REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: A16-2026
In the matter between:
AHMED MOHAMED ABDI Appellant
and
THE STATE Respondent
________________________________________________________________
JUDGMENT
________________________________________________________________
Mfenyana J:
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
SIGNATURE DATE:
03/03/2026
2
[1] This is an appeal against the refusal of bail on new facts, pursuant to the
provisions of section 65 of the Criminal Procedure Act (the CPA).1
[2] The appellant is one of 10 accused facing charges of theft, kidnapping,
robbery and money laundering.
[3] On 29 August 2025, the appellant unsuccessfully applied for release on
bail. His appeal against the refusal of bail was also unsuccessful. In
November 2025, he brought a further application for release on bail based
on new facts, which was likewise dismissed on 15 December 2025 . This
application is a sequel to the refusal by the court a quo to admit the
appellant to bail on new facts.
[4] The State has not opposed the appeal.
[5] In the notice of appeal, the appellant contends that the court a quo erred
in finding that no exceptional circumstances existed, justifying his release
on bail; that the evidence presented by the appellant did not constitute new
facts; in allowing the enquiry about the Schedule of the charge to
degenerate into evidence against the bail application; in putting undue
emphasis on the appellant’s status in the Republic of South Africa,
rejecting the evidence by the State that he is a naturalised citizen of
Somalian origin who holds only a South African identity document; and in
finding that the application amounted to a request for the court to review
its judgment.
[6] In its judgment, the court a quo held that the issues raised by the appellant
did not constitute new facts as they were in existence at the time of the
initial bail application and within the control of the appellant. The court
1 Act 51 of 1977.
3
referred to S v Mpofana2 that in determining whether new facts exist, the
court should have regard to whether, when ‘viewed in light of the facts that
were placed before the court in the initial application, the facts presented
are new facts’, and whether the information relied on was available to the
appellant at the time of the initial bail application.
[7] In its reasons for judgment, the court a quo noted that the appellant failed
to provide documentary proof that he was a director of any companies, a
South African identity document or identity number, or proof that he had
‘FICA’-verified his bank accounts using the addresses he gave.
[8] The court further held that the appellant was a flight risk because he owned
no immovable property and reiterated that the existence of a J50 warrant
in another matter suggested that he might evade trial.
[9] At the bail hearing on new facts, the State relied on the evidence of the
investigating officer, who confirmed that he had verified the appellant’s
identity document, that the appellant held no other identity document
besides his South African one, and that he had no foreign citizenship. This
information was later made avai lable to the defence and the court. The
record further shows that, on this occasion, the appellant provided a lease
agreement and proof of his directorship in three companies. Copies of
these documents, however, are not included in the record before this court.
[10] Following a lengthy exchange with counsel for the appellant concerning
the appellant’s status in this country, the court concluded that the appellant
was a permanent resident and not a naturalised South African citizen, as
he had previously stated in his affidavit in the initial bail application , to
which counsel conceded . In this regard, the court a quo noted that the
2 1998 (1) SACR 40.
4
appellant had misled the court , which was denied by the appellant’s
counsel.
[11] The record shows that when the matter was heard on 15 December 2025,
at the instance of the court invoking its powers in terms of section 60(3),
the investigating officer testified about the well -being of the appellant’s
children. She told the court that they were in good condition, and their
mother had stated that she did not need the involvement of social workers.
[12] The court, thus, found that there were no exceptional circumstances that
permitted the appellant’s release on bail, as there was a likelihood that he
would evade trial, noting further that there was no evidence showing that
the appellant had a strong case in relation to the State’s case, and that the
undisputed evidence was that the appellant’s minor children were taken
care of in his absence and were not adversely affected by his absence.
[13] In these proceedings, it was argued on behalf of the appellant that the
court a quo misdirected itself in putting undue emphasis on the appellant’s
citizenship. Counsel further argued that the court a quo also misdirected
itself in finding that the facts relied on by the appellant were not new. He
further submitted that these facts, which relate to the appellant’s proof of
residence and his directorship of companies, were not in dispute between
the State and the defence. However, the presiding magistrate mero motu
challenged these facts. Consequently, the supporting documents were not
to hand at the hearing of the initial bail application , which influenced the
court’s decision to refuse bail, as the court concluded that the appellant
would likely evade trial as he, inter alia, had no fixed property registered in
his name.
