SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Not Reportable
Case No: CAB07/2026
Trial Court Case No: B174/2025
In the matter between:
CLEMENT VUYISILE MAZABANE Appellant
And
THE STATE Respondent
Date heard: 08 May 2026
Delivered: This judgment was handed down electronically, circulated to the parties’
representatives via email, uploaded to CaseLines, and released to SAFLII. The date and time
for the handing down of the judgment are deemed to be 10h00 on 20 May 2026.
Summary: Criminal law –Appeal against bail proceedings governed under schedule 6 of the
Criminal Procedure Act 51 of 1997 – accused previously convicted of schedule 5 offence,
two previous conviction and an harassment order at hand, application for bail refused at
court a quo –on the basis that appellant failed to discharged proof that exceptional
circumstances exist which warrant the appellant to be released on bail, application for bail
appeal at this court, Interests of justice and prospects of succ ess favouring bail – section
60(4) (a) – (e) read together with subsection 8(A) (a) to (e) of Criminal Procedure Act 51 of
1977 as amended- Essential existing exceptional circumstances unproved – Appeal stands to
be dismissed.
___________________________________________________________________________
JUDGMENT- BAIL APPEAL
___________________________________________________________________________
MNYOVU AJ
Introduction
[1] This is an appeal by the appellant, Clement Vuyisile Mazabane (the appellant),
against the judgement of the Learned Magistrate Mr A. Abrahams, sitting at Lichtenburg
Magistrate’s Court, in which the court dismissed the appellant’s application to be released on
bail. The appellant was legally represented at the bail hearing before the magistrate.
[2] The appellant is the South African citizen charged for murder of the 36 year old,
female person, named F[...] M[...], his girlfriend, read with the provisions of section 5 1 (1),
Schedule 2 Part 1/ Section 51(2), Schedule 2 Part II of the Criminal Law Amendment Act
105 of 1977, and read further with the provisions of Section 256 and 258 of the Criminal
Procedure Act 51 of 1977.
[3] The appellant was further charged for being in possession of a dangerous weapon to
wit 02 x knives (PANGAS), According to the charge sheet, the accused is guilty of the
offence of contravening the provisions of section 3(1) read with Section 1,2,3(2) of the
Dangerous Weapons Act 15 of 2003 and read further Section 250(1) of the Criminal
Procedure Act 51 of 1977.
Grounds for Appeal
[4] The grounds of appeal as noted in the Notice of Appeal are as follows:
(1) The learned magistrate erred and misdirected himself when he held and/or
decided that the Appellant did not, on a balance of probabilities, adduce
evidence proving the existence of exceptional circumstances warranting his
release on bail.
(2) the learned magistrate erred and misdirected himself when he held that the
release of the accused will lead to shock and outrage in the community in terms of
Section 60(4) (e) read together with subsection 8 (A) (a) to (e) of the Criminal
Procedure Act 51 of 1977 as amended,
(2.1) In doing so, the Learned magistrate erred by disregarding the fact
that the community petition which was handed in at court and admitted as an
exhibit was completed by community members of Boikhutso and Blydeville and two
alternative address were provided outside the area of petition signatories and as
such irrelevant to the appellant
(2.2) The learned magistrate erred by disregarding the fact whether indeed the
community members that had completed the petition truly reside at the two provided
alternatives address provided by the appellant at Burgersdorp and Itsoleng which as
a result not read on record.
(3) The learned magistrate erred and misdirected himself when he held that the state
case against the appellant was strong and in doing so totally disregarded the evidence of the
Investigating officer to the effect that the state’s case is relatively weak against appellant.
(3.1) In doing so, the learned magistrate erred by disregarding the discrepancies
which riddled the state’s case at the bail application stage wherein the state does not
have evidence at their disposal which indicate that the appellant has committed such
an offence.
(4) the learned magistrate erred in finding that the appellant had a propensity to
commit schedule1 offences and in doing so disregarded the evidence placed on record to the
effect that the appellant has never been released on bail then arrested and convicted whilst
out on bail.
out on bail.
