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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: A525/2024
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
DATE 27/03/2026
SIGNATURE
In the matter between:
NGCOBO MANDILAKHE Appellant
and
THE STATE Respondent
JUDGMENT
Jordaan, AJ
Introduction
[1] This is an appeal in terms of s65 (1) of the Criminal Procedure Act 51 of
1977(the Act) against the refusal, by the Magistrate at Fochville Magistrates Court, to
admit the appellant to bail on 17 October 2025.
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[2] On 20 September 2024, the appellant, a 52-year-old male, was arrested on
the charge of rape of a 10-year-old girl, on diverse occasions during the period 2023
to 2024.
[3] As a result of this incarceration, the appellant filed an application for bail on 16
October 2024. This bail application was denied.
[4] Following the refusal to admit the appellant to bail, the appellant brought two
consecutive applications for bail on new facts by affidavit, both of which were
dismissed.
[5] On 13f October 2025, after receipt of disclosure from the respondent , the
appellant brought his third application for bail on new facts by affidavit , which was
refused on the 17 October 2025. It is this dismissal which forms the basis of this
appeal.
Background
[6] On 16 October 2024 , the appellant , legally represented by Mr. Nkomo,
launched his application to be remitted on bail. The charge against the appellant was
an offence in the ambit of Schedule 6 to the Act. The appellant undertook the task of
adducing evidence which would satisfy the court that exceptional circumstances
existed which , in the interest of justice , permit his release as provided in s ection
60(11)(a) of the Act.
[7] The appellant sought to discharge this onus by producing an affidavit deposed
to by him. The appellant’s affidavit contained the following averments, asserted to be
of relevance in the discharge of the onus:
(a) He concedes the offence, he is charged with, has an element of
violence, is serious and prevalent in the Honorable Court’s jurisdiction.
(b) He has never threatened anyone nor has grudges against anyone and
disputes that he has benefited or has the proceeds of this offence.
(c) He was born on 2 February 1972 at Nongoma in Kwa Zulu-Natal and
has been married to Nonsikelelo Nxumalo since 2015.
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(d) He is a citizen of the Republic of South Africa.
(e) His current residential address is 5[...]/3[...] W[...], I[...] Street, Extension
4.
(f) He has been residing at this address for seven months since March
2024.
(g) His past residential address is 3[...] B[...] Street, Shoppers, Wedela.
(h) He considers himself to be geographically bound to the court's
jurisdiction.
(i) He is employed by Kusasalethu mine as a labourer since 2012, earning
R8000 per month, and has no other source of income.
(j) He has immovable property at KwaDabhasi, Nongoma, which is valued
at a sum of R700,000.
(k) He has the following movable assets consisting of a bedroom suite; 8
cattle which are at Kwa Dabhasi Nongoma; a Toyota Coro lla Run -X
motor vehicle which is at 5[...]/3[...] W[...] and is valued at R150 000.
(l) His dependents are his wife, his five -year-old daughter, his seven- and
twelve-year-old sons and his twenty-one-year-old daughter, in her first
year of studies at the University of KwaZulu-Natal.
(m) He has no contacts with neighbouring countries and has no travelling
documents, nor does he intend to apply for the same, if released on
bail.
(n) He is unaware of any extradition treaties between the Republic of
South Africa and any other neighbouring countries.
(o) He is prepared to pay bail at an amount of R2000 , which amount
belongs to his brother.
(p) He places value upon it; hence, he could not afford to contravene the
bail conditions, thus causing the money to be forfeited to the state.
(q) He will plead not guilty to the charge (s) against him and will elaborate
on his defence during trial.
(r) He is confident that the trial will return a verdict of not guilty in his
favour as he has a legal and sound defence to the charges preferred
against him. He states that he has a strong case and that he is not
going to labour the bail court with the merits of the case , as he is of the
view that the bail court is the competent court to ventilate this matter.
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(s) He will be unable to adequately prepare himself for this matter if he
were continuously incarcerated.
(t) He is aware of the probable sentence to be imposed upon conviction,
however, that will not influence him to abscond from this matter.
(u) He was arrested on the 20th of September 2024 and estimate s that he
will be in custody for the next three months before this matter is
finalised.
