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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case No: 096925-2026
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
DATE: 01/05/2026
SIGNATURE
In the matter between:
WILLAH JOSEPH MUDOLO Applicant
and
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THE STATE Respondent
REASONS FOR ORDER
The judgment and order are published and distributed electronically.
PA VAN NIEKERK, J
INTRODUCTION:
[1] On 30 April 2026 this Court dismissed an application in terms of section 63(1) of the
Criminal Procedure Act 51 of 1977 (“ CPA”). The application was dismissed after
hearing counsel for the Applicant and in the absence of any representation on behalf of
Respondent. Due to the urgency pertaining to the matter, as will transpire infra, the
order was made after reading the application filed in support of the relief claimed and
after hearing counsel for the Applicant and this Court then indicated that reasons for the
order will follow.
[2] In the Notice of Motion Applicant seeks an order in the following terms:
“1. That the forms, service and time periods prescribed by the Uniform Rules of the
court be dispensed with and that this application be heard as one of urgency in
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terms of section 63 of the Criminal Procedure Act read together with the Uniform
Rules of the Honourable Court.
2. That the bail conditions attached to the applicant’s bail be amended, and are
hereby amended to read as follows:
2.1 The applicant is permitted to depart the Republic of South Africa on or
before the 30 th of April 2026 until the 3 rd of May 2026 for purposes of
attending to his mother who is gravely ill in Zambia;
2.2 The investigating officer in the criminal proceedings instated (sic) against
the applicant is directed to provide the applicant with his passport at least
a day before his departure to attend to his mother who is dying to see
him;
2.3 The investigating officer is directed to be provided with the applicants(sic)
physical address and telephone numbers of the applicant ()sic) close
relatives during his temporary visit in Zambia;
2.4 The applicant’s departure from the Gauteng Province shall not be for
more than the time of five days as stated above, Provide that:
2.4.1 During the applicant’s absence in Gauteng Province, he shall be
excused from reporting to SAPS and shall report on his return
on the following reporting day being Monday or a Friday,
whichever comes first;
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2.4.2 The applicant shall return his passport to the investigating officer
within 48 hours of his return from travel.
3. In addition, the bail conditions attached to the applicant’s bail be amended, and
are hereby amended to read as follows:
3.1 Ad Condition 1 – the accused no 1 ba il condition not to travel outside of
the borders of Gauteng is amended in that he can travel outside of the
borders of Gauteng on conditions that:
3.2 Condition 2 – the investigating officer in the criminal procedings instituted
against the accused is informed in writing of the accused intended travel
at least 7 days prior to his departure;
3.3 Condition 3 - the investigating officer is to be provided with the accused
itinerary of his planned travel;
3.4 Condition 4 – the accused departure from Gauteng Province shall not be
for more than 14 days at a time;
3.5 Condition 5 – During the accused absence in Gauteng Province, he shall
be excused from reporting to the South African Police Service (‘SAPS’)
police station in Sandton and shall report on his return on the following
reporting day being Monday or a Friday whichever comes first”.
[3] The application was enrolled in this Court as an urgent application in the following
manner:
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[3.1] In the Notice of Motion the r espondent (“State”)(sic) was provided with the
following notice:
“KINDLY TAKE FURTHER NOTICE THAT if you inten d opposing this
application you are required to:
(a) Notify the applicant’s attorney of record in writing on or before 29 April
2025 at 11 :30H00 (sic) of your intention to oppose the relief sought
herein.
(b) File your answering affidavit, if any, on or about 29 April 2026 at 14H00.”
[3.2] Applicant attached a “ proof of service” to the affidavit which appears to be a
copy of an email letter dated Wednesday 29 April 2026 at 11h25, sent from the
Applicant’s attorneys of record to inter alia the State Attorney, Pretoria, an
unidentified recipient at “n[...]” (presumably the National Prosecuting Authority).
This email purports to be proof of service of the Notice of Motion and
annexures and is identified in the index to the application on caselines as
“proof of service”. This email reads:
“In terms of the Rule 41 A(c) of the Uniform Rules of Court, which provides the
service of documents and notices to be effected by electronic
mode……..please find attached for your attention…….”
This sentence is then followed by a description of the notice of motion and
ancillary documents.
