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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

 

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

 

 CASE NUMBER: CAB 02/2023

REPORTABLE: YES

CIRCULATE TO JUDGES: YES

CIRCULATE TO MAGISTRATES: YES

CIRCULATE TO REGIONAL MAGISTRATES:

In the matter between:-

 

SIBUSISO MACDONALD KULA                                                           APPELLANT

 

AND

 

THE STATE                                                                                            RESPONDENT

 

 

BAIL APPEAL

 

CORAM: PETERSEN J

ORDER

 

(i)            The appeal against the refusal of bail is upheld.

 

(ii)          Bail is granted subject to the following conditions:

 

1.            The appellant is granted bail in the sum of R 50 000-00 (fifty thousand rand) cash;

 

2.            Upon payment of the said sum of money, the appellant shall be released from custody on condition that:-

 

He appears personally at the Orkney District Court at 08h30am on the 17^th day of April 2023 and remain in attendance up until he is excused by the court and thereafter on such dates and times and to such places to which these proceedings are adjourned until a verdict is given in respect of the charge to which the offence in this case relates;

 

3.            That the appellant does not communicate with his children who have been moved to protective care, whether directly or indirectly for the duration of this matter.  The appellant is prohibited from contacting or communicating directly or indirectly with any of the witnesses or possible witnesses in this case until finalization of this matter.  A list of the witnesses will be provided to him by the prosecutor/investigating officer on Tuesday 05^th April 2023.

 

4.            That the accused reports in person to the person in charge of the Charge Office (Community Service Centre) at Orkney Police Station twice a day, every day (Monday to Sunday) between the hours 07h00AM and 09h00AM and 16h00PM and 18h00PM with his identity document. The appellant shall first report in accordance with this order on Wednesday, 05 April 2023 or the very first day following his release on bail and every day thereafter;

 

5.            The appellant is restricted to the Magisterial district of Orkney and may not leave the magisterial district without prior written approval of the investigating officer. If granted permission to leave the magisterial district, which permission may only be withheld on reasonable grounds, the appellant is to provide a valid itinerary of his movements and keep the investigating officer updated at all times as to his whereabouts. The appellant will be required to report to his nearest police station at his destination in accordance with condition 4 and upon his return to Orkney in accordance with paragraph above.

 

6.            The appellant is to surrender all passports in his possession to the investigating officer, prior to his release on bail and is prohibited from approaching any office of the Department of Home Affairs to apply for a passport. 

 

7.            The appellant’s residential address is recorded as 4[...] N[...] Road, Kanana Township, Orkney. If he should change such address he will notify the Clerk of the Court, Orkney and the investigating officer of such change within 24 hours.

 

8.            The appellant is informed that in terms of section 67(1) Act 51 of 1977, if, after his release on bail, he fails to appear at the place and on the date and at the time appointed for his trial or to which the proceedings are adjourned, or fails to remain in attendance at such trial or at such proceedings, or fails to comply with the above conditions, the relevant Court shall declare the bail provisionally cancelled, and the money provisionally forfeited to the State, and issue a warrant for his arrest. The appellant is further informed that it is also a punishable offence for failing to appear or for non-compliance with a stipulated condition.

 

9.            A copy of this order with the bail conditions must be served on the appellant personally by the Investigating Officer before his release on bail. A copy of such service duly signed as acknowledgment by the appellant certifying that he is fully conversant with the conditions of his release in bail must be filed as part of the record in the District Court with the Clerk of the Court.

 

 JUDGMENT

PETERSEN J

 

“The right of an accused to a fair trial requires fairness to the accused, as well as fairness to the public as represented by the state. It has to instil confidence in the criminal justice system with the public, including those close to the accused, as well as those distressed by the audacity and horror of crime.”[1]

 

Introduction

 

[1]        This is an appeal by the appellant, Mr Sibusiso Macdonald Kula, against the refusal of bail by the Magistrate, Orkney, L Esterhuizen.

 

[2]        The appellant is presently appearing in the District Court, Orkney on a charge of murder read with the provisions of s51(1) of the Criminal Law Amendment Act, Act 105 of 1997 as amended (“the CLAA”) in which he is alleged to have killed his wife on 27 November 2022.

 

The grounds of appeal

 

[3]        The appellant assails the decision of the Magistrate both in fact and law on a plethora of grounds. The gist of the grounds of appeal are essentially that the Magistrate misconstrued the schedule of the Criminal Procedure Act, Act 51 of 1977 (“the CPA”) under which the charge of murder as proffered against the appellant resorts, thereby wrongly placing the onus on the appellant in terms of s 60(11)(a) and schedule 6 of the CPA to prove exceptional circumstances warranting his release on bail; and that the Magistrate erred in her consideration of the provisions of ss 60(4)(a) – (e) read with s 60(5) to (8A) of the CPA. The classification of the schedule is central to the determination of this appeal and will be more fully elucidated later.

 

The approach to an appeal against the refusal of bail

 

[4]        The approach to an appeal against the refusal of bail by a Magistrate, is governed by s 65(4) of the CPA, which provides that:

 

“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 opinion the lower court should have given.”

 

[5]   The sentiments expressed in S v Barber[2] have been widely accepted as the correct approach to the test espoused in s 65(4) of the CPA: 

 

“It is well known that the powers of this Court are largely limited where the matter comes before it on appeal and not as a substantive application for bail. This Court has to be persuaded that the magistrate exercised the discretion which he has wrongly. Accordingly, although this Court may have a different view, it should not substitute its own view for that of the magistrate because that would be an unfair interference with the magistrate’s exercise of his discretion. I think it should be stressed that, no matter what this Court’s own views are, the real question is whether it can be said that the magistrate who had the discretion to grant bail exercised that discretion wrongly.’

(my emphasis)

 

[6]       Section 65(4) of the CPA is drafted in peremptory terms. The decision of the Magistrate cannot be set aside unless it was wrong, but if this Court is satisfied that the decision was wrong, this Court shall give the decision which in its opinion the Magistrate should have given.

  

The salutary wisdom provided in 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; 1999 (7) BCLR 771 (3 June 1999)

 

[7]        Since the decision of the Constitutional Court in S v Dlamini, S v Dladla and Others; S v Joubert; S v Schietekat, the bail legislation ensconced in Chapter 9 of the CPA has been amended from time to time, with the most recent amendments brought about by the Criminal and Related Matters Amendment Act, Act 12 of 2021 (“the CRMAA of 2021”) with effect from 5 August 2022. The present appeal provides an opportunity to revisit the salutary wisdom of the justices of the Constitutional Court in S v Dlamini, S v Dladla and Others; S v Joubert; S v Schietekat as a reminder of one of the most difficult tasks a judicial officer and more so Magistrates are called upon to perform on a daily basis, and the diligence required in dealing with bail applications.     

 

[8]        In S v Dlamini, S v Dladla and Others; S v Joubert; S v Schietekat, Kriegler J writing for the Court said:

 

“[4]       An important aim of this judgment is to show that the application of constitutional norms to the law and practice of bail does not complicate the task of judicial officers but clarifies it.  At the same time it will be shown how recent amendments to the relevant statutory provisions are to be harmonised with those constitutional norms.

