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IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MIDDELBURG
CASE NO: BA23/ 2025
In the matter between:
THABISO CHARIES MNISI APPELLANT
and
THE STATE RESPONDENT
This judgment was handed down electronically by circulation to the parties and/or
parties’ representatives by email. The date and time for hand- down is deemed to be
the 21January 2026 at 12h00.
JUDGMENT ON BAIL APPEAL
Malangeni AJ
Introduction
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
21/1/2026 ___________________
DATE SIGNATURE
2
[1] On the 10 of May 2024, the appellant appeared before E rmelo Magistrate’s
Court applying for bail on a Schedule 5 offence. The magistrate refused to admit him
to bail.
[2] The appellant is aggrieved by such a decision. It is on that basis that he
challenges the court a quo’s decision by noting an appeal. The appellant ’s right to
note an appeal is governed by section 65(1)(a) of the Criminal Procedure Act 51 of
1977 (“the CPA”). This section provides that:
“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.”
[3] In terms of section 65(4) of the CPA, the court or the Judge hearing the appeal
should not set aside the decision against which the appeal is brought, unless such
court or Judge is satisfied that the decision was wrong, in which event the court or
judge shall give the decision which, in its or his opinion, the lower court should have
given. In S v Barber,
1 the Judge remarked as follows:
“It is well known that the powers of this C ourt 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 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
what this Court’s own views are, the real question is whether it can be said that the
magistrates who had the discretion to grant bail but exercised that discretion
wrongly… Without saying that the magistrate’ s view was actually the correct one , I
have not been persuaded to decide that it is the wrong one.”
Grounds of Appeal
1 S v Barber 1979 (4) SA 218 (D) at 220E-H.
3
[4] The appellant’s grounds of appeal are based on the following:
4.1 That the honourable magistrate erred in finding that the appellant had not
discharged the onus to show that his release on bail will be in the interests of justice;
4.2 That the honourable magistrate erred in not attaching sufficient weight to the
facts and evidence deposed to in the respective bail application of the appellant , in
which the appellant raised substantive grounds upon which it was shown that it would
be in the interest of justice to release him on bail;
4.3 That the learned magistrate erred by not attaching sufficient and necessary
weight on the appellant’s community and family ties to the place of trial;
4.4 That the honourable magistrate erred in not considering the prejudice that the
appellant will suffer as a result of his continued incarceration pending the finalisation
of the trial . In particular the State did not dispute that the appellant had given two
addresses that were not verified and that there was no reason for neglecting to do so,
and that the appellant was responsible for his child’s maintenance.
4.4 That the learned magistrate erred by not considering that the appellant has no
pending cases against him and there was no substantiation on the fear that the
appellant will evade his trial or any history suggesting any prior evasion of trial.
4.5 That the learned magistrate erred in not placing the appropriate weight on the
failure by State to substantiate the fear that the witnesses may be influenced and did
not consider that State failed to show any link or any personal knowledge or
relationship that the appellant m ay have with witnesses and his ability to influence
them, if any.
4.6 That the learned magistrate erred by negating the constitutional right of the
appellant to be presumed innocent until proven guilty and disregarded this right and
erred by making a negative inference from the poorly structured evidence given by
State against the appellant.
State against the appellant.
4.7 That the learned magistrate erred in finding that the appellant had failed to
discharge the onus to prove that it is in the interests of justice to be released on bail
and failed to look at all the cumulative factors raised in the appellant’s application and
particularly failed to place regard on the fact that the matter fell under the ambit of
schedule 5 of the CPA 51 of 1977 and not schedule 6.
4
Evidence by the Parties.
[5] During his bail application, the appellant filed an affidavit ; the brief contents
were as follows:
5.1 He resides at 1 […] A R […] street in Ermelo. He has been residing at that
address since 2018 with his brother. The property belongs to his grandfather . His
alternative address is 3 […] E[… ] P[…] , Wesselton in Ermelo. He is not married but a
father of child who is two years old. At the time of his arrest, he was unemployed but
doing odd jobs earning approximately R900 00 per month.
5.2 He had a previous conviction of business burglary and a previous conviction of
possession of dagga, wherein he paid an AOG . He does not have any pending
cases.
5.3 He has no passport or any document he can use to travel outside the country.
5.4 He knows the deceased and he intends to plead not guilty.
5.5 He is not a flight risk. He is not a danger to the society. He will not interfere
with the investigation or threaten or communicate with witnesses. If released on bail,
he will not commit a Schedule1 offence or any other offence.
5.6 He will not undermine or jeopardise the functioning of the criminal justice
system.
5.7 He will abide with all the bail conditions imposed by the court.
[6] In opposing b ail, the state led evidence of the investigating officer , namely
Dorothea Maria Aucamp, whose brief evidence was that:
6.1 The accused has got a c ouple of addresses. However, she had not yet confirmed
these addresses.
6.2 She has got statements of witnesses who witnessed the scene. Such witnesses
saw three to four men, including the accused chasing the deceased.
