JUDGMENT (BAIL APPEAL)
KUNY J:
1 The appellant, a 35-year-old male, is charged in the Roodepoort regional court
with attempted murder arising from a workplace shooting that occurred on 21
August 2025. He brought a bail application on 15 September 2025 and was
refused bail on 18 September 2025. The regional magistrate’s reasons appear
from her judgment which forms part of the record. The appellant appeals
against this decision.
2 At the bail hearing, the appellant presented an affidavit deposed to by him in
support of his bail application. He states in that affidavit, inter alia:
2.1 He has a fixed address where he has been residing for 15 years.
2.2 He is an armed security guard employed by Fidelity Security Services
Group in Roodepoort, earning R6 500 per month.
2.3 He does not own immovable property and does not have any financial
interests or assets in any foreign country.
2.4 He has never been convicted of any criminal offence and there are no
pending cases against him.
2.5 He was arrested at his home on 22 August 2025 and gave his full
cooperation to the police.
2.6 He is unmarried and has a dependent minor daughter. He is the sole
breadwinner for his child and the child’s mother.
2.7 He has strong emotional family and community ties within the Republic
of South Africa.
2.8 He has known of possible charges against him for some time and yet did
not in any way attempt to evade prosecution. He voluntarily presented
himself to the police and this, he contends, indicat es that he will stand
trial.
2.9 The trial against him will be extremely complex and he is advised that a
trial of this nature will probably last for many months. He needs to be
gainfully employed to support his family and finance ongoing legal
expenses related to his charges. His continue d detention will prevent
him from performing his work and duties.
2.10 He has been advised that he is charged with attempted murder.
However, he has not yet been provided with a copy of the police docket,
and he is therefore not in a position to provide the court with any details
relating to his defence in the matter.
2.11 He denies committing the offence and he intends to plead not guilty. He
does not have a history of violent conduct as can be seen from the fact
that he does not have any pending criminal charges or previous
convictions. He is confident that he will be fou nd not guilty and there is
no reasonable prospect of him being convicted of any crime.
3 The State presented an affidavit from the investigating officer, Sergeant
Macheke. He relates the events that led to the shooting of the complainant as
set out in two affidavits, one from the complainant and one from K Ndou, a co-
employee who was present when the shooting occurred. These affidavits were
handed in as exhibits during the bail application.
4 Sgt Macheke confirmed the appellant ’s address and stated that he could be
supervised by his brother at this address. He proposed that, if bail was granted,
the appellant be made to report to a nearby police station two or three times
per week. Sgt Macheke stated that investigations were ongoing and included
obtaining a medical report, video footage and a statement from the employer of
the parties concerned.
5 The complainant’s affidavit was to the following effect:
5.1 On 21 August 2025 the complainant reported on duty at 17h55 at
Casabella Estate, Taylor Street, Roodepoort. He was posted at the
guard room next to the estate gate with Officer Ndou and the appellant.
5.2 The day shift officers handed over to them and they started with their
night-shift duties. They reported to control and ensured that all cameras
were working and that the occurrence book was updated.
5.3 The incident occurred at approximately 20 h45. The appellant insisted
that the complainant listen to some audio on his phone. He heard the
voices of his colleagues. However, he was not interested and he told the
appellant so. They ended up having an unnecessary argument.
5.4 Suddenly the appellant stood up from where he was sitting, took out his
firearm from his waist holster and placed it on top of the table. The
complainant and Ndou were not concerned as they had not provoked
him.
5.5 The appellant walked towards his seat, but before he reached it, he
punched the complainant in his face. The complainant was astonished
and he stood up, wanting to know why the appellant had assaulted him.
5.6 Ndou also stood up and tried to intervene to prevent a fight. He stood
between the complainant and the appellant and asked why they were
fighting. The complainant responded and said he did not know why he
was being assaulted. The complainant became confused and he heard
a firearm being cocked and a gunshot went off. When he looked, he saw
the appellant holding the firearm with his left hand.
5.7 The complainant saw that he was bleeding from his left lower chest. He
could not feel his feet anymore and fell on the chair.
5.8 After the shooting, Ndou ran out, and the appellant walked out of the
guard room. He remained alone in pain and shock for about 15 minutes.
He managed to draw attention to himself by flicking a torch. Fortunately,
an unknown male came to the guard room, driving a vehicle. Ndou
arrived, and they begged this person to rush the complainant to hospital.
Ndou helped him into the vehicle.
5.9 At the hospital, the complainant gave his details but then passed out. He
only gained consciousness the following day when, according to him, he
was lying in a hospital bed with several drips attached.
6 The affidavit of K Ndou (handed in as exhibit C) confirms the complainant ’s
account of what happened in all material respects.
7 Although the complainant survived the shooting, he was seriously injured. From
the investigating officer ’s affidavit, it appears that after the complainant had
been discharged from hospital he was placed in a rehabilitation facility. He
states that the complainant was unable to walk and was required to use a
wheelchair.
