REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: A21-2026
Case No a quo: 41/1085/2025
In the matter between:
SIPHETHO SIBIYA Appellant
and
THE STATE Respondent
________________________________________________________________
JUDGMENT
________________________________________________________________
Mfenyana J:
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
SIGNATURE DATE:
2
[1] The appellant appeal s against the decision of the magistrates’ court in
Johannesburg (court a quo) on 12 December 2025, refusing to release the
appellant on bail. The appeal is brought pursuant to the provisions of
section 65 of the Criminal Procedure Act (the CPA).1
[2] The appellant is charged with one count of murder and two of attempted
murder.
[3] The State opposes the appeal.
[4] In the notice of appeal, the appellant lists several grounds of appeal, which
overlap to a considerable extent. This much was conceded by Mr
Mthimkhulu. counsel for the appellant at the hearing of the matter. The key
issues emanating from the grounds of appeal are that the court a quo
misdirected itself:
4.1 by relying on the affidavit of the investigating officer in opposition to
bail, having found that it was contradictory and therefore, unreliable.
4.2 in refusing to release the appellant on bail after finding that
exceptional circumstances existed.
4.3 in finding that the release of the appellant would jeopardise the
proper functioning of the criminal justice system.
4.4 in making findings of guilt against the appellant in bail proceedings,
and
4.5 in violating the doctrine of stare decisis.
[5] In its judgment, the court a quo noted that that the appellant bore the onus
to demonstrate the existence of exceptional circumstances, as the matter
falls under Schedule 6. The court accepted that the fact that the appellant
1 Act 51 of 1977.
3
handed himself over to the police was an exceptional circumstance, as
submitted by the defence ; however, this “does not mean that the court
simply have to release the applicant on bail. The Court will have to be
satisfied that the interest of justice permits his release on bail, and the
guidelines have been set down by the legislature to assist the Court with
regard to the termination whether the interest of justice will justify the
release of an applicant on bail.” (sic)
[6] The court then proceeded to deal with the appellant’s personal
circumstances. It further noted that the determination of guilt was a matter
for the trial court after evaluating the evidence before it.
[7] In dealing with whether the release of the appellant would be in the
interests of justice, the court referred to section 60(4)(d), which stipulates
that the interests of justice do not permit the release of an accused person
from detention “where there is a likelihood that the accused will undermine
or jeopardise the objectives or proper functioning of the criminal justice
system, including the bail system”.
[8] The court referred to an affidavit by a witnesses who witnessed the
incident, which was read into the record, and in which the witness referred
to the appellant by name. According to the affidavit, the accused and his
co-accused went to the premises of the deceased and removed items
belonging to the deceased , making allegations of robbery against him .
Thereafter, on a separate incident, the deceased was fatally shot.
[9] The court concluded that the witness knew the accused and that all these
facts indicate that the incident was premeditated and that in confronting
the deceased, the accused took the law into his own hands . Relevant to
section 60(4)(d), the court found that ‘these actions have jeopardised the
proper functioning of the criminal justice system. Coupled with the fact that
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if the accused were to be convicted on the charges against him, he would
face a long term of imprisonment’, the court added.
[10] It is on these grounds that the court a quo concluded that it would not be
in the interests of justice to release the appellant on bail.
[11] In its reasons for judgment, the court a quo referenced section 60(11),
reiterating its judgment that the onus rests on the appellant to adduce
evidence that exceptional circumstances exist , which in the interests of
justice justify his release on bail. The court further reiterated its acceptance
that the appellant’s voluntary surrender to the police may constitute
exceptional circumstances.
[12] The court relied on S v Mathebula 2 that in bail proceedings, an applicant
who seeks to challenge the merits of the state’s case must prove, on a
balance of probabilities, that he will be acquitted of the charge. In this
regard, it found that there was direct evidence linking the appellant to the
commission of the offences.
[13] On behalf of the appellant, it was argued that once the court a quo found
that exceptional circumstances existed, it was no longer open to it to refuse
bail. In doing so, it committed a misdirection.
[14] Counsel further submitted that the court a quo misdirected itself further, by
determining the appellant’s guilt, which is a matter for the trial court , and
in finding that the appellant had taken the law into his own hands,
particularly as bail was refused on that ground alone, despite the appellant
having met all the requirements in section 60(4)(a) to (e) of the CPA.
2 [2009] ZASCA 91.
5
[15] It was further the appellant’s contention that the court a quo should have
found that the interests of justice permit his release on bail and should not
have placed reliance on the affidavit of the investigating officer, that the
appellant would interfere with state witnesses, which was relied on by the
state in opposing bail, as it was contradictory.
[16] The appellant argues that the court a quo failed to follow stare decisis.
Citing Branco3, the appellant contends that a court hearing a bail
application must begin from the premise that freedom is a constitutional
right and may be curtailed only lawfully where the interests of justice
require. In refusing bail, the court a quo failed to consider that detention
would cause the appellant irreparable harm, including financial loss. It also
failed to apply S v Dlamini; S v Dladla and Others; S v Joubert; S v
Schietekat4, which holds that bail proceedings are not concerned with an
accused’s guilt, but only possible guilt insofar as it is relevant to the
interests of justice.