 

[5]        The starting point of the exercise is s 35(1)(f) of the Constitution which provides the principal template against which Chapter 9 of the CPA must be measured.  It reads as follows:

 

“Everyone who is arrested for allegedly committing an offence has the right . . . (f) to be released from detention if the interests of justice permit, subject to reasonable conditions.”

 

The context of that provision is the rest of s 35(1) and s 35(2), which protect the rights of arrested and detained persons. Section 35(1) spells out the rights of arrested persons: the right to remain silent; to be informed of the right and of the consequences of waiving it; and the right not to be compelled to make an admission or confession.  Then, particularly relevant to the present context, s 35(1) affords an arrestee the right to be brought before a court as soon as reasonably possible, but within 48 hours of arrest, and at that first appearance to be charged, or told the reason for further detention, or released. Section 35(2) likewise makes detailed provision for the protection of the interests of detainees, assuming that detention is constitutionally acceptable.

 

[6]        Section 35(1)(f) in its context, makes three things plain. The first is that the Constitution expressly acknowledges and sanctions that people may be arrested for allegedly having committed offences, and may for that reason be detained in custody.  The Constitution itself therefore places a limitation on the liberty interest protected by s 12. The second is that notwithstanding lawful arrest, the person concerned has a right, but a circumscribed one, to be released from custody subject to reasonable conditions.  The third basic proposition flows from the second, and really sets the normative pattern for the law of bail.  It is that the criterion for release is whether the interests of justice permit it.  What that term means, both in the Constitution and in s 60 of the CPA, is central to much of this judgment, and will be thrashed out later.  All that need be said at this stage is that s 35(1)(f) postulates a judicial evaluation of different factors that make up the criterion of the interests of justice, and that the basic objective traditionally ascribed to the institution of bail, namely to maximise personal liberty, fits snugly into the normative system of the Bill of Rights.  It is accordingly important that the rules of that institution, which are said by some to be at odds with those values, be scrutinised systematically…

 

[7]        The next point of reference is chapter 9 of the CPA.  That is where the effect, rules and consequences of bail are primarily to be found.  Chapter 9 of the CPA is therefore not only an invaluable point of reference in any general enquiry into the law of bail, and a primary source to be consulted in looking for an answer to any specific bail question, but provides a comprehensive framework in which any answers can be judged. Tiresome though it may be, it is therefore necessary to outline the basic provisions of the whole of chapter 9.

…

Summary

 

[101]   To sum up:

                      …

          3.          Bail as an institution is well known; so are its objectives and broad criteria. The advent of the Constitution and the adoption of the 1995 and 1997 amendments to s 60 of the CPA properly construed, have provided a norm and guided the evaluation process.

 

4.        Section 35(1)(f) of the Constitution acknowledges that persons may be arrested and detained for allegedly having committed offences but such arrestees are entitled to be released on reasonable conditions if the interests of justice permit.

 

5.          Deciding whether the interests of justice permit such release, and determining appropriate conditions, is an exercise to be performed judicially in accordance with the procedure laid down in s 60 of the CPA.

 

6.          Although a bail application is a formal court proceeding, it is relatively informal, inherently urgent and serves a uniquely interlocutory purpose distinct from that of the trial; the issue is not guilt but where the interests of justice lie in relation to bail.

 

7.          In determining where the interests of justice lie, the essential exercise is to ascertain the relevant circumstances by using as a guide the check-list of relevant factors against the grant of bail provided in sub-s (4), as particularised in sub-ss (5) to (8A), and of those for the grant of bail provided in sub-s (9).

 

8.            With regard to the factors both for and against the grant of bail, the checklist is not exhaustive, and the court has to consider any other relevant factor.

 

9.             In seeking to establish the presence of such factors the court is to act as pro-actively and inquisitorially as may be necessary. 

 

10.       Having established all relevant factors, the court must weigh up the pros and cons of bail judicially, keeping in mind the possibilities of using appropriate conditions to minimise possible risks.

 

11.       Where the public peace is a factor, i.e. where sub-ss (4)(e) and (8A) are invoked, the court should proceed with great caution and establish that the requisite exceptional circumstances are indeed present.

 

12.       Likewise, where sub-s (11)(a) is involved, the court should be astute to ensure that the right to bail under s 35(1)(f) of the Constitution is not rendered illusory by the effect of sub-s (14), the incidence of the onus and the need to adduce evidence.  The accused is entitled to a reasonable opportunity to establish exceptional circumstances.  The latter term holds no hidden meaning and is to be applied judicially.

                       

13.       Although the accused’s guilt may be relevant in a bail application, evidence thereon should be confined to the central issue whether the interests of justice permit the release of that accused on bail. Abuse by the prosecution of the right to cross-examine on that issue may result in the evidence being excluded at trial.

  

14.       The record of bail proceedings is neither automatically excluded from nor included in the evidentiary material at trial.  Whether or not it is to be excluded is governed by the principles of a fair trial.

 

15.       Bail serves not only the liberty interest of the accused, but the public interest by reducing the high number of awaiting trial prisoners clogging our already overcrowded correctional system, and by reducing the number of families deprived of a breadwinner.”                   (my emphasis)

 

Chapter 9 of the Criminal Procedure Act, Act 51 of 1977 (BAIL): The amendments brought about by the CRMAA of 2021” with effect from 5 August 2022

 

[9]        Against the background of S v Dlamini, S v Dladla and Others; S v Joubert; S v Schietekat, I turn to the drastic changes brought about by the CRMAA of 2021 with reference to Chapter 9 of the CPA dealing with bail, with effect from 5 August 2022. These changes impact the following grounds of appeal which are central to this appeal:

 

                     “14.1      The Learned Magistrate erred in finding that it is common cause between the parties that the charge against the Applicant falls within the ambit of Schedule 6 and that s60(11)(a) of Act 51 of 1977 applies. It is respectfully submitted that the applicant faces a charge of murder which falls within the ambit of Schedule 5.

 

                    14.2       The Learned Magistrate erred in not taking into account a submission by Mr. Dlanjwa that the State had not charged and proved premeditation and that the proceedings were not a Schedule 6 bail application.

 

                    14.3       The Learned Magistrate contradicted herself and this erred in that; on the one hand she acknowledged that Mr. Dlanjwa in closing protested that the bail application was in terms of Schedule 6 and on the other, recorded that the parties confirmed the bail application to fall within the ambit of Schedule 6. In any event and on a proper construction of the law, a charge of murder falls within Schedule 5.

 

                    14.4       The Learned Magistrate was correct in identifying that section 60 of the CPA divides crimes into three categories but erred in only dealing with Schedule 6 and finding it unnecessary to deal with the two remaining categories, and in particular Schedule 5. Had the Learned Magistrate done so, she would have appraised herself with the fact that a charge of murder falls within the ambit of Schedule 5 and applied the correct test.

 

                    14.5       The Learned Magistrate erred in finding that the bail application was governed by the provisions of Section 60(11)(a) read together with Section 60(4)(a) – (e) of the CPA. On the face of the charge, the applicant was charged with an offence falling within the ambit of section 60(11)(b) and thus Schedule 5. The Learned Magistrate erred in finding that the applicant had to convince the Court that there are exceptional circumstances which permit his release.”

(my emphasis)

 

[10]      The tenet of the aforesaid grounds of appeal as will be shown are not entirely correct, when one has regard to the recent amendments introduced by the CRMAA of 2021. The far reaching implications of these amendments appear to have escaped all the dramatis personae involved in the bail application in the District Court.      

