IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Bail Appeal No: CAB03/2026
Case No (a quo): L103/2025
In the matter between:
THEMBELA NGALEKA First Appellant
LUYANDA NDZEKENI Second Appellant
and
THE STATE Respondent
Coram: Petersen ADJP
Date enrolled: 20 February 2026
Date heard: 20 February 2026; 03 March 2026
Delivered: This judgment was handed down electronically , circulated to the
parties’ representatives via email, uploaded to CaseLines, and released to SAFLII.
The date and time for the handing down of the judgment are deemed to be 10h00
on 04 March 2026.
Summary: Bail appeal – Schedule 6 offence of murder; and attempted murder –
procedural irregularities on appeal – notice of appeal not served on the clerk of
the court, resulting in non-compliance with s 65(3) of the Criminal Procedure Act
51 of 1977 (CPA) – failure by appellants’ attorneys to follow procedure strongly
deprecated – appellants relied on oral evidence and witness testimony to
challenge the strength of the State ’s case and to establish exceptional
circumstances under Section 60(11)(a) of the CPA – employer’s refusal to co -
operate with the police investigation substantiates the risk of interference and
evidence tampering – appellants failed to prove on a balance of probabilities that
they will be acquitted or that exceptional circumstances exist – principles in S v
Mathebula 2010 (1) SACR 55 (SCA) applied – court a quo correctly refused bail
– appeal dismissed.
________________________________________________________________
JUDGMENT
________________________________________________________________
Petersen ADJP
Introduction
[1] The first and second appellants, Mr Thembela Ngaleka and Mr Luyanda
Ndzekeni, appeal against the judgment of the Magistrate’ s Court, Makwassie,
delivered on 04 December 2025. The court a quo refused to admit the appellants
to bail pending their trial on charges of murder being Schedule 6 offences as
contemplated in the Criminal Procedure Act 51 of 1977 (‘ the CPA’); and
attempted murder.
[2] The respondent, the State, has filed a notice indicating that it will abide by the
decision of this Court and will not oppose the appeal. This notice is conditional,
however, upon no costs being sought against the respondent. It is trite that in bail
appeals, and indeed in criminal appeals generally, the court does not ordinarily
make orders for costs. The respondent ’s reservation in this regard, while noted,
does not alter the established legal position that costs orders are not granted
against the State in such proceedings.
The procedural history of the appeal
[3] Before addressing the merits of the appeal, it is necessary to remark upon
certain procedural irregularities that attended the prosecution of this appeal. The
appellants’ attorneys initially failed to serve the notice of appeal on the Clerk of
the Magistrate’s Court, as is required. This omission was only rectified on 23
February 2026, following a postponement of the appeal to 03 March 2026.
[4] The consequence of this failure was significant. Section 65(3) of the CPA
imposes a peremptory duty upon the magistrate, upon notice of an appeal, to
forthwith furnish reasons for the decision refusing bail. Because the notice was
not served timeously on the Clerk of the Court, it was not brought to the
magistrate's attention. The magistrate was consequently precluded from fulfilling
the statutory obligation to provide written reasons for the refusal of bail.
[5] Furthermore, the record of the proceedings before the magistrate was not
prepared and certified by the Clerk of the Court in the ordinary course. Instead,
the appellants ’ attorneys irregularly had the transcribed records compiled and
filed directly with the Registrar of this Court. This practice is to be strongly
deprecated. It undermines the proper administrative function of the magistrates ’
courts and the registrar ’s office, and it creates the risk of an incomplete or
inaccurate record being placed before the appeal court.
[6] Notwithstanding these procedural failings, and to avoid any undue prejudice
to the appellants, this Court has elected to entertain the appeal on the transcribed
record as filed. The appellants ought not to suffer for the ineptitude of their legal
representatives. This indulgence should not, however, be construed as
condonation of such practices in the future.
Factual background
[7] The appellants are employed by Senqobile Equestrian Security Services (Pty)
Ltd as members of a task team deployed to address cable theft along railway lines.
In the early hours of 09 September 2025, they were on duty in the Leeudoringstad
area.
[8] The charges against them arise from an incident wherein a kombi, transporting
seven occupants, four females and three males, was subjected to gunfire. One
occupant was killed, and others were injured. The State alleges that the appellants,
acting in common purpose with one another and with other persons, were
responsible for the shooting.
