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THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: A18/2026
In the matter between:
T[...] M[… ] Appellant
and
THE STATE Respondent
JUDGMENT
NEMAVHIDI AJ:
Introduction
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHERS JUDGES: NO
(3) REVISED
03/03/2026
............................. ..............................................
DATE SIGNATURE
[1] This is an appeal against the refusal of bail by the Magistrates' Court for the District
of Booysens , Case No: 61/7/2026, handed down on 9 January 2026. The appellant
appeared before the learned Magistrate, Mr M.F. Moropane, on a charge of assault,
which is domestic in nature and falls under the ambit of Schedule 5 to the Criminal
Procedure Act 51 of 1977 ("the CPA").
[2] The appellant was arrested on 3 January 2026 and made his first appearance on 5
January 2026. On 9 January 2026, he formally applied for bail. The application was
refused. A subsequent application for bail on new facts was dismissed on 4 February
2026. The present appeal is directed only at the refusal of bail on 9 January 2026.
[3] The appeal is brought in terms of section 65 of the CPA. The appellant contends that
the learned magistrate erred in fact and in law in refusing bail, and that the interests of
justice permit his release.
Background facts
[4] The appellant and the complainant, E […] T[… ] M[…] , are married in community of
property. Three children were born of the marriage. At the time of the incident, the
appellant was not residing at the matrimonial home. He had moved out in April 2025
after an interim protection order was served on him. Although that protection order was
later dismissed, the appellant remained living with his sister in Soweto.
[5] On the day of the incident, the appellant received a call from his minor son, who
complained that there were no cold drinks in the house. The appellant purchased cold
drinks and proceeded to the matrimonial home to deliver them. Upon entering the
house, he found an unknown man sitting on a chair. An argument ensued. The
appellant then ran to his car to fetch a stick. When he returned, the burglar door had
been locked, preventing his re-entry. He left the premises.
[6] The complainant's version, as set out in her affidavit, is that the appellant struck the
man on the shoulder, that she observed the tip of a knife in the appellant's back pocket,
that she removed the knife, and that a scuffle ensued during which she sustained an
injury to her hand. She also alleged that the appellant pushed her, causing her to strike
a kitchen drawer. These events occurred in the presence of the minor children.
[7] The appellant denies having assaulted the complainant. He concedes that he went
to fetch a stick but states that his intention was merely to scare the unknown man. He
further denies having possessed a knife.
The bail proceedings
[8] The appellant, who was legally represented by Ms Matlala, elected not to testify viva
voce. Instead, he tendered an affidavit in support of his bail application, which was
admitted as Exhibit A. The affidavit dealt primarily with his personal circumstances,
including his employment, his lack of previous convictions, and his willingness to abide
by bail conditions.
[9] The appellant also called his adult son, H [… ] M[…] , to testify. The son's evidence
related to the challenges he faced following his circumcision and his need for his
father's guidance. He was not present at the time of the incident and could not assist the
court on the merits of the bail application.
[10] The State opposed bail and tendered affidavits from the investigating officer
(Exhibit B) and the complainant (Exhibit C). The investigating officer deposed that the
appellant was violent, that he had forced entry into the complainant's home despite
having been told to stay away, and that he posed a risk to the complainant's safety. The
complainant expressed fear for her life and stated that the appellant had threatened her
with a knife.
[11] In argument, Ms Matlala submitted that the appellant had discharged the onus
resting on him, that he had a fixed address, that he would not evade trial, and that
suitable conditions could be imposed to address any concerns.
[12] The prosecutor submitted that the safety of the complainant and the children was
paramount, and that bail should be refused.
The magistrate's reasoning
[13] In his judgment, the magistrate correctly identified that the matter fell under
Schedule 5 and that the appellant bore the onus to satisfy the court that the interests of
justice permitted his release.
[14] The magistrate expressed concern regarding the appellant's conduct on the day in
question. He noted that the appellant, having chosen to move out of the matrimonial
home, returned not merely to deliver cold drinks but became embroiled in a
confrontation that escalated to the point where he fetched a stick from his car. The
magistrate posed the rhetorical question: what would have happened if the burglar door
had not been locked? His answer was that the appellant might well have been facing
more serious charges.
[15] The magistrate found that the appellant's behaviour suggested anger issues and
that there was a likelihood that, if released on bail, he would endanger the safety of the
complainant and the witness (the unknown man), and would commit a Schedule 1
offence. This finding was rooted in section 60(4)(a) of the CPA.
[16] The magistrate further found that no condition could adequately protect the
complainant. He observed that the appellant had voluntarily left the matrimonial home
but had, on the day in question, acted in a manner inconsistent with that decision. He
concluded that the complainant needed protection and that bail should be refused.
The appeal
[17] The appellant's notice of appeal raises numerous grounds, which may be
summarised as follows:
17.1 The magistrate misdirected himself in finding that the appellant had not discharged
the onus.
17.2 The magistrate placed undue emphasis on the protection of the complainant.
17.3 The magistrate erred in finding that the appellant would commit a Schedule 1
offence.
17.4 The magistrate failed to consider that conditions could be imposed to address any
risks.
17.5 The magistrate failed to make a finding on the strength of the State's case.
17.6 The magistrate adopted a criminal trial approach rather than a bail approach.
[18] The appellant's heads of argument expand on these grounds and invoke the
presumption of innocence, the right to liberty, and the principle that bail should be
granted unless the interests of justice dictate otherwise.
[19] The respondent, in its heads of argument, submits that the magistrate's decision
was correct, that the appellant failed to discharge the onus, that the magistrate properly
applied section 60(4)(a), and that there is no basis for interference on appeal.
