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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)
Of Interest
CASE NO. CA&R11/2026
In the matter between:
XOLANI SOMTSEWU First applicant
MANDLENKOSI NJEKANYE Second applicant
and
THE STATE Respondent
___________________________________________________________________
JUDGMENT
___________________________________________________________________
LAING J
[1] This was an urgent application for the applicants to be granted bail, pending
the determination of their appeal against conviction and sentence. Alternatively, the
applicants s ought an order that the trial court hear their application in that regard.
These are the reasons for the ex tempore order that was handed down at the
hearing.
[2] On 24 March 2025, the regional Specialised Commercial Crimes Court (‘the
trial court’) convicted the applicants of fraud and obstruction of the administration of
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justice. The trial court sentenced the applicants on 30 September 2025 to 15 years
on the first count and 6 years on the second count, to run concurrently. Their
application for leave to appeal was unsuccessful. The applicants consequently
petitioned the High Court, which granted leave to appeal on 10 February 2026. Their
attorney requested a date for a bail application in the trial court. The magistrate
refused to entertain the matter, referring the applic ants to the so -called district ‘bail
court’. The attorney issued a requisition for the applicants to attend the hearing,
scheduled for 19 February 2026. For various reasons, the requisition was rejected.
Notwithstanding, the attorney requested a further date from the magistrate, who
responded that the ‘bail court’ lacked jurisdiction since the High Court was now
seized with the matter.
[3] At the outset, it is important to emphasize the applicants ’ basic right to the
freedom and security of their persons, as stipulated in terms of section 12 (1) of the
Constitution. This is the primary filter through which the present matter must be
viewed. The Supreme Court of Appeal remarked, i n Magistrate Stutter heim v
Mashiya,1 that the finalization of an application for bail was always a matter of
urgency. Although the court was dealing with an accused, rather than (as here) a
convicted person who was subsequently granted leave to appeal, the principle
remains that he or she is entitled to a prompt decision one way or the other.2
[4] In S v Hlongwane,3 the court dealt with the powers of the High Court to grant
bail, both in terms of statute and the common law. After sentence in a lower court,
the High Court has a common law power to release on bail, pending further
proceedings before it. The statutory powers of the lower court must, however, not be
overlooked. In that regard, there is an overlap between the common law and
sections 304 (2) and 309 (3) of the Criminal Procedure Act 51 of 1977 (‘CPA’) , such
sections 304 (2) and 309 (3) of the Criminal Procedure Act 51 of 1977 (‘CPA’) , such
that the relevant statutory powers replace the common law power.4
[5] The provisions of section 304 (2) set out the procedure to be followed within
the context of a review. A judge has particularly wide powers when it appears to him
1 2003 (2) SACR 106 (SCA).
2 Para 16.
3 1989 (4) SA 79 (TPA).
4 See headnote, at 81F–G.
or her that proceedings in a lower court were not in accordance with justice,
including the power to:
‘(vi) make any order in regard to the suspension of the execution of any sentence against
the person convicted or the admission of such person to bail , or, generally, in regard to any
matter or thing connected with such person or the proceedings in regard to such person as
to the court seems likely to promote the ends of justice.’ (Emphasis added.)
[6] Of more immediate relevance, a convicted person’s appeal from a lower court
forms the subject of section 309. The provisions permit an appeal to the High Court if
leave has been granted under section 309B (by the lower court) or section 309C ( by
the High Court, on petition) . Once the appeal has been noted and prosecuted ,
section 309 (3) indicates that ‘[the] provincial or local division concerned shall
thereupon have the powers referred to in section 304 (2) . . .’ 5 From this, it must be
understood that t he statutory requirements to trigger the wide powers available
under section 304 (2) are that the appeal be ‘noted and prosecuted within the period
and in the manner prescribed by the rules of court ’, in accordance with section 309
(2). The purpose of this would presumably be to avoid a situation where the High
Court admits a convicted person to bail but he or she stalls the day of reckoning
indefinitely by failing or refusing to pursue an appeal. Until he or she satisfies the
requirements of section 309 (2), by noting and prosecuting the appeal as prescribed,
the High Court has no statutory jurisdiction to exercise the powers contemplated
under section 304 (2) — and cannot be said to be seized with the matter.