[17] Counsel further submits that section 60(4)(d) should be read with section
60(8), and the court failed to do this and to take section 60(9) into account.
There was no evidence that the appellant knowingly supplied false
information during the bail proceedings; was in custody on another charge;
would not comply with bail conditions if imposed; or would evade trial and
interfere with witnesses as required in terms of section 60(8), the argument
proceeded.
[18] The appellant further argues that the court a quo’s finding that the interests
of justice did not permit his release on bail, based on the prospect of a
lengthy term of imprisonment if convicted, amounts to anticipatory
punishment as discussed in S v Acheson5.
3 2002(1) SACR 531(W).
4 1999(2) SACR 51(CC).
5 1991(2)SA 805 (NM).
6
[19] The appellant accordingly avers that he satisfied, on a balance of
probabilities, all the requirements for release on bail. He further contends
that, if the court was concerned that he might interfere with witnesses, it
could have imposed conditions restri cting his contact with them,
particularly as he had offered to relocate to an alternative residence. On
this basis, the appellant submits that this court should interfere with the
decision of the court a quo and admit him to bail.
[20] On behalf of the state, Ms Mbodi argued that the court a quo did not
misdirect itself, as section 60(4) applies if one or more of the grounds listed
therein are found to exist. Thus, the court did not need to find that all the
listed grounds exist. In this regard, the court a quo found that the appellant
would jeopardise the functioning of the criminal justice system as he was
staying at the same residence as the witness.
[21] Counsel argued that the court a quo did not find that exceptional
circumstances existed and did not interpret the law incorrectl y in this
regard, as stated by the appellant . She further argued that the appellant
had previously attempted to evade the police, and handing himself in was
merely an afterthought. This is based on a statement which t he
prosecution submitted forms part of the docket, but was to the state ’s
surprise, not included in the investigating officer ’s affidavit. It does not
appear from the judgment that the court a quo considered this information
and to what extent.
[22] Ms Mbodi further argued that the court a quo correctly considered that the
appellant took the law into his own hands, which signifies his disregard for
the law. Again, this reasoning does not appear ex facie the judgment of
the court a quo. These omissions cannot be considered in favour of the
state. If anything, they are indicative of a misdirection.
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[23] On the issue of stare decisis, the state argued that the principle in S v
Dlamini et al is that the interests of justice demand detention and thus there
was no obligation on the court a quo to release the appellant on bail. This
is incorrect. The principle in this decision is that bail proceedings,
specifically under section 60 of the CPA, must strike a balance between
the right to freedom, manifested in the presumption of innocence, and the
interests of justice.
[24] In terms of section 60(11) of the CPA, where an accused is charged with
an offence referred to 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”.
[25] Section 60 (4) provides in relevant parts:
“(4) The interests of justice do not permit the release from detention of an
accused where one or more of the following grounds are
established:
(a) Where there is the likelihood that the accused, if he or she were
released on bail, will endanger the safety of the public, any person
against whom the offence in question was allegedly committed, or
any other particular person or will commit a Schedule 1 offence;
(b) where there is the likelihood that the accused, if he or she were
released on bail, will attempt to evade his or her trial; or
(c) where there is the likelihood that the accused, if he or she were
released on bail, will attempt to influence or intimidate witnesses or
to conceal or destroy evidence; or
(d) where there is the likelihood that the accused, if he or she were
8
released on bail, will undermine or jeopardise the objectives or the
proper functioning of the criminal justice system, including the bail
system; or
(e) where in exceptional circumstances there is the likelihood that
the release of the accused will disturb the public order or undermine
the public peace or security.”
[26] The sole ground on which the judgment of the court a quo is based is
60(4)(d). In this regard, section 60(8) is instructive. It provides:
(8) In considering whether the ground in subsection (4)(d) has been
established, the court may, where applicable, take into account the
following factors, namely-
(a) the fact that the accused, knowing it to be false, supplied false
information at the time of his or her arrest or during the bail
proceedings;
(b) whether the accused is in custody on another charge or whether
the accused is on parole;
(c) any previous failure on the part of the accused to comply with bail
conditions or any indication that he or she will not comply with any
bail conditions; or
(d) any other factor which in the opinion of the court should be taken
into account.
[27] None of these factors was considered by the court a quo. In this regard,
Mr Mthimkhulu argued that no evidence was presented, and, in fact, none
exists. Assuming that the court a quo placed reliance on subsection (8)
(d), which confers a discretion to the court to consider any other relevant
factor, the judgment is silent on how this discretion was exercised, if at all.
[28] Lastly, in terms of section 60 (9), when considering the provisions of
subsection (4) the court is enjoined to weigh the interests of justice against
the right of the accused to his or her personal freedom and in particular
the prejudice he or she is likely to suffer if he or she were to be detained
in custody, taking into account, where applicable, various factors , which,
include the period already spent in detention, reasons for delay if any, the
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probable period of detention until finalisation of the trial, financial
implications on the accused person.