Legal principles
[20] Section 35(1)(f) of the Constitution guarantees every arrested person the right to be
released from detention if the interests of justice permit, subject to reasonable
conditions.
[21] However, that right is not absolute. Where an accused is charged with a Schedule
5 offence, section 60(11)(b) of the CPA imposes an onus on the accused to adduce
evidence which satisfies the court that the interests of justice permit his or her release.
The standard of proof is a balance of probabilities.¹
[22] Section 60(4) lists the grounds upon which the interests of justice do not permit
release. These include, in paragraph (a), the likelihood that the accused, if released, will
endanger the safety of the public or any particular person, or will commit a Schedule 1
offence.
[23] In evaluating whether bail should be granted, the court must weigh the interests of
the accused against the interests of justice, which include the safety of the complainant
and the community.²
[24] An appeal against the refusal of bail is governed by section 65(4) of the CPA, which
provides that the appeal court shall not set aside the decision unless it is satisfied that
the decision was wrong. This court does not sit as a court of first instance. It may not
interfere merely because it would have come to a different conclusion. Interference is
warranted only if the magistrate misdirected himself on the facts or the law, or exercised
his discretion improperly.³
[25] In S v Barber ⁴, it was held that the powers of a court of appeal in bail matters are
limited. The question is not whether the appeal court would have granted bail, but
whether the magistrate, in the exercise of his discretion, acted wrongly.
[26] Where the accused elects not to testify and relies solely on an affidavit, the
evidentiary weight of that affidavit is diminished, as it is not open to testing by cross -
examination.⁵
Evaluation
[27] I pause to consider the magistrate's findings in light of the evidence and the
applicable law.
[28] The appellant's version, as set out in his affidavit, contains several troubling
features. He admits that, upon finding an unknown man in his house, he argued with the
man and then ran to his car to fetch a stick. He does not explain what he intended to do
with the stick, other than to say that he wished to "scare" the man. The magistrate was
entitled to view this conduct as indicative of a propensity for violence.
[29] The magistrate's rhetorical question — what would have happened if the burglar
door had not been locked? — was not an exercise in speculation. It was a logical
inference drawn from the appellant's own admission. The appellant armed himself with
a stick and returned to the house. Only the locked door prevented his re- entry. In those
circumstances, the magistrate's finding that the appellant would have committed a
Schedule 1 offence is entirely reasonable.
[30] The complainant's affidavit, while untested, provides further support for the
magistrate's concerns. She alleges that the appellant struck the man, that he had a
knife, and that she was injured in the ensuing scuffle. She expresses fear for her life. In
bail proceedings, where the enquiry is not a trial, the court is entitled to have regard to
such evidence.⁶
[31] The appellant submits that the magistrate failed to consider the strength of the
State's case. However, the strength of the State's case is only one factor to be
considered. In any event, the magistrate did refer to the need to consider whether the
State had a strong case. He did not make an express finding, but his judgment as a
whole reflects his view that the evidence against the appellant was sufficient to raise
concerns regarding the risk of re-offending.
[32] The appellant also submits that the magistrate failed to consider that conditions
could be imposed to address any risks. This submission overlooks the magistrate's
express finding that no condition would stop the appellant from further abusing the
complainant. That finding was based on the appellant's own conduct: he had chosen to
leave the matrimonial home but nonetheless returned and behaved in a violent manner.
The magistrate was entitled to conclude that conditions would not be effective.
[33] The appellant's reliance on his son's evidence is misplaced. The son's evidence,
while sympathetic, had no bearing on the issues relevant to bail. The magistrate
correctly observed that there was nothing to balance from that evidence.
[34] I am not persuaded that the magistrate misdirected himself. On the contrary, his
judgment reflects a careful and conscientious evaluation of the evidence. He identified
the applicable legal principles, applied them correctly, and gave clear reasons for his
decision.
[35] This court is not at liberty to substitute its own view for that of the magistrate merely
because it might have reached a different conclusion. The question is whether the
magistrate's decision was wrong. In my view, it was not. The magistrate was confronted
with a Schedule 5 offence, an appellant who admitted to arming himself with a stick, a
complainant who expressed fear, and a lack of persuasive evidence from the appellant
to discharge the onus resting on him. In those circumstances, the refusal of bail was
justified.
[36] It follows that the appeal cannot succeed.
Order
[37] I make the following order:
1. The appeal against the refusal of bail by the Magistrates' Court for the District of
Booysens, Case No: 61/7/2026, handed down on 9 January 2026, is dismissed.
2. The decision of the Magistrates' Court refusing bail is confirmed.
3. The appellant remains in custody pending the finalisation of his trial.
B NEMAVHIDI
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
For the appellant: Adv S Maziba instructed by KG Matlala Attorneys
For the respondent: Adv M.M. Rampyapedi, Office of the Director of Public
Prosecutions, Gauteng Local Division, Johannesburg
Date of hearing: 03 MARCH 2026
Date of judgment: 03 MARCH 2026
Footnotes
¹ S v Bruintjies 2003 (2) SACR 575 (SCA) at 577e-g.
² M.K and Another v S (A312/2022) [2025] ZAGPPHC 439.
³ S v Rawat 1999 (2) SACR 398 (W) at 400F-G.
⁴ S v Barber 1979 (4) SA 218 (D).
⁵ S v Mathebula 2010 (1) SACR 55 (SCA) at 59b-c.
⁶ S v Dlamini 1999 (2) SACR 51 (CC) at para [11].