SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: A14/2026
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED
DATE 23 February 2026
SIGNATURE
In the matter between:
MAHLANGU, WANDILE MAWETHU Appellant
And
THE STATE Respondent
___________________________________________________________________
JUDGMENT
DOSIO J:
Introduction
[1] This is an appeal against the r efusal of bail by the Nigel District Court, (‘court
a quo’), on 17 December 2025.
[2] From the record, it seems that at the commencement of the bail proceedings,
it was agreed with the appellant`s legal representative that the alleged
offences levelled against him fell under schedule 5 of the Criminal Procedure
Act 51 of 1977 (‘Act 51 of 1977’).
[3] Both the appellant and respondent filed affidavits in support of and in
opposition of the bail application.
[4] The court a quo held that the appellant had not satisfied the Court that it
would be in the interest of justice for him to be released on bail, more
particularly, that there is a likelihood that the appellant may attempt to evade
his trial and influence or intimidate witnesses as well as destroy evidence.
Facts
[5] The State alleged that on Sunday 7 December 2025, at about 0 1h30 at a
tavern in Devon, whilst the appellant and deceased were talking to each
other, a gunshot was heard inside the tavern and the appellant mentioned that
‘he had made a mistake ’. The State witnesses saw the appellant with a
firearm on his waist , however, after the shooting the firearm was no longer
visible. The deceased was taken to hospital and t he scene was cleaned
before the police arrived.
[6] The appellant is charged with:
(a) Murder;
(b) Possession of an unlicensed fire arm;
(c) Possession of ammunition; and
(d) Defeating the ends of justice.
Issues not in dispute
[7] That the appellant was employed at the tavern and resided at the tavern,
which is the scene of crime.
Issues in dispute
[8] (a) That the appellant committed the offence.
(b) That the eye-witnesses, are known to him.
(c) That the appellant will interfere with witnesses or destroy evidence if
released on bail.
(d) That the appellant is a flight risk.
(e) That the appellant`s incarceration will impact negatively on his wife and
minor child.
(f) That the appellant`s injuries due to a previous shooting, justifies his
release on bail.
Grounds of appeal
[9] It is alleged the court a quo erred in one or more of the following respects:
(a) That the appellant had failed to discharge the onus placed upon him which
would justify his release on bail.
(b) In refusing the appellant`s application the court a quo erroneously found
that the interest s of justice do not permit the release of the appellant on
bail.
(c) The court a quo erred in failing to attach the necessary weight to the
personal circumstances of the appellant as set out in his respective
affidavit.
(d) The court a quo erred in refusing to release the appellant on bail , despite
the absence of evidence of the existence of the factors as stipulated in
ss 60(4)(a-e) of Act 51 of 1977.
(e) The court a quo disregarded the prejudice that the appellant would suffer
as a result of such refusal of bail, specifically since he is gainfully
employed and his dependants will suffer.
(f) The court a quo erred in paying lip service to the literal meaning of the
words ‘interest of justice’.
(g) The court a quo erred in paying lip service to the fact that the appellant
has a permanent place of residence verified by the investigating officer.
Personal circumstances
[10] He was born on the 31 st day of January 2004. He is a South African citizen,
residing at 9[...] I[...] , Devon, in the Gauteng Province . Alternatively, he is
willing to relocate to his father`s place of abode being No: 7 […] Extention 7,
Leslie, Mpumalanga. His postal address is the same as his residential
address.
His highest level of education is grade 11 at Thistie Grove Combine School
which is in Kingross, Mpumalang a. He h as not studied in any college or
university. He is unmarried. He has one dependent, a minor child who is one
year old. He is currently employed as a bar tender at the tavern where he was
earning a salary of R5 000 -00 on a monthly bas is. His family will take care of
the amount to be set for bail. He is a first offender and has no pending cases
against him. He owns a motor vehicle to the value of R 80 000-00 which the
family bought on his behalf. He has no assets outside the Republic of South
Africa. He has neither a passport nor travelling documents. He does not have
any relatives outside the republic of South Africa. He stated that he intended
pleading not guilty at his subsequent trial. Should he be incarcer ated his
minor child will suffer as he gives parental and financial care to his child as
the mother of child is not gainfully employed. If he is further incarcerated it will
impede his preparation for his trial. On the date of his arrest , he was in the
company of his legal representative and he handed himself over to the police.