(4.1) the learned magistrate erred in finding that the appellant had a propensity to
commit schedule 1 by doing that he disregarded the evidence that his two previous
convictions has passed the ten (10) year’s period and that he qualifies to be awarded
expungement should he apply for one.
(5) the learned magistrate erred and misdirected himself by not properly considering
the personal circumstances of appellant in terms of section 60(9) of the Criminal Procedure
Act 51 of 1977 and giving undue weight to the evidence of the s tate to the detriment of the
appellants personal circumstances.
(6) the learned magistrate erred and misdirected himself by not properly considering
the written submissions made on behalf of appellant and blatantly indicating on record that
he only considered same as normal circumstances.
(6.1) In doing so, the learned magistrate did not take into account such written
submissions to their full flavour and in making his findings, the learned magistrate
did not thereby consider the totality of facts which have been placed before him.
(7) the learned magistrate erred and misdirected himself by not considering the
evidence of the investigating officer to the effect that the appellant is not flight risk and would
indeed stand his trial.
(7.1) in doing so, the learned magistrate disregarded the main purpose of bail
which is to secure the attendance of an applicant at trial and bail should not serve as
punishment.
(8) the learned magistrate erred and misdirected himself by not considering the
evidence of the investigating officer to the effect that the alleged offence took place at night at
the primary resident of the appellant and of which the issue of the eyewitness was only
introduced during the cross examination thereby subjected to doubt.
(8.1) the learned magistrate misdirected himself in believing that the appellant is
required to put his full version to the state witness as if bail must be treated like a
trial.
(9) the learned magistrate erred and misdirected himself by not considering that none
of the factors listed in section 60(4) (a) – (e) of the Criminal Procedure Act 51 of 1977, are
of the factors listed in section 60(4) (a) – (e) of the Criminal Procedure Act 51 of 1977, are
not in existence and in the absence of such, the interests of justice thereby permit the release
of the appellant.
(10) the learned magistrate erred and misdirected himself by not considering the
weakness of the state case, coupled with the fact that the appellant is not a flight risk,
constituted exceptional circumstances warranting the appellant’s release from custody.
(10.1) In doing so, the learned magistrate totally disregarded the case of Mooi v S
which in essence indicates that the weakness of the state’s case coupled with the fact
that the appellant is not a flight risk constitutes an exceptional circumstance which
warrants him release from the custody.
(11) the learned magistrate erred and misdirected himself by not considering that the
strong personal circumstances of the appellant, when currently considered constituted
exceptional circumstances warranting his release on bail.
(12) the learned magistrate erred and misdirected himself by not properly analysing the
evidence of the investigating officer in that it was placed on record that there is forensic
evidence outstanding which makes the state case at this moment weak and full of doubt.
(13) the learned magistrate erred by not properly considering the evidence of the
investigation officer to the effect that state witnesses are fearing the release of the appellant
without any tangible evidence to that effect which make the same irrelevant to the appellant.
(13.1) In doing so, the learned magistrate became a rubber stamp of the views of the
investigating officer without there being objective facts placed before it.
(14) the learned magistrate erred by not properly considering the evidence of the
investigating officer to the effect that the interests of justice permit appellant release on bail
despite countless and baseless reasons for opposition of the appellant’s release on bail.
Magistrate’s reply to grounds of appeal
[5] It is clear that the clerk of the criminal court was served with notice of appeal on 15
April 2026 , subsequently the learned magistrate replied to grounds in notice of appeal as
follows:
follows:
A. SHOCK AND OUTRAGE OF THE COMMUNITY AND PROPENSITY TO
COMMIT SCHEDULE ONE AND DUTY TO CROSS-EXAMINE
5.1 The evidence of the investigating officer was left unchallenged that the
Appellant has a propensity for violence in that he was charged twice for assault with
the intent to cause grievous bodily harm on people that did the appellant no harm ,
pleaded guilty to both charges, which he paid fines.