(v) He will suffer financially if his incarceration is not terminated due to the
following reasons: he will lose his job, and as a breadwinner, he will not
be able to provide for his family.
(w) He is suffering from the following illnesses: high blood pressure and is
taking high blood pressure medication.
(x) He is aware of the identity of the witnesses and even though he
became aware of their identity, he will not interfere with them.
(y) He is not related to the witnesses.
(z) He hopes and trusts that the investigations are complete, or that they
are about to be completed.
(aa) As a condition to his bail , he will not interfere with the smooth running
of this matter and if the Honourable Court deems it necessary to attach
further conditions to his bail he will still abide.
(bb) He never provided false personal information upon his arrest and he
trusts that it has been verified.
(cc) He did not attempt to evade the police upon arrest and he was arrested
by the police at his place of residence.
(dd) He has no previous convictions and pending cases.
(ee) He will not contravene any bail conditions set by the Court.
(ff) There will be no community outcry if he is released on bail ; his life will
not be in danger ; he will not endanger the safety of the public or any
other person, or commit a schedule one offence.
(gg) He will not attempt to evade his trial, he will not attempt to interfere with
witnesses or evidence.
(hh) He will not undermine the objectives or proper functioning of the
criminal justice system including the bail system.
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(ii) It was his humble submission that there are “exceptional
circumstances” which in the interest of justice permits his release on
bail.
(jj) He is prepared to furnish further information if the Court so desires.
[8] The respondent led the evidence of t he investigating officer, Constable
Jeremiah Chiawelo, in opposition to bail. He , in essence , testified that the minor
female child(the child) is known to the appellant, they reside in the same area of
Wedela, that the child initially refused the appellant’s instruction for her to undress,
upon which the appellant placed his hand on his waist , where the victim saw a black
firearm on his waist . Out of fear that the appellant might shoot her, she then
undressed.
[9] It was the evidence of the investigating officer that the appellant penetrated
the child on her thighs, whereafter he warned her not to report the incident to anyone
or else. The child thought the appellant might do something bad to her, so she did
not report it. The appellant penetrated the child in this manner on numerous
occasions during 2023 until he vaginally penetrated the victim on 15 September
2024.
[10] Constable Chiawelo testified that on 19 September 2024, the child refused to
comply with the appellant ’s instruction to undress and went home. It was his
testimony further that on her arrival at home, she was questioned by her mother on
where she was coming from, and the child reported that the appellant had raped her.
The child and her mother went to the appellant’s home, where the mother confronted
the appellant, upon which the appellant gave them R1000 to take the child to the
doctor. The following day, the mother took this R1000 to the police station and
opened a case of rape against the appellant.
[11] Constable Chiawelo testified that the appellant does not have a fixed address
in that he is renting , the community is outraged and submitted a petition against the
in that he is renting , the community is outraged and submitted a petition against the
appellants release on bail, the lives of the child and her mother would be at risk
should the appellant be released on bail, the appellant’s presence in Wedela will
intimidate the victim child if she come across him, the appellant will interfere with the
state’s case should he be released and the appellant might evade trial.
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[12] During cross -examination, Constable Chiawelo was confronted with the fact
that the child’s mother opened this case because the love relationship between the
appellant and the child’s mother came to an end. He replied that the child reported
the incident to three different persons, and the J88 confirmed penetration.
[13] He testified that the addresses of the appellant are positive, but that the
alternative address provided at 1[...] D[...] is negative in that Ms Zeto has moved
from the address. Zeto telephonically denied that she is related to the appellant and
refused to accommodate the appellant.
[14] In its judgment, the bail court had regard to relevant case law, the Constitution
and the Act in the context of the evidence tendered in the bail application. The
Magistrate considered amongst other factors the a ppellant’s ties to the area , the
alternative address that was refuted, the likelihood of the appellant evading his trial ,
the seriousness of the offence , that the a ppellant knows the witnesses , the marked
public outrage, the appellant’s circumstances and concluded that the appellant failed
to discharge the onus on him to adduce evidence which satisfied the court that
exceptional circumstances exist which in the interest of justice permits his release.
