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[2026] ZAGPJHC 624
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Mostert v S (A04/2026) [2026] ZAGPJHC 624 (23 January 2026)
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REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
Case
Number:2020-24661
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
In
the matter between:
HERMANUS JOHANNES
MOSTERT
Appellant
and
THE
STATE
Respondent
JUDGMENT
Mfenyana J:
[1]
This
is an appeal against the decision of the regional court refusing bail
pending the finalisation of a petition by the appellant
to the Judge
President of this Division. The appeal is brought pursuant to the
provisions of section 65 of the Criminal Procedure
Act (the Act).
[1]
[2]
The appellant stood trial on charges of (1)
driving under the influence of intoxicating liquor in contravention
of section 65(1)
of the National Road Traffic Act and (2) corruption
arising from a payment of R600.00 to a police officer to secure his
release
from custody, in contravention of section 3 of the Prevention
and Combating of Corrupt Activities Act. His co-accused who was tried
together with him on separate charges, being common assault and
crimen injuria
,
was also convicted. This appeal is only in respect of the appellant.
[3]
On 12 November 2025, the appellant was
sentenced to three years’ imprisonment for driving under the
influence of intoxicating
liquor, with one year suspended on
condition that he was not convicted of the same offence. His driver’s
licence was suspended
for a period of six months. In respect of the
corruption charge, he was sentenced to 18 years’ imprisonment.
The sentences
were ordered to run concurrently. He was, thus,
sentenced to an effective 24 months' imprisonment.
[4]
The appellant immediately brought an
application for leave to appeal against his conviction and sentence,
which was refused by the
court
a quo
.
[5]
On 13 November 2025, he applied for bail
pending his petition for leave to appeal to this court. The court
a
quo
refused bail, citing a lack of
prospects of success.
[6]
In his affidavit, filed in support of his
bail application, which was read into the record, the appellant
states, among others,
that he is employed as a director at Midcity 4
Motors in Klerksdorp. He further stated that prior to his
incarceration, he resided
at 16 Frangipani Street, Doornkruin,
Klerksdorp, in a three-bedroom house he had been renting for the past
three years. He lives
alone. He is divorced and has two minor
children for whom he pays maintenance. He also contributes
financially towards his disabled
sister, his mother and his father.
[7]
In opposing the bail application, the
investigating officer filed an affidavit, which was also read into
the record. He states that
:
“
I
am opposing bail for the following reasons:
It
will not be in the interest of justice, because the complainant and
the
community
at large expect the Accused to serve their sentences.
Accused
2 is a Zambian national. He is a flight risk.
Both
have been sentenced on serious charges.
I am
of the view that they are not going to succeed with their appeal.”
[8]
The judgment of the court
a
quo
is crafted in general terms and
records that there is no law preventing the imposition of direct
imprisonment for first offenders,
which the appellant is. The court
a
quo
acknowledged that the applicant had
been granted bail and was still on bail when he was convicted, “
but
circumstances have changed. Now they have been sentenced and they
know their sentence and I need to add that the sentences imposed
on
the two applicants are not shocking. They were imposed after the
Court has taken into consideration their personal circumstances,
interest of society, and the seriousness of their offences, without
overemphasising one factor above the others.”
(
sic
)
[9]
Apart from merely stating this, the court a
quo paid lip service to these findings, and provided no basis for
them, whether factual
or legal.
[10]
There is also a dispute between the state
and the defence over whether the corruption charge for which the
appellant was convicted
falls within Schedule 5, with the state
contending that it does. The appellant denies this. Consequently, the
provisions of section
60(11)(b), which require the appellant to
demonstrate that exceptional circumstances exist that he be admitted
to bail, do not
find application, the appellant further argues. I
agree with this submission. The reasons can be located in the
provision itself.
[11]
Schedule 5 states in relevant part:
“
Any
offence relating to exchange control, extortion, fraud, forgery,
uttering,
theft or any offence referred to in Part to 4, or section 17, 20,
or
21 (in
so far as it relates to the aforementioned offences) of Chapter 2 of
the
Prevention and Combating of Corrupt Activities Act, 2004 –
(a)
Involving amounts of more than
R500 000,00;
(b)
…
(c)
…
(own
emphasis)
[12]
The payment attributed to the appellant in
respect of count 2, where he made payment to a police officer to
secure his release from
custody is an amount of R600.00, which does
not meet the threshold stipulated in the Schedule.