 

[11]      To appreciate the tenor of this judgment and the ultimate decision of this Court, an overview is provided of the changes brought about by the CRMAA of 2021. For purposes of the present discussion and this appeal, s 59 of the CPA as amended by s 2 of the CRMAA of 2021 with effect from 5 August 2022 provides that:

 

                       “59  Bail before first appearance of accused in lower court

  

(1) (a) An accused who is in custody in respect of any offence, other than an offence-

 

                                  (i)   referred to in Part II or Part III of Schedule 2;

 

(ii)  against a person in a domestic relationship, as defined in section 1 of the Domestic  Violence Act, 1998 (Act 116 of 1998); or

 

                                   (iii)   referred to in-

 

                                   (aa)   section 17 (1) (a) of the Domestic Violence Act, 1998;

 

(bb)   section 18 (1) (a) of the Protection from Harassment Act, 2011 (Act 17 of 2011);  or

 

(cc)   any law that criminalises a contravention of any prohibition, condition, obligation or order, which was issued by a court to protect the person against whom the offence in question was allegedly committed, from the accused, may, before his or her first appearance in a lower court, be released on bail in respect of such offence by any police official of or above the rank of non-commissioned officer, in consultation with the police official charged with the investigation, if the accused deposits at the police station the sum of money determined by such police official.”

(my emphasis)

 

[12]      The introduction of s 59(1)(a)(ii) and (iii) has brought about a new bail dispensation to deal with the scourge of gender based violence which has sadly engulfed our nascent democracy. There are in fact now four categories of bail applications which a Court may be called to adjudicate. These include a bail application in respect of offences identified in ss 60(11)(a), (b) and (c) and any other bail application not falling within the ambit of the aforesaid sections. Section 59(1)(a)(ii) and (iii) must now be read conjunctively with the newly introduced s 60(11)(c) which provides that:

 

“60(11) Notwithstanding any provision of this Act, where an accused is charged with an offence –

                       …

          (c)   contemplated in section 59(1)(a)(ii) or (iii), 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 the interests of justice permit his or her release.     (my emphasis)

 

[13]      An observation is made in passing that it is not entirely clear why the legislature elected to couple s 60(11)(c) with s 59 (1), which deals with offences for which bail may be granted by any police official of/or above the rank of non-commissioned officer, in consultation with the police official charged with the investigation, rather than provide a distinct schedule in the CPA similar to schedules 5 and 6. This may hold the potential for misconstruing of s 59(1) by certain police officials, contrary the intention of the legislature. 

 

[14]      The appellant is alleged to have killed the deceased with whom he was in a domestic relationship as envisaged in section 1 of the Domestic Violence Act, Act 116 of 1998 in that they were either married according to any law, custom or religion. The introduction of s 60(11)(c) read with s 59(1)(a)(ii) and (iii) effectively means that murder under schedule 5 no longer finds applicability to murders alleged to have been perpetrated if the jurisdictional fact in section 59()(a)(ii) is present. I deal with the State’s reliance on schedule 6 later.

 

[15]      How would it be established that s 60(11)(c) read with s 59(1)(a)(ii) and (iii) is applicable in any bail application? This can manifest itself in one of two ways. Firstly, it is implicit in s 50(6) that an accused must be informed of the charge on which he has been detained. The information about the charge is by implication within the knowledge of the State and should be made clear to the accused and the Magistrate, either in the charge sheet or placed on record by the prosecutor, s 50(6)(a) of the CPA reads thus:

 

“50(6) (a) At his or her first appearance in court a person contemplated in subsection (1)(a) who —

 

(i)            was arrested for allegedly committing an offence shall, subject to this subsection and section 60—

 

(aa)   be informed by the court of the reason for his or her further detention; or

 

(bb)     be charged and be entitled to apply to be released on bail, and if the accused is not so charged or informed of the reason for his or her further detention, he or she shall be released; or

 

(ii)          was not arrested in respect of an offence, shall be entitled to adjudication upon the cause for his or her arrest.”

 

[16]   Secondly, the provisions of s 60(11)(c) read with s 59(1)(a)(ii) and (iii) would be triggered by the provisions of the newly introduced section 60(11B)(a)(iii) which compels an accused:

 

          “(11B)(a) In bail proceedings, the accused, or his or her legal adviser, is compelled to inform the court whether –

 

          (i)   the accused has previously been convicted of any offence;

 

          (ii)   there are any charges pending against him or her and whether he or she has been released on bail in respect of those charges;

 

         (iii)   an order contemplated in section 5 or 6 of the Domestic Violence Act, 1998, section 3 or 9 of the Protection from Harassment Act, 2011, or any similar order in terms of any other law, was issued by a court to protect the person against whom the offence in question was allegedly committed, from the accused, and whether such an order is still of force; and

 

            (iv)   the accused is, or was at the time of the alleged commission of the offence, a sentenced offender who has been placed under correctional supervision, day parole, parole or medical parole as contemplated in section 73 of the Correctional Services Act, 1998.

 

            (b) Where the legal adviser of an accused on behalf of the accused submits the information contemplated in paragraph (a), whether in writing or orally, the accused shall be required by the court to declare whether he or she confirms such information or not”.

(my emphasis)

 

The bail proceedings before the Magistrate in the District Court

 

[17]      I turn to the bail proceedings before the Magistrate against the legislative background set out above. The appellant made his first appearance in the District Court on 23 January 2023. The prosecutor, Mrs Seiphetlho, sought a postponement of the matter for further investigation on the basis that she wished to discuss the matter with the investigating officer in preparation for the bail application. Mrs Seiphetlho further submitted that the matter was “... a Schedule 6 opposed bail application…”. Save for the fact that the charge sheet was completed to reflect a charge of murder read with the provisions of s 51(1) of the CLAA, the jurisdictional fact on which the State relied to bring the bail application within the ambit of schedule 6 was not identified.

 

[18]      Mr Dlanjwa appearing for the appellant at the time raised no objection to the submission by Mrs Seiphetlho on the bail schedule. The only aspect relevant to the charge itself was expressed as follows by Mr Dlanjwa: “Okay. It is common cause, Your Worship, that the accused is before, Your Worship, on a count of murder. It is also common cause, Your Worship, that the said offence is alleged to have taken place on 27 November 2022”. Following lengthy submissions by Mr Dlanjwa in opposing the request for postponement, the Magistrate granted the State’s request for a postponement to 27 January 2023.

 

[19]      On 27 January 2023, the Magistrate in manuscript noted that the proceedings were mechanically recorded. The transcription of the recording, however, only commences at a point after the appellant had already commenced with the presentation of his viva voce evidence. The Magistrate in addition to the mechanical recording, however, noted in writing the sequence of the conduct of the bail application. It must be emphasised that s 64 of the CPA makes it peremptory that all proceedings with regard to bail be recorded in full. The handwritten notes of the Magistrate, in the absence of the transcript reflecting what transpired prior to the appellant testifying, which is relevant to the issue of the applicable bail schedule and other peremptory provisions of the CPA (which is dealt with in more detail later) reads as follows:

 

“Acc appears.

 

Proceedings mechanically recorded.

 

PP: Matter on roll for bail application, Sch. 6, opposed by the State.