[15] On 17 December 2024 , the appellant brought an application , on affidavit, for
bail on new facts on the basis that he was served with a letter from his employer
warning of termination of his employment, should he not present himself for work on
or before 18 December 2024, that his family is suffering financially as he is the sole
breadwinner and that his children will not receive their school examination results as
their school fees have not been paid.
[16] The state opposed the application and led the evidence of Constable
Chiawelo who in essence testified that there are no new facts.
[17] On 18 December 2024 , the bail court dismissed the application. . It was
[17] On 18 December 2024 , the bail court dismissed the application. . It was
found that the loss of employment was a consequence of the appellant’s continued
incarceration, thus not a new fact . The court further held that t he interests of the
appellant’s children cannot override all other legitimate interests , having regard to
the offence and the incidence of gender-based violence.
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[18] On 17 March 2025, the appellant lodged a second application, on affidavit, for
bail on new facts. The appellant in essence advanced as new facts that he has high
blood pressure which is a chronic ailment, that he has not received treatment while
incarcerated, that he suffers spiritual attacks, that he recently discovered that he has
diabetes, that his health is deteriorating, that the investigations are incomplete, t hat
his children are affected by his loss of income due to his incarceration and that he
needs to consult a traditional healer.
[19] The state opposed this application by leading the evidence of Constable
Chiawelo, who in essence testified that the issue of the appellant’s children had been
dealt with in the last bail application , that the appellant was taken to Fochville Clinic
to be medically attended to, where he was issued with his chronic medication ; and
that he could not comment further on the issue of traditional healers . He further
testified that only the DNA report was outstanding.
[20] The court found that the only issues that are submitted as new facts to be
dealt with are the appellant’s need to consult a traditional healer and that the
appellant contracted diabetes or high blood pressure while in custody.
[21] On 1 April 2025, the bail court dismissed the application. The bail court , in
dismissing the application , found that the appellant’s own evidence show ed that he
was taken to Fochville clinic to be medically attended to; that there was no evidence
that the appellant’s health would further deteriorate while he was kept in custody ;
that he was issued with chronic medication , and thus the medical condition already
existed; that there was no evidence that he contracted a ny illness while in custody ;
that his need to consult a traditional healer was merely a discussion between the
appellant and his attorney in the absence of any diagnosis ; that the further new
appellant and his attorney in the absence of any diagnosis ; that the further new
alternative address provided would not stop the appellant from interfering with the
minor child, that delays in the finalisation of trials is unacceptable, but are a
commonly found situation; and it concluded that the appellant failed to discharge the
onus on him to adduce evidence which satisfied the court that exceptional
circumstances exist which in the interest of justice permit his release.
[22] On 13 October 2025 , the appellant launched his third application for bail on
new facts . He submitted , inter alia, that the state’s case is manifestly weak , given
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that there is no DNA result, the significant delay in the criminal justice process, that
the section 170A assessment indicates the minor is a competent witness thus her
testimony will not be affected by his release and he raises considerations why his
release on bail is warranted as per his affidavit read into record.
[23] The state opposed this application and led the evidence of Constable
Chiawelo who testified that he was not given an address in Bushbuckridge to verify
as an alibi for where the accused was living in 2023, that a DNA report can take
anything from 12 months to more than 18 months in his experience, that he listened
to the WhatsApp messages which consists only of the appellant ’s voice recording
messages on a date unknown and that the section 170A deals only with the witness
being able to distinguish between a truth and a lie and whether she can testify
independently or assisted by an intermediary.
[24] He further testified that the delay in this case was caused by the defence who
did not want to commence the trial on the set down date without a DNA report. It was
his testimony that the DNA report would only be additional to a strong case, that the
R1000 was booked into the SAP13 as the mother presented it as a bribe, that the
accused's health was addressed on the previous bail application and that the J88
report record clefts at 12, 3 and 6 o’clock.
[25] When confronted with the fact that the mother’s statement reflects that the
money was given to take the child to a doctor, Constable Chiawelo testified that the
mother, during consultation, told him that the appellant gave her the R1000 to take
the child to the doctor when she told him she is going to the police , to prevent the
step of going to the police.
