REPUBLIC OF SOUTH AFRICA
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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 2026-024948
REPORTABLE: YES (1)
(2) OF INTEREST TO OTHER JUDGES: YES
DATE 19 May 2026 SIGNATURE
In the matter between:
MOGADITSWE DAVID TUMELO MOHAU
LETSATSI KGOSIETSILE KINGSLEY
NGWENYA SAMKELO NTOKOZO
NTELEZA BOITUMELO JONATHAN
MATLOU PAULOS KGAMANE
WAMBI SUNNYBOOI PINNY
AND
THE DIRECTOR OF PUBLIC PROSECUTOR
JOHANNESBURG
DIRECTORATE FOR PRIORITY CRIME
INVESTIGATIONS
JUDGMENT
MIA, J
First Applicant
Second Applicant
Third Applicant
Fourth Applicant
Fifth Applicant
Sixth Applicant
First Respondent
Second Respondent
2
Introduction
[1] The applicants are members of the South African Police Services in the
Directorate of Priority Crime Investigation. They were arrested and
applied for bail in the Randburg Magistrates Court where bail was
granted without any conditions attached. The Director of Public
Prosecutions acting in terms of section 65A of the Criminal Procedure
Act 51 of 1977 (the CPA), filed an application to appeal the decision to
grant bail. The High Court per Karam AJ, set aside the magistrate's
decision admitting them to bail, and directed them to surrender
themselves to the nearest police station on or before 23 January 2026,
failing which warrants for their arrest would issue. The applicants then
launched an urgent application in this court.
[2] The relief sought by the applicants in this urgent application, is an order
suspending or holding in abeyance the operation and execution of the
order granted by Karam AJ on 16 January 2026 in relation to the bail
appeal brought by the State. The applicants contend that the noting of
an application for leave to appeal suspended the operation of that order
alternatively that this Court, exercising its inherent powers under s 173
of the Constitution, should suspend the operation of the order pending
the determination of the contemplated appellate processes.
[3] The respondents oppose the application on the grounds, inter alia, that
the matter is self-created urgent, that s 18 of the Superior Courts Act 10
of 2013 does not apply to criminal proceedings governed by the CPA,
and that this Court lacks authority to suspend the operation of the bail
appeal order.
Urgency
[4] The matter directly implicates the applicants' liberty interests. A
threatened deprivation of liberty ordinarily engages urgent
considerations. Moreover, questions concerning incarceration and bail
are ordinarily urgent.
3
[5] The respondents submit that the urgency is self-created because the
applicants delayed instituting proceedings despite being aware of the
order granted on 16 January 2026 by Karam AJ. The respondent's
contention is compelling in that the applicants were aware on 16 January
2026 that their bail had been revoked and that they were required to
surrender themselves by 23 January 2026. The applicants' papers do
however reveal that they promptly sought legal advice, filed an
application for leave to appeal on 20 January 2026, requested reasons
and transcripts, and initially attempted to obtain urgent enrolment before
Wilson J on 23 January 2026 prior to the expiry of the surrender
deadline.
[6] Although, the explanation for the delay is not entirely satisfactory,
particularly insofar as it relies on internal procurement arrangements
within the SANDF, the threatened deprivation of liberty renders the
matter sufficiently urgent to warrant consideration on the merits.
Issues
[7] The principal issues are:
7.1 whether the noting of an application for leave to appeal
automatically suspended the operation of the order granted by
Karam AJ;
7.2 whether this Court possesses inherent jurisdiction under s 173
of the Constitution to suspend the operation of the order pending
appeal proceedings;
7.3 whether the applicants have established exceptional
circumstances justifying such relief; and
7.4 whether the constitutional challenge mounted against the CPA
is properly before this Court.
4
The statutory and legal framewor'r<
[8] Bail proceedings in criminal matters are governed principally by Chapter
9 of the CPA. Section 65A 1 permits the State, in specified
circumstances, to appeal against the granting of bail. The order made by
Karam AJ was made pursuant to that statutory criminal appellate
process when the State appealed the decision of the Magistrates Court
which granted bail.
[9] The applicants submit that because the CPA does not expressly regulate
suspension of a bail appeal order pending further appeal proceedings,
the common-law rule applies, namely that the noting of an appeal
automatically suspends the operation and execution of the order
appealed against. The applicants place reliance particularly on South
Cape Corporation (Pty) Ltd v Engineering Management Services (Pfy)
Ltd.2 The applicants further rely on s 18 of the Superior Courts Act and
submit that the statutory and common-law position applicable in civil
matters should apply equally in the present context. In addition, the
applicants invoke this Court's inherent jurisdiction under s 173 of the
Constitution to regulate its own process and develop the common law in
1 "65A. Appeal by attorney-general against decision of court to release accused on bail.-(1) (a) The
attorney-general may appeal to the superior court having jurisdiction, against the decision of a lower court
to release an accused on bail or against the imposition of a condition of bail as contemplated in section
65 (1) (a).