[9] The appellants’ version, presented through the viva voce evidence of the first
appellant, Mr Ngaleka, is that they were patrolling the railway line when they
discovered that a cable had been cut. They encountered other security personnel
who requested backup. They observed a vehicle they described as resembling an
H1 and persons running towards it. They gave chase, attempting to stop the
vehicle. During the chase, the vehicle made a U-turn, and the appellants followed.
Their vehicle ultimately lost control and collided with a gate. They deny that they
fired any shots.
The bail proceedings in the court a quo
[10] The bail application was heard on several dates, including 23 September
2025, 14 October 2025, and 21 October 2025. The first appellant testified at
length, and his evidence was subjected to extensive cross- examination by the
prosecutor, Mr. Chose. The second appellant also testified but, on advice, elected
not to traverse the merits of the case.
[11] The State opposed bail, relying on the investigating officer's evidence . An
issue central to the State’s opposition was the conduct of the appellants’ employer.
The investigating officer testified that the police had formally requested from
Senqobile Equestrian Security Services a duty list of employees deployed in the
area and a list of vehicles used on the day of the incident. Despite promises of co-
operation, this information was never provided.
[12] The State argued that this deliberate obfuscation by the employer
substantiated a reasonable apprehension that evidence was being suppressed and
that there existed a real risk of interference with the investigation and with
witnesses.
The findings of the court a quo
[13] On 04 December 2025, the magistrate delivered judgment refusing bail. The
magistrate found that the appellants, bearing the onus under s 60(11)(a) of the
CPA, had failed to establish the existence of exceptional circumstances which, in
the interests of justice, permitted their release.
[14] The magistrate had regard to the serious nature of the charges, the strength
of the State’s case, and, significantly, the lack of cooperation from the appellants’
employer. The magistrate concluded that this conduct demonstrated a clear
likelihood of interference with the investigation and with evidence, and that the
interests of justice required the appellants’ continued detention.
The respondent’s notice to abide
[15] As indicated at the outset, the respondent has filed a notice to abide by this
Court's decision . The notice, dated 02 March 2026, and signed by Adv EC
Manicus, counsel for the respondent, records that the respondent does not intend
to oppose the appeal and will abide by the decision of this Court.
[16] This notice does not relieve this Court of its duty to evaluate the appeal on
its merits. The respondent’s decision not to oppose the appeal does not entitle the
appellants to succeed; they must still persuade this Court that the court a quo's
decision was wrong.
The grounds of appeal
[17] The appellants’ amended notice of appeal, dated 16 February 2026, sets out
twelve grounds of appeal. These may be summarised as follows:
(a) The magistrate erred in finding that the appellants had failed to prove
exceptional circumstances on a balance of probabilities.
(b) The magistrate failed to attach sufficient weight to the appellants ’ personal
circumstances, including their employment, their dependants, and their lack of
previous convictions.
(c) The magistrate erred in finding that there was a likelihood that the appellants
would interfere with witnesses or tamper with evidence, in the absence of proven
facts.
(d) The magistrate misdirected herself in finding that the State's case was strong,
and failed to appreciate that the State's case was based on circumstantial evidence
and hearsay.
(e) The magistrate failed to consider granting bail with appropriate conditions to
address any concerns.
The legal principles governing bail appeals
[18] The powers of this Court on appeal are circumscribed by s 65(4) of the CPA,
which provides that the court hearing the appeal shall not set aside the decision
of the lower court unless it is satisfied that the decision was wrong. Our courts
have interpreted this provision as meaning that an appeal court will not interfere
with the exercise of a lower court’s discretion lightly.
[19] In the seminal case of S v Barber
1it was held that:
‘The Court of Appeal does not have a mere discretion of its own to exercise in substitution
of the discretion exercised by the Court below. The Court of Appeal can only interfere
with the lower court's decision if it finds that the lower court exercised its discretion
1 S v Barber 1979 (4) SA 218 (D) at 220E-H.
improperly... The Court of Appeal will not interfere unless it is satisfied that the lower
court was wrong.’
[20] Because the offences with which the appellants are charged fall within
Schedule 6 of the CPA, s 60(11)(a) applies. This section provides that an applicant
for bail in such circumstances must adduce evidence which satisfies the court that
exceptional circumstances exist which in the interests of justice permit his or her
release.