5.2 Furthermore, the investigating officer testified that the appellant informed him
during interview that during his arrest he sustained injuries from his uncle and family
of the deceased, for which he opened a criminal case against them, the investigating
officer did not see any visible injuries on the appellant, this evidence was neither
disputed in cross-examination nor mentioned in appellant’s affidavit. Appellant failed
to comply with the principles of cross - examination as held in President of the
Republic of South Africa and Others v South African Rugby Football Union and
Others 2000(1) ,1999 (10) BCLR 1059 (CC)-paras 33; 61-63,
5.3 The court was satisfied that the evidence of the community leader Nonsisi
Mlambo that the community of Boikhutso fear the appellant and the manner in which
the deceased, who was an intimate partner of the appellant was murdered, shocked
the community.
5.4 The court was further satisfied that the evidence of the investigating officer ,
the community leader Nonsisi Mlambo and the signed petition was sufficient and
relevant and constituted exceptional circumstances that the safety of the community is
at risk and that there is a probability that the appellant will interfere with the State
witnesses, the court a quo relied on case law, De Jager v Attorney -General, Natal,
and Another 1967 (4) SA 143 (D) at 149 G-H and Phadi and Another v S (A1/2024)
[2024]ZAFSHC 169 (3 June 2024) -paras 41 and 44 .
5.5 Regarding the petition the court further re fer to case law Mgumbi v S
(A214/2021) [2022] ZAWCHC 35 (16 March 2022) -para 23, held that in this case,
the court decided on the submissions made by the legal representative from the bar, it
the court decided on the submissions made by the legal representative from the bar, it
must be emphasised that argument from the bar is not evidence and it is not given
under oath, it is merely a persuasive comment by the parties or legal representative
with regard to questions of fact or law. Argument does not constitute evidence, and
cannot replace evidence . Mabobo v Minister of Home Affairs 2011 JDR 104(LT at
para 13”.
5.6 Therefore, the version put to the State witnesses regarding the petition and the
subsequent closing submissions made by the appellant’s legal representative, does not
constitute evidence, as no mention was made thereof in the affidavit filed by the
appellant in his bail application. The court a quo refer to the case of Moyo v S
(A147/2024) [2025] ZAGPJHC 3 (9 January 2025)-para 7.
5.7 Regarding the audience in the public gallery, the court a quo did not consider
that as a factor regarding the safely of the public or the probability of the appellant
interfering with the state witnesses, the court a quo heeded the caution expressed in
Moyo v S (A147/2024) [2025] ZAGPJHC 3 (9 January 2025)- para 14 and Member of
the Executive Council (MEC) for the Department of Roads and Transport, Eastern
Cape v Ndlazi, In re Ndlazi v Member of the Executive Council (MEC) for the
Department of Roads and Tr ansport, Eastern Cape (815/08) [2019] ZAECMHC 25
(21 May 2019 -para 12 held that “ Facts are facts and they mean what they say,
nothing less nothing more. They may not be added to in argument”
5.8 The appellant indeed mentioned in his affidavit that he has two alternative
addresses but elected not to read one out in open court, only inference to be drawn
therefrom is that the general public should not know about those alternative
addresses as their knowledge thereof will probably jeopardise the safety of the
appellant.
B. WEAK STATE CASE AND DISCREPANCIES
5.9 the court a quo relied on number of case laws, firstly, S v Feyen (A60/2008)
[2008] ZAWCHC 16 (5 March 2008) - paras 11 were it was held that “ the probative
value of the affidavit evidence will depend on the totality of the facts and the extent to
which the content is disputed” it goes further in paragraph 12 held that “the content
of an affidavit is not subject to being tested under cross -examination, viva voce
evidence, on other hand , is subject to such testing, by virtue of this distinction, when
the two conflict, the viva voce evidence is likely to carry more weight and is likely to
be preferred over the content of the affidavit, subject t o former having positively
endured the rigours of cross-examination” .
endured the rigours of cross-examination” .