(b) The provisions of section 31 OA in respect of an application or appeal referred to in that section by an
attorney-general , and the provisions of section 65 (1) (b) and (c) and (2), (3) and (4) in respect of an
appeal referred to in that section by an accused, shall apply mutatis mutandis with reference to a case in
which the attorney-general appeals in terms of paragraph (a) of this subsection .
(2) (a) The attorney-general may appeal to the Appellate Division against a decision of a superior court to
release an accused on bail.
(b) The provisions of section 316 in respect of an application or appeal referred to in that section by an
accused, shall apply mutatis mutandis with reference to a case in which the attorney-general appeals in
terms of paragraph (a) of this subsection .
(c) Upon an appeal in terms of paragraph (a) or an application referred to in paragraph (b) brought by an
attorney-general, the court may order that the State pay the accused concerned the whole or any part of
the costs to which the accused may have been put in opposing the appeal or application, taxed according
to the scale in civil cases of that court.
(3) If the appeal of the attorney-general in terms of subsection (1) (a) or (2) (a) is successful , the court
hearing the appeal shall issue a warrant for the arrest of the accused.
[S. 65A inserted bys. 7 of Act No. 75 of 1995.)."
2 1977 (3) SA 534 (A).
5
the interests of justice. The applicants also refer to further authorities
including Liesching v S, 3 Phillips v National Director of Public
Prosecutions, 4 Molaudzi v S 5 and Thebus v S. 6
[1 O] In Phillips,7 the Court referred to circumstances in which the Court could
regulate its own process and specified that it would be appropriate where
there is a lacuna in the legislation. In Molaudzi, the Court indicated that
it is appropriate to regulate its own processes in circumstances where it
is faced with inadequate procedures and rules and no mechanism to
deal with a particular scenario.8
[11] The respondents contend, that the CPA contains no provision expressly
suspending the operation of a successful State bail appeal pending
further appellate proceedings. They further contend that s 18 of the
Superior Courts Act does not directly regulate criminal bail proceedings
under the CPA.
The applicability of the Superior Courts Act
[12] It would be incorrect to conclude, in absolute terms, that the Superior
Courts Act has no application whatsoever in criminal appellate
proceedings. In Liesching9 , the Constitutional Court recognised that
aspects of Chapter 5 of the Superior Courts Act may complement and
supplement the CPA where the latter does not regulate a particular
procedural question exhaustively. Similarly, in Van Wyk v S, Gale/a v
S, 10 the Supreme Court of Appeal held that certain appellate
mechanisms created by the Superior Courts Act supplement criminal
appellate procedures under the CPA where the CPA is silent. Those
authorities demonstrate that the relationship between the CPA and the
3 [2018] ZACC 25; 2018 (1 1) BCLR 1349 (CC); 2019 (1) SACR 178 (CC); 2019 (4) SA 219 (CC).
4 [2005] ZACC 15; 2006 (2) BCLR 274 (CC); 2006 (1) SA 505 (CC).
5 [2015] ZACC 20; 2015 (8) BCLR 904 (CC); 2015 (2) SACR 341 (CC).
6[2003] ZACC 12; 2003 (6) SA 505 (CC); 2003 (10) BCLR 1100 (CC); 2003 (2) SACR 319 (CC).
7 Phillips op cit n 4.
8 Mo/audzi op cit n 5 para 31.
9 Liesching op cit n 3.
7 Phillips op cit n 4.
8 Mo/audzi op cit n 5 para 31.
9 Liesching op cit n 3.
10 [2014] ZASCA 152; [2014] 4 All SA 708 (SCA); 2015 (1) SACR 584 (SCA).
6
Superior Courts Act is not one of complete mutual exclusion. That,
however, does not resolve the present dispute.
[13] Neither Liesching nor Van Wyk concerned the suspension of a criminal
bail appeal order pending leave to appeal proceedings. Both decisions
dealt principally with appellate structures, jurisdiction, and the interaction
between Chapter 5 of the Superior Courts Act and criminal appellate
procedures under the CPA. The applicants' reliance on the ordinary
common-law rule concerning suspension upon appeal also encounters
difficulty in the present context.
[14] The rule articulated in Southern Cape Corporation (Pty) Ltd v
Engineering Management Services (Pty) Ltd11 developed primarily in the
context of civil execution proceedings. The rationale for the rule· is
preservation of the status quo pending the final determination of civil
disputes. The purpose of bail proceedings addresses the balancing
rights of an accused person right to freedom and thus to be released on
bail with that of the rights of members in society to be free from harm
and safe. The context in which bail proceedings occur are materially
different to the civil execution processes in South Cape Corporation . Bail
concerns the interim liberty within the criminal process and is governed
by a distinct statutory regime directed at the interests of justice, the
administration of criminal proceedings, and public safety.
