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2026
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[2026] ZAGPJHC 91
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Mangombe v S (A75/2025) [2026] ZAGPJHC 91 (6 February 2026)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
Case Number: A75/2025
(1)
REPORTABLE: YES / NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
In the matter between:
Mangombe,
Lawrence
Thakgalane
Appellant
AND
The State
Respondent
JUDGMENT
MIA J:
[1]
This is an appeal against the refusal of
bail by the Magistrate, Tembisa. The appellant is charged with rape
and kidnapping.
[2]
In
view of the seriousness of the charges, the applicant was required to
meet the onus in terms of section 60(11)(b)
[1]
of the Criminal Procedure Act (CPA) to satisfy the court that factors
exist which indicate that it is in the interests of justice
that he
should be released on bail. The standard of proof is on a balance of
probabilities.
[2]
[3]
The
appellant was legally represented. He elected to bring his bail
application by way of an affidavit. The application was opposed
by
the State who also opposed the application for bail by filing an
answering affidavit. The appellant elected not to cross-examine
the
deponents of the affidavits submitted by the State. The Magistrate
considered the affidavits. In terms of section 60(2A), the
Magistrate
was required to:
“
(2A) The court
must, before reaching a decision on the bail application, take into
consideration(
a
) any pretrial services report regarding the
desirability of releasing an accused on bail, if such a report is
available; and
(
b
) the view of
any person against whom the offence in question was allegedly
committed, regarding his or her safety.”
[5] Section 60(4)
lists circumstances which inform the determination whether the
interests of justice permit release of an
accused on bail. This is
further defined by sections 60(5)-(10).
[6] Having
considered the appellant’s and the respondent’s evidence
per affidavit, the Magistrate determined that
the appellant had not
discharged the onus satisfying the court that the interests of
justice, justified his release on bail.
[7]
This court may not set aside that decision unless it is convinced
that it is wrong.
[3]
In
considering whether the Magistrate’s decision was wrong, I have
considered the guidance in
Killian
v S
[4]
Binns-Ward J (as he was then) said:
“
As I pointed out
in
S v Porthen and Others
2004 (2) SACR 242
(C), however,
certainly in respect of bail applications governed by s 60(11), in
which the bail applicant bears a formal onus of
proof, the nature of
the discretion exercised by the court of first instance is of the
wide character that more readily permits
of interference on appeal
than when a true or narrow discretion is involved. I concluded (at
para 15) ‘
Accordingly, in a case like the present where the
magistrate refused bail because he found that the appellants had not
discharged
the onus on them in terms of s 60(11)(a) of the CPA, if
this court, on its assessment of the evidence, comes to the
conclusion
that the applicants for bail did discharge the burden of
proof, it must follow (i) that the lower court decision was ‘wrong’
within the meaning of s 65(4) and (ii) that this court can substitute
its own decision in the matter
’. That analysis was most
recently endorsed in a decision of the full court of the Gauteng
(Johannesburg) Division of the
High Court in
S v Zondi
2020
(2) SACR 436
(GJ) at para 11-13.” (footnotes omitted).
[8] The ground on
which bail was refused during the first bail application was the
Magistrate’s belief that protection
order was in place which
supported the States position that the complainant required
protection. The applicant relies on the absence
of a protection order
in the bail appeal and further advances his responsibility to care
for his children who were residing with
the complainant, their
mother. Since his arrest, the children reside with the appellant’s
mother. According to the appellant
his mother has limited financial
resources and is financially unable to care for the children. He
contended that it was in the
interests of justice that he be released
to care for his minor children in circumstances where he was the
breadwinner. According
to the applicant, the complainant receives a
social grant for the care of the minor children which the complainant
keeps. The appellant
was of the view that this amount of R1500 was
insufficient for the maintenance of the children and was not paid to
his mother to
care for the children. The concession was made on
behalf of the appellant that the appellant’s mother could
request the money
received from the complainant.
[9] The appellant
has fixed addresses, and it was argued that he was not a flight risk
and would not interfere with witnesses.
The Magistrates decision was
based on the possibility that the appellant’s conduct would
compromise the prosecution of the
matter, either by influencing
witnesses or accessing the complainant who indicated she was afraid
of the appellant.
[10]
In the first application,
the
Magistrate refused bail based on the existence of the protection
order which ordered the appellant not to abuse the complainant.
The
interim protection order was in force from the time the order was
communicated to the appellant.
[5]
The appellant had knowledge of the protection order as he informed
the complainant at the tavern that there was a protection order
in
place, and he could not engage with her.
[11] The
Magistrate’s decision cannot be faulted where the intention was
to protect the complainant a key witness, who
reported that she was
afraid of the appellant.
[12] The appellant
brought a second application for bail on new facts. The facts relied
upon were that was no protection order
in operation and that it had
been set aside. At that point the appellant relied on the court
record that the matter was removed
from the roll due to the absence
of the parties, namely the complainant and the appellant.
[13] The record of
the matter before the Family Court dealing with the protection order,
reflects that the parties were absent,
and the matter was removed
from the roll. There was no indication that the interim protection
order was extended, it follows thus
that the order lapsed. During the
application for bail on new facts, the court noted that the new facts
placed before it was available
at the time the application for bail
was considered and there were thus no new facts.
[14] Whilst the
court record was not placed before the Magistrate during the first
bail application, the appellant was informed
by the complainant that
she had requested that the protection order be set aside. The
non-existence of the protection order is
heart of the matter. The
Magistrate refused the application for bail based on new facts as the
alleged new facts were available
when the first application for
release on bail was considered. The appellant indicated in his first
application that the sexual
intercourse was consensual. This was
based on his belief that the complainant informed him that she had
withdrawn the protection
order. He thus knew that the protection
order was not in place. It is evident that the order lapsed when the
appellant and complainant
did not appear on the return date.
[17]
Considering the reasons indicated for the decision to refuse bail,
the Magistrate considered the safety of the complainant and
interference with witnesses. The finding that the appellant would
interfere with witnesses and specifically that the complainant
is
afraid of the appellant, cannot be faulted where the appellant
communicated with the complainant whilst there was a protection
order
in place. The non-existence of a protection was known to the
appellant during the first bail application.
[18]
In
terms of section 65(4) of the CPA, the court hearing the appeal will
not set aside the application against which the appeal is
lodged
unless the court is satisfied that the decision is wrong.
[6]
I am unable to find that the Magistrate either in the first or
second bail application.
[19] The
appellant’s reliance on his needing to financially provide for
the children does not take into account the
social welfare grant paid
for the children. These facts were also present during the first bail
application. Considering the facts
placed before the Magistrate, the
allegation of abuse was not withdrawn even if the protection order
was set aside. This remains
applicable. The non-existence of the
protection order is not a new fact. I cannot reach a different
conclusion and am unable to
find the Magistrate’s decision was
wrong.
[20]
Accordingly, the appellant’s appeal against the Magistrate’s
order of refusing bail application is dismissed.
S C MIA
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
Appearances:
On
behalf of the applicant:
Instructed
by:
Mr
Sehunane
Sehunane
Inc Attorneys
Johannesburg
On behalf of the
respondent:
Instructed by:
Adv C Ehlers
Director of Public
Prosecutions
Johannesburg
Date of hearing:
Date
of judgment:
3 December 2025
06
February 2026
[1]
(
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; or
[2]
S
v Dlamini; S v Dladla; S v Joubert; S v Schietekat
[1999]
ZACC 8
(3 June 1999); 1999 (2) SACR 51(CC).
[3]
S
v Zondi
2020
JDR 0818 (GJ) at para 13 -14.
[4]
Killian
v S
[2021] ZAWCHC 100
(24 May 2021) at para [8]
,
[5]
S 5(5)
of the
Domestic Violence Act 116 of 1998
.
[6]
S
v Porthen and Others
2004
(2) SACR 242
(C) para 11.