It was submitted this is a demonstration that he respects the rule of law.
Furthermore, it was contended he is not a flight risk and will attend the court
proceedings at all material times. His family can afford R3 000 -00 bail. As
regards his medical condition, he is still receiving medication for gunshot
wounds sustained on 17 October 2025.
Evaluation
[11] The provisions of ss 60(4)-(9) of the Act 51 of 1977 apply. These subsections
[11] The provisions of ss 60(4)-(9) of the Act 51 of 1977 apply. These subsections
must be construed consistently with s35(1)(f) of the Constitution, which
guarantees the right of an arrest ed person ‘to be released from detention if
the interests of justice permit, subject to reasonable conditions’.
[12] In the matter of S v Smith and Another 1, the court held 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.’ 2
[13] In the matter of S v Dlamini 3, the Constitutional Court held that:
‘The interests of justice in regard to the granting or refusal of bail therefore focus
primarily on securing the attendance of the accused at the trial and on preventing the
accused from interfering with the proper investigation and prosecution of the matter’.
[14] In terms of s 65(4) of Act 51 of 1977, the court hearing the appeal shall not set
aside the decision against which the appeal is brought unless such court is
satisfied that the decision was wrong.
[15] This court must consider all relevant factors and determine whether
individually or cum ulatively they warrant a finding that the interests of justice
warrant the appellant`s release.
[16] In so far as the weakness of the State`s case in a bail application is
concerned, the Supreme Court of Appeal in the matter of S v Mathubela 4
held that:
`In order to successfully challenge the merits of such a case in bail proceedings an
applicant needs to go further: he must prove on a balance of probability that he will
be acquitted of the charge…`5
[17] In the matter of S v Bruintjies 6, the Supreme Court of Appeal stated that:
‘(f) The appellant failed to testify on his own behalf and no attempt was made by his
counsel to have him testify at the bail application. There was thus no means by which
1 S v Smith and another 1969 (4) SA 175 (N).
2 Ibid page 171 para e-f.
3 S v Dlamini 1999 (2) SA SACR 51(CC).
4 S v Mathebula 2010 (1) SACR 55 (SCA).
5 Ibid para 12.
6 S v Bruintjies 2003 (2) SACR 575 (SCA).
the Court a quo could assess the bona fides or reliability of the appellant save by the
say-so of his counsel’.7
[18] Subsection 60(4) of Act 51 of 1977 states:
‘(4) The interests of justice do not permit the release from detention of an accused
where one or more of the following grounds are established:
(a) Where there is the likelihood that the accused, if he or she were released on bail,
will endanger the safety of the public, any person against whom the offence in
question was allegedly committed, or any other particular person or will commit a
Schedule 1 offence;
(b) where there is the likelihood that the accused, if he or she were released on bail,
will attempt to evade his or her trial; or
(c) where there is the likelihood that the accused, if he or she were released on bail,
will attempt to influence or intimidate witnesses or to conceal or destroy evidence; or
(d) where there is the likelihood that the accused, if he or she were released on bail,
will undermine or jeopardise the objectives or the proper functioning of the criminal
justice system, including the bail system; or
(e) where in exceptional circumstances there is the likelihood that the release of the
accused will disturb the public order or undermine the public peace or security.