5.10 the court a quo further supported its reliance above by stating that this legal
exposition was explicated in Mathebula v S (431/2009) [2009] ZASCA 91; 2010(1)
SACR 55 (SCA); [2010 1 AII SA 121 (SCA) (1) (September 2009) in relevant part,
in paragraphs 11-12 and 15, the court by relying to those paragraphs 11 -12, and 15
of the Mathebula case, it concluded that the appellant failed to satisfy the test, the oral
evidence of the investigating officer that the State have eye - witnesses that the
appellant was present during the incident where violence was exerted on the
appellant’s partner in their domestic relationship, this evidence was not contested.
5.11 the court a quo applied the dictum in Ntoni and Others v S (5646/2018P)
[2018] ZAKZPHC 26 (21 June 2018) - paras 25 that “ A presiding officer must weigh
up the personal interests of the appellant against the interests of justice as it appears
from all the evidence presented, and paras 40 held that “ in deciding whether the
appellants had discharged the onus, one cannot read their affidavits in isolation and
only have regard to their personal circumstances. One must have regard to the
affidavit of the investigating officer in relation to the offences and the circumstances
of their arrest. One must weigh up their version of a bare denial as against the
version put up by the respondent. This must be considered in deciding whether they
had discharged their respective onus”.
5.12 with regard to appellant’s medical condition for bail application, the court a
quo relied in S v Van Wyk 2005 (1) SACR 41 (SCA) at 45H -J, it was held that where
the accused does not receive proper medical attention whilst in detention, other legal
remedies are at her or his disposal and, in general, bail is not remedy for the actions
and omissions of the prison authorities, the medical condition of the accused must be
weighed against other factors and must not be in isolation.
5.13 The appellant did not provide any medical evidence of his health to
substantiate his claim that he needs medical attention and merely relied on his ipse
dixit, although the appellant submitted in his affidavit that he received medical
attention for his serious back injury at Pretoria Hospital and was transferred to the
Johannesburg Hospital for at least two occasions, medical evidence was therefore
available to the appellant , yet it was not part of the appellant’s affidavit. The court a
quo refer to recent case law Lubbe v S (Bail Appeal) (A208/2025) [2026] ZAGPPHC
quo refer to recent case law Lubbe v S (Bail Appeal) (A208/2025) [2026] ZAGPPHC
140) 2 March 2026 - para 19 and Potgieter v S (A33/2019) [2013]–10/2/5/1(2019/36)
[2021] ZAGPJHC 436 (23 August 2021) -para 30 “ the applicant’s required medical
condition on its own, does not warrant his release on bail, and Keevy v S (A66/2013)
[2013] ZAFSHC 53 (2 April 2013 - Para 21 it was held that appellant’s medical
condition does not qualify in itself as a factor that constitutes exceptional
circumstances, although, if more reliable and acceptable evidence wa s placed on
record, it might possibly have been taken into consideration with other factors to
prove exceptional circumstances” in this matter the court find that the personal
circumstances of the appellant are not exceptional circumstances, guided by the
dictum in S v Scott -Crossley 2007 (2) SACR 470 SCA - para 12, that “ personal
circumstances which are really ‘common place’ can obviously not constitute
exceptional circumstances for the purposes of section 60 (11) (a) , the court found no
discrepancies in the evidence of the State.
5.14 Regarding the ground of appeal that the weakness of the state’s case coupled
with the fact that the appellant is not a flight risk constitutes an exceptional
circumstances, it is respectfully submitted that in Mooi v S [2012] JOL 29148 (SCA)
from paras “11-12, the facts on those paragraphs revealed an inclination contrary to
the reluctance to stand trial, in the circumstances the apparent weakness of the
State’s case, taken together with a history of not avoiding his trial, the court below
was wrong in not concluding that the appellant has succeeded in showing that
exceptional circumstances are present that, in the interest of justice, permits his
release”
Legal principles
[6] From the grounds of appeal raised , the appellant had the duty or the onus to prove
on a balance of probabilities and adduce evidence to satisfy the magistrate that exceptional
circumstances existed, which in the interests of justice, entitled the appellant to be released on
bail, failing which he would be detain in custody.