[14] Counsel conceded that the documents sought to be i ntroduced are not
new; however, because they were not initially presented or considered by
the court a quo in making its decision, they should be treated as new facts.
5
He added that they are relevant to the determination whether or not the
appellant should be admitted to bail.
[15] Regarding the issue of the J50, counsel submitted that the J50 warrant
was cancelled. In addition, according to the investigating officer, the matter
was nolle prosequi . As such, there is no pending case against the
appellant. He added that in the bail application appealed against, the
appellant also provided proof of his directorship of the companies and a
lease agreement. Presumably, this suggests that the appellant is not likely
to evade trial if released on bail.
[16] On whether the charges against the accused fall within Schedule 5 or 6,
an argument ensued between the court and the defence counsel. It
appears that when the initial bail application was heard, it was heard as a
Schedule 5. This meant that the appellant was required to adduce
evidence to show that his release would be in the interests of justice.
Schedule 6, on the other hand, requires a bail applicant to show that there
are exceptional circumstances which warrant their release on bail.
[17] In this regard, the appellant contends that the appellant was denied the
opportunity to adduce evidence as required, and that this amounts to a
misdirection. Before the court a quo , it was argued on behalf of the
appellant that the determination of the matter as a Schedule 5 in the first
place was a result of the existence of the J50.
[18] On these bases , the appellant avers that this court should interfere with
the decision of the court a quo or remit the matter to the court a quo.
[19] A court dealing with a bail appeal based on "new facts" , typically in terms
of s 65(2) or s 60(11) of the Criminal Procedure Act 51 of 1977 must
primarily determine whether the circumstances have genuinely changed
6
since the initial bail refusal and whether those changes warrant a different
decision
[20] New facts in these circumstances are not meant to cure defects in a
previous application, but to place before the court facts that arose only
afterwards. Here, the cancellation of the J50 and the finalisation of the
related matter constitute new facts. The other facts the appellant relies on
do not: they existed before the initial bail application and were available to
the appellant. Besides arguing that these facts were not in dispute by the
State, and that, for this reason, he did not have the documents the court
required to prove his residence, identity document, and his directorship in
his companie s, it was also conte nded on beha lf of the appellant that
although he had control of the documents before the first bail application,
the court was obliged to consider them.
[21] In addition, section 60(11) of the CPA states:
Notwithstanding any provision of this Act, where an accused is charged
with an offence referred to-
(a) in Schedule 6, the court shall order that the accused be detained
in custody until he or she is dealt with in accordance with the law,
unless the accused, having been given a reasonable opportunity to
do so, adduces evidence which satisfies the court that exceptional
circumstances exist which in the interests of justice permit his or her
release;
(b) in Schedule 5, but not in Schedule 6, the court shall order that
the accused be detained in custody until he or she is dealt with in
accordance with the law, unless the accused, having been given a
reasonable opportunity to do so, adduces evidence whi ch satisfies
the court that the interests of justice permit his or her release.
[22] There can thus be no merit to the appellant’s contention that he was not
given an opportunity to adduce evidence , as the matter was treated as a
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Schedule 6 matter. The appellant elected to adduce evidence in the form
of an affidavit. It is a trite principle that affidavits serve a dual purpose: as
pleadings and also evidence. In addition, both schedules 5 and 6 require
the leading of evidence.
[23] In terms of section 65(4),” 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 was wrong, in which event the
court or judge shall give the decision which in its or his op inion the lower
court should have given”.
[24] The difficulty with the appellant’s contention that the documents ought to
be regarded as new facts because they were not presented to the court,
is that the appellant still bears the responsibility to argue his case and
substantiate his averments. He must present his case in full at the bail
application. What the bail application on new facts , far from introducing
new facts, merely repeated and expanded on the facts already relied on
in the first bail application, now with proof of the appellant’s averments.
This is contrary to the purpose of the provision. The second application,
however styled, was, in my view, a n attempt to have another bite at the
cherry, which the appellant is not entitled to.
[25] While I sympathise with the appellant, understanding that he would not be
entitled to approach this court on new facts unless those new facts had
been placed before the court a quo first, this did not stop him from
instituting the first appeal proceedings. In my view , this was a strat egy,
(however devised), gone wrong.
[26] Accepting that there is no limit to the number of times an accused person
can apply for bail, an application for bail on new facts must present
genuinely new facts which arose after the refusal of the first bail application
or changed circumstances. In this regard, I differ with the court a quo on
8
whether the cancellation of the J50 constitutes a new fact. Having occurred
after the first bail application was refused, it represents a change in
circumstances and is therefor e a new fact. However, on its own, it does
not alter the situation. A court should consider the evidence holistically.