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[3.3] A further email which refers to the application, dated 29 April 2026 at 11h34
from a certain K[...] which reads “ Good day much appreciated” is attached to
the application. This, according to the Applicant, constitutes proof of service;
[3.4] The Respondent in the application is identified as “ State”. There is no
indication that the application was served on the prosecutors in the criminal
proceedings which will be referred to infra, or on any duly authorised
representative of the National Prosecuting Authority.
[4] On an analysis of the aforesaid it is therefore clear that the application was launched by
sending an email of the Notice of Motion and annexures , addressed to the “State”, to
certain unidentified recipients, providing them literally 5 minutes’ notice to file a notice of
intention to oppose, and 2 hours to file an opposing affidavit.
[5] When the application was called at 10h00 before this Court on 30 April 2026, there was
no appearance for the Respondent. Considering the manner in which the application
was served on the Respondent as set out supra, I must add that I am not surprised that
there was no appearance on behalf of the Respondent. I however indicated to the
Applicant that the application should proceed.
[6] The issue whether there was proper service of the application on the relevant affected
functionaries will be referred to infra.
BACKGROUND TO THE APPLICATION:
[7] Applicant stands trial o n serious fraud related charges. In the founding affidavit the
Applicant avers that he was “ admitted to bail with stringent bail conditions …” after his
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arrest which inter alia prohibited him from travelling inside and outside the borders of
Gauteng and the Republic of South Africa. Applicant proceeds to aver:
“… I then launched more than one application seeking amendment to my bail
conditions. Notably, in January 2022 I caused an application for the amendment of bail
conditions in which I requested to be permitted to travel outside the borders of the
Republic and also to visit other provinces in South Africa. That application served
before the Regional Magistrate Theledi, on 8 March 2022, who after hearing the matter
granted the relaxation order of the bail conditions”.
[8] Applicant further avers that, on 15 September 2022, this Court on appeal , coram
Musopa J. overturned the aforesaid decision of the Magistrates Court which amended
the bail conditions and the stringent bail conditions as originally imposed thus still apply.
[9] Applicant further avers that the criminal trial was supposed to commence on 19 January
2026 but was postponed in order to allow interlocutory applications, including a review
and the removal of the prosecutors, to be finalised. These applications serve d before
Ishmael J. in this division who dismissed those applications on 2 April 2026 . The
Applicant thereafter filed an application for leave to appeal against the judgment and
orders of Ishmael J. on 24 April 2026. What Applicant fails to pertinently aver, is the fact
that these interlocutory applications, including the review and removal of the
prosecutors, are all applications launched by the Applicant which resulted in the
finalisation of the trial to be delayed . This fact results therein that this court must be
alive to the possibility that Applicant attempts to avoid prosecution.
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[10] The Applicant avers that the trial is set to commence on 4 May 2026. It therefore
implies that the Applicant intends to seek an amendment of the bail conditions which
would allow the Applicant to exit the Republic of South Africa 3 days before the trial is
set to commence and, according to the Applicant, to return t hereto one day before the
trial will commence.
[11] In support of the Applicant’s reasons why the Applicant now needs to travel outside the
Republic of South Africa, the factual aver ments upon which the Applicant relies for that
request can conveniently be summarised as follows:
[11.1] Applicant’s mother, who is 76 years old, and who lives in Zambia , has a
medical condition which critically deteriorated to a point where the treating
doctor has recommended surgery;
[11.2] The Applicant’s mother requested the Applicant from her “death bed ” (as
stated by Applicant) that he should come as a matter of extreme urgency
before she “joins her ancestors”;
[11.3] In support of the aforesaid averments, the Applicant annexed an affidavit from
his sister who also resides in Zambia and a medical note from the Ministry of
Health in Zambia. Applicant further annexed a medical certificate by the
treating doctor which state that her condition has changed and that she needs
urgent surgical intervention to insert a stent and improve her ejection fraction.
Not one of those documents contains any evidence in support of the
conclusion that the Applicant’s mother is terminally ill. The information,
objectively viewed, indicated the need for surgery to insert a stent.
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[12] When the matter commenced I requested the Applicant’s counsel to address me on the
issue of urgency by virtue of the fact that the affidavit of the Applicant’s sister, on which
the Applicant materially relies for the relief claimed in the notice of motion, is dated 30
March 2026 and signed by the Applicant’s sister on 1 April 2026. I questioned why the
application was brought on such extreme short notice in circumstances where the
affidavit in support of the application was signed 1 calendar month earlier and was then
informed by Applicant’s counsel that it is urgent that the Applicant travel to Zambia in
order to sign the necessary consent documents for the operation on his mother.