6.3 She opposes bail as the accused does not have a permanent work address .
Therefore, there is nothing to keep him in Ermelo. She is still looking for the other
three men.
6.4 During cross examination by the defence, she conceded that there is no evidence
to suggest that the accused could destroy or conceal the evidence.
5
ARGUMENTS BY THE PARTIES
7. Both parties filed written heads of arguments.
8. The respondent (State) does not oppose this appeal . I do understand his reasons
for not opposing it. On paragraph 4 of his heads of arguments, he is mentioning the
following;
8.1 That the court will say after further consideration, the interests of justice do not
permit the release of the accused person on bail. The court a quo does not mention
what it considered as facts on this score.
8.2 The strength of the State’s case against the accused. I still do not know what the
case for State all is about. The facts are not clear.
8.3 There are outstanding investigations on this matter, the accused is still to be
properly linked to the offence.
8.4 When I read the transcribed record one gets the impression that the police are
not really committed to the case, which raises uncertainty whether there will be any
prospect of successful prosecution in this matter. The investigating officer of this case
is not the arresting officer, as such she does not know how the accused was arrested.
8.5 There were no efforts put in confirming or verifying the residential address of the
appellant, which means, this appellant can still be traced without difficulties, issues of
residential address play insignificant role, therefore the issue of being a flight risk is
neither there nor not here.
9. The legal representative for the appellant asks that the bail court’s decision be set
aside. In paragraph 6 of his heads of arguments, he states that the appellant;
9.1Has a stable accommodation.
9.2 Has community ties.
9.3Has no history of absconding.
9.4 Has complied with bail previously.
9.5 Was promptly arrested.
9.6 The I O’s investigation was incomplete and speculative.
9.7 The State did not prove any real risks.
6
The Applicable Law
[9] It is common cause that the charge falls in the bracket of offences covered
under schedule 5 of the Criminal Procedure Act 51 of 1977 (“Act 51 of 1977”).
[10] Section 60 (11) (b) of Act 51 of 1977 states the following: “(11) Notwithstanding
any provision of this Act, where an accused is charged with an offence referred to -
(b)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.”
[11] In S v Smith and Another 1969 (4) SA 175 (N) at 177 e- f stated that; “The Court
will always grant bail where possible, and will lean in favour of and not against the
liberty of the subject provided that it is clear that the interests of justice will not be
prejudiced thereby”
[12] The Constitution guarantees an arrested person the right to be released on bail .
Section 12(1) provides that:
“Everyone has the right to freedom and security of the person, which includes
the right–
…
(b) not to be detained without trial.”
[13] The release of the arrested person on bail gains support from section 35(1) of
the Constitution. This section provides that:
“Everyone who is arrested for allegedly committing an offence has the right–
…
(f) to be released from detention if the interests of justice permit , subject to
reasonable conditions”.
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[14] In my view , this section gives the court hearing a bail application a judicial
discretion. This means that the right to bail is not an entitlement. In other words , the
court, in exercising its discretion, may lean in favour of refusing bail rather than
granting it. In S v Sambo,2 refence was made to section 35( 1)(f), and it was stated
that: “It is part of the constitutional design to, where appropriate, limit or even deprive
an individual his or her freedom”.
[12] In S v Dlamini; S v Dladla and others; S v Joubert: S v Schietekat,3 Kriegler J
remarked as follows: “What is of importance is that 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”.
[13] The right to bail is in line with the arrested person’ s presumption of innocence
until proven guilty by a competent court of law. In S v Acheson,
4 Mahomed AJ
remarked as follows:
“An accused person cannot be kept in detention pending his trial as a form of
anticipatory punishment. The presumption of the law is that he is innocent until his
guilt has been established in Court. The Court will therefore ordinarily grant bail to an
accused person unless this is likely to prejudice the ends of justice”.
[14] In considering any decision in a bail application, the court must be guided by
what is contained in the provisions of section 60(4) (a) to (e) of CPA.
[15] Bail can be denied if one or more of these are established:
15.1 (a) where there is a likelihood of endangering the public/person or
committing a Schedule 1 offence.
15. 2 (b) where there is a likelihood of the accused fleeing.
2 S v Sambo [2020] ZANCHC 27.
3 S v Dlamini; S v Dladla and others; S v Joubert: S v Schietekat 1999 (2) SACR 51 (CC) at 88H-I and
89A.
4 S v Acheson 1991 (2) SA 805 (NM) at 822A-B.
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15.3 (c) where there is a likelihood of influencing/intimidating
witnesses or concealing evidence.
15.4 (d) where there is a likelihood of disrupting the criminal justice
system.
15.5 (e) where there is a likelihood of disturbing public order or
undermining peace/security.
[16] This does not mean that all these factors must exist at the same time. It suffices
when one or more of them have been established.
