IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
In the matter between:
LINDA MATSHEDISO
KOOPMAN
THAPELO CHIRWA
RORISANG SEKASHE
and
THESTATE
Coram: Wessels AJ
Not reportable
Case no: CAB 04/2026
Magistrate's Court case no:0 1/101/25
FIRST APPELLANT
SECOND APPELLANT
THIRD APPELLANT
RESPONDENT
Heard: 2 March 2026 and 18 March 2026
Delivered: This judgment was handed down electronically, circulated to the
parties' representatives via emai l, uploaded to CaseLines, and released to
2
SAFLII. The date and time for the handing down of the judgment are deemed to
be 14h00 on 24 March 2026.
Summa ry: Bail - Jurisdiction - District court hearing bail app lication on new
facts after transfer to Regional court - Section 60(1 )(b) of Criminal Procedure
Act 51 of 1977 - Once accused appea rs in receiving cou rt, that court vested
with exclusive jurisdiction to entertain bail applications - Referra l back to
District cou1t exceptional measure, justified only where Regional court lacks
capacity ( eg sole Regional magistrate) - Absence of referral - District court
lacked jur isdiction - Proceedi ngs a nullity - Appea l set aside - Matter
remitted to Regional court
JUDGMENT
WesselsAJ
Introduction
[I] This is an appeal against the refusal of bail by the Magistrate , Orkney ,
Ms L Esterhuizen, on 5 December 2025. The appellants brought a bail
application on the basis of new facts as contemplated in s 65(2) of the
Criminal Procedure Act 1 (' CPA'). The Magistrate dismissed the application ,
finding that the appellants had fai led to prove the existence of new facts
justifying the reconsideration of their release on bail.
1 Criminal Procedure Act 5 1 of 1977.
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[21 However, before this Court can consider the merits of the appea l, a
preliminary jurisdictional question arises. The crisp issue for determination is
whether the District Comi had jurisdiction to entertain the bai 1 appl ication on
new facts at all, given that by the time the application was brought, the
appellants' case had already been transferred to the Regional Court for trial
and the appellants had already appeared in that court . This issue was not
raised by the parties in the District Court , nor was it addressed in the
Magistrate's judgment . Nevert heless, it is a question of law that goes to the
root of the proceedings and which this Court is obliged to conside r.
[3] Before turning to the jurisdictional question, it is necessary to record
the proced ural history that preceded this appea l. The matter initially served
before this Court on 2 March 2026. On that date , it became apparent that the
appella nts had not complied with the requi rements of s 65(3) of the CPA,
which mandates that a copy of the notice of appeal must be served on the
Magistrate against whose decision the appea l is brought. The matter was
accordi ngly postponed to ena ble the appe llants to rect ify this omissio n. The
appeal was properly noted thereafter, and the recor d was placed before this
Court for adjudication.
Background
[ 4] The relevant chronology 1s undisputed and may be summarised as
follows:
(a) The appellants were arrested on 16 March 2025 on a charge of murder.
They made their first appearance in the Magistrates' Court, Orkney, on 25
Marc h 2025.
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(b) On 2 April 2025, following a formal bail applicat ion, the learned
magistrate refused bail. The matter was thereafter transferred to the Regional
Court , Stilfontein, for trial. The record reflects that on 17 June 2025, the
matter was transferred to the Regional Court, with a first appearance date of
16 July 2025.
(c) On 16 July 2025, the appellants appeared in the Regional Court for the
first time pursuant to that transfer. They thereafter appeared in the Regiona l
Court on severa l occasions.
(d) On 12 November 2025, approximate ly five months after the matte r h ad
been transferred to the Regiona l Court and after the appellants had made
multip le appearances in that court, the appellants brought a second bail
application based on new facts. This application was brought before the same
District Court Magistrate who had refused the initial bail app lication. The
Magistrate entertained the appl ication and, on 5 December 2025, delivered
judgment refusing bail.
[5] Neither the appellants' legal representat ive nor the State Prosecutor
raised any objection to the District Court's jurisdiction to hear the application.
The matter proceeded as if the Distr ict Court retained jurisdiction to entertain
bail app lications, notwithstanding the transfer of the case to the Regional
Court and the appe llants' appearances in that court.