[21] The meaning of ‘exceptional circumstances’ was elucidated by the Supreme
Court of Appeal in S v Mathebula
2. At paragraph [12], the court held:
‘Where an applicant for bail in a Schedule 6 offence seeks to challenge the merits of the
State's case, he or she must go further than a mere denial. The applicant must prove on a
balance of probabilities that he or she will be acquitted of the charge. This is a formidable
burden. It is not enough to show that the State's case is weak; the applicant must show
that it is so weak that he or she is bound to be acquitted.’
[22] The SCA in Mathebula further held that personal circumstances , which are
commonplace, such as having employment, a fixed address, and dependants,
cannot alone constitute exceptional circumstances. Something more is required.
Parroting the provisions of s 60(4) of the CPA does not suffice.
Evaluation
[23] Applying these principles to the present matter, I am not persuaded that the
magistrate’s decision was wrong. The appellants bore the onus of establishing
2 S v Mathebula 2010 (1) SACR 55 (SCA).
exceptional circumstances. They sought to do so, in part, by challenging the
strength of the State’s case.
[24] The first appellant gave a detailed account of the events of 0 9 September
2025, denying any involvement in the shooting. He was, however, subjected to
rigorous cross- examination by the prosecutor. During that cross- examination,
several significant contradictions and improbabilities emerged. The first appellant
was unable to provide consistent, satisfactory answers regarding the identities of
his managers and supervisors. His explanation that Mr Sebisi was a clan name,
and that Mr Maslasi and Mr Sebisi were the same person, was unconvincing. The
inconsistencies in his evidence about the presence of other vehicles during the
chase, and his initial denial that any vehicle stopped behind them after the
accident, undermined his credibility.
[25] More significantly, the evidence regarding the employer ’s failure to co -
operate with the police investigation stands unchallenged. This is not a matter of
mere speculation or suspicion. The investigating officer testified that specific
information was requested from Senqobile Equestrian Security Services, and that
despite promises, this information was never provided. The employer, which had
offered, in its letter of 11 September 2025, to take full responsibility for the
appellants and to ensure their court attendance, was conspicuously uncooperative
when it came to providing the police with the very information necessary to
investigate a serious crime.
[26] The appellants, through their counsel, sought to argue that they should not
be punished for their employer's conduct. This submission misses the point. The
issue is not one of punishment, but of risk assessment. The conduct of the
employer, which has offered to stand as surety for the appellants and to supervise
them, is directly relevant to the question of whether there is a likelihood of
interference with the investigation. If the employer is unwilling to cooperate with
the police by providing routine operational information, what assurance can this
Court have that it would cooperate in ensuring the appellants’ attendance at trial,
or in preventing them from tampering with evidence? The magistrate was entirely
correct to view this conduct with grave concern.
[27] The appellants’ personal circumstances, while undoubtedly important to
them and their families, are commonplace. They are employed. They have
dependants. They have no previous convictions. These factors, in isolation or in
combination, do not constitute exceptional circumstances as contemplated in s
60(11)(a) of the CPA.
[28] The appellants have not discharged the onerous burden of proving on a
balance of probabilities that they will be acquitted. They have not demonstrated
that the State ’s case is so weak that they are bound to be acquitted. On the
contrary, the evidence placed before the magistrate, including the employer ’s
obstructive conduct, suggests a case of considerable strength.
[29] I have had regard to the grounds of appeal advanced by the appellants. The
magistrate did not fail to consider the totality of the facts. The magistrate
evaluated the evidence, weighed the competing considerations, and arrived at a
decision based on the facts and the law. There is no misdirection on the part of
the magistrate nor any error in law. The conclusion that the appellants had failed
to establish exceptional circumstances, and that the interests of justice required
their continued detention, was correct.
Conclusion
[30] For the reasons aforesaid, the appeal cannot succeed. The magistrate's
decision was not wrong, and this Court has no basis to interfere.
Order
[31] In the result, the following order is made:
The appeal is dismissed.
AH PETERSEN
ACTING DEPUTY JUDGE PRESIDENT OF THE HIGH COURT
NORTH WEST DIVISION, MAHIKENG
Appearances:
For the Appellants:
Instructed by:
For Respondent:
Instructed by:
Mr. 0 K KA Lehabe
De Beer & Claassen
c/o Lehabe Attorneys Inc
Mafikeng
Adv E C Manicus
The Director of Public Prosecutions
Mafikeng