 

Defence: Confirm appearance. An affidavit has been prepared, which shall be read into record. I will then, the appl. will then adduce evidence. I am not sure, if State is opposed to that, but that is how I will intend to proceed.

 

PP: We have arranged that affidavits will be used, from my side, the I/O and from their side, the applicant.

 

Def: In principle not objection (sic) to the manner in which I will be proceeding. There is case law affidavits are not sufficient. Appl. to adduce evidence of circumstantial circumstances.

 

PP: No objection to that. They are the applicant. They can bring it however they want.

 

Def: Read statement into record.

 

Acc: I confirm the contents of the statement as well as my signature thereon.

 

Def: Call acc to witness stand.

 

Matter stand down for acc to compose himself.

 

Matter recalled.

 

Witness excused.

 

Court: Statement by applicant accepted into record as Exhibit “A”.

 

Def: No further witnesses to call. That is the application….”    

 

[20]      From the Magistrate’s handwritten notes, Mrs Seiphetlho on 27 January 2023 again submitted that the matter was on the roll for an opposed schedule 6 bail application. Mr Dlanjwa once again raised no objection to this submission. In the absence of any evidence to the contrary, Mr Dlanjwa, at the commencement of the bail proceedings therefore appears to have acquiesced (assented or aligned himself) in the submission of Mrs Seiphetlho that the bail application resorted within the ambit of schedule 6. The Magistrate in turn, when regard is had to the judgment misconstrued this acquiescence of Mr Dlanjwa in the submission of Mrs Seiphetlho to imply that it was common cause that the bail application resorted within the ambit of schedule 6.

 

[21]      This sequence of unfortunate events could have been averted if all the dramatis personae paid heed to the sentiments expressed in S v Nel and others 2018 (1) SACR 576 (GJ), where the following was said at paragraphs [4], [5], [7] and [10]:

 

“[4]       At the commencement of the bail application on 10 August 2017, the State contended that the application resorted within the ambit of Schedule 5 of the Criminal Procedure Act and by implication that the provisions of section 60(11)(b) of the Criminal Procedure Act were applicable. The appellants’ legal representatives raised an objection to this contention and addressed the court at length with reference to authorities. The magistrate called on the State, in response, to reply to the objection. When an offence referred to in Schedule 5 is placed in issue, a prosecutor, is required either to produce written confirmation in terms of section 60(11A) of the Criminal Procedure Act, or prove to the court in some other way, ordinarily by way of an affidavit by the investigating officer, that it is such an offence…

 

[5]        The dispute on the bail schedule required of the magistrate to give a ruling, a duty she was acutely aware of, when she noted that she was not in a position to do so before applying her mind to the matter…

                       …

[7]        …In the ordinary course of an application for bail, a timeous ruling should be made on the applicable schedule or section, whether placed in dispute or not. This determines how the bail application will be conducted and more importantly determines the issue of onus.

                       …

[10]      It remains a salutary practice to give a timeous ruling on the applicable schedule, particularly in the case of schedule 5 and 6 offences. The procedure at a bail application should be carefully adhered to in a step by step process dictated by the bail chapter and related schedules in the Criminal Procedure Act. In Nwabunwanne v S 2017 (2) SACR 124 (NCK), Erasmus AJ agreed with a suggestion by Binns-Ward AJ in S v Josephs  2001 (1) SACR 659 (C) at 661f-h “that, given the drastic consequences for an accused if section 60(11) of the CPA applies, it is desirable that the procedural provisions of s 60(11A) of the CPA should be closely adhered to and that proof of the nature of the charges should occur with some formality, either at the commencement of proceedings or as soon thereafter as possible”.

(my emphasis)

 

[22]     It follows from Nel supra that if Mr Dlanjwa had raised an objection to the bail application resorting within the ambit of schedule 6 at the outset of the bail proceedings, the Magistrate would have been duty bound to give a ruling on the dispute and if necessary, to afford the State an opportunity either to secure a certificate from the Director of Public Prosecutions or to adduce evidence of the investigating officer on the disputed bail schedule.

 

[23]     The absence of an objection by Mr Dlanjwa either on 23 January 2023 or 27 January 2023 was compounded by the Magistrate’s misplaced assumption that the State and defence confirmed that bail application resorted within the ambit of schedule 6. The Magistrate went on to find that: “There is no duty on the state to prove any fact at the (sic) stage of bail proceedings.” If the latter statement was meant to imply that the State does not have to prove the applicable bail schedule, then the statement is misplaced. The sentiments expressed at paragraph [10] of Nel supra would have averted this dispute raised on appeal by the appellant, if the Magistrate had given a timeous ruling on the applicable schedule, dictated to not only by what the parties said but giving effect to the “…step by step process dictated by the bail chapter and related schedules in the Criminal Procedure Act.”

 

[24]     The dispute on the bail schedule which was raised in closing argument by Mr Dlanjwa and which is perpetuated on appeal could have been averted if the Magistrate complied with the peremptory prescripts of the Bail Chapter. At the commencement of a bail application, it is prudent as a first step that a presiding officer, whether or not an accused is represented, to comply with the provisions of s 60(11B)(a) and (b), where applicable. This has always been a salutary practice, which has become more onerous with the amendment of s 60(11B) of the CPA by the CRMAA of 2021, through the insertion of s 60(11B)(a)(iii).

 

[25]      The record is in fact silent on whether or not the Magistrate explained or required compliance with the provisions of s 60(11B)(a) or (b) of the CPA. The Magistrate neither explained the provisions of s 60(11B)(a) to the appellant nor requested the appellant or Mr Dlanjwa to confirm the disclosure purportedly made by the appellant in terms of s 60(11B)(b). Instead, in respect of purported compliance with s 60(11B) of the CPA, the record reflects a very peculiar procedure which was followed during the course of the bail application. Mr Dlanjwa read in to the record a document purported to be an affidavit in support of bail by the appellant which was not commissioned. The appellant was then requested by the Magistrate to confirm the contents of the document and the appellant’s signature was thereafter placed on the document in the presence of the Magistrate and seemingly commissioned by a police officer during the conduct of the bail proceedings.  

 

[26]      This very peculiar procedure, if ordinarily allowed by the Magistrate, must be deprecated in the strongest possible terms as it does not accord with accepted procedure for the commissioning of affidavits and certainly not bail proceedings. If this statement, the contents of which were confirmed by the appellant, was meant, inter alia, to constitute compliance with the provisions of s 60(11B)(a) or (b) of the CPA, it failed in disclosing substantively what the amended provisions require. For present purposes, I move from an assumption that the document was a bail affidavit. In the bail affidavit the appellant states as follows:

          

“I have never been convicted of any criminal offences either in the RSA or elsewhere. There are no outstanding cases, other than the present, being investigated against me by the South African Police Services (“SAPS”). I have been advised that any misrepresentation on this aspect attracts a criminal liability with a possible sanction of 2 years imprisonment. I submit that I am frank and honest in this regard.”

 

[27]      It was always a requirement before the amendment brought about by the CRMAA of 2021 that an accused discloses any previous convictions and any charges pending against him on which he had been released on bail. There has never been any obligation to disclose charges being investigated by the police, as the appellant did. The position in respect of disclosure has changed only insofar as s 60(11B)(a)(iii) now calls for disclosure by an accused of “an order contemplated in section 5 or 6 of the Domestic Violence Act, 1998, section 3 or 9 of the Protection from Harassment Act, 2011, or any similar order in terms of any other law, was issued by a court to protect the person against whom the offence in question was allegedly committed, from the accused, and whether such an order is still of force.”