[13] This stated ground for the relief, which goes to the merits of the application as well as
the issue of urgency, does not appear in the founding affidavit, nor does it appear in the
affidavit signed by the Applicant’s sister. I further requested Applicant’s counsel to
indicate whether there are any reasons disclosed why the Applicant’s sister cannot sign
such consent (notwithstanding the fact that this issue is not raised in the founding
affidavit) and could obtain no proper explanation supported by any evidence.
[14] In the founding affidavit, applicant avers that he has provided substantial security, that
he has never contravened any bail conditions, and that he is not a flight risk.
[15] In the context of the facts as set out in the affidavit, the application should be
considered with due regard to the relevant empowering provision and legal principles.
SECTION 63 OF CPA:
[16] Section 63 of the Criminal Procedure Act (“CPA”) reads:
“AMENDMENT OF CONDITIONS OF BAIL
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(1) Any court before which a charge is pending in respect of which bail has been
granted may, upon the application of the prosecutor or the accused, increase
or reduce the amount of bail determined under section 59 or 60 or amend or
supplement any condition imposed under section 60 or 62, whether imposed
by that court or any other court, and may, where the application is made by the
prosecutor and the accused is not present when the application is made, issue
a warrant for the arrest of the accused and, when the accused is present in
court, determine the application.
(2) If the court referred to in subsection (1) is a superior court, an application
under that subsection may be made to any judge of that court if the court is not
sitting at the time of the application”.
[17] On an analysis of section 63 of CPA , it is clear that the amendment or supplement of
conditions of bail is a discretionary remedy. In Tsao v DPP Johannesburg1 Fisher J held
as follows:
“[12] The inquiry as to whether there should be a relaxation of the conditions entails
the court exercising a discretion on the basis that it is required to balance the
constitutional right to freedom of movement with the interests of the State in
the prosecution of offences and the public interest in such prosecution.”
[18] In Lifman v The State2 Montzinger AJ held as follows:
1 Tsao v DPP Johannesburg (2024/052869)[2024] ZAGPJHC 576 (2024) at paragraph 12.
2 Lifman v The State 2022(1) SACR 241 (WCC)
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“[17] It seems to me that when a court is requested to amend an accused’s bail
conditions the inquiry resolved itself into the primary consideration whether it is in
the interest of justice to do so. This is apparent from a mere reading of s 60(12)
that requires a court to attach bail conditions that are in the interest of justice.
This approach was echoed in State v Savoi3 where the Supreme Court of appeal
said that the lower court primarily had to consider the interest of justice whether
an amendment of the bail conditions was necessary.
[18] Ultimately to determine what would be in the interest of justice requires of this
Court to exercise a judicial discretion in the form a value judgement balancing the
right of the accused with that of the public. In undertaking this discretionary
exercise, the Court is allowed to be guided by the checklist of relevant factors
provided in ss 60(4) as particularised in ss (5) to (9). In this instance the relevant
factors will be the factors in ss 60 (4)(b) and (6).”
[19] In support of th at conclusion arrived at in the Lifman judgment in paragraph [18] as
quoted supra, that Court inter alia referred to the authorities of State v Schietekat.4
[20] It is established law that the party seeking the amendment of bail conditions bears the
onus, on a balance of probability, that the amendment of the bail conditions will give
credence to, and be in the best expression of the interest of justice.5
3 State v Savoi 2012 (1) SACR 438 (SCA) at para 47.
4 State v Schietekat 1999 (2) SACR 51 (CC) para 46.
5 Lifman judgment supra, para [90] and authorities quoted therein.
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[21] The exercise of this Court’s discretion whether the Applicant’s bail conditions should be
amended as prayed for in the notice of motion should therefore be considered in the
context of the aforesaid principles.