[19] Subsection 60(5) of Act 51 of 1977 states that:
‘(5) In considering whether the grounds in subsection (4) (a) have been established,
the court may, where applicable, take into account the following factors, namely-
(a) the degree of violence towards others implicit in the charge against the accused;
(b) whom the offence in question was allegedly committed or any other person;
(c) any resentment the accused is alleged to harbour against a person against
whom the offence in question was allegedly committed or any other person;
(d) any disposition to violence on the part of the accused, as is evident from his or
her past conduct;
(e) any disposition of the accused to commit-
(i) offences referred to in Schedule 1;
(e) any disposition of the accused to commit-
(i) offences referred to in Schedule 1;
(ii) an offence against any person in a domestic relationship,
(iii) as defined in section 1 of the Domestic Violence Act, 1998; or an
offence referred to in-
(aa) section 17 (1) (a) of the Domestic Violence Act, 1998;
7 Ibid page 577.
(bb) section 18 (1) (a) of the Protection from Harassment Act, 2011; or
(cc) any law that criminalises a contravention of any prohibition, condition,
obligation or order, which was issued by a court to protect the person against
whom the offence in question was allegedly committed, from the accused, as
is evident from his or her past conduct;
(f) the prevalence of a particular type of offence;
(g) any evidence that the accused previously committed an offence-
(i) referred to in Schedule 1;
(ii) against any person in a domestic relationship, as defined in section 1 of
the Domestic Violence Act, 1998; or
(iii) referred to in-
(aa) section 17 (1) (a) of the Domestic Violence Act, 1998;
(bb) section 18 (1) (a) of the Protection from Harassment Act, 2011; or
(cc) any law that criminalises a contravention of any prohibition, condition,
obligation or order, which was issued by a court to protect the person against
whom the offence in question was allegedly committed, from the accused, while
released on bail or placed under correctional supervision, day parole, parole or
medical parole as contemplated in section 73 of the Correctional Services Act,
1998; or
(h) any other factor which in the opinion of the court should be taken into account. ’
[my emphasis]
[20] There is a prevalence of murder that is committed where firearms are used.
There is also a high prevalence of illegal and unlicensed firearms.
[21] Section 60(6) of Act 51 of 1977 states that:
“(6) In considering whether the ground in subsection (4) (b) has been established, the
court may, where applicable, take into account the following factors, namely-
(a) the emotional, family, community or occupational ties of the accused to the place
at which he or she is to be tried;
(b) the assets held by the accused and where such assets are situated;
(c) the means, and travel documents held by the accused, which may enable him or
her to leave the country;
her to leave the country;
(d) the extent, if any, to which the accused can afford to forfeit the amount of bail
which may be set;
(e) the question whether the extradition of the accused could readily be effected
should he or she flee across the borders of the Republic in an attempt to evade his or
her trial; (f) the nature and the gravity of the charge on which the accused is to be
tried;
(g) the strength of the case against the accused and the incentive that he or she may
in consequence have to attempt to evade his or her trial;
(h) the nature and gravity of the punishment which is likely to be imposed should the
accused be convicted of the charges against him or her;
(i) the binding effect and enforceability of bail conditions which may be imposed and
the ease with which such conditions could be breached; or
(j) any other factor which in the opinion of the court should be taken into account.”
[my emphasis]
[22] The appellant does not own an immovable property, he only owns a motor
vehicle which his family bought on his behalf. The crime for which he is
arraigned is serious. If the state decides to charge the accused for
premeditated murder he will face a sentence of life imprisonment. If the State
charges him for murder in terms of section 51(2) of the Criminal Law
Amendment Act 105 of 1997, (‘Act 105 of 1977’), he may face a minimum
prescribed sentence of 15 years imprisonment. The strength of the State`s
case, as per the witness statements that have been uploaded, indicate that
the appellant and deceased were talking to each other and then a shot went
off. The appellant had a firearm in his possession which after the shooting
was no longer visible.
[23] Subsection 60(7) of Act 51 of 1977 states that:
“(7) In considering whether the ground in subsection (4) (c) has been established, the
court may, where applicable, take into account the following factors, namely-
(a) the fact that the accused is familiar with the identity of witnesses and with the
evidence which they may bring against him or her;
(b) whether the witnesses have already made statements and agreed to testify; (c)
(b) whether the witnesses have already made statements and agreed to testify; (c)
whether the investigation against the accused has already been completed;
(d) the relationship of the accused with the various witnesses and the extent to which
they could be influenced or intimidated;
(e) how effective and enforceable bail conditions prohibiting communication between
the accused and witnesses are likely to be;
(f) whether the accused has access to evidentiary material which is to be presented
at his or her trial;
(g) the ease with which evidentiary material could be concealed or destroyed; or
(h) any other factor which in the opinion of the court should be taken into account.”