[26] When confronted that the child’s statement indicates that there was no rape
on 19 September 2024 , yet he testified the child was raped three times, Constable
Chiawelo replied that h e replied to the state's question on how many incidents there
Chiawelo replied that h e replied to the state's question on how many incidents there
were, and his reply to that question of the state was during 2023, on 15 September
2024 and on 19 September 2024.
[27] On 17 October 2025, the court dismissed the application.
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[28] Aggrieved by the dismissal of this application for bail on new facts, the
appellant lodged this appeal and assails the finding of the bail court on various
grounds, as set out in his notice of appeal:
“1. The learned magistrate erred in refusing to release the appellant on
bail by finding that he has failed to establish the existence of
exceptional circumstances which would permit his release on bail in
the interest of justice, in view of the following:
1.1 The learned magistrate erred by finding that the appellant had
not established the existence of new facts;
1.2 The learned magistrate erred by ignoring serious shortcomings
in the state ’s case such as the contradiction relating to whether the
complainant had been raped on 19 September or not;
1.3 The learned magistrate erred by simply disregarding this
aspect and treating it as of no consequence, where as it goes to the
core of the allegations against the appellant;
1.4 The learned magistrate erred in interpreting the evidence
relating to the appellant’s current address incorrectly. Fact is, it has
always been the appellant’s version that he stayed at a different
address and did not know the complainant and her mother regarding
the 2023 allegation had come to the fore;
1.5 It has not been disputed by the state that the address
furnished by the appellant as his current address, was indeed the
correct address the investigating officer could not dispute the
correctness of the address;
1.6 The learned magistrate's erred by overemphasizing the
importance and suspicions surrounding the voice note sent to the
complainant’s mother by the appellant if anything this message was an
indication that the complainant was displaying behavioral problems;
1.7 The learned magistrate attempted to draw inferences from
the voice note which was not supported by the contents of the voice
message;
1.8 The learned magistrate clearly heard in her interpretation of
message;
1.8 The learned magistrate clearly heard in her interpretation of
the evidence relating to the alleged bribe of R1000,00 during cross
examination of the investigator it was pointed out to him that the true
10
position was relating to the payment of R1000,00, something he could
not deny;
1.9 It is not clear on what basis the magistrate found that the
payment of R1000,00 was improper, especially when a perfect logic
full explanation has been furnished by the appellant and the
complainant’s mother;
1.10 The learned magistrate erred by finding that the matter was
trial ready, even though the DNA results are still outstanding. The DNA
results could have a material bearing on the progress of the matter;
1.11 A reading of the learned magistrate’s judgment creates the
clear impression that she failed to apply her mind to all the facts of the
matter when considering the application.
2. The learned magistrate in her judgment found that the appellants
affidavit had not been properly commissioned and that accordingly there was
no evidence before her. In this regard , the learned magistrate committed
several misdirections:
2.1 The learned magistrate found that the appellants affidavit had
not been commissioned properly and that accordingly there was no
evidence before court;
2.2 The learned magistrate failed to take into consideration the fact
that the affidavit was read into record and that it was placed on record
by the appellants attorney that the affidavit had been duly
commissioned and attested on the morning of the bail application;
2.3 The learned magistrate failed to order that the affidavit be
interpreted to the appellant and further failed to ask the appellant
whether he confirmed the contents of the affidavit;
2.4 But it goes further the learned magistrate failed to mark the
affidavit as an exhibit;
2.5 Despite forming the view that the affidavit was not properly
commissioned and did not constitute evidence, the learned magistrate
allowed the proceedings to be conducted as if the affidavit was
properly before her;
2.6 The learned magistrate was enjoined to immediately point out
to the appellants legal representative that the affidavit did not comply
to the appellants legal representative that the affidavit did not comply
with the legal requirements. Instead, she raised it for the first time
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during her judgment, affording the appellant no opportunity to rectify
the position;
2.7 The learned magistrate was clearly intent on favouring form
over content and in the process rendering the application nugatory.
This constitutes a serious misdirection.
3. On a perusal of the evidence and the learned Magistrate's judgment, it
is clear that she failed to approach the application by the appellant with an
open and objective mind and that accordingly the appellant did not receive a
fair hearing.