[13]
In terms of section 65(4), ‘a court
or judge hearing an 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…’. Equally relevant is
section
60(4) which prohibits the release of an accused person on
bail if the accused person would pose danger to the public or a
person
related to the offence, or if he would evade trial, or attempt
to influence or intimidate the witnesses or conceal evidence, or
undermine the proper functioning of the justice system, or disturb
public order or undermine public peace and security.
[14]
None of these requirements holds true in
respect of the appellant who has already stood trial while on bail,
which bail was extended
after conviction. Moreover, the judgment of
the court
a quo
sheds no light in this regard as it glibly deals with some and not
others. It does not meaningfully engage with any of these
requirements,
which are prerequisites for the granting or denial of
bail.
[15]
To the contrary, the argument on behalf of
the appellant is that none of the requirements have been met. In
addition, the appellant
has already stood trial while on bail; as
such, there are no witnesses who can be intimidated or threatened by
the appellant; the
risk of evading trial is non-existent, or
concealment of evidence. In this regard, the court is enjoined
to consider relevant
circumstances pertaining to the accused,
including their family or occupational ties, their assets, means of
travel. The
risk of the appellant not filing the petition is
misplaced as the record clearly indicates that the petition has
already been lodged
with this court under case no: P59/2025. The
contention by the state that there is no petition has no legitimate
basis and is not
supported by any evidence. There is no reason
why the state should not enquire from the registrar, should there be
any doubt.
In addition, Mr Zuma admitted that the petition documents
were served on them.
[16]
It was submitted on behalf of the state
that the record shows that the appellant has no fixed address, in
that he admits that he
is renting the house he lives in and has no
property of his own. Thus, he is at liberty to move. I understand
this submission to
mean that the appellant is a flight risk. There is
no record of this in the judgment of the court
a
quo
. Even if the issue was properly
raised, there is no reason why this cannot be addressed by imposing
appropriate conditions for
the appellant.
[17]
As
submitted on behalf of the appellant: ‘where there is no real
risk of absconding and refusal of bail may render a successful
appeal
futile because the sentence will already have been served, (as in the
present case), it is sufficient that the appeal is
reasonably
arguable and not manifestly doomed to failure.
[2]
[18]
While prospects of success on appeal play a
role in the determination of this appeal, they are not decisive of
the issue.
[19]
Both counsel argued that the interests of
justice should play a pivotal role in the determination by this
court. For the state this
translates to the appellant being refused
bail for the aforestated reasons. Conversely, the appellant’s
gripe is that the
interests of justice would not be served were the
appellant to be refused bail, only to be successful on appeal. By
that time,
he would have served a sentence he ought not to have
served, which would cause him prejudice. On the contrary, if the
appellant
were to be admitted to bail and be unsuccessful on appeal,
he would resume serving his sentence.
[20]
That, in my view, should be the end of the
matter. The interests of justice will be better served if the
appellant is admitted to
bail pending the outcome of his petition for
leave to appeal and the appeal, if any.
Order
[21]
In the result, I make the following order:
a.
The appeal is upheld.
b.
The order of the court
a
quo
is set aside and substituted with
the following:
“
The
appellant is granted bail in the amount of R10 000.00 (ten
thousand rand), pending the finalisation of the petition
for leave to
appeal”.
c.
The appellant must inform the investigating
officer of any changes in his residential address prior to the
changes taking place.
S Mfenyana
Judge of the High Court
Date heard:
21 January 2026
Date of judgment:
23 January 2026
This judgment was handed
down electronically by circulation to the parties’
representatives by email and by uploading the
judgment onto
Caselines. The date of delivery of the judgment is deemed to be
23 January 2026.
Appearances:
For the appellant:
Counsel: A May
Instructed by Dawid
Senekal Incorporated
For the respondent:
Counsel: N Zuma
Instructed by DPP.
Johannesburg
[1]
Act 51 of 1977.
[2]
S
v Anderson
1991
(1) SACR 525
(C).