8 The court a quo concluded that the appellant had not discharged the onus of
showing that the interests of justice permitted his release. The regional
magistrate’s reasons for refusing bail were based on the following:
8.1 The seriousness of the attempted murder charge.
8.2 The fact that a firearm was used to commit the offence.
8.3 The severity of the complainant ’s injuries (it appears that he has been
rendered a paraplegic).
8.4 The strength of the State’s prima facie case against the appellant.
8.5 The possibility of a lengthy custodial sentence.
9 In his notice of appeal, the appellant raises the following challenges to the
decision to refuse him bail:
9.1 The court did not conduct a balanced enquiry into the personal
circumstances of the appellant, the interests of justice and the fact that
bail conditions could mitigate any risk associated with granting bail.
9.2 The magistrate overemphasised the seriousness of the offence against
the appellant’s personal circumstances and the fact that he had a fixed
address and was not a flight risk.
9.3 The court failed to properly deal with the factors set out in section 60(4)
of the Criminal Procedure Act 51 of 1977 (“the CPA”) and identify any of
them as a basis for refusing bail.
9.4 The court failed to consider bail conditions, and treated disputed
allegations as if they were common cause.
10 The essence of the appellant ’s argument is that the unchallenged evidence
concerning his personal circumstances demonstrates that he is not a flight risk
and therefore, that he should have been granted bail.
11 In evaluating the matter, the magistrate, relying on S v Van Wyk, 1 reasoned
that the State had shown a strong prima facie case, that the appellant faced a
1 S v Van Wyk 2005 (1) SACR 41 (SCA)
potentially lengthy sentence if convicted, and that these factors weighed
against bail. She also relied on S v Mathebula 2 for the proposition that until a
bail applicant sets up a prima facie case that the prosecution will fail, the State
is not called upon to rebut that contention.
PRINCIPLES APPLICABLE TO THE GRANT OF BAIL
12 This appeal is governed by section 65(4) of the CPA. The appeal court may not
set aside the decision of the lower court merely because it may have
approached the matter differently. It may interfere only if satisfied that the
decision was wrong. That does not mean that the appeal court must defer to a
decision affected by a material misdirection. Where the magistrate misdirected
herself on the law, misconceived the facts, failed to have regard to relevant
considerations, or reached a conclusion not supporte d by the evidence, this
Court is entitled to interfere and substitute the decision that ought to have been
made.
13 The offence with which the appellant is charged is attempted murder and, on
the basis accepted before the court a quo, falls within Schedule 5. The effect of
section 60(11)(b) is that an accused charged with a Schedule 5 offence must
be detained in custody unless, having been given a reasonable opportunity to
do so, he adduces evidence which satisfies the court that the interests of justice
permit his release. The onus therefore rests on the appellant, on a balance of
probabilities, to show that his release on bail is permitted by the interests of
justice.
14 That onus does not, however, displace the structured enquiry required by
section 60. The court must still consider whether any of the grounds listed in
section 60(4) are present. Those grounds include the likelihood that the
accused, if released, will end anger the safety of the public or any particular
person, commit a Schedule 1 offence, evade trial, influence or intimidate
2 S v Mathebula 2010 (1) SACR 55 (SCA)
witnesses, conceal or destroy evidence, undermine or jeopardise the proper
functioning of the criminal justice system, or disturb public order or undermine
public peace or security.
15 Sections 60(5) to 60(8A) identify the considerations relevant to each of those
grounds. They require the court to have regard, among other things, to the
nature and seriousness of the offence, the strength of the State ’s case, the
likely sentence if convicted, the accused’s personal circumstances, family and
community ties, employment, assets, previous convictions, conduct after the
offence, relationship with witnesses, and the risk that release may undermine
the administration of justice or public confidence in it.
16 Section 60(9) requires a balancing exercise. Even where factors adverse to the
appellant are present, the court must weigh them against the prejudice that
continued detention will cause to the appellant. That prejudice may include loss
of employment, inab ility to support dependants, difficulty in preparing a
defence, and the impact of detention on the appellant ’s personal and family
circumstances. The question remains whether, having regard to all the relevant
facts, the interests of justice permit release on appropriate conditions.
17 The Schedule 5 onus is therefore important but not mechanical. The
seriousness of the offence, the strength of the State ’s case and the likelihood
of a severe sentence are plainly relevant. They may, in an appropriate case,
weigh heavily against release. But they must be considered together with the
appellant’s personal circumstances, the statutory risk factors and the possibility
of imposing conditions that adequately address any identified risk. The ultimate
enquiry is whether the appellant has shown, on a balance of probabilities, that
his release on bail will not prejudice the interests of justice. 3
18 The Constitutional Court in S v Dlamini4 upheld the constitutionality of the bail
18 The Constitutional Court in S v Dlamini4 upheld the constitutionality of the bail
3 S v Dlamini, S v Dladla and Others, S v Joubert, S v Schietekat 1999 (2) SACR 51 (CC)
4 S v Dlamini (supra)
provisions in section 60 of the CPA. The following important principles were laid
down:
18.1 Bail involves a judicial balancing exercise between the accused’s liberty
and the interests of justice. Sections 60(4) to 60 (9) are intended to
provide judicial officers with demarcated guidelines to be observed in the
exercise of their adjudicative functions in relation to bail. The Court
confirmed that preventive concerns, such as danger to the public, risk of
further serious offending, interference with justice, and public -order
concerns, may legitimately be considered.
18.2 The reverse-onus provisions applicable to Schedule 5 and Schedule 6
offences are constitutionally justifiable because they operate in a limited
category of cases and the accused must be given a reasonable
opportunity to place relevant facts before the court.
18.3 There is no general right to the police docket at bail stage but the
prosecution may be required to disclose enough information to give the
accused a fair opportunity to meet the bail onus. 5
18.4 Bail evidence is not automatically inadmissible at trial. There is no
inherent breach of the right to silence where an accused voluntarily
elects to testify or place evidence before the bail court, provided the trial
court remains alert to exclude evidence that would render the trial unfair.
19 The following dictum in S v Dlamini gives an overarching statement of how a
court will approach a bail hearing:
[11] Furthermore, a bail hearing is a unique judicial function. It is
obvious that the peculiar requirements of bail as an interlocutory
and inherently urgent step were kept in mind when the statute
was drafted. Although it is intended to be a formal court
procedure, it is considerably less formal than a trial. Thus the
evidentiary material proffered need not comply with the strict rules
5 See also S v Mauk 1999 (2) SACR 479 (W)
of oral or written evidence. Also, although bail, like the trial, is
essentially adversarial, the inquisitorial powers of the presiding
officer are greater. An important point to note here about bail
proceedings is so self-evident that it is often overlooked. It is that
there is a fundamental difference between the objective of bail
proceedings and that of the trial. In a bail application the enquiry
is not really concerned with the question of guilt. That is the task
of the trial court. The court hearing t he bail application is
concerned with the question of possible guilt only to the
extent that it may bear on where the interests of justice lie in
regard to bail. The focus at the bail stage is to decide whether
the interests of justice permit the release of the accused
pending trial; and that entails, in the main, protecting the
investigation and prosecution of the case against hindrance.
[emphasis added]
20 In S v Mathebula the Supreme Court of Appeal held that where an accused
seeks to challenge the strength of the State ’s case in bail proceedings, it is
incumbent on the accused to place sufficient evidential material before the court
to support that challenge. A bare denial, an unsubstantiated assertion that the
State’s case is weak, or a version resting only on the accused ’s say-so will
ordinarily not suffice. An accused who says the State ’s case is weak must
produce evidence to show why it is weak. This does not mean that an accused
must prove his innocence at bail stage. It means only that, if he chooses to say
that the State’s case is weak, he must give the court facts showing why that is
so.
EVALUATION
21 Where an accused is confronted with detailed inculpatory affidavits at bail stage
and elects neither to seek a postponement nor to engage with the material
allegations, a court is entitled to attach little or no weight to a bare denial and
an assertion of likely acquittal.
22 In this case the appellant was fully apprised of the facts relating to the attempted
22 In this case the appellant was fully apprised of the facts relating to the attempted
murder charge against him from the affidavits of the complainant and Ndou. If
he was surprised by these affidavits he should have sought a postponement to
consider and respond to them. In the context of the facts presented on affidavit
by the State, and the appellant’s failure to engage with them in any exculpatory
manner, the appellant ’s assertions that he would be found not guilty and be
acquitted, carried no evidential weight.
23 A central part of the magistrate’s reasoning was that the appellant had elected
not to deal with the merits in detail. Although she acknowledged that an
accused in a bail application may not have full access to the docket and that it
may be unfair to expect him to answer all allegations, she held that where the
appellant had asserted his innocence, he should give an explanation, especially
where the shooting of the complainant was not denied. The magistrate,
correctly in my view, concluded that the appellant was linked to the offence and
had not discharged the onus of proving, on a balance of probabilities, that the
interests of justice permitted his release.
24 The appellant ’s assertions that he does not have a predisposition towards
violence, in the context of the facts before the court together with his failure to
offer any explanation as to the circumstances in which the complainant was
shot and seriously wounded, carry little weight. On the version presented by the
complainant and Ndou, the assault prior to the shooting and the shooting itself
were violent acts. There is nothing at this stage to gainsay their sworn
statements and , in the absence of any explanation, the section 60(5)
considerations weigh heavily against the appellant.
25 The absence of a flight risk is important, but not decisive, especially where the
seriousness of the offence, the strength of the State ’s case and potential
custodial sentence may affect the overall assessment. The appellant was
entitled to remain silent on the merits. However, if he chose to assert that the
State’s case was weak and that he would in all probability be acquitted at his
trial, he had to provide some factual basis for that assertion.
26 Although the appellant ’s fixed address, employment, lack of previous
convictions and family responsibilities are important considerations, they do not
convictions and family responsibilities are important considerations, they do not
answer the central difficulty in this case. The State placed before the bail court
two direct accounts implicating the appellant in a serious workplace shooting
with grave consequences for the complainant. The appellant elected not to