Evaluation
[18] I earlier on indicated that I do understand as to why the State decided not to
oppose this bail appeal. The State Counsel questioned the judgment of the court a
quo. In criminal appeals, the State as respondent would focus on the judgment of the
court to decide whether it is defendable or not. In simple terms, the State is expected
to rely on a court’s judgment. A judgment is supposed to detail the reasons for
reaching a conclusion. To just say; the strength of the state’s case and outstanding
investigations, the interests of justice do not permit the release of the accused person
on bail . This is a short cut that cannot at all amount to a judgment. As a judicial
Officer, you have to communicate your decision at the end of the proceedings through
giving a full judgment so that the parties can be able to understand as to how the
decision has been reached. In Strategic Liquor Services v Mvumbi
5 para 14 the court
said that “[I]t is elementary that litigants are ordinarily entitled to reasons for a judicial
decision following upon a hearing, and, when a judgment is appealed, written
reasons are indispensable. Failure to supply them will usually be a grave lapse of
duty, a breach of litigant’s rights, and an impediment to the appeal process’’.
[19] The value of a Judgement was explained by the Constitutional Court in
Mphahlele v First National Bank of SA Ltd6 as follows;
5 Strategic Liquor Services v Mvumbi NO (2009) 30 ILJ 1526(CC); 2010(2) SA 92 (CC)
6 Mphahlele v First National Bank of SA Ltd 1992 (2) SA 667 (CC)
9
“It explains to the parties , and to the public at large which has an interest in courts
being open and transparent, why a case is decided as it is. It is a discipline which
curbs arbitrary judicial decisions. Then, too, it is essential for the appeal process,
enabling the losing party to take an informed decision as to whether or not to appeal
or, where necessary, seek leave to appeal. It assists the appeal Court to decide
whether or not the order of the lower court is correct. And finally, it provides guidance
to the public in respect of similar matters”
[20] The judgment must cover reasons as to why a certain decision has been reached
as such is of utmost importance to our system of law. In NGABASE AND ANOTHER
V S [2011] JOL 26723(ECG), delivered on 25/12/2010, at para [2], the judges referred
to a writing by the former Chief Justice, Corbett JA on the issue of: The duty to give
reasons; - South African Law Journal 1998 volume 115 at 116-128. He said that “ As
a general rule, a court which delivers a final judgment is obliged to give reasons for
its decision. This applies to both civil and criminal cases . In civil matters this is not a
statutory rule but one of practice. In Botes & another v Nedbank Ltd the Appellate
Division held that where a matter is opposed and the issues have been argued,
litigants are entitled to be informed of the reasons for the judge’s decision. The court
pointed out that a well -reasoned judgment may well discourage an appeal by the
loser; and the failure to state reasons may have the opposite effect, that is,
encourage an ill -founded appeal. In addition, should the matter be taken on appeal,
the court of appeal has a similar interest in knowing why the judge who heard the
matter made the order which he did. But there are broader considerations as well. In
my view, it is in the interests of the open a nd proper administration of justice that the
courts state publicly the reasons for their decisions. Whether or not members of the
courts state publicly the reasons for their decisions. Whether or not members of the
general public are interested in a particular case - and quite often they are- a
statement of reasons gives some assurance that the court gave due consideration to
the matter and did not act arbitrarily. This is important in the maintenance of public
confidence in the administration of justice.”
[20] The crux of this bail appeal is for this court to consider whether the bail court
decided correctly or not in refusing to admit the appellant to bail. In consideration of
this issue , this court has to determine whether the appellant has discharged the
burden that lies with him in terms of section 60(11)(b).
10
[21] The appellant, during the bail application, placed his personal circumstances ,
inclusive of having family ties within the area of jurisdiction of the court a quo. From
his evidence, it is clear that he has a fixed address and no evidence to the effect that
he resisted the arrest . No evidence adduced by the Investigator that he may evade
trial. The evidence of the IO leans in favour of the appellant not getting bail . This is
evidenced by the fact that she came to court to oppose bail without having full
information about the appellant , for example she failed to verify his addresses. From
her grounds of opposition, she lacks solid reasons. An accused person has a right to
bail and has a presumption of innocence. One cannot then ordinarily oppose bail
without a substance or valid grounds.
[22] In my view, there is no likelihood that appellant will commit any of the grounds
mentioned in section 60(4)(a) to (e) of t he CPA. He is therefore a candidate to be
admitted into bail.
[23] The discretion of the court’s a quo attracts the interference of this court as it
was not exercised judicially. Therefore, the appeal must succeed.
Order
[33] The bail appeal is upheld.
[33.1] The appellant is admitted into bail of R1000.00 (One thousand rand) pending
his trial and subject to the following conditions-
(a) To attend his trial until excused by the court.
(b) To report to ERMELO Police Statio n on Mondays and Friday s between 8am and
20h00 until the case is finalised.
M MALANGENI
ACTING JUDGE OF THE HIGH COURT
MPUMALANGA DIVISION, MIDDELBURG
APPEARANCES:
11
FOR THE APPELLANT: MR NYAMBOSE
INSTRUCTED BY NYAMBOSE&ASSOCIATES INC.
FOR THE RESPONDENT: ADVOCATE MOTHEOGANE
DPP’S OFFICE
MIDDELBURG
DATE OF HEARING: 15 DECEMBER 2025
DATE OF DELIVERY: 21 JANUARY 2026