipality & Another, case number (JA 122/21) [2023] ZALAC 22 (17 August
2023).
v1 Mphahlele v First National Bank of South Africa Ltd 1993(3) BCLR 253 at par 12
••1 Ndamase v Functions 4 All 2004 (5) SA 602 (SCA).
•iii (1048/17) [2018] ZASCA 124 (26 September 2018) at par 22.
ix 2013 (2) SACR 85 (GNP).'