Legal principles
[6] The question of jurisdiction in bail proceedings is governed by s
60(1)(b) of the CPA, which provides:
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'Subject to the provision s of section 50(6)(c) , the court referring an accused to any other
court for trial or sentencing retains jurisdiction relating to the powers, functions and
duties in respect of bail in terms of this Act until the accused appears in such other
court for the first time. ' ( emphasis added)
[7] This prov1s1on has received considerable judicial interpretation. In
Director of Public Prosecutions, Eastern Cape, v Louw NO: In re S v
Makinana 2 the court observed:
'The words ·'subject to the provisions of s 50(6)(c) in s 60(1)(b) must be interpreted in
conformity with, and in such a way as to promote , the values of the Constitution and the
spirit, purport and objects of the Bill of Rights. It must be interpreted , in other words, so
that it promotes the value of, and the right to, freedom as well as the right to be "relea sed
from detention if the interest of justice permit , subject to reasonable conditions " and the
right of access to com1. •
l8J The court in Makinana granted a declaratory order that a magistrate 's
court has exclusive jurisdiction to hear a bail application from the first
appearance of the accused until he appears in the higher court to which his
matter may be transferred , whereupon such other court shall enjoy
jurisdiction to entertain a bail application. Importantly, the court did not
declare the higher court to be vested with exclusive jurisdiction to consider
bail once the accused has appeared before it. This left open the question of
whether jurisdiction becomes concurrent or whether the receiving court's
jurisdiction is exclusive.
2
Director of Public Prosecutions. Eastern Cape, v louw NO: In re S v Makinana 2004 (2) SAC R 46 (E)
para 27.
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[9] The authors of Hiemstra s Criminal Procedure 3 comment on s 60( 1 )(b)
as follows:
·In cases where the court refers the accused to another court for trial or sentencing, the
referring court retains juri sdiction in respect of bail until the accused appea rs in the other
court for the first time. Once the accused appea rs in the receiving comt, the receiving court
is vested, to the exclusion of the transferr ing court. with exclusive j urisdiction in respect
of bail applications, unless the receiving court r efers the matter back to the transferring
court for a bail applicatio n.'
[I OJ This interpretation was affirmed in S v Seroka 4 as follows 5 :
'Once the accused appears in the receiving court, the receiving court is vested, to the
exc lusion of the transferri ng comt. with exclusive juri sdiction in respect of bail
applications, unless the receiving court refers the matter back to the transferring court for
a bail application.'
[11] In Seroka, the court cons idered a situation where the Regiona l Court
had specifically referred the matter back to t he District Comi for the hearing
of a bail applicat ion. The Reg iona l Court Magistrate was the sole Regional
Magistrate stationed at Grob lersdal and was precluded from attending to both
the bail appl ication and the trial in the same matter. The District Court
Magistrate declined to attend to the bail application , relyin g on the decision
in Dire ctor of Public Prosecutions, Limpopo v Ram eez Patel & Another
(unreported, case number REV85 /2020, 30 April 202 1) ('Pate l'). The court
in Seroka held that the District Court Magistrate's relianc e on Patel was
3 Hiemstra et al Hiemstra s Criminal Procedure (Issue 4) chapter 9 at 15.
4 S v Seroka 202 1 (2) SACR 622 (LP).
6 Ibid para 19.
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misconce ived, as the matter had been referred back by the Regional Court.
The court stated the following 6:
·The District Cou rt Magisn·ate loses sight of the fact that this coutt in the matter ofRameez
Pate l distinguis hed the case on the facts and did not intend to interfere with the cwTent
practices in the lower courts where Regional Coutts refer cases back to the District Courts
for bail applicatio ns. The keyword is "referred back to·•. It is only in instances where there
is an absence of a referral from the receiving court back to the transferring court, or in
sim ple terms from the High Court or Regional Conrt back to the Distric t Court, that a
District Court has no jurisdiction to ente1tain a bail application once the accused has
appeared before such rece iving court.·
Referral of bail application
[12] It is .important to emphasise that the refer ral of a bail application from
a Regional Court to a District Court is not a general rule or a matter of routine
practice. It is an except ional measure, available only in limited circumstances.