[7] Upon what authority can the lower court grant bail? The case law refers, in
this regard, to section 60 (1) of the CPA, which provides as follows:
‘(1) (a) An accused who is in custody in respect of an offence shall, subject to the
‘(1) (a) An accused who is in custody in respect of an offence shall, subject to the
provisions of section 50 (6), be entitled to be released on bail at any stage preceding his or
her conviction in respect of such offence, if the court is satisfied that the interests of justice
so permit.
(b) Subject to the provisions 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
5 Emphasis added.
and duties in respect of bail in terms of this Act until the accused appears in such other court
for the first time.6
(c) . . .’
[8] In S v Makola ,7 the erstwhile Appellate Division found that section 60 (1)
afforded both the lower court and the High Court jurisdiction to release an accused
on bail. But the latter has jurisdiction to entertain an original application for bail only if
proceedings were pending in that court.8 It would, at that stage, be the appropriate
court to do so because counsel prosecuting on behalf of the state would be in a
better position than a prosecutor in a lower court to deal with the latest facts relevant
to the application.9 The requirement remains, however, that the case be pending
before the High Court; that was not the position in the present matter.
[9] More recently, in S v Sello,10 the court was confronted with a situation where
the applicant had been convicted and sentenced in the regional court. He applied for
leave to appeal, which the trial court refused. Consequently, he applied for leave on
petition to the High Court, which was successful. This, in turn, led to an urgent bail
application, which presented the court with the dilemma of whether it had the
necessary jurisdiction to grant bail as a court of first instance. The court found as
follows:
‘I am satisfied that, at the moment when the application for leave to appeal against
conviction and sentence was considered and granted by my colleagues, this court became
vested with jurisdiction in respect of the bail application proceedings. I am comfortable that,
although I w as confronted with an unusual application, the dictum in Hlongwane . . . in
respect of ss 309 (3), read with ss 304 (2) ( c) (vi), is a correct exposition of the law and
should be followed. If I were to refuse to hear the application and/or dismiss it for lack of
jurisdiction, the applicant would have to return to the regional court, uncertain when such
jurisdiction, the applicant would have to return to the regional court, uncertain when such
application would be heard. In the event of an unsuccessful application, he would have to
return to this court on appeal. Such a cumbersome and time -wasting procedure can never
6 Emphasis added.
7 1994 (2) SACR 32 (A).
8 At 34D–E.
9 At 35D–E,
10 2023 (2) SACR 399 (FB).
be in the interest of justice. Consequently, I was prepared to hear and adjudicate the bail
application, which I did.’11
[10] The court found that it was vested with jurisdiction to deal with the bail
application once the applicant’s p etition had been decided in his favour. It is not
apparent, however, to what degree the statutory requirements contained in section
309 (2) were considered.
[11] Subsequently, in Labuschagne v Director of Public Prosecutions ,12 neither the
regional court (which had convicted the applicant) nor the High Court was prepared
to hear a bail application, pending the outcome of a petition for leave to appeal
against conviction and sentence. The court evaluated the statutory provisions and
legal principles pertaining to bail . It referred to section 60 (1), finding that the
apparent purpose of the legislature , in relation to subsection (b), was to ensure that
the lower court retained jurisdiction until the accused appeared in such other court,
eg the High Court, for the first time. 13 It pointed out that, in contrast to the facts in
Makola, there were no proceedings pending against the accused in the High Court .
On that basis, the court held that the statutory power s of the lower court had to be
given effect; the High Court had no common law power to adjudicate the
application.14 The decision was, however, distinguishable from the facts in the
present case since the applicant’s petition in that matter had not yet been decided.
[12] It is unclear, with respect, how reliance can be placed on section 60 (1) ( b)
when the provisions refer expressly to an accused, not a convicted person. If
anything, then there se ems to be a lacuna in the CPA for addressing the situation
that confronted the court in the present matter.
