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1. The applicant, Ms Mncube has launched an application for review under Rule
53 of the uniform rules. We sit as a bench constituted by ADJP Modiba for this
application.
2. Ms Mncube was arrested on a charge of fraud. She was released on R5000
bail. On numerous occasions, when the case was postponed before the matter
came up for trial, she duly reported to court and bail was extended. On 18 March
2026 the matter came up for trial.
3. The charge, of fraud against her employer, in an amount of R1.4m was read
out by the prosecutor. At that point, the learned Magist rate, Mr K Page,
expressly informed Ms Mncube, represented by an attorney, that if she was a
first offender she faced a sentence of 15 years jail if found guilty and that the
court could only deviate from that sentence for substantial and compelling
reasons. This is correct, given that she was charged in terms of Section 51(2)
of the Criminal Law Amendment Act 105 of 1997 (“the minimum sentence
provisions”).
4. Ms Mncube pleaded guilty. She and her erstwhile attorney confirmed the plea.
Ms Mncube confirmed the correctness of a statement read into the record by
her erstwhile attorney. It is noteworthy that the services of an interpreter were
utilised throughout the proceedings. Ms Mncube unequivocally acknowledged
intentional wrongdoing, in the charged amount. In short, Ms Mncube had
abused her position of trust as an employee of an hotel and caused R1.4 m to
be paid into her n iece’s bank account instead of to those owed money by the
hotel.
5. Ms Mncube was then found guilty as charged.
6. The state proved no previous convictions.
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7. At that point, the erstwhile attorney for Ms Mncube asked for a postponement
for a correctional supervision report and a probation officer’s report.
8. Magistrate Page granted a postponement and then stated that as Ms Mn cube
had been convicted of a schedule 5 offence bail was “ withdrawn ” “ unless the
defence wishes to bring any application ” regarding bail.
9. The erstwhile attorney indicated that he would like to apply for bail.
10. Magistrate Page informed Ms Mncube that she would need to show facts
justifying her release in the interests of justice.
11. Ms Mncube was called to the witness stand and, having been duly sworn in,
and led by her erstwhile attorney, stated her case for bail. She was then cross-
examined by the prosecutor. Magistrate Page asked a few questions and there
was no re-examination.
12. The state led no evidence.
13. After argument, judgment was then given on the bail application and bail was
refused.
14. The case was postponed to 8 April 2026. On that day, Mr Baloyi the new and
present attorney for Ms Mncube appeared. He stated that Ms Mncube was
misled about the plea of guilty and he asked Magistrate Page to reverse the
plea of guilty.
15. The prosecutor said that she wanted to oppose the application to reverse the
plea of guilty.
16. Magistrate Page indicated that the application should be in writing.
17. The case was postponed to 23 June 2026, with Ms Mncube in custody.
18. In the present notice of motion it is sought to review the decision by Magistrate
Page to “ withdraw ” bail. It is not expressly sought to review the subsequent
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decision to refuse bail. The reinstatement of the original R5 000 bail is sought.
It is also sought to review the decision by Magistrate Page to postpone the case
so as to allow the state to oppose the application to reverse the plea of guilty.
19. Under section 58 of the Criminal Procedure Act 51 of 1977 the release of a
person on bail endures until verdict. Under the proviso to section 58, where a
person, such as Ms Mncube , has been convicted of fraud in an amount over
R500 000, as set out in schedule 5 to the Act, and she seeks an extension of
bail, the court must take into account the fact of the conviction and the likely
sentence to be imposed.
20. Describing bail as “ withdrawn” or “cancelled ” in present circumstances is
neither here nor there. Under section 58, bail ended on conviction. Ms Mncube,
represented by an attorney, had her rights explained to her throughout. Ms
Mncube and he r attorney were given an opportunity immediately after
conviction to apply for bail, which opportunity they used.
21. The argument that the state should not have been given an opportunity to
oppose the application to reverse the guilty plea is idle. It is unthinkable that the
state not be allowed to oppose the application or that it not be given an
opportunity to do so.
22. It was sensible, if not necessary, that the application be brought in writing and
on notice with an opportunity for the state to deliver an answering affidavit.
23. There is no room for the review of the decisions sought to be reviewed.
24. The NPA does not seek costs.
ORDER
1. The application is dismissed.