As made c lear in Seroka, the rationale for permitting such a referral is rooted
in practical necessity: where a Regional Court has only a s ingle Regional
Magistrate, that Magistrate cannot preside over both the bail appl icat ion and
the subsequent trial. To do so wou ld create an obvious conflict and could
compromise the fairness of the proceedings. In such circumstances, the
referral back to the District Court is a pragmatic solution that ensures the
accused's right to a fair trial is not compromised.
[13] The principl e was articulat ed in S v Mzatho and Others 7, where the
court app roved of the concurrent jurisdiction approach in appropriate
circumstances, particularly where it would be improper for an area's sole
6 Op cit fn2 para 20.
7 S v M=atho and Others 2007 (2) SACR 309 (T).
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Regional Magistrate to hear a bail application as well as the subsequent trial.
The discretion of the Regional Court can therefore at best be characterised as
narrow.
[14] The principle established is narrow in its operation in that the referra l
back to the District Court is justified only where ther e is a practical
impediment to the Regional Court hearing the bail application, typ ically
arising from the fact that the Regional Court has on ly a single magistrate who
would be precluded from sitting at the trial if he or she heard the bail
application. It is not a general licence for accused persons to bypass the
Regional Court and bring bail applications directly before the District Court
after the matter has been transferre d.
[15] The court in Seroka made this clear by distinguishing the matter before
it from Patel. In Patel, the accused had brought a bail app lication before the
District Court after the High Court had already refused bail. There was no
referra l back from the High Court. The court held that the District court had
acted irregularly and had, in effect, sat as a court of appe al. The absence of a
referral was critical. In Seroka, by contrast, the referral was present and
justified by the practical reality of a sole Regional Magistrate.
[ 16] The distinction between the two scenarios is not merely procedural. It
goes to the very foundation of the court's jurisdiction. Where there is a referra l
back, the District Court's jurisdiction is derived from the referral itself. Where
there is no referral, the District Court has no jurisdict ion. The fact that an
accused may prefer to bring the app lication before the District Court, or that
the District Court may be more convenie nt or familiar with the facts of the
matter, is irrelevant. Jurisdiction is determined by law, not by the convenience
of the parties.
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Application to the facts
[17] App lying these principles to the facts , the following chrono logy is
determ inative:
(a) On 2 Apri l 2025, the District Court refused bail and transferred the matter
to the Regional Court for trial.
(b) On 17 June 2025 , the matter was formally transferre d to the Regiona l
Court for tria l, with a first appearance date of 16 July 2025.
(c) On 16 July 2025, the appe llants appeared in the Regional Court for the
first time pursuan t to that transfer. They thereafter appeared in the Regional
Court on multiple occasions.
(d) On 12 Nove mber 2025, the appellants brought their bail app lication on
new facts before the District Court.
(18] By 12 November 2025, the appe llants had already appeared in the
Regiona l Court on severa l occasions. The rece iving court (the Regiona l
Court) was vested with jurisdiction over the trial. Pursuant to s 60(1 )(b) of
the CPA, read with the authorities discussed above , the Reg ional Court was
vested with exclusive jurisdiction to entertain any bail appl ication, including
an app lication based on new facts, unless the Regional Court referred the
matter back to the District Court for that purpose.
[ l 9] There is no evidence that the Reg ional Court ever referred the matter
back to the Regional Court for the hearing of the bai l app lication. The record
is silent on any such referral. The Regiona l Court was not asked to consider
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the application, nor did it exercise its discretion to refer the matter back. There
is no suggestion that the Regional Cou rt lacked the capac ity to hear the
appl icat ion, and ne ither is there any indication that there was a sole Regiona l
Magistrate who wou ld be prec luded from presiding at the trial. The appellants
simply bypassed the Regional Court and brought the ir app lication direct ly
before the District Court .
[20] The District Court assumed jurisdict ion without any referra l from the
receiv ing court. In doing so, it acted w ithout authority. The District Court,
which had referred the matter to the Regional Court, beca me functus offic io
in relation to bail upon the appella nts' first appearance in the Regional Court.
Un less the Regional Court specifica lly refe rred the matte r back, the District
Court had no power to entertain the application.
[2 I] The fact that the Distr ict Court mag istrate had presided over the initial
bail application is irrelevant to the jurisdictiona l question. Jur isdiction is not
retained by virtue of the magistrate's fami liarity with the matter. It is
determ ined solely by the statutory provis ions of s 60(l)(b) and the app licable
legal princ iples.