EXERCISING DISCRETION:
[22] I declined to exercise a discretion in favour of the Applicant to amend the bail conditions
as prayed for in the notice of motion or at all . My refusal to exercise the discretion
afforded to this Court under section 63 of CPA are based on the following
considerations:
[22.1] At the time when the Magistrates Court considered an application for bail and
imposed stringent conditions on the Applicant’s bail, including a restriction to
travel outside the province and the Republic of South Africa, and to surrender
his passport, that decision was arrived at during an investigation conducted by
the court which considered all relevant evidence. In my view, such stringent
bail conditions would not have been imposed, had the learned Magistrate not
found on the a vailable evidence that the interest of justice required such
stringent bail conditions. That view is confirmed by the subsequent
proceedings on 15 September 2022 when a judge of this division, on appeal,
set aside a later amendment of the bail conditions as referred to in paragraph
[7] supra. Before this Court the Applicant failed to provide the reasons why
such stringent bail conditions were imposed and this Court is therefore not in a
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position to exercise a proper discretion whether the present circumstances
permit a change of those stringent bail conditions;6
[22.2] The manner in which this application was launched has engineered a situation
where an important functionary of the state, namely the Director of Public
Prosecutions (“DPP”) , w as not joined in the proceedings and/or provided a
reasonable opportunity to place before this court any relevant information
which may influence this court’s decision whether or not the interests of justice
requires an amendment of bail conditions. The important role that the state
prosecutor (a delegated functionary of the DPP) fulfils in not only prosecuting
the accused, but also in all stages of bail related proceedings, is amply
illustrated by a perusal of inter alia the provisions of sections 60, 62 and 63 of
CPA. I am of the view that it is incumbent on an applicant, when approaching
the Court to amend bail conditions in terms of section 63 of CPA, to give
proper notice the DPP and the prosecutor tasked with the prosecution of the
matter. This view is confirmed by a perusal of chapter 9 of CPA which
illustrates that the prosecutor plays in important part in the investigation
conducted by a Court in determining whether the interests of justice is served
in granting bail and/or amending bail; In casu, Applicant failed to serve the
application in terms of the rules (an issue which will be dealt with infra) and
provided an extremely unreasonable limited time for any state functionary
(having served the application on “State”) to do the necessary to identify what
the matter is about, and to consider and protect the public interest. I decline to
6 Compare Tsao judgment supra, para [17].
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exercise any discretion afforded to this court in terms of section 63 of CPA
under those circumstances.
[22.3] Prima facie, the reasons advanced by Applicant in the founding affidavit why
he should be allowed to travel outside the Republic of South Africa as set out
in the founding affidavit did not correspondent with the reasons advanced by
Applicant’s counsel which were conveyed in Court, as set out in paragraph s
[12] and [13] supra. This lacuna in the founding affidavit creates serious doubt
on the bona fides of the Applicant, because it will be reasonably expected that
such a compelling reason (that Applicant must go and sign the necessary
forms to enable his mother to undergo an operation, and that he is the only
person competent to sign those documents) would have been pertinently
stated, with clear supporting evidence, instead of being (improperly) tendered
by Counsel from the bar when the proverbial shoe pinched.
[22.4] Applicant has employed various remedies, the effect of which was to prevent
the trail from proceeding. These remedies are no w exhausted, having been
overturned on appeal, and the fact that Applicant now, on the proverbial eve of
the trial, seeks an extension of bail conditions which includes the right to leave
the borders of the Republic of South Africa , gives rise to concern. In my view
this consideration strongly mitigates against the exercise of a discretion in
favour of the Applicant.
[23] As far as the service of this application on “State” is concerned, there was no proper
service of the Application. Applicant’s reliance on Rule 41A(c) authorising service of the
application via email (see paragraph [3.2] supra) is ill conceived. There is no such rule.
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Insofar as Applicant intended to rely on Rule 4A(1)(c), it is also ill conceived because that
rule provides for service of subsequent documents per email, in terms of an agreement
between the parties. This application is not interlocutory but substantive, and falls under
the service provisions of Rule 4(1)(viii) because the D PP is the responsible functionary
of an organ of state, created in terms of section 2 of the National Prosecution Authority
Act 32 of 1998 as subsidiary legislation under section 179 of the Constitution of the
Republic. The DPP is tasked will all matter s prosecutorial, including bail. Failure to have
served this application on the relevant functionaries in terms of the rules is a material bar
to the relief claimed.
In the result, the application was dismissed.
_________________________________
P A VAN NIEKERK
JUDGE OF THE GAUTENG DIVISION,
PRETORIA
APPEARANCES:
FOR APPLICANT
INSTRUCTED BY MATOJANE MALUNGANA INC.
FOR RESPONDENT: No appearance.
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