 

[28]      The appellant failed to disclose that an order was issued against him in terms of the Domestic Violence Act, 1998 and was still in place, to protect the deceased who was allegedly murdered by him. On a strict interpretation of s 60(11B)(a)(iii), the appellant withheld this very crucial information from the Magistrate, a fact which would ordinarily militate against the granting of bail. The disclosure of a protection order only came in the viva voce evidence of the appellant. 

 

[29]      The importance of the disclosure required by s 60(11B)(a) and in particular the information now required by s 60(11B)(a)(iii) is that the disclosure itself impacts on the approach to be adopted to the bail application. This has become even more relevant following the amendments brought about by the CRMAA of 2021 for the following reason. The introduction of s 60(11)(c) of the CPA, introduced a similar burden of proof or onus on an accused to the onus in s 60(11)(b) read with schedule 5 of the CPA. Crimes coupled with the Domestic Violence Act, 1998; the Protection from Harassment Act, 2011 and any other law or court order aimed at protecting a person from an accused must now be considered within the ambit of s 60(11)(c) read with s 59(1)(a)(ii) and (iii) of the CPA.

 

[30]      If the provisions of s 60(11B)(a)(iii) were complied with, it would have been clear to the Magistrate that s 60(11)(c) of the CPA may be applicable if the evidence adduced by the State did not point to the applicability of schedule 6.

 

 [31]     I turn back to the charge in the charge sheet. The charge makes no reference to premeditation as the jurisdictional fact relied on by the State to bring the matter within the ambit of schedule 6 of the CPA. Neither is there any viva voce submission of the jurisdictional fact. This should have been made clear to the Magistrate and the appellant, to appreciate the case he was to meet within the purview of the words “having been given a reasonable opportunity to do so” employed in s 60(11)(a) – (c). By implication and having regard to the reference in the charge to s 51(1) of the CLAA, this Court infers that only murder where it was planned or premeditated could have constituted the jurisdictional fact, which is echoed in schedule 6. It is a salutary practice that for bail purposes, the jurisdictional fact on which the State relies be set out with specificity.

 

[32]     In passing and following on the sentiments expressed in the latter paragraph, the following observation is made about s 60(11)(c) read with s 59(1)(a)(ii) and (ii) when juxtaposed against s 60(11)(a) and schedule 6 and Part I of Schedule 2 of the CLAA. Part I of Schedule as amended by the CRMAA of 2021, now incorporates two jurisdictional facts, which may be applicable in murders predicated on a domestic relationship:  

 

                       “Murder, when—

(a)          it was planned or premeditated;

                       …

                       (g)       the death of the victim resulted from physical abuse or sexual abuse, as contemplated in paragraphs (a) and (b) of the definition of ‘‘domestic violence’’ in section 1 of the Domestic Violence Act, 1998 (Act No. 116 of 1998), by the accused who is or was in a domestic relationship, as defined in section 1 of that Act, with the victim.’’;…”.

(my emphasis)

 

[33]      The anomaly brought about by the aforesaid is that murder when planned or premeditated constitutes a schedule 6 offence and if this jurisdictional fact is proven upon conviction at trial, life imprisonment is the mandated sentence. Murder where an accused and deceased were in a domestic relationship is not a schedule 6 offence, but in terms of Part I of Schedule 2 of the CLAA, as amended by the CRMAA of 2021, life imprisonment is the mandated sentence. Murder under schedule 5 (which is murder in circumstances other than listed in schedule 6) would upon conviction at trial, merit minimum sentences starting at fifteen (15) years. The distinction appears inexplicable. A similar position applies in the case of the murder of a child under the age of eighteen years.

 

[34]     This brings me to a further irregularity in the bail proceedings. The record as highlighted above reflects that the appellant adduced both an affidavit and viva voce evidence. Again, the record is silent on the Magistrate complying with the peremptory provisions of s 60(11B)(c) of the CPA, which duty rests on the Magistrate insofar as the provision provides that:

 

         “60(11B)(c) The record of the bail proceedings, excluding the information in paragraph (a), shall form part of the record of the trial of the accused following upon such bail proceedings: Provided that if the accused elects to testify during the course of the bail proceedings the court must inform him or her of the fact that anything he or she says, may be used against him or her at his or her trial and such evidence becomes admissible in any subsequent proceedings.”

 

[35]      It was peremptory for the Magistrate in terms of s 60(11B)(c) to warn the appellant both in respect of the affidavit and the viva voce evidence, that anything he said, may be used against him at his trial and that such evidence becomes admissible in any subsequent proceedings. This warning which could only be given by the Magistrate was required before the appellant adduced both the affidavit and viva voce evidence in support of his application for bail. The omission on the part of the Magistrate may not necessarily impact the bail application, but undoubtedly may have an impact on the question of a fair trial at any subsequent trial of the appellant.

 

[36]      From the aforesaid discussion it should be clear that there are several procedural irregularities in the conduct of the bail application by the Magistrate. What is the impact of these irregularities and how does it impact this Court’s duty in s 65(4) of the CPA? In Nel, the following was said in the context of the conduct of the parties and the Magistrate in analogous circumstances:

 

“[11]    I am accordingly satisfied that the proposal by the magistrate, leading to the acquiescence therein by the legal representatives of the appellants, constitutes a material misdirection. This does not imply, however, that the appellants are summarily entitled to be released on bail. In R v Hepworth 1928 AD 265 at 277 it was said that:

 

‘A criminal trial is not a game where one side is entitled to claim the benefit of any omission or mistake made by the other side, and a judge’s position in a criminal trial is not merely that of an umpire to see that the rules of the game are observed by both sides. A judge is an administrator of justice, he is not merely a figure head, he has not only to direct and control the proceedings according to recognised rules of procedure but to see that justice is done.”

 

                  [12]           In Nwabunwanne, Erasmus AJ having found that the magistrate had materially misdirected herself held at paragraph 19:

 

“This matter before me is not one where I, on the facts before me, should order whether or not the appellant should be released. It cannot  merely  be  accepted  that  the  appellant  or the respondent would have approached the bail application on the same basis, had there been clarity whether section 60(11)(b) of the CPA applied or not. On this basis alone the appeal should succeed and the matter remitted to the Court a quo.”

 

                    [13]        The circumstances of the present appeal are distinguishable from those in Nwabunwanne. This court has the benefit of the evidence and submissions relevant to the attempted murder charge, both prior to the issue of the ruling and at the conclusion of the evidence. This court is therefore in a position to determine the issues in this appeal and to give the decision which the lower court should have given. There is further no indication that the bail application would have been conducted otherwise when one considers the misplaced ruling of the magistrate that the charge of attempted murder constituted a schedule 5 offence, when opposition to the schedule was withdrawn.”

 

[37]        To answer the question on the impact of the irregularities on the present matter, a good starting point is s 60(11) of the CPA as amended by the CRMAA of 2021 which provides that:

 

“(11) Notwithstanding any provision of this Act, where an accused is charged with an offence –

 

(a)   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;

 

(b)   referred to 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 which satisfies the court that the interests of justice permit his or her release; or

 

(c)   contemplated in section 59(1)(a)(ii) or (iii), 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 the interests of justice permit his or her release.”