The cancellation of the J50 is merely a factor among many that the court
should consider and cannot, on its own, guarantee the granting of bail.
[27] Having said that, the appellant cannot cherry-pick which of the
requirements apply to him . In the heads of argument, while citing all the
requirements for bail on new facts, counsel merely clings to one
requirement, i.e that the facts are relevant to the determination of the new
bail application.
[28] I do not think the appellant’s reliance on S v Le Roux3 as cited in the heads
of argument assists him. It is indeed the correct legal position. Again, the
reliance on the word “unavailable” borders on semantics. In any event,
except for not being presented in court, there is no indication that the
appellant's lease agreement, proof of directorship, and identity document
were unavailable to him.
[29] Applied to the facts of this matter, the facts relied on by the appellant do
not constitute new facts. Not only were they available prior to the hearing
of the initial bail application, but the appellant had access to them at that
point.
[30] Likewise, the appellant’s status in the Republic was a relevant
consideration in determining whether or not he would stand trial. I therefore
do not agree that the attention paid to it by the court a quo was
unwarranted. The appellant did not play open cards in this regard. As the
court a quo observed, as a permanent resident, there is no requirement
3 S v Le Roux en Andere 1995 (2) SACR 613 (W).
9
for him to renounce the citizenship of his country of birth. There are at least
three versions proffered for the appellant in this regard.
[31] The first, which is stated in his affidavit in the first bail application, is that
he is a naturalised citizen of this country. The second is that h e stated in
his bail affidavit that he is a permanent resident . The third version is that
he is a naturalised citizen, although he has not collected the documents to
confirm this from Home Affairs. All these were relevant factors to be taken
into account by the court a quo, as it did in determining whether there was
a risk that the appellant would not stand trial.
[32] Quite apart from the issue of the J50, coupled with the evidence for the
State that the appellant eluded the police for close on three years and that
when they finally caught up with him, he resisted arrest, such that the
investigating officer had to call for backup. The applicant did not give viva
voce evidence and solely relied on affidavit.
[33] I do not consider it necessary to deal with the strength of the state’s case
against the appellant, as it has no bearing on the bail application on new
facts. Besides, this was fully canvassed in the first bail appeal before
Makamu J.
[34] As in any appeal, the role of the appeal court is not to substitute the
decision of the bail court for its own. In Pataka v The State4, a decision of
this Division, the court noted that:
In considering this appeal, even if this Court has a different view, it
should not substitute its own view for that of the court a quo, because
that would be an unfair interference with the court a quo’s exercise
of discretion. It is after all the court a quo who would have been best
equipped to deal with the question of bail, steeped in the atmosphere
of the case.
4 Unreported, Case number: (A337/2017) [2018] ZAGPJHC.
10
[35] It is trite that “the grant or refusal of bail is unmistakably a judicial function”.
… (e)ven where the prosecution concedes bail, the court must still make
up its own mind”.5
[36] On the strength of these authorities, including those relied on by the
appellant, I do not believe that the criticism against the court a quo is
justified. I will readily agree that the conduct of the proceedings was not
what it could have been ; perhaps there could have been fewer
interruptions. However, this cannot elevate the conduct of the proceedings
and the decision of the court a quo to the level of a misdirection. In my
view, the court a quo duly discharged the judicial function it is enjoined to
perform in bail proceedings. In any case, ‘in hindsight, everyone is wise.’
[37] I cannot find any misdirection in the decision of the court a quo which
warrants interference by this court. There are no exceptional
circumstances which justify the appellant’s release on bail.
Order
[38] In the result, the appeal is dismissed.
S Mfenyana
Judge of the High Court
5 S v Dlamini, S v Dladla and Others; S v Joubert; S v Schietekat (CCT21/98, CCT22/98,
CCT2/99, CCT4/99) [1999] ZACC 8; 1999 (4) SA 623 (CC); 1999 (7) BCLR 771 (CC); 1999 (2)
SACR 51 (CC) (3 June 1999), para 10.
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Date heard: 23 February 2026
Date of judgment: 3 March 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 3 March 2026.
Appearances:
For the appellant:
Counsel: W B Ndlovu
Instructed by Muedi Inc. Attorneys
For the respondent:
No appearance