The proper proced ure
[22] The proper procedure for an accused who wishes to bring a bail
app lication after the matter has been transferred to a higher court is as follows:
(a) The accused must approach the rece iving court (the court where the trial
is pending) with the bail application.
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(b) If the receiving court is of the view that it cannot properly ente11ain the
application (for examp le, because the court has only o ne magistrate who
would be precluded from presidin g at the trial if he or she heard the bail
applica tion), it may, in the exercise of its discretion, refer the matter back to
the transferr ing court for the hearin g of the bail app licatio n.
(c) Upon such referr al, the transferring court acquires juri sdict ion to entertain
the application.
[23] This procedur e ensures that the rece iving court retains control over all
aspects of the proceedi ngs, including bail , and that the referral back is made
only where necessary in the interests of justice. It also avoids the
fragme ntation that would result if an accused cou ld simply e lect to approach
either court for bail. It prevents forum shopping and ensures that bail
applications are heard by the court best placed to assess all relevant factors,
including the progress of the trial and any risks that may have arisen since the
tran sfer.
[24] The procedure was not followed in this case. The appellants did not
approach the Regional Court. The Regional Court was not give n the
opportunity to conside r the bail app lication or to decide w hether to refer it
back. The District Court assumed jurisdiction without any referra l and in
doing so, it acted without juri sdictio n.
Conclusion
[25] In the result, I concl ude that the District Court lacked jurisdict ion to
entertain the appe llants' bail app lication on new facts. By the t ime t he
applicat ion was brou ght on 12 Nove mber 2025, the appe llants had already
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appeared in the Regional Court on multiple occasions. Pursuant to s 60( 1 )(b)
of the CPA, read with Seroka and other authorities, the Regional Court was
vested with exclus ive jurisdiction to entertain any bail app lication. The
District Court became functus officio upon the appellants' first appearance in
the Regional Court.
[26] The proceedings before the District Court on 12 ovember 2025 and 5
December 2025 were conducted without jurisdiction and are a nullity. The
magistrate's judgment of 5 December 2025 refusing bail is void ab initio.
[27] This Court cannot uphold or dismiss an appeal against a decision that
is a nullity. The appropriate order is to set aside the proceedings and remit the
matter to the Regiona l Court for consideration of the appellants' bail
app lication on new facts, should the appellants wish to pursue such an
application.
[28] It is not for this Court to express any view on the mer its of the alleged
new facts. That is a matter for the Regional Court to determine in the first
instance. The Regional Court is seized with the trial and is best placed to
assess factors relevant to bail, including the strength of the State's case, the
risk of interference with witnesses, and any other relevant considerations.
[29] I am mindful that this conclusion may cause further delay in the
finalisation of the appellants' bail position. However, jurisdictional questions
are fundamental. A court cannot assume jurisdiction it does not have , even if
the result is inconvenience or delay. The proper administration of justice
requires that proceedings be conducted before the correct forum.
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[30] Should the .Regional Court be of the view that it cannot properly
entertain the bail application (in the exercise of its narrow discretion), it may,
in the exercise of its discretion, refer the matter back to the District Court for
hearing, as contemplated in Seruka . That is a matter for the Regional Court to
detcnnine in the first instance. It is not for this Court to anticipate or pre-empt
that decision.
Order
[3 I] In the result, the following order is made:
1. The proceedings before the District Court, Orkney, on 12
Nove mber 2025 and 5 December 2025 in respect of the
appellants ' bail appl icat ion on new facts are reviewed and set
aside in its entirety as having been conducted without
juri sdiction.
2. The matter is remitted to the Regional Court , Stilfontein, for
conside ration of the appellants ' bail appl ication on new facts,
should the appellants wish to pursue such an appl ication.
MWESSELS
ACTING JUDGE OF THE HIGH COURT
NORTH WEST DlVISION, MAH IKENG
Appearances
For applicant(s)
Instructed by
For respondent(s)
Instruct ed by
:Mr Motjope
:Sandile Makhubela Attorneys
:Klerksdorp
:c/o Moroenyane M Attorneyss
:Mahikeng
:Adv Maba le
:Director of Public Prosecutions,
North West
:Mmaba tho
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