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and /or sentence in the M agistrate's Court, respectively, on
5 February 2024 and 18 July 2024 :
a. The order provided that the Applicant 's bail would lapse
if he was refused leave to appeal against his conviction
and/or sentence by the Supreme Court of Appeal, or if
leave to appeal is granted, the Applicant prosecutes his
appeal within the time period as prescribed by the Rules
of Court.
b. The Applicant was given the further right to approach
10
the Constitutional Court if the Supreme Court of Appeal
refused him leave .
2. The above order further provided that if the Applicant's
applications for leave to appeal were refused by the
Supreme Court of Appeal and by the Constitutional Court,
he was required to report to the Department of
Correctional Supervision, Johannesburg Prison, for the
purposes of continuing to serve his sentence within 72
hours of written notice being given to his attorney of
20
record, notifying him that his applications had been
refused and if granted, that the Applicant's appeals to
these courts had been dismissed.
a. The de facto position is that the Applicant has
exhausted his rights of appeal.
b. He has been refused leave to appeal in my estimation
by no less than 14 Judges and one Magistrate.
c. Included in this number were two applications to the
Supreme Court of Appeal, one being a petition for
30
leave to appeal and, a second application for a
reconsideration of the order refusing him leave to
appeal .
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3. The Applicant now comes to court urgently on new grounds
seeking bail pending a review of the proceedings in which
he was convicted and sentenced to prison. The review
application was filed on 30 th July 2025 and in that matter
the Applicant sought orders, inter alia, setting aside his
convictions and sentence in the Magistrates Court of Palm
Ridge Specialized Commercial Crimes Court. An
alternative prayer sought the setting aside of the
conviction and sentence, and referring the matter back to 10
the Magistrates Court for the trial to commence de novo
before another Magistrate. Further alternatively, the
Applicant sought leave to adduce further evidence in terms
of section 316(5) of the Criminal Procedure Act 57 of
1977 .
4. The review application in the main regurgitates the issues
that were dealt with at the trial of the matter. They were
also issues that were in the main dealt with in the
Applicant’s applications for leave to appeal to the
20
Magistrate, to the H igh Court, the Supreme Court of
Appeal, and to the Constitutional Court. None of the
judges who heard the petitions considered there to be any
merit in the points raised by the Applicant, as grounds of
appeal and accordingly he reached the end of the road, as
far as his right of appeal is concerned.
5. Counsel for the Applicant outlined to the court the grounds
of review. I do not intend to deal with them. He conceded
that these were issues that arose during the course of the
30
trial of the matter, and were issues that had been raised
on petition, save for one issue that I will proceed to deal
with.
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6. It is alleged in the Applicant's review application that the
Magistrate misconducted himself by having
communications with the complainant, or family members
of the complainant at, or about the time of his trial. This
obviously would be highly irregular and if substantiated,
may prove to be a ground of review. Strangely, when
Counsel for the Applicant addressed argument to the
Court, he submitted that the evidence of the Magistrate's
misconduct came to the Applicant's attention during his 10
trial. Applicant's Counsel did not conduct the proceedings
on behalf of the Applicant. Another Counsel was involved ,
and I am not sure to what extent counsel before me is
privy to the facts and what occurred during the trial.
However, I raise this because it is self -evident that if
during the trial the Applicant became aware of facts that
pointed to the misconduct of the Magistrate, he ought to
have immediately applied for the Magistrate's recusal.
The Applicant was represented by Senior Counsel at his
trial and any Counsel who has any basic knowledge of
20
criminal law, would know that the misconduct of a judicial
officer would taint the proceedings.
7. However, that is not what is revealed in the review
application. Evidence on affidavit is disclosed of a private
investigator who was employed to delve into the cell phone
records of the Magistrate, in order to establish whether he
had communications with certain designated persons that
were associated with the complainant. The private
investigator is Thulani Dube. His affidavit was deposed to
30
on 5 th September 2025. The allegations made in this
affidavit are vague and unspecified. He purports to identify
certain cell phone numbers and then states that he will
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provide full attribution documents, RICA confirmations and
supporting annexures in his final report. No final report
has yet been forthcoming. Reliance is made in his affidavit
on a certain Annexure N, which is included as part of the
Applicant's application, either for review or to extend his
bail.
8. During the course of argument, the Court asked the
Applicant ’s Counsel to point out exactly where the
evidence was that showed communications between the
10
Magistrate and the complainant or his family. Counsel
could not do so. The Court was told that the investigator
was busy in the Madlanga Commission and was unable at
this stage to provide any further information.
9. In the meanwhile, State Counsel informed the court that
because of these allegations of misconduct on the part of
the Applicant, he deposed to an affidavit in August of 2025
calling for the matter to be investigated. Lieutenant -
Colonel Schnelle of the South African Police was tasked to
20
investigate the matter. Before the proceedings
commenced, the State provided an affidavit from the
Lieutenant -Colonel dated 14 th November 2025. The
affidavit contains annexures which refers to cell phone
records obtained from Magistrate Keswa, who is the
Magistrate who adjudicated at the Applicant's trial. During
the course of his investigation, he made contact with MTN
cell phone service provider, as they had provided the
detailed call billing list of Magistrate Keswa to the
Applicant. He was informed that this record was provided
30
on the issue of a subpoena in terms of section 205 of the
Criminal Procedure Act. In his affidavit, he states that he
has subsequently established that the subpoena was false.
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MTN provided the Colonel with the original cell phone data
of Magistrate Keswa, and he studied the data. He states
that he could not find the call log as identified by the
Applicant in his Annexure 14 and identified in the
annexures to his (Lieutenant -Colonel Schnelle’s affidavit)
marked Annexure LRS1. He has attached a printout of the
original MTN cell phone billing record of Magistrate Keswa
for the same period and marked it Annexure LRS2.
10. Lieutenant -Colonel Schnelle states in his affidavit that:
10
“The same call entry that the Applicant
claims was a call between the complainant
and Magistrate Keswa is not reflected on the
original document. ”
This, in his words :
“C learly proves that the information on the
Applicant 's attachments has been
20
manipulated to present a false telephone
call. This call log was falsely inserted into
the call log of M agistrate Keswa to
misrepresent the true facts and to bring false
information to the court. ”
Lieutenant -Colonel Schnell e asserts that :
“T he Applicant has resorted to desperate
measures to have his conviction and 30
sentencing set aside and for the criminal
matter to start de novo. He has exhausted
every appeal process available to him and
has now resorted to criminal acts of
illegally obtaining the personal information
of the Magistrate, and when a call could
not be identified on the Magistrate's cell
phone billing, a false call was inserted to
create the false impression of collusion
between the M agistrate and the 40
complainant. ”
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He also contends that :
“T he information relied upon by the
Applicant was illegally obtained and
illegally altered to present a set of facts
that support this application for an
extension of his bail. ”
11. F inally, the L ieutenant -C olonel sets out facts on which 10
he justifies the reason why his affidavit was provided
under such urgent circumstances.
12. The Applicant will have an opportunity in the course of
ventilating the review application, to deal with all this
matter. The issue before the Court is different. It
concerns the extension of the order that this Court gave
on 16
th December 2024, admitting the Applicant to bail
until the review application has been fully ventilated.
Counsel for the Applicant has conceded that the Applicant 20
would have to show exceptional circumstances. The thrust
of his argument appears to be that there would be no
prejudice to the State if the Applicant's bail was extended.
He also asserts vehemently that the Applicant is not a
flight risk.
13. O n the other hand, C ounsel for the State correctly points
out that the presumption of innocence no longer exists at
this stage. Not only is the Applicant not presumed
innocent, he has exercised his right of appeal from the
30
very lowest C ourt to the very highest C ourt of the country.
He no longer has any further avenue of appeal available to
him. Anticipating this, therefore, the Applicant proceeded
with a review application earlier this year. As I have said,
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however, the review application in the main is merely a
regurgitation of all the issues that were raised in the
Applicant's appeal. It is nothing short of an attempt to
introduce a new appeal via the back door.
14. The only issue that could be of any substance, if there w as
proof, would be communications between the M agistrate
and the complainant or persons closely related to the
complainant during the trial or before judgment and
sentence were passed. Not only is the evidence of such 10
communication tenuous, vague, and unsubstantiated, the
State has now refuted this evidence in the affidavit of
Lieutenant -Colonel Schnell e.
15. I accept that the Applicant has not had an opportunity to
reply to this affidavit. However, it did not seek such an
opportunity before this bail application was argued. In any
event I regard the affidavit to be important evidence, and I
accept what Lieutenant -Colonel Schnell e has set out in his
affidavit , as further undermining the already
20
unsubstantiated and vague assertions made by the
Applicant in relation to the M agistrate's conduct.
16. No exceptional circumstances of any kind have been shown
which would induce this Court to extend its order granted
on 16 th December 2024.
a. I would also mention that in the Applicant's application
for bail, he states that the misconduct of the Magistrate
is not the primary issue on which he approaches this
30
Court, and yet Counsel for the Applicant submitted to
Court that it is the primary consideration applicable to
this application.
b. There are other contradictions between what has been
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submitted to the Court and what is contained in the
Applicant's papers.
17. The hard truth is that the time has now come for the
Applicant to submit himself to the correctional supervision
authorities to continue his sentence :
a. He is quite entitled to proceed with his review
application. His investigator can continue his work.
b. The State has likewise indicated that they intend to
10
follow up what they perceive is an attempt to manipulate
and falsify evidence, for the purposes of subverting the
course of justice. That , in itself , is a very serious
allegation.
18. It follows from what I have said that the Ab pplicant’s
application for the grant of bail or for the extension of the
Court's order in this matter dated 16 December 2024 is
dismissed. The Court's order of 16 December 2024 is
confirmed. The Applicant shall present himself at 08:30 am
20
on 15 November 2025 to the Department of Correctional
Supervision for purposes of continuing to serve his present
sentence.
(The court issued a written order contemporaneously with the
handing down of this ex tempore judgment)
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