  

[38]   The bail application in this matter could resort within the ambit of any of the three subsections of s 60(11) of the CPA. It is more likely, however, given s 60(11)(c) that only s 60(11)(a) and (c) finds applicability. In terms of s 60(11)(a) read with schedule 6, the appellant would then, as he was before the Magistrate, be saddled with an onus to prove exceptional circumstances, which in the interest of justice permit his release on bail. In terms of s 60(11)(c) read with s 59(1)(a)(ii) and (iii) of the CPA, however, the burden on the appellant  is less onerous in that it is analogous to the onus in s 60(11)(b) read with schedule 5 in that he needs only prove on a balance of probabilities that the interest of justice permits his release on bail.  

 

[39]     It is apposite to re-iterate the position in respect of s 60(11)(c) of the CPA when compared to s 60(11)(a) and (b). S 60(11)(a) and (b) are accompanied by schedules 5 and 6 which set out specific offences to which the applicable onus applies. On the contrary s 60(11)(c) has no accompanying schedule but must be read with s 59(1)(a)(ii) and (iii) of the CPA. Therefore, as the present matter demonstrates, unless the bail chapter is meticulously followed, the fact that murder in the context of a familial or domestic relationship has an onus similar to that in s 60(11)(b) and is in fact now distinct from murder in schedule 5, may lead to an injustice not only to accused persons but also victims of such crimes.

 

[40]     To sum up, the bail application in this matter could resort within the ambit of sections 60(11)(a) read with schedule 6 and the new section 60(11)(c) read with section 59(1)(a)(ii) and (iii) of the CPA. In the context of the present appeal, the State’s reliance on section 51(1) of the CLAA in the charge points to schedule 6. The provisions of section 60(11)(c) if the disclosure in section 60(11B)(a)(iii) was made points to section 59(1)(a)(ii). A mere recital of the CLAA in a charge does not determine the schedule for bail purposes. The CLAA is a penal provision applicable at trial. The narrating of sentencing legislation is not the yardstick for bail, it must be prima facie an offence as set out in the various bail schedules.   

 

[41]     Whether or not the bail application resorted within the ambit of schedule 5 or 6, on the basis the application was approached in the District Court, the appellant bore the onus to adduce evidence, either that exceptional circumstances exist which in the interest of justice permitted his release on bail or that on a balance of probabilities, the interest of justice permitted his release on bail. And in terms of s 60(11)(c) read with s 59(1)(a)(ii), a similar onus to schedule 5 applies.

 

[42]   Having regard to the discussion as aforesaid, the evidence of the appellant and that of the investigating officer is on record and this Court is in a position to determine which schedule is borne out by the evidence which would place this Court in a position to give the decision which the Magistrate should have given. For this purpose, it is therefore prudent and necessary to quote extensively from the evidence in the record of proceedings.

 

The evidence adduced by the appellant

 

[43]     The appellant set out his personal circumstances as follows in the affidavit:

 

 

 

  “PERSONAL CIRCUMSTANCES

 

•      I am a full time politician of the African National Congress (ANC) and reside at 4[...] N[...] ROAD, Kanana TOWNSHIP, ORKNEY.

 

•      I was born on 04 July 1988, at Carletonville. I have resided in the Republic of South Africa ("the RSA") all my life, and although I possess a passport meant to enable me to travel abroad to participate in international and political events, I regard South Africa as my permanent place of abode. I have no intention to relocate to any other country as I owe allegiance and patriotism to her citizen.

 

•      I own immovable assets in South Africa, which consist of the following:

 

•           The immovable property in which I currently reside, at 4[...] N[...] Road in Kanana Township, Orkney. I am not aware of the current value, but have spent fortune in its renovations and face upliftment to an amount in excess of approximately R500 000-00 (Five Hundred Thousand Rands).

 

•              My friends and family reside in the RSA, although I also have political friends abroad.

 

•      I am employed as a politician member of parliament (MP) OF the Republic of South Africa (RSA) whose permanent seat is in Cape Town. My professional occupation currently provides me with an income of approximately R1,1 million per annum which I use to fend for my family, particularly my three minor children who are solely dependent on me for their general welfare, medical, educational activities and life amenities among others.

 

•      I have cash investments in excess of R50 000-00 with a registered financial provider operating its business under the style MillionSure.

 

•      I have never been convicted of any criminal offences either in the RSA or elsewhere. There are no outstanding cases, other than the present, being investigated against me by the South African Police Services ("SAPS"). I have been advised that any misrepresentation on this aspect attracts a criminal liability with a possible sanction of 2 years imprisonment. I submit that I am frank and honest in this regard.”

 

 [44]       The appellant addressed the merits of the charge of murder as follows in the affidavit:            

 

 “AD MERITS

 

8.         My legal representatives have explained the provisions of Section 60 of the Act to me and I respectfully make the following submissions in this regard:

 

8.1       I have been informed that I am accused of having committed the offence of murder. I deny the aforesaid allegation in the strongest terms possible.

 

8.2       I am advised that the merits of the case for purposes of the bail application play a limited role Be that as it may however, I consider it appropriate to deal with the merits to the extent of their limited application in these proceedings, particularly in view of the State's contention that I planned and murdered my wife.

 

8.3       I submit that nothing can be further from the truth, and I have no doubt that it is not possible for the State to present objective facts to substantiate such allegations, as there is no substance in them. I do not know on what different facts the allegation of a murder could be premised, and shall respectfully request the State to furnish me with such alleged facts in order to allow me to refute such allegations.

 

8.4       On the Sunday afternoon of 27 November 2022, I left our communal home in Kanana and had gone out with my friends and fellow comrades for an informal brainstorming and political reflection in the light of the conference of the ANC which was to be held in Nasrec, Johannesburg from 16 to 20 December 2022. My wife knew this prior to my departure, and did not quibble with my leaving our communal home for this purpose as she was well conscious of my activism for which I must add; that she too was a political activist in her own right and we met while both of us were activist of the Congress of South African Student Congress (Cosas). I then undertook to her that I will be back in the late afternoon.

 

8.5       My friends and comrades, had decided to go to Bela Tarven, and I joined them therein whereupon we had these political reflections over some few drinks I left my friends at around approximately 18H00 and proceeded home where I found my wife performing house chores including dinner preparations.

 

8.6       We had become together in the warmth and comfort of our home, ate dinner which she had prepared I informed her that I might have to go back as I had left the political engagement very robust and interesting She agreed to this but pleaded with me not to be late. I must add that we were very happy together on this day, we kissed and in the passion of the moment, made love whereafter I left.

 

8.7       I rejoined my friends and comrades at Bela tarven where we continued with our informal political engagements until something to 21H00 in the evening of 27 November 2022 where I departed to my home.

 

8.8       Upon my arrival at home, I was shocked to see my wife leaning against the wall struggling with blood oozing profusely from her back part of her body. I immediately assisted her to our vehicle and drove to Grace Mokgorong local clinic in Kanana whereafter being attended to by emergency professional health workers; she was pronounced dead few minutes after 22H00.

 

8.9       I was in a state of shock, pain and emotionally strained over her passing. The health professionals called the police who arrived at the clinic, whereupon we left with the police to my home. I explained to the police what I found on arrival at our home. Forensic personnel from the South African Police (SAP) also arrived where they inspected the scene as well as collating what I suppose would be evidential material which they needed for their investigation including the mobile devices of me and my wife.

