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IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
case no: A2025-181506
In the matter between:
SIBONGILE MBONAMBI APPELLANT
and
THE STATE FIRST RESPONDENT
_______________________________________________________________
ORDER
_______________________________________________________________
On appeal from Magistrate’s court, Esikhaleni (Ms Lazarus) sitting as a court of first
instance);
1. The appeal is upheld
2. The order of the court a quo that the bail of the applicant is refused is set
aside and it is replaced with the following:
1. The application for the release on bail of the applicant pending trial is granted.
The applicant is granted bail in the sum of R 10 000.00 on the same conditions
mutatis mutandis as those in the criminal case in S v Sibongile Mbonambi Esikhaleni
magistrate court, Case No B172/2025, Esikhaleni SAPS Cas 112/6/2025.
_________________________________________________________________________
JUDGMENT
Delivered:
___________________________________________________________________
Mngadi J:
[1] The appellant appeals the refusal of an application to be released on bail
pending trial.
[2] The applicant is Sibongile Dlamini. She was arr ested on 11 July 2025. She
then appeared before the magistrate’s court for the District of King Cetshwayo held
at Eskhaleni (Ms Lazarus). She applied to be released on bail pending trail. The
State opposed the application. The learned magistrate after hearing the matter
refused the application.
[3] The bail application before the magistrate proceeded by means of affidavit .
The charge the appellant was facing was contravening s4 (a)/s4(b) read with
s1,13,17 to 25 and 64 of the Drugs and Drug Trafficking Act 140 of 1992 in that she
unlawfully had in her possession or use a dependence producing substance as listed
in Part 1 of Schedule 2 of the said Act, to wit, 15 capsule of CAT drugs.
[4] The appellant in her affidavit before the magistrate states that she was 59
years old, unmarried and residing at H[...] Esikhaleni, a property she owned. She
had one previous conviction of negligent handling of a firearm. She was sickly and
on chronic medication. She intended to plead not to g uilty to the charge. She has
five (5) adult children.
[5] It transpired that the appellant had another pending case, a charge of
possession or use of drugs, to wit 28 x rock cocaine committed on 18 June 2025.
The Sate in opposing the release of the appellant on bail relied on an affidavit of
Gugulethu Precious Mbatha (Mbatha) . Mbatha stated that she was a sergeant in
the detective branch of the South African Police Services a nd the investigating
officer in the case against the appellant . She stated that she was opposing the
release of the appellant on bail as there was a likelihood that if released on bail, she
will commit a schedule 1 offence because she committed the crime whilst she w as
out on bail in the mentioned pending case , and that to release her on bail will
undermine and jeopardise the objectives of the bail system.
[6] The learned magistrate stated that in schedule 5 bail applicati ons, the
applicant bears the onus to show that it is in the interest of justice that she be
released on bail. She stated that the main thrust of the opposition by the state in that
the applicant has a propensity to commit further schedule 1 offences if released on
bail.
[7] The learned magistrate concluded that since the appellant was charged with
the current offence of similar nature to the one on which she was on bail, it is an
indication that proper functioning of the criminal justice or bail system will be
undermined if the appellant is released on bail as there was a likelihood that the
appellant if released on bail will commit further sc hedule 1 offences. The state,
therefore, has shown as provided in s60(4) of the C riminal Procedure Act 51 of
1977(the CPA) existence one of the grounds for not granting bail.
[8] The appeal is founded on the provisions of s 65(1)(a) of the CPA which provides
that an accused aggrieved by the refusal by a lower court to admit him to bail may
appeal against such a decision. On appeal the question is whether the decision the
magistrate arrived at in the exercise of its power is wrong or not. see S v Barber
1979 (4) SA 218 (D) at 220E-H.
[9] These provisions of the CPA find application. S60(4) provides that where there
is a likelihood that the accused, if released on bail will undermine the objectives or
the proper functioning of criminal justice system including bail system, bail may be
refused. S60(8) provides that in considering whether the grounds in subsection (4)
(d) has been established the court may , where applicable, take into account the
following factors, namely-(a) the fact that the accused knowing it to be false, supplied
false information at the time of his arrest or occurring bail proceedings ; (b)whether
accused is in custody in another charge or whether the accused is on parole ; (c) any
previous failure on the part of the ac cused to comply with bail conditions or any
indication that will not comply with any bail conditions ; (d) any other factor which in
the opinion of the court should be taken into account.
[10] Section 60(9) provides that in considering the question in subsection (4) the
court shall decide the matter by weighing the interests of justice against the right of
the accused to his personal freedom and in particular the prejudice he is likely to
suffer if he were to be detained in custody, taking into accou nt where applicable the
factors, namely- (a) the period for which the accused has already been in custody
since his arrest; (b) the probable period of detention until the disposal or conclusion
of the trial of the accused is not released on bail; (c) the reason for any delay in the
disposal or conclusion of the trial and any fault on the part of the accused with
regards to such delay; (d) any financial loss which the accused may suffer owing to
his detention; (e ) any impediment to the preparation of the accused’s defence or
any delay in obtaining legal representation which may be brought about the by the
detention of the accused; (f) the state of health of the accused; or (g) any other
factor which in the opinion of the court should be taken into account.