[7] The jurisdictional requirement for the appeal court to interfere with the decision of
the learned magistrate is set out in Section 65(4) of the Criminal Procedure Act 51 of 1977
(“the CPA”) which provides that: “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 against 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”.
[8] It should be noted that in a bail application, the enquiry is whether the interests of
[8] It should be noted that in a bail application, the enquiry is whether the interests of
justice permit the release of the accused on bail. The “interests of justice” criterion requires a
weighing up of the interest of the accused’s liberty, against those factors which suggest that
bail be refused, unless ‘exceptional circumstances’ are shown by the accused to exist.
[9] This exercise is one which departs from the constitutional standard set by section
35(1) (f), its effect is to add weight to the scales against the liberty interest of the accused and
to render bail more difficult to obtain than it would have been if the ordinary constitutional
test of the ‘interests of justice’ were to be applied.1
[10] Accordingly, this court as a court of appeal must determine whether the appellant
has discharged the burden placed on him and most importantly, whether the learned
magistrate exercised his discretion wrongly. This principle was expressed by the court in S v
Barber22 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 substance application for bail. 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 unfair interference with the
magistrate’s exercise of his discretion. It should be stressed that no matter what this court’s
own views are, the real question is whether it can be aid that the magistrate who had the
discretion to grant bail exercised that discretion wrongly”.
Court a quo bail application
[11] It is trite that in any bail application, evidence can be presented through oral
testimony or in an affidavit which will address the applicant’s circumstances such as amongst
other things, the details of the applicant’s address, employment, family and community ties,
including giving reasons why the applicant should be released on bail and whether the
applicant is not a flight risk.
[12] It is common cause that the bail was being opposed by the state, perusal of the
record shows applicant presented an affidavit to the court in support of his bail application, in
which crucial factors have to be considered in terms of section 60 of the CPA in his affidavit.
[13] It can be gleaned from the reading of the record that when the bail application was
made on behalf of the appellant by his legal representative , Mr Masibi addressed the court on
the aspect of the nature offence, in that the appellant was previously convicted of schedule 5
1 S v Dlamini, S v Dladla & Others, S v Schietekat [1999] ZACC 8, 1999 [2] SACR 51 (CC) at para 64.
2 1979 (4) SA 218 (D) at 220E – F.
offence, and now the accused was charged under schedule 6 offence, which required the
appellant to present crucial factors relating to bail as outlined in Section 60 (4) (a) –(e) of the
CPA.
[14] In light of the above, the only inference to be drawn is that the appellant did depose
to an affidavit in support of his bail application before the magistrate, on 5 January 2026, but
most importantly, he placed his existing exceptional circumstances on record before the
Court as follows:
“I therefore humbly submit that taking into account the aforesaid, it would be in the
best interest of justice that I be granted bail, and the following are the exceptional
circumstances in that, I will attend the matter consistently and diligently to its
finalisation, without any default. I have no history of breaking the bail conditions, and
I have no warrant of arrest against me. My children depend on me financially and I
also play a role in assisting my father financially . During January 2024, I was
seriously injured at work while on duty, as the pitbulls in the white residential area,
as a garbage collector, chased me, and before I fell down, I hit a [indistinct] by my
shoulder, as a result, my back g ot seriously injured and I was taken to Pretoria
Hospital and transferred to Johannesburg Hospital for medical attention.
It was recommended by doctors that my employer to give, or offer me a position that
is [indistinct] and I started working as secretary in the office of the municipal
manager. I confirm to this court that since my arrest, I have visited medical attention
twice, if not thrice, crying of my back pains. The prison [indistinct] the injuries and
my back were most of the time from sleeping, if not sitting on the floor.