 

8.10    The police then left while I remained with family members, neighbors and few family friends who had converged at my home after gaining knowledge of this horrific news of the murder of my wife.

 

8.11    I remained at home as people were coming to offer comfort and prayers The morning dawned, and the neighbors (of their own accord) started cleaning the house in the light of people coming to our communal residence on 28 November 2022.

 

8.12    Meanwhile, and particularly on 29 November 2022, the police accompanied by their colleagues, from the forensic division arrived at my home to conduct further investigation. They also enquired why was the house cleaned to which I explained that neighbors who had converged at my house had decided to clean the house as there was no instruction from the police when the left on the morning of 28 November 2022.

 

8.13    I was ordered by the police to accompany them to the police station where I was questioned about what I know to have transpired on the day leading to the death of my wife. I cooperated with the police further making undertakings to assist them in the best possible way to find the suspects.

 

8.14    On the morning of 01 December 2022, I received a call from the investigating officer that he will be coming to fetch me for questioning. I waited and the police indeed arrived where I then accompanied them to the police station Once again, a similar exercise where I was questioned was undertaken by the police It must be borne in mind that previously, and in particular on 27 November 2022, they confiscated myself and my wife's cell phones for these investigations I was yet again subjected to a very extensive questioning by the police and in the process was threatened to confess to the murder of my wife, a threat which I refuted as I did not kill my wife I was then allowed to go home only to be visited and be taken to the police station yet again for the same routine I submit that I was visited by the police on no less than three occasions, and had remained consistent with all what I know.

 

8.15    To the extent possible, ‘I pause to mention that the police in these visitations had also questioned me about past differences and altercations I would have had with my wife. I admitted that there would have existed these differences something not unusual in relationships between couples.

 

8.16    Needless to mention that despite these differences, we would resolve them ultimately; either of our own accord. In certain instances; elders from our respective families would at times convene us with the reminder that we must not engage in these constant differences as this may have a debilitating effect on our children and the fabric of our family unit We profited immensely from these interventions which on one occasion were accompanied by a visitation from our congregation priest who had paid homage to place of residence to pray for our marriage. As of the date of her death, we were in good terms and happy.”

 

[45]   In his viva voce evidence, the appellant in amplification of the affidavit was led, inter alia, on evidence related to his relationship with the deceased. The essence of the said evidence can succinctly be summarised as follows and not necessarily in order of the sequence testified to by the appellant. The overall narrative sketched by the appellant in his viva voce evidence is of a tumultuous relationship with the deceased, intertwined with periods of marital bliss. The disjointed evidence of the appellant is that on 26 November 2022, being the day preceding the death of the deceased, he arrived home in the early hours of the morning, after celebrating the anniversary of the death of a friend who was brutally murdered on 26 November 2021, with some other friends. According to the appellant there was an incident involving himself and the deceased on this date, which he inexplicably was not asked to elaborate upon. The week prior to the death of the deceased, the appellant maintains was without incident. On his version, the week preceding the death of the deceased was uneventful as himself and the deceased did their usual 15^th of the month grocery shopping which included the purchase of their respective favourite alcoholic beverages.

 

[46]   The appellant went on to testify that there were differences between himself and the deceased in the past. He explained that they had been together for more than 12 years, after their relationship commenced on or about 12 December 2010, when she 19 years old. He had however pursued the deceased for nine months prior to formalising the courtship, having realised that she stood out from his previous love relationships. Of the 13 years they were together, they shared the same bed for 10 years. Missing the question of Mr Dlanjwa as to any differences or altercations between himself and the deceased, Mr Dlanjwa reigned in the appellant to remind him that his question is in fact whether or not there were any fights between himself and the deceased. The appellant testified that there were fights, but they would sit down afterwards, talk and agree that the fights needed to end. Whilst it felt at times that such talks helped, at other times they felt it was pointless. There were, he testified, many of these fights and at one stage family members were called in as well as pastors.

  

[47]   According to the appellant he was questioned by the police about the fights which he admitted and that he went as far as informing them that there was a protection order in place which the deceased applied for, which the police were well aware of. But, whilst the protection order was in place since November 2016, no incident was reported of him having broken the conditions of the protection order. According to the appellant he believes that the police suspected him of murdering the deceased from the outset. 

 

[48]  He premises this belief on the fact that despite seeing he was mildly intoxicated and heavily traumatized on the day the deceased was killed, and that he was attempting to gather his friends and comrades for support, including family, the police persisted in questioning him until 03h00am in the morning. This persisted the following day after he identified his wife at the mortuary, when a few minutes thereafter the questioning continued for more than eight hours, by more than six police officers at one stage. The said officers repeated the same question over and over despite his intimations that he was prepared to answer their questions on condition that he is given time and space to bury his wife. He went as far as clarifying all misconceptions about the death of his wife.  

 

[49]     Prior to his arrest, the appellant testified, he had several interactions especially with the investigating officer. The first was on 28 November 2022 to get him to sign a document for a funeral policy he had at FNB for himself, the deceased and the children but only got his signature on the Thursday. A week before his arrest when he approached the investigating officer to enquire about a claim he had lodged in relation to Parliament and enquire about progress on the case, the investigating officer asked him if he had heard anything. According to him, the investigating officer could not ask him this as he was still in mourning which according to Xhosa tradition was to endure for six months and he had given his co-operation to the police since 27 November 2022.

 

[50] The appellant was questioned in detail about the payment of maintenance for his children, where they were living, the involvement of a social worker and any arrests pursuant to the protection order. To follow the narrative of the police investigation, the last question posed to the appellant by Mr Dlanjwa is apposite at this stage. The appellant was asked if he was aware of the narrative in the public space which presupposes that the appellant killed or murdered his wife. The appellant’s response was that he was quite aware thereof. On what informed the narrative it is apposite to quote his answer: “Without being disrespectful, there are people amongst us who believe in providing simple solutions to complex matters facing society. You know people when there are challenges they always look for the easiest possible solution. This narrative had emerged since the day in question of the incident on 27 November. I was even discussing with somebody that at a times like this, there are many police officers who are not police officers. There are many Magistrate now who are not Magistrates. There are many lawyers who are not lawyers. But of concern to me, is that there are those who want to use a very serious challenge in country of femicide and gender base violence, to further denarrow political interest. Your Worship, femicide and gender base violence is a serious issue in this country. It needs all of us to work together to curtail the problem not against each other. I have, I, I hold a firm believe, Your Worship, that a person is entitled to believe that I am guilty or I am innocent, but those who believe that I am guilty. They must allow me the necessary space and time to prove my innocents. At the end of the day, we are Constitutional democracy, where we must respect the presumption of innocent until proven guilty. No Court or public opinion has got a right except this Court to pass judgment on anyone. And whatever judgment this Court or any other Court passes, I will respect and abide by that decision.

 

As a law maker I am duty bound, at all material times to stand in defence of our Constitution, and be exemplary in conduct. So, I stand here, Your Worship, to say, we respect our Court's. Whatever decisions they arrived at, would, would also support them, not only support but abide by them, because they are constitutional bound that imperative.”