[29] From the reading of the relevant provisions, the starting point is that a bail
applicant must satisfy the court that exceptional circumstances exist
which, in the interests of justice, permit his release on bail. The court a quo
found that exceptional circumstances existed. The respondent’s
submission to the contrary is without merit . That being the case, the next
step of the enquiry is the determination of the interests of justice.
[30] As the provision states, the court must consider whether any of the factors
listed in subsection (4) exist, which militate against the granting of bail. In
the present case, there is no evidence that the appellant would pose any
danger to the public or a person related to the offence; or that he would
evade trial; or attempt to influence or intimidate the witnesses or conceal
evidence; or undermine the proper functioning of the criminal justice
system. To the contrary, the investigating officer, in her aff idavit, which
was read into the record, states that the appellant would not evade trial or
jeopardise the functioning of the criminal justice system or bail system and
would not interfere or undermine public peace. The investigating officer
added that no suspects or investigations were outstanding.
[31] The respondent’s submission s (despite the absence of evidence or a
legitimate basis ) that the appellant poses a danger to the public or to
individual safety, and may interfere with witnesses , as they appear from
the record are both founded on the assertion that the appellant and the
witness know each other. That assertion later developed into a suspicion,
but it cannot morph into evidence. Moreover, the judgment of the court a
quo is solely premised on this assertion.
[32] The court noted in its judgment t hat the state provided contradictory
accounts on whether or not investigations were finalised, and whether or
10
not there was a likelihood that the appellant would interfere with witnesses.
Apart from acknowledging the existence of these contradictions, the court
a quo paid no regard to these factors. It is therefore, curious, how the court
could rely on the appellant’s relationship with one of the witnesses.
[33] While the existence of exceptional circumstances cannot be viewed in
isolation, the determination of the interests of justice must be viewed
against the whole statutory framework in section 60, as clearly provided in
the CPA. A determination of subsection(11) presupposes the
consideration of subsection (4) which leads to subsection (8) and
ultimately subsection (9). The court a quo failed to do this. This lends
credence to the appellant’s contention that the court incorrectly applied the
law.
[34] In arriving at th e conclusion that section 60 (40(d) finds application, the
court a quo paid no regard to section 60(8). It also made no factual
determination of the appellant’s suspected interference, and relied on
blanket statements, speculation and unsubstantiated suspicions.
[35] Having failed to consider section 60(8), the court a quo, naturally, did not
engage in the next stage of the enquiry, which is to weigh its findings in
relation to section 60(8) against the appellant’s constitutional right to liberty
(section 60(9), in determining whether on the whole, the interests of justice
permit the appellant’s release on bail. This is a misdirection , sufficient to
vitiate the proceedings before the court a quo. Even if the determination
of the court a quo passed muster, it proffers no reason why the appellant’s
alleged interference could not be addressed by imposing appropriate bail
conditions.
[36] While I do not agree with Mr Mthimkhulu th at the court’s finding that the
appellant would face a lengthy term of imprisonment if he were to be
convicted on the charges against him, amounts to anticipatory
11
punishment, it is not clear from the judgment how this relates to section
60(4)(d).
[37] I do not consider it necessary to deal with the decisions cited by the
appellant in much detail, save to state that the common thread running
through all of them is that bail proceedings should not become a ‘dress
rehearsal’ for the trial, and that courts must pay attention to the specific
statutory requirements, and the interests of justice as detailed in section
60.
[38] 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”.
[39] I am satisfied that the decision of the court a quo is clearly wrong. The
court a quo misdirected itself in various respects; in failing to consider the
applicable statutory provisions; in its misinterpretation and misapplication
of the bail law in general; and in its incorrect determination of the provisions
of section 60(4), read with section 60(8) and section 60(9) of the CPA.
Order
[40] In the result, the following order issues:
a. The appeal is upheld.
b. The order of the court a quo is set aside and substituted with the
following:
“i. The applicant is granted bail in the amount of R5 000.00.
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ii. The applicant is prohibited from interfering with, communicating
with, harassing, or approaching any of the complainants and
state witnesses in any manner whatsoever.
iii. The applicant must provide the investigating officer with his
alternative residential address where he shall reside until the
finalisation of the trial.
iv. The applicant is prohibited from leaving the Republic.
v. The applicant must inform the investigation officer of his intention
to travel outside of the province of Gauteng and the jurisdiction
of this court.
vi The applicant must report at the nearest police station twice a
week between 13h00 and 17h00.
S Mfenyana
Judge of the High Court
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 28 April 2026.
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Appearances:
For the appellant:
Counsel: M Mthimkhulu
Instructed by Mnisi Bonginkosi Attorney
For the respondent:
Counsel : TJ Mbodi
Instructed by the Director of Public Prosecutions, Johannesburg