[11] The State before the magistrate argued that the presumption of innocent is
not an absolute right; the State had managed to establish a prima facie case against
the applicant in respect of both pending matters, in that in both matters the prohibited
substance was found in possession of the applicant.
[12] It is clear that in order for the court to rely on the ground in s60(4) (d) it
needed to be sho wn that the appellant probable committed the crimes. In the first
matter the magistrate relied on a bail report . This court has been unable to see the
contents of the said bail report , who compiled it, in particular, whether it contained
matter of a hear say nature or not. The magistrate in the judgment has not set out
the contents of the bail report she relied on. As a result, the reliance on the bail
report is discounted. In the second matter the learned magistrate relied on the
affidavit of Mbatha, t he investigation officer. Mbatha in her affidavit set out the
allegations against the appellant. She was not involved in the apprehension of the
appellant. In both matters statements of the police officers that found the drugs were
not produced. As a r esult, it is not known on what basis it is concluded that the
appellant possessed or used the drugs. This is crucial in considering the case
against the appellant as well as the submission that the appellant if released on bail
is likely to commit Schedul e 1 offence or the submission that the appellant shows
propensity to commit Schedule 1 offences if released on bail thus undermining the
criminal justice system or the objectives of release on bail pending trial.
[13] As a result the finding that the gro und s60(4) (d) was established cannot be
sustained. Since this was the only ground found by the learned magistrate, there is
no other ground showing that it was not in the interest of justice to release the
appellant on bail pending trial.
[14] The parties as well as the magistrate proceeded on the basis that the appellant
faced a Schedule 5 offence. As a result, the onus was on the appellant to show on
the balance of probabilities that it was in the interest of justice that she be released
on bail p ending trial. This appears not to be correct. Schedule 5 provides offences
referred to in s13(f) of the Drugs and Drug Trafficking Act wherein the contravention
referred to is s5(b) which refers to a person dealing in any dangerous dependence
producing su bstance or any undesirable dependence producing substance.
However, included in Schedule 5 is ’any offence referred to in Schedule 1 which was
allegedly committed whilst the accused was released on bail in respect of an offence
referred to in Schedule 1 ’ Schedule 1 includes any offence, except the offence of
escaping from lawful custody …, the punishment where for may be a period of
imprisonment exceeding six months without the option of a fine. The State needed
to show that on the pending charge and on the current charge the appellant faced , if
convicted, a sentence exceeding six months imprisonment without the option of a
fine before her bail applicant would fall under Schedule 5. The issue was not dealt
with, and it is for the State to show the applicable Schedule . As a result, the bail
application ought not to have been dealt with under Schedule 5. It was supposed
to be dealt with in terms of the provisions of s60(1)(a) of the CPA which provides that
an accused is entitled to be released on bail if the court is satisfied that the interest
of justice so permits. Interests of justice entails balancing the freedom of an accused
who is presumed innocent against the interest of the State that the release of the
accused on bail should not pose a risk to the investigation and /or the prosecution of
the accused. In all cases falling outside the ambit of s60(11) of the CPA the State
bears the burden of proof to show that it is not in the interest of justice to release the
accused on bail pending trial. In S v Tshabalala 1998 (2) SACR 259(C) at 269 the
accused on bail pending trial. In S v Tshabalala 1998 (2) SACR 259(C) at 269 the
court held that in cases not covered by s 60(11) there had to be a practical burden
on the prosecution to adduce evidence or furnish information going to show that a
‘likelihood’ as envisaged in s 60(4) existed.
[15] The learned magistrate misdirected herself in holding, without proper basis,
that the release of the appellant on bail pending trial will likely undermine the criminal
justice system or the objectives of the bail system. She erred to hold that the bail
application of the appellant fell under Schedule 5 since the charge(s) the appellant
faced were not s hown to be of such a nature that a sentence of not less than six
months imprisonment without the option of the fine needed to be imposed.
[16] It is ordered as follows:
1. The appeal is upheld
2. The order of the court a quo that the bail of the applicant is refused is set
aside and it is replaced with the following.
1. The application for the release on bail of the applicant pending trial is granted.
The applicant is granted bail in the sum of R 10 000.00 on the same conditions
mutatis mutandis as those in Esikhaleni magistrate court, Case No B172/2025
Esikhaleni Cas 112/6/2025.
________________
Mngadi J
APPEARANCES
Case Number: A2025-181506
For the Plaintiff/Applicant/Appellant:
Instructed M A Mthethwa Inc.
For the Respondent: Mr E.S Magwaza
Instructed by: DPP, Pietermaritzburg
PIETERMARITZBURG
Heard on: 27 November 2025
Judgment delivered on: 27 November 2025