 

[51]   The appellant testified that he would stand his trial to clear his name as his children believe him with every fiber of their beings. He learnt on the morning of 27 January 2023, that a social worker had removed his children when an order to that effect was served on him at court, which he took exception to as he was not consulted. The appellant testified that himself and the deceased were separated for some time between January 2022 until July 2022, but would be on and off, from time to time. At that time a dispute arose regarding money for maintenance which he was giving her. No complaint, was however lodged at the Maintenance Court as they would reach consensus on the amount he had to pay.

    

[52] Under cross examination, the appellant testified that the last time he had contact with his children was the day before his arrest. He was asked why, if his children saw him as their hero, were they removed to Saulspoort in Rustenburg to live with the deceased’s family. The explanation given by the appellant was that, as he was separated from the deceased from January 2022 to July 2022, they had taken the decision not to allow the children to live in an environment where they were exposed to the fights between himself and the deceased and that they should rather live elsewhere. And this was in circumstances where he would come and go from the marital home. This period he testified was the only time they lived apart from the children since 2011, irrespective of their issues.

 

[53]   The appellant was confronted with a Facebook post on the account of the deceased in May 2022 to the effect that: “GBV is real, if I woke up killed or anything or happen to my family please do not look far.” The appellant’s retort to this was that the deceased did not write that post but that it was written by somebody else, and she had only shared the post, as with thousands of other posts she shared. He also knew that she took the matter of femicide and gender base violence seriously, as she had assisted him when he debated on the topic in parliament and knew that he was an advocate of woman’s rights. When confronted with a question that the only reason the deceased posted this was because she knew very well that he was abusive towards her, he testified that he was separated from the deceased during that time and the post could have been based on her activism in gender based matters.

 

The evidence adduced by the respondent

 

[54]  The State adduced the evidence of the investigating officer by way of affidavit. The content reads as follows:

 

              “Aaron Keobakile Mpudi

2.

The given particulars above are true and correctly mine, I therefore state that:

                       

3.

I’m a Police Officer employed by the South African Police Services, I’m stationed in/at Kanana Police Station at Detective branch.

 

4.

I’m an Investigating Officer in this matter CAS161/11/2022 Murder that occurred on the day of 2022.11.17 in Kanana location. This matter is investigated and it is still under investigation.

 

5.

The Accused person and the victim were a married couple, they were residing together or they shared a Domestic relationship.

 

6.

I state that on 2022.22.27 I was on duty as a detective on-stand-by when I received a call that summoned me to go to Grace Mokgomo Clinic and I was informed by the Radio-Control (CSC) that a woman is being stabbed to death and she is at Grace Mokgomo Clinic.

 

7.

I then rushed to Grace Mokgomo Clinic and I found the alleged scene to be positive, I found the first responder at the scene and she pointed me the scene (points) and she explained that the stabbed woman is laying in one of the Medical Cubic inside the Clinic.

 

8.

I continued to enter the Cubic and I found a person covered in sheets and I uncovered the person and I found a black woman unknown to me (naked).

 

9.

She had blood on her nose (nostrils) and mouth showing that she was bleeding from her nose (nostrils) and I also notice that the was blood dripping under the bed (medical stretcher) that the said woman was laying on her back (supine position) I then continued to look at where the blood was dripping from and I saw a stabbed (opened wound) on the left upper part back of the said woman.

 

10.

The first responder then pointed to me a black male person who explained himself as Sibusiso Kula and that the said woman is his wife named Jennifer Matselane Kula of house no.4[...] N[...] Street Ext […] Kanana Location.

 

11.

The said Jennifer Matselane Kula was already declared dead by the nurses at Grace Mokgomo Clinic.

 

12.

I asked Mr Kula how did his wife got injured and Mr Kula told me that his wife was stabbed by unknown people at their house and he was not home when that happened (incident took place).

 

13.

He mentioned that he only came to the house and found his wife bleeding and she was unable to speak.

 

14.

He mentioned that he then carried (her) his wife to the vehicle (care) in the garage and transported her to the Clinic Grace Mokgomo. He told me that he found his garage door wild opened and the door as well as the burglary door opened that goes from the garage in to the house, he also added that his house was attacked.

 

15.

I therefore requested him to take me to their house (where the wife was stabbed and he agreed.  Upon arrival at the scene I cordoned off the scene and I called experts to visit the scene to process and examine from outside and inside.

 

16.

It therefore later with investigation unfolded that Mr Kula was not being honest about how did Mrs Kula got injured and as a result died.

 

17.

Investigation unfolded that Mr Kula was not honest and he is unreliable, as he mislead the investigation. On the day of the incident, witness(es) mentioned that there was a quarrel at Mr Kula’s house between Mr Kula and Mrs Kula that lead both of them to a physical fight and in the process Mrs Kula was stabbed by Mr Kula and Mrs Kula then started to bleed heavily until she collapsed and after that Mr Kula took her to the nearby Clinic where she was declared dead upon arrival.

 

18.

There is a history of domestic violence between Mr Kula and Mrs Kula and the is a protection order against Mr Kula. The order has a valid warrant of arrest.

 

19.

I wish to inform this Court that Kanana policing precinct is regarded as a Crime generator in the Cluster (Klerksdorp Cluster) especially in all crime committed under Domestic violence.

 

20.

Mr Sibusiso Kula is a Member of Parliament and he knows better that Gender base violence is a battle that the President fights to win and not long “not long the President have amended a bill in the Parliament that an accused of Gender-based-violence should not be granted bail and Mr Kula has signed for that at Parliament.

 

21.

Mr Kula has disappointed the Country at large by contributing to the Abuse of Women and Children proof is the application made by his wife as application no.28/2016 at Orkney. Form (4) (regulation 6) section 5(2) of the Domestic Violence Act 1998 (Act No.116 of 1998). On Monday 2023-01-23 the defence attorney mentioned that the accused would like to be released on bail and his reasons are being a bread winner and that secondly to take care of his kids/children.

 

22.

The accused person must not mislead this Court because he knows exactly that he does not support his children financially and that include his wife at the time she was alive.

 

23.

The accused person’s children are getting SASSA grant and his wife was receiving unemployment grant and that only stopped after Jennifer died.

 

24.

The accused person is an irresponsible father he abuses his children and denies them to go to school keeping them as prisoners in his house.

 

25.

If the accused is released on bail there is likelihood to kill himself (commit suicide) one day the accused took children from their mother by force and threatens to kill them and after kill himself. His release the accused might or likelihood to endanger the safety of the children and himself.

 

26.

Investigation in this matter is not complete and the accused released is likelihood to influence or attempt to influence and intimidate witnesses or influence the I.O investigation.

 

27.

The accused person Mr Kula is a powerful gentle-man and he holds a high-position as a Member of Parliament.

 

28.

And his status has brought people from the far-lands and the attention of everyone (every person) his position is a position of trust as most people look up to him as a leader and a role model and he did not condemn “Gender based violence”.

 

29.

The statement of Mrs Kula that she made on her Facebook-page on/in May 2022 was clear enough.

 

30.

“GBV IS REAL. IF I WAKE UP KILLED OR ANY OF MY FAMILY MEMBERS PLEASE DON’T LOOK FAR”

 

31.

Facebook is used by many people and the released of the accused Mr Kula is likely to send a wrong picture or message to the society at large; the community have lost hope to the police and courts. And to bring back such trust the accused shouldn’t be released. The accused released will dent or will make society to undermine or endanger the functