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IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Not reportable
Case no: A198/2025
In the matter between
ASHRAF MIA APPELLANT
and
THE STATE RESPONDENT
Neutral citation: Mia v The State (A198/2025) ZAFSHC 365 (20 November 2025)
Coram: MHLAMBI J
Heard: 14 November 2025
Delivered: This judgment was handed down electronically by circulation to
the parties’ representatives by email and released to SAFLII. The date and time for
hand-down is deemed to be 11h00 on 20 November 2025.
Summary: Bail appeal – renewed bail application – new facts – s 60(11)B
of the Criminal Procedure Act 51 of 1977 – interests of justice – appellate review.
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ORDER
The appeal against the bail refusal is dismissed.
JUDGMENT
Mhlambi J
[1] The appellant is charged with 32 counts of unlawful firearm possession, and
his initial bail application was denied in the Magistrates Court on 19 August 2025. An
appeal to the High Court was unsuccessful, and the appellant reapplied to the
Magistrate’s Court for bail based on new facts, which was again denied on 27
October 2025. He has now approached this Court to contest that decision.
[2] In S v Mpofana ,1 the court described the approach to be used in bail
applications based on new facts as follows:
‘In considering an application for bail allegedly brought on the strength of new facts, the
court’s approach is to consider whether there are, in the first instance, new facts and, if there
are, reconsider the bail application on such new facts, against the background of the old
facts.’
[3] In Yanta v S ,2 the court stated that the C riminal Procedure Act 51 of 1977
(CPA) does not specify or define what qualifies as new facts. There is no established
procedure for renewed bail applications. However, guided by case law, it appears
that certain general principles have been identified as relevant when a court is asked
to consider an accused’s release on bail based on new facts. These can be
summarised as:
1 S v Mpofana 1998 (1) SACR 40 (TK) at 44G.
2 Yanta v S [2023] ZAWCHC 23; 2023 (2) SACR 387 (WCC) para 15.
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(a) Whether the facts came to light after the bail was refused. Such facts can
include circumstances that have changed since the initial bail application, such as
the length of time an accused has been incarcerated;
(b) Whether the facts are ‘sufficiently different in character’ from those presented
at the prior unsuccessful bail application in the sense that it should not merely be a
‘reshuffling of old evidence’;
(c) Determine whether the alleged new facts are relevant, meaning they would
help the court reconsider the release of an accused if presented, either on their own
or when combined with other facts already in the case from the initial bail
application.
(d) A court considering an application based on alleged new facts must decide,
referencing the evidence previously presented in the unsuccessful bail request,
whether these facts are truly new.
(e) Evidence that was known and available to a bail applica tion but not presented
during a previous application generally cannot be used as 'new facts' for a renewed
bail request. It was explained in S v Le Roux en Andere3 that, without such a rule,
there could be an abuse of process leading to unnecessary and repeated bail
applications. An accused should not be allowed to seek bail multiple times by relying
on a piecemeal presentation of evidence.
[4] The evidence before the court a quo was presented through affidavits. The
appellant, in addition to his own, submitted confirmatory affidavits from his parents.
After counsel read the applicant’s statement into the record, there was concern that it
and the other confirmatory statements were not commissioned. This was then
corrected. The state relied on the affidavit of Lieutenant Colonel Flyman. The
appellant’s case mainly involved correcting and supplementing his earlier evidence
given in the bail application regarding his marital status; the status of his minor
children since his detention on 29 July 2025; and the difficulties his parents have
children since his detention on 29 July 2025; and the difficulties his parents have
faced since his incarceration. Additionally, he has been, since the bail was denied,
disturbed by the prison diet and the interrogations by police while in custody.
3 S v Le Roux en Andere 1995 (2) SACR 613 (W) at 622A-B.
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[5] Lieutenant Colonel Flyman testified that the firearms found in the appellant’s
possession were recovered at crime scenes in Cape Town and the Eastern Cape.
He also stated that the appellant was not treated differently from other prisoners,
especially Muslim prisoners held at Grootvlei prison.
[6] The court found that none of the circumstances presented by the appellant,
whether considered together or individually, amounted to what would be deemed in
the interest of justice as outlined in section 60 (11)B of the CPA, to persuade the
court to find on a balance of probabilities that the appellant should be released on
bail. The court noted the appellant’s testimony that, since 2010, he has had a
medical condition, including asthma and nerve damage to his head, and has been on
chronic medication ever since. This evidence was not disclosed during the initial bail
application and, therefore, could not be regarded as a new fact. This occurred even
though the appellant was given ample opportunity to reopen his case and submit
additional affidavits. The time he spent in custody, his criminal history, and the
situation of the children were details that his parents could have easily provided to
the attorney during the initial bail application.
[7] The court observed that, when denying bail, the strength of the state's case
against the appellant was one of the factors considered. The appellant failed to
demonstrate how the alleged new facts diminished the strength of the state's case
during the application. Additionally, the state claimed that the appellant faced extra
charges, including possession of ammunition and related offenses.
[8] Section 65(4) of the CPA provides that the court or judge hearing the appeal
shall not set aside the decision against which the appeal is brought, unless such
court or judge is satisfied that the decision was wrong . In this event, the court or
judge shall give the decision which , in its opinion, the lower court should have given.
judge shall give the decision which , in its opinion, the lower court should have given.
In S v Barber,4 the court remarked as follows:
‘It is well known that the powers of this Court are largely limited where the matter comes
before it on appeal and not as a substantive application for bail. This Court has to be
persuaded that the magistrate exercised the discretion which he has wrongly. Accordingly,
although this Court may have a different view, it should not substitute its own view for that of
4 S v Barber 1979 (4) SA 218 (D) at 220E–F.
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the magistrate because that would be an unfair interference with the magistrate’s exercise of
his discretion. I think it should be stressed that, no matter what this Court's own views are,
the real question is whether it can be said that the magistrate who had the discretion to grant
bail exercised that discretion wrongly.’
[9] I cannot find that the magistrate was wrong in considering both the old and
new facts of this case to decide on bail. According to the record, the appellant does
not dispute that the state has a strong case and that additional charges should be
added. The main argument of the appellant’s case is the inconvenience caused to
his family by his absence. His father’s dental practice suffers because he visits the
appellant in custody. His mother’s health and professional life are also impacted as
she must cancel meetings to attend to the children. His absence has affected the
children’s health and performance.
[10] The appellant's new facts, while relevant, did not sway the 'interests of justice'
in his favour. In my view, the court a quo correctly found that the appellant had not
met the threshold of satisfying the interests of justice , allowing his release on bail.
Consequently, the appeal must fail.
[11] I, therefore, make the following order:
The appeal against the bail refusal is dismissed.
_____________________________
J J MHLAMBI
JUDGE OF THE HIGH COURT
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Appearances
For the appellant: P Vahed
Instructed by: Machini Motloug Inc Attorneys,
Bloemfontein
For the respondent: P Mabale
Instructed by: The National Director of Public Prosecutions,
Bloemfontein.