4. On a conspectus of all the evidence , it is clear that the learned
magistrate had failed to apply her mind and exercise her discretion judicially.
5. In the premises, the learned magistrate was clearly wrong in finding
that the applicant has not proven new facts and failed to establish the
existence of exceptional circumstances to permit his release on bail in the
interest of justice.”
Appellant’s submissions
[29] The appellant advanced his grounds of appeal in the notice of appeal and
further submitted that the appellant has an alibi in that he in 2023 lived at 3[...] B[...]
Street, Wadela, which is far away from the witness es’ house and that he did not
know the complainant in 2023. That the respondent failed to investigate this alibi as it
proves the weakness of the state’s case and the bail court never considered this,
while over-emphasising the seriousness of the offence.
[30] Counsel for the appellant was directed to the appellant’s affidavit and was
constrained to concede that the appellant in his affidavit never stated that he did not
know the complainant in 2023.
[31] The appellant f urther submitted that the bail court was speculating without
probability in stating that the appellant does not have a fixed address, that the
appellant will interfere with witnesses and that there was no threat with a firearm, but
that the appellant had a firearm on his side, and that is why she was scared.
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[32] It is the appellant’s further submission that the state has a weak case , as
there was no rape alleged on 19 September 2024, as the investigating officer
testified, and the complainant’s mother never stated that the money was a bribe.
[33] The appellant contended that the bail court, on a technicality , did not accept
that the affidavit was evidence.
Respondent’s submissions
[34] The respondent , in essence , submitted that the appellant cannot merely
allege that the state has a weak case now that they have the docket ; he needs to
show the likelihood of acquittal, further that the R1000 was correctly accepted as an
attempt to influence the state witnesses and that the appellant submitted at least four
addresses.
[35] The respondent further submitted that the state has a case against the
accused, the charge sheet can be amended on consultation, however the affidavits
show there was sexual violations over a period of time as well as sexual penetratio n,
the complainant implicate the appellant and the complainant in her affidavit states
that when the complainant refused to undress as per the appellant’s instruction, the
appellant showed or motioned to his firearm on his waist, which instilled fear as a
result of which she undressed- thus a threat to the complainant.
[36] The respondent submitted that the appellant provided at least four addresses ;
thus, the court was correct in stating where the appellant will be traced to. The
respondent further submitted that the current and past address of the appellant was
confirmed as positive by the investigating officer, his alternative address was false ,
and a further alternative address was provided.
[37] The respondent further submitted that the Magistrate merely stated that the
affidavit was non-compliant but proceeded with the bail on new facts and delivered
judgment.
Legal principles
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[38] Section 65(4) of the Criminal Procedure Act 51 of 1977 (the CPA) deals with
bail appeals from the lower courts to the High Court and determines as follows:
“4. The court or judge hearing the appeal shall not set aside the decision
against which the appeal is brought, unless such court or judge is satisfied
that the decision was wrong, in which event the court or judge shall give the
decision which in its or his opinion the lower court should have given.”
[39] In State v Barber,1 Hefer J considered the test to be applied as contemplated
in section 65(4) and remarked as follows:
“It is well known that the powers of this court are largely limited where the
matter comes before it on appeal and not as a substantive application. This
court has to be persuaded that the magistrate exercised the discretion which
he has wrongly. Accordingly, although this court may have a different view, it
should not substitute its own view for that of the magistrate because that
would be an unfair interference with the magistrate’s exercise of his
discretion. I think it should be stressed that, no matter what this court’s own
views are, the real question is whether it can be said that the magistrate who
had the discretion to grant bail but exercised that discretion wrongly …
Without saying that the magistrate’s view was actually the correct one, I have
not been persuaded to decide that it is the wrong one.”
[40] Section 60(11)(a) of the CPA is applicable in this matter as the appellant was
arraigned for a Schedule 6 offence. This section remains applicable when bail
pending the outcome of an appeal is considered.
[41] Section 60(11)(a) reads as follows:
“Notwithstanding any provision of this Act, where an accused is charged with an
offence referred to –
(a) in Schedule 6, the court shall order that the accused be
detained in custody until he or she is dealt with in accordance with the
law, unless the accused, having been given a reasonable opportunity
law, unless the accused, having been given a reasonable opportunity
to do so, adduces evidence which satisfies the court that exceptional
1 1979 (4) SA 218 (D) at 220 E-H
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circumstances exist which in the interest of justice permit his or her
release”.
[42] The appellant must adduce evidence which satisfies the court, on a balance
of probabilities, that exceptional circumstances exist which in the interests of justice
permit his release.
Evaluation
[43] The appellant submits that the Magistrate misdirected herself in finding that
the affidavit had not been commissioned properly and , accordingly, there was no
evidence before the court. The respondent contends the magistrate nonetheless
proceeded with the application.
[44] The Regulations Governing the Administration of an Oath or Affirmation
promulgated in terms of section 10 of the Justices of Peace and Commissioner of
Oaths Act 16 of 1963, in Regulation 4 provide:
“(1) Below the deponent’s signature or mark, the commissioner of oaths shall
certify that the deponent has acknowledged that he knows and understands
the contents of the declaration, and he shall state the manner, place and date
of taking the declaration.”
[45] The date and the place of the taking of the oath is not reflected and left blank.
The transcribed record reflects:
“So it is on that basis that I am saying it is non -compliant and the Act says
shall.”2
“So, in short , I am simply saying there is no evidence before the Court
because of this non -compliance. Be that as it may, as it may, I am going to
proceed to respond to all the bail on new facts that were brought by the
applicant…”3
2 Transcribed record Volume 5 page 461 lines 20 to 21.
3 Transcribed record Volume 5 page 461line 25 to page 462 lines 1to 4.
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[46] The bail court then exercised its discretion not to reject the admitted affidavit
notwithstanding the discovery of its non-compliance and proceeded with the
application. The bail court considered the affidavit in evaluating the evidence and
giving its judgment.
[47] The appellant's alibi defence pertains to the year 2023’s charge, but it must be
borne in mind that the charge against the appellant also includes a charge of rape on
15 September 2024.
[48] The investigating officer testified, confirming the current and past address es
of the appellant as positive, but the alternative address as negative. A further
alternative address was provided with a confirmatory affidavit.
[49] The appellant attacked the strength of the state’s case further on the ground
of contradictions pertaining to 19 September 2024 , which the bail court stated are
best determined in the trial court.
[50] The bail court had regard to the recordings of the appellant and the evidence
of the respondent that the recordings have no date and consist of soliloquies
recorded by the appellant; the bail court cannot be faulted for viewing it as strange.
[51] To successfully challenge the merits of a case advanced to be weak , in bail
proceedings, an applicant needs to prove on a balance of probability that he will be
acquitted of the charge.4
[52] In dealing with the evidence as was produced by the appellant on affidavit, the
Supreme Court of Appeal stated in Mathebula v S5 that:
“Thus, it has been held that until an applicant has set up a prima facie case of
the prosecution failing there is no call on the state to rebut his evidence to that
effect: S v Viljoen at 561f-g”.
[53] The respondent , as the prosecutor of this case on the merits, enrolled the
case for trial and the investigating officer testified that the case could proceed
4 S v Botha en ń Ander 2002 (1) SACR 222 (SCA).
5 2010 (1) SACR 55.
16
without a DNA. It was the appellant who delayed the case on trial date for want of a
DNA report. Thus, the bail court did not err in stating that the case is trial ready.
[54] The remainder of the factors advanced was found by the bail court to be
neither unusual nor such that they singly or cumulatively satisfied the court that
exceptional circumstances existed which , in the interest of justice permitted the
release of the appellant.
[55] This Court finds that the bail court took a holistic view of the evidence before
it. The Court is satisfied that the bail court’s decision was not wrong in concluding
that the appellant’s application to be admitted to bail should be denied.
Order
[56] Considering the above, I make the following order:
1. The appeal is dismissed.
___________________________
M.T.JORDAAN
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
For the Applicant: Mr. J. Eksteen
BDK ATTORNEYS
For the Respondent: Ms E. Mafunisa
DIRECTOR OF PUBLIC PROSECUTIONS
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