IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL DIVISION, DURBAN
CASE NO: A2025-212266
In the matter between:
ZAMAQHINGA JIMMY NGXOLO APPELANT
and
THE STATE RESPONDENT
ORDER
On appeal from: The Magistrates' Court for the District of eThekwini , held at Durban
(Mr S Zuma sitting as court of first instance):
The appeal is dismissed .
JUDGMENT
OLIFF AJ:
[1] This is an appeal against a decision by the District Court Magistrate sitting in
Durban against the refusal to release the Appellant on bail.
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[2] The Appellant and Accused 2 were charged with Murder (read with the
provisions of Section 51 (2), 52(2), 52A and 528 of the Criminal Law Amendment Act
105 of 1997).
[3] The State moved to hear the bail application in terms of schedule 5.
[4] In terms of schedule 5, the onus on the accused to prove that 'the interest of
justice' permit their release.
[5] The bail application proceeded on 27 February 2025, and evidence was
presented by affidavits by both the Accused and Detective Sergeant Ngobese.
[6] Pursuant to the evidence, the Magistrate heard argument before delivering
judgment.
[7] The Magistrate records that both Accused in a very brief manner, addressed
the Court with regard to the absence of any of the likelihoods listed in section 60(4)(a)
to (b) of the Criminal Procedure Act, No. 51 of 1977.
[8] The Magistrate records that the State is relying on false statements by both
Accused to the police officer citing that the death of the deceased was an accident
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which occurred while he was dancing and fell, injuring himself on the head and as a
result he died.
[9] The second ground the Magistrate accepted was the both the accused's, had
left and fled the area.
[1 O] And finally, the Magistrate considered that there was a likelihood of interference
with witnesses of the State.
[11] As Mr Merna correctly points out, the Magistrate does not deal with the
circumstances of either of the Accused, remaining silent on whether the Accused
poses a flight risk. There is no reasoning with respect to the either Accused 's personal
circumstances other than to state that the Accused , in a very brief manner, addressed
the Court regarding the absence of any of the likelihoods listed in section 60(4)(a) to
(h) of the Criminal Procedure Act. Unfortunately, the Accused's personal
circumstances are not put forward in any great detail. The first Accused's family reside
at an undisclosed address in the Eastern Cape. Similarly, we have a bold and
unsubstantiated statement regarding the first Accused 's net earnings per month.
[12] There is also difficulty with the Magistrate's acceptance that both Accused had
'fled the scene'. On the State's version, the witness had come forward in January
2025. Only after this unspecified date, would the Accused have been considered a
person of interest. The Accused were arrested on 12 February 2025. Detective
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Ngobese's affidavit lacked the necessary details regarding what attempts were made
to locate the Accused post obtaining the witness statement.
[13] Mr Buthelezi correctly conceded that there was no evidence to suggest the
release of the Accused on bail, was likely to incite violence between Zulu and Xhosa
(it was also recorded the violence would be between Zulu and Pando) while the
Magistrate records this averment , it does not form any part of the reasoning of the
judgment.
[14] Mr Merna argued that the Magistrate's finding that 'there was no question ... as
to the strength of the prima facie case the State has presented' , did not consider that
the State's case was based on a single uncorroborated eyewitness . However, the
discovery of the golf club, as the alleged murder weapon provides the independent
corroboration of the witness version. In my view, the Magistrate came to the correct
conclusion regarding the strength of the State's case.
[15] The final reason for the Magistrate's refusal was the false statement furnished
to the police by the Accused 's and inferred effects of this false statement. Mr Buthelezi
argued that this misinformation showed a propensity to interfere or steer the
investigation, in an incorrect direction. The Accused have elected to remain silent on
this action as they are entitled to remain silent. The unchallenged evidence is therefore
that the Accused actively sought to provide misinformation to the investigating officer.
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[16] The Appellant bears the onus to discharge on a balance of probabilities that the
interests of justice permit their release on bail.
[17] In weighing up the Appellant's personal circumstances that are lacking in
particularity against the strength of the State's case, coupled with the Appellant's
active role in attempting to steer the investigation in a different route, I am not satisfied
that the Appellants have discharged the onus.
[18) I am unable to find that the Magistrate misdirected himself regarding the
strength of the State's case, nor the weight given to the false statement provided to
the police.
[19] It is trite law that a Court on appeal1 can only interfere with the decision of the
Court a quo to refuse bail if it is found that the decision was wrong.2
[20) In S v Monyane and Others, Ponnan JA re-stated the test as follows:
'This court's powers to interfere on appeal with the findings of fact of a trial court are
limited . ... In the absence of demonstrable and material misdirection by the trial court,
its findings of fact are presumed to be correct and will only be disregarded if the
recorded evidence shows them to be clearly wrong ( S v Hadebe and Others 1997 (2)
SACR 641 (SCA) at 645e -f).'
1 Section 65(4) of Criminal Procedure Act No. 51 of 1977.
2 S v Barber 1979 (4) SA 218 (D) at 220 E - G.
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[21] In S v Porthen and Another, Bins-Ward AJ (as he then was) focuses on the
appeal court's right to interfere with the discretion of the court of first instance in
refusing bail when he held:
'When a discretion ... is exercised by the court a quo, an appellate Court will give due
deference and appropriate weight to the fact that the court or tribunal of first instance
is vested with a discretion and will eschew any inclination to substitute its own decision
unless it is persuaded that the determination of the court or tribunal of first instance
was wrong.'
[22] The Appellant, in not presenting viva voce evidence, is forced to stand and fall
by the submitted affidavit and the bald allegation. The failure to create a dispute
regarding the false statement given to the police makes it difficult to draw the same
conclusion of concern regarding interference in the investigation.
[23] In the absence of a material misdirection, the decision of the Magistrate was
wrong. This Court is not at liberty to interfere with the ruling.
Order:
[24] As a result, the following order is made:
24.1 the appeal is dismissed with costs.
ACTING JUDGE OLIFF
Date of Hearing:
Date Judgment delivered :
Appearances
Counsel for the Appellant:
Instructed by:
Counsel for the Respondent:
Instructed by:
CASE INFORMATION
30 January 2026
04 February 2026
MrS Merna
S Merna & Associates
Suite 3028 , 3rd Floor
Doone House
379 Anton Lembede Street
DURBAN
Ref:
Tel: 067 027 3013
Email: sipho@smemalaw.co.za
Mr T W Buthelezi
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Deputy Director of Public Prosecutions
Fourth Floor
Southern Life Building
88 Joe Slovo Street
DURBAN
Ref:
Tel: 031 334 5218 / 063 146 5696
Email: tbuthelezi@npa.gov.za