[13] Notably, the court in Labuschagne held that the trial court was best suited to
adjudicate a bail application. This had been the view of the Supreme Court of Appeal
11 Para 22.
12 2024 (2) SACR 463 (FB).
13 Para 16.
11 Para 22.
12 2024 (2) SACR 463 (FB).
13 Para 16.
14 Para 25.
in S v Masoanganye and Another,15 where the appellants had been convicted and
sentenced in the High Court, obtained leave to appeal, but failed to secure bail. The
court stated as follows:
‘It is important to bear in mind that the decision whether or not to grant bail is one entrusted
to the trial judge because that is the person best equipped to deal with the issue, having
been steeped in the atmosphere of the case . Through legislative oversight, something this
court has complained about for more than two decades, and ignored by the Executive, a
convicted person has an automatic right of appeal to this court against a refusal of bail. But
there is a limit to what this court may do. It has to defer to the exercise of the trial court's
decision unless that court failed to bring an unbiased judgment to bear on the issue , did not
act for substantial reasons, or exercised its discretion capriciously or upon a wrong
principle.’16
[14] The above decisions underscore the centrality of the trial court. The presiding
officer would have the necessary appreciation of the proceedings and
circumstances, in general, to determine a bail application.
[15] In S v Majali ,17 the applicant brought an urgent bail application in the High
Court after proceedings had been postponed in the lower court. Dealing with the
question of when the High Court may exercise its common law jurisdiction, the judge
held that it had to be exercised in a way that was consistent with section 39 (2) of the
Constitution; a court, when interpreting any legislation, was required to promote the
spirit, purport and objects of the Bill of Rights. That meant the advancement of the
fundamental rights mentioned in section 12 (1) and section 35 (1) .18 The decision
was referred to in De Bruin v Director of Public Prosecutions, Free State and
Another,19 where, in similar circumstances, the lower court had postponed bail
proceedings, prompting an urgent application in the High Court. Recognizing its
proceedings, prompting an urgent application in the High Court. Recognizing its
inherent jurisdiction, the court nevertheless held that the exercise of its power to
15 2012 (1) SACR 292 (SCA).
16 Para 15.
17 2011 JDR 0950 (GSJ).
18 Paras 15 and 26. As previously mentioned, section 12 (1) of the Constitution guarantees everyone the
right to freedom and security of his or her person; 35 (1) (f) stipulates that an arrested person has the right
to be released from detention if the interests of justice permit, subject to reasonable conditions.
19 2025 (1) SACR 231 (FB).
intervene should be exercised only in exceptional circumstances. 20 It went on to
issue the following warning:
‘Bail applicants do not have carte blanche to approach the High Court as a court of first
instance in each and every case where they are dissatisfied with bail processes in the lower
courts. The floodgates are not open. Every application will still have to be considered on its
merits, bearing in mind that exceptional circumstances should be present.’21
[16] It was not disputed that the applicants in the present matter obtained, on
petition, leave to appeal to the High Court. The y ha d, moreover, noted an appeal,
which the registrar has yet to set down for hearing ; there was no suggestion that the
applicants d id not intend to proceed. The court was satisfied that there has been
substantial compliance with the requirements of section 309 (2) , vesting it with the
wide powers described in section 304 (2). Nevertheless, even if it could have been
said that there was insufficient compliance, then the court was persuaded that there
were grounds upon which to exercise its common law powers. I t was evident from
the applicants’ affidavits, which were uncontested, that they had obtained bail at the
commencement of criminal proceedings and secured extensions thereof until the
lower court’s refusal of their application s for leave to appeal. They had remained in
attendance throughout trial and sentencing. The first applicant resided in the
Butterworth district and earned a living , prior to his arrest, as an e -hailing driver; his
mother and three children were dependents. The second applicant resided in the
Qumrha district. He had previously been a warrant officer in the South African Police
Services but had resigned when it became apparent that he would serve a custodial
sentence; his wife, three children, a niece, and two grandchildren were dependents.
Neither of the applicants had a passport or any other form of travel document. At the
Neither of the applicants had a passport or any other form of travel document. At the
request of the court, counsel for the applicants produced the record, inclusive of the
applications for leave to appeal and the lower court’s judgment. The charges
pertained to the first applicant’s alleged submission of a fraudulent claim again st the
Road Accident Fund and the second applicant’s alleged collusion in that regard.
There was no indication from the record that any of the so-called ‘likelihoods’ listed in
section 60 (4) of the CPA had been present.22 In a situation where both the trial court
20 Para 9.
21 Para 14.
22 The grounds upon which it would not be in the interests of justice to release a detainee are set out in
greater detail under subsections (5) to (8A).
and the ‘bail court’ had refused to entertain the matter, to refer the applicants back to
a lower court would, quite simply, not have been in the interests of justice.
[17] There was, furthermore, no opposition to the application . The respondent
delivered no affidavits and made no submissions to that effect. Whereas its filing of a
chamber book consent to bail , in the amount of R 30 000 each, was tantamount to
opposition, the conditions stipulated therein served as a useful framework for the
order that followed.
[18] Overall, the court was persuaded that the applicants’ substantial compliance
with the requirements in section 309 (2) triggered the wide powers available under
section 304 (2). If, however, the applicants had failed to note an appeal or to
demonstrate their intention to take further steps, then it could not have been said that
the High Court was seized with the matter. The trial court would have been, in no
small way, better placed to have dealt with the application. Considering the
applicants’ basic constitutional right to the freedom and security of their persons , as
emphasized in Magistrate Stutterheim, as well as the exceptional circumstances that
accompanied the matter, the court was satisfied that the common law powers
regarding the granting of bail had also been available at the time.
[19] Consequently, the following order was made:
‘1. The applicants’ non-compliance with the usual forms and service be condoned
and that the application be heard on an urgent basis in terms of rule 6(12) of the
Uniform Rules of Court.
2. Bail be and is hereby granted to the first applicant in the amount of R 1, 000, and
to the second applicant in the amount of R2, 000, subject to the following
conditions:
(a) the first applicant continues to reside at Zangwa Location, Ndabakazi A/A
Butterworth;
(b) the second applicant continues to reside at […] L[...] Road, Qumrha;
(c) the applicants do not leave the municipal boundaries of the Amathole
District Municipality unless prior arrangement is made with the
investigating officer, Detective Sergeant Coetzee;
(d) the first applicant is to report to the Butterworth police station every Friday
between the hours of 06h00 and 18h00;
(e) the second applicant is to report to the Qumrha police station every
Friday between the hours of 06h00 and 18h00;
(f) the applicants hand any travel documents in their possession to the
investigating officer by 2 March 2026 and do not apply for either a
passport or a temporary passport until the appeal p rocess has been
concluded;
(g) the applicants ensure that the appeal record is lodged with the Registrar
of the Eastern Cape Division of the High Court, Makhanda, within 30
calendar days of the transcribed record of the trial having been made
available; and
(h) the applicants report to the Clerk of the Court, East London, within 48
hours of their appeal to the Eastern Cape Division of the High Court,
Makhanda, having been dismissed or struck off the roll.
3. A copy of this order must be served:
(a) by the Sheriff o f the High Court on the Head: Mdantsane Correctional
Services Centre or such other senior official having the necessary
authority; and
(b) on the respondent’s Makhanda and East London addresses,
respectively.’
_________________________
JGA LAING
JUDGE OF THE HIGH COURT
Appearances
For the applicant: Adv Coto
Instructed by: Z Xakwe Attorneys Inc.
49 Beach Road
Nahoon
EAST LONDON
Tel: 043 721 0446
Email: reception@zxakweattorneys.co.za
C/O Yokwana Attorneys
10 New Street
MAKHANDA
Tel: 046 622 9928
For the respondent: No appearance.
Date heard: 27 February 2026.
Date delivered: 10 March 2026.