[15] Section 65A itself reflects a legislative purpose that, in appropriate
circumstances, the State may obtain urgent appellate reconsideration of
a bail decision considered erroneous. The CPA contains no indication
that the mere noting of an application for leave to appeal automatically
restores or preserves bail once a High Court has overturned the grant of
bail on appeal. Had Parliament intended such an automatic
consequence, one would expect the CPA to provide expressly for it. I am
therefore unable to conclude that the noting of the application for leave
11 1977 (3) SA 534 (A).
7
to appeal should automatically suspend the operation of the order
granted by Karam AJ.
Inherent jurisdiction under section 173
[16] The applicants' stronger argument rests not on automatic suspension
but on this Court's inherent jurisdiction under s 173 of the Constitution.
Section 173 confers on superior courts the inherent power to protect and
regulate their own process and to develop the common law considering
the interests of justice. The Constitutional Court has repeatedly
emphasised, however, that the power conferred by s 173 is not
unbounded. In Phillips, the Constitutional Court held that the inherent
power recognised in s 173 must be exercised sparingly and consistently
with the Constitution and legislation.12 In Molaudzi , the Constitutional
Court reiterated that the inherent power to regulate process relates
primarily to procedural and adjectival matters and does not ordinarily
extend to the creation of substantive rights inconsistent with legislation.13
The same principle emerges from Thebus, where the Constitutional
Court explained that development of the common law under s 39(2)
proceeds within the constitutional framework and not in disregard of
legislation enacted by Parliament.14
[17] The present application effectively seeks judicial creation of an interim
entitlement permitting the applicants to remain at liberty notwithstanding
the successful State appeal revoking their bail. That relief would
substantially alter the legal effect of the order granted by Karam AJ and
introduce into the CPA a suspension mechanism not expressly created
by the Legislature. Even if this Court possesses residual power in
exceptional circumstances temporarily to regulate the implementation of
criminal orders in the interests of justice, that power must be exercised
with considerable restraint, particularly in the context of criminal bail
proceedings carefully regulated by statute.
12 Phillips op cit n 4 para 48.
13 Mo/audzi op cit n 5 para 33.
14 Thebus op cit n 6 para 27.
8
[18) The applicants have not demonstrated exceptional circumstances
justifying such intervention. The applicants rely heavily on the fact that
they had previously complied with bail conditions and remained on bail
for several months. That consideration may be relevant in future bail
related proceedings. It does not establish a legal entitlement to
suspension of the bail appeal order. Nor can it be ignored that the
applicants did not comply with the surrender order issued by Karam AJ.
Although explanations are offered concerning pending legal processes,
consultations, and subsequent events, the order remained operative
unless suspended or set aside by a competent court. In all the
circumstances, the applicants have not established a proper basis for
the exercise of this Court's inherent jurisdiction in their favour.
The constitutional challenge
[19) The applicants further seek declaratory relief to the effect that the CPA
is constitutionally invalid to the extent that it fails expressly to provide for
suspension of bail appeal orders pending leave to appeal proceedings.
That challenge is not properly capable of determination in these urgent
proceedings for several reasons. First, no proper Rule 16A notice
appears to have been given, the Minister of Justice and Constitutional
Development has not been joined. Where a constitutional challenge has
been initiated, it is important to ventilate the challenge fully. The
constitutional challenge is insufficiently developed in the papers and
arises in truncated urgent proceedings without the benefit of full
argument directed to the constitutional validity of the legislative scheme.
In these circumstances, it would be inappropriate to determine the
constitutional validity of the CPA provisions implicated in this matter.
Costs
[20] The matter raises constitutional and procedural questions concerning
liberty and the interaction between the CPA, the Superior Courts Act,
and the Court's inherent jurisdiction. Although the application cannot
and the Court's inherent jurisdiction. Although the application cannot
succeed, it cannot be characterised as frivolous or vexatious. Nothing in
the order below precludes the applicants from pursuing any competent
Order
9
appeal or bail-related relief available in law. In the exercise of my
discretion, no adverse costs order should follow.
[21] The following order is made:
1. The application is dismissed.
2. The constitutional relief sought is dismissed.
3. There is no order as to costs.
SCMIA
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION , JOHANNESBURG
Appearances:
Attorneys for the Appellant:
Counsel for the Appellant:
Attorneys for the Respondent:
Counsel for the Respondent:
Date of hearing:
Date of judgment:
Lebese Attorneys
info@lebeseattorneys .com
Adv S Mangolele SC
Ms Daphne Lebese
10
State Attorneys Johannesburg
Arimoodley@justice .gov.za
Adv R Williams
: 10 February 2026
: 19 May 2026