I further confirm that I did not receive my salary for November 2025 since I am no
longer going to work, and the same has affected the living conditions at home, where
my family depends on me financially. I was staying together with my family and I am
my family depends on me financially. I was staying together with my family and I am
the only one who is taking care of my children, since their mother has passed away. I
do confirm that the complainant is the mother of my children, and I loved her, and I
wanted to make her my wife, as lobola had already started between the families.
My continued detention prevented me from attending her funeral and afford my
children moral support in these difficulties. I have been in custody for over three
months and the investigations are still not completed. I wish to place on record that I
am not a member of any gangster groups in my society. I have received information
from one of the inmates who have been in detention, shared the information with me
that the brother of the complainant instructed them to deal with me. The same gang
leader, Xolo, who is the brother of the complainant in this matter, is now arrested. I
am fearing for my life as I do not have freedom to protect myself against a gang
leader who wants to take my life, as he thinks I did the same to the complainant in this
matter.
I further state that since my arrest, my daughter has been disorientated, and I
confirm that she is being arrested twice for the first time ever in her life , charged with
drinking under influence of liquor.
[15] In the light of the above, the court a quo admitted the affidavit as Exhibit A, the
investigating officer, Sergent Kgopolang Mokgape who was a state witness presented his
evidence in the form of oral ( viva voce) evidence, which the court heard. The investigating
officer testified and advanced numerous reasons before the court why he is opposing the bail,
the reasons were as follows:
15.1 shock and outrage of the community and the propensity to commit schedule one
offences, the appellant has a history of provoking and attacking, provoking members of the
community with bottles, iron rod, crimen injuria of a police officer on duty, intimidation and
malicious damage to property, there is evidence to all these effe cts, all these offences are of
assault with intent to do grievous bodily harm, the appellant’s cases were either withdrawn
and others convicted and sentenced to fines, the case numbe rs 324/9/2006, 19/12/2011,
26/10/2012, 76/10/2012, 22/2/2017, 197/9/2020, 302/01/2022, 30/8/2024;
15.2 the incident that had occurred in the community, the manner the deceased had died
under cruel death, the appellant did not show any human , even though he was involved in a
romantic relationship with the deceased. As such the Ditsobotla, Lichtenburg and Boikhutso
communities made campaigns to demonstrate that they are against domestic violence as it is
communities made campaigns to demonstrate that they are against domestic violence as it is
very rife in their areas, the death of the deceased has caused so much shock, not that they
judge the appellant, but rather, opposing his release, by ta king actions obtaining petition to
from community to oppose his release. A total of 86 signatories with the names and contact
numbers was obtained;
15.3 after the incident the eldest daughter of the appellant who is around 18 or 19 years
has been affected by the death of her mother and resorted into alcohol abuse, the eldest
daughter has also expressed to the social workers, during her sessions that the manner her
mother died has caused her to abuse of alcohol. The other two children are attending sessions
for counselling with social workers , the release of the appellant on bail will disturb the
process, the children are struggling to accept the death of their mother. Not a single member
from the appellant’s family has complained about the appellant’s incarceration;
15.4 the issue of appellant’s injuries during the interview, the investigating officer
testified that the appellant never showed or informed him that he sustained when he compiled
the form during his arrest, he only informed him of the injuries he sustained from the
deceased’s uncle and family, and he opened a case regarding the assault;
15.5 the issue of the appellant being intimidated in the cells by the deceased’s brother,
was very new to the investigating officer, as the appellant always provokes and harass people,
and some of those people are municipal employees where the appellant is employed;
15.6 Sergent Mokgape further testified that there are four witnesses that have already
given their statements, two from the four are employed from applicant’s employ and reside at
Boikhutso, where applicant resides, all tho se witnesses are afraid of the appellant, and there
are eyewitnesses in this case, as it isa very serious offence, if he is released on bail, there is
likelihood that the appellant will evade trial.
[16] After Sergent Mokgape’s testimony, the petition was handed in to the court and
admitted as Exhibit B . The defence , Mr Masibi started his cross -examination to the state
witness, there was an interaction between the state witness and the defence lawyer, in cross-
examination as gleaned on the records , with regard to eyes witnesses and the petition handed
to court. It appears from the record that the appellant ’s affidavit never disclosed the petition,
and the risks that there are eyewitnesses that are wel l known to him, all the appellant was
concentrated to was to obtain his freedom, and continue his life without consideration of the
community.
[17] The state further called the state witness Nonsinsi Mlambo, who testified because of
the petition that was disturbed amongst the members of the community, the intention of the
petition to oppose the bail, as gleaned on the records the defence lawyer for the appellant
treated the cross - examination of the state witness as ordinarily trial , the lining of cross-
examining and questioning to the state witnesses was very intimidating and disrespectful than
to prove on the balance of probabilities that the appellant has existing exceptional
circumstances that permits him to be released on bail.
[18] On the other hand, subsection 8A (a)– (e) of the Criminal Procedure Act 51 of 1977
as amended which is more relevant to the case of the appellant was never addressed by his
legal representative in his affidavit. In this appeal, the learned magistrates reply to the
appellant’s grounds of appeal as alluded in paragraph 5 of this judgement , the reply is clear
and concise, and in line with the proceedings in the bail application.
Analysis
[19] Having perused the record of the court a quo, reading through the judgement of the
learned magistrate, having read the grounds of appeal and the reply to the grounds of appeal
and having both counsels before me in appeal court, there is nothing which suggest that the
magistrate misdirected himself. The fact that the appellant ’s counsel failed to put crucial
factors that there are existing exceptional circumstances that permits the appellant to be
released on bail, based on the shock and outrage of the community, propensity to commit
schedule one offences, and to prove to the court that the charges against the appellant by the
state are weak, especially where there is a risk that the appellant may interfere with witnesses,
because of appellant’s disposition to the community, I am of the view that interests of justice
do not permit the appellant to be released on bail.
[20] It may very well be that the appellant is a South African citizen, he has children, he
has two alternative addresses, h owever, h e is no longer a breadwinner because of his
incarceration, h is medical condition or situation does not prove any existing exceptional
circumstances, nothing is unusual by being sick or being unemployed, the appellant is feared
circumstances, nothing is unusual by being sick or being unemployed, the appellant is feared
by the community, he attacks and provokes the community, and his colleagues thus making it
improbable for him to return to the society while standing for trial, what cannot be avoided is
the fact that the appellant has failed to discharge the onus of proof to establish exceptional
circumstances that favours his release on bail -in the interest of justice. I therefore do not
agree with the submission made on behalf of the appellant.
[21] What is of importance is that the grant or refusal of bail is a discretional decision
under judicial control and as such, judicial officers have the ultimate decision as to whether
or not, in the circumstances of a particular case, bail should be granted. The court a quo in its
Reply to the grounds of appeal referred to several relevant case laws in support of the test in
weighing the oral evidence of the investigating officer and that of the appellant in his
affidavit. There are no grounds to satisfy this court that the decision of the learned magistrate
was wrong. I cannot find any basis to interfere with the decision of the learned magistrate,
therefore, I cannot find any fault with the conclusion that the appellant is the danger to the
community read with subsection 8(A) (a) to (e ). Similarly, I concur with the magistrate’s
finding that the appellant failed to satisfy the court that the interests of justice permit his
release.
[22] Consequently, it is my considered view that releasing the appellant on bail under the
above-mentioned circumstances would, to my mind, not be in the interest of justice as it is
likely to undermine the criminal justice system including the bail system itself.
Order
[23] In the premises, the following order is made:
23.1 The appeal is dismissed.
_______________________________
B F MNYOVU
ACTING JUDGE
NORTH WEST DIVISION, MAHIKENG
Appearances:
For the appellant: Adv. S.N. Masibi
Instructed by: S.N MASIBI INC
For the respondent: Adv. N.S. Mabale
Instructed by: Office of the Director of Public Prosecutions,
MMABATHO