[my emphasis]
[24] There are a few witnesses who saw the appellant in possession of a firearm
during the week prior to this incident happening. There is even a witness who
states he saw a black and silver firearm lying next to the deceased which later
disappeared. Most of the state witnesses who saw the appellant and
deceased talking to each other before the shot went off were all employees at
the tavern and know the appellant. From the address of the respondent, the
appellant worked as a manager in this tavern. There is also evidence that the
blood was cleaned up after the shooting . The appellant states the shot was
fired from outside, whereas the majority of the witnesses say the shot was
fired inside the tavern. The fact that a cartridge was removed from the inside
the tavern and placed outside the tavern, together with the fact that the blood
was immediately cleaned up before the police arrived, shows that the
appellant tried to conceal or destroy evidence. Whether the appellant
tampered with the scene on his own or wi th the assistance of his employees
will become evident at the trial. It is correct as pointed out by the appellant’s
counsel that there is no clarity as to what other evidence may be destroyed,
however, the fact remains that evidence was tampered with and the firearm
used to allegedly commit this crime has still not be retrieved.
[25] It is clear that the majority of the witnesses who saw and heard this shooting,
were working in the tavern with the appellant. The fact that these witnesses
were working in the tavern with the appellant. The fact that these witnesses
are known to the appellant indicate that there is a likelihood that they may be
influenced by the appellant.
[26] Subsection 60(8A) of the Act 51 of 1977 states that:
‘In considering whether the ground in subsection (4) (e) has been established, the
court may, where applicable, take into account the following factors, namely-
(a) whether the nature of the offence or the circumstances under which the offence
was committed is likely to induce a sense of shock or outrage in the community
where the offence was committed;
(b) whether the shock or outrage of the community might lead to public disorder if
the accused is released;
(c) whether the safety of the accused might be jeopardized by his or her release;
(d) whether the sense of peace and security among members of the public will be
undermined or jeopardized by the release of the accused;
(e) whether the release of the accused will undermine or jeopardize the public
confidence in the criminal justice system; or
(f) any other factor which in the opinion of the court should be taken into account .
[my emphasis]
[27] The investigating officer stated in his affidavit that the family of the deceased
and community members visited the police station, stating that the appellant
must not be released on bail and that if he was released, he would be dealt
with. It is clear that the investigating officer also had an objection to the
appellant being released on bail. In terms of section 60(10) of Act 51 of 1977,
it is for the court considering the bail application to weigh up the personal
circumstances of the accused against the interests of justice. It is clear from
the affidavit of the investigating officer that if the appellant is released on bail it
will illicit shock and outrage in the community and that the family and
community will take the law into their own hands. Accordingly, even if the
appellant lives in at another address there is no guarantee that the community
will not take the law into their own hands an jeopardize the safety of the
appellant.
[28] After a perusal of the record of the court a quo, this court finds no misdirection
[28] After a perusal of the record of the court a quo, this court finds no misdirection
on the part of the court a quo. The appellant did not successfully discharge
the onus as contemplated in ss60(11)(b) of Act 51 of 1977. Accordingly, there
are no grounds to sati sfy this court that the decision of the court a quo was
wrong. Accordingly, the requirements of s65(4) of Act 51 of 1977 were not
met.
Order
[29] In the result, the appellant`s application for bail is dismissed.
D. DOSIO
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
This judgement was handed down electronically by circulation to the parties`
representatives via e-mail, by being uploaded to Caselines and by release to SAFLII.
The date and time for handed- down to be 11h00 on 23 February 2026.
DATE HEARD: 13 February and 20 February 2026
JUDGEMENT HANDED DOWN: 23 February 2026
APPEARANCES
ON BEHALF OF APPELLANT: Ms. Y Omar
ON BEHALF OF THE STATE: Adv. C Mack
Instructed by the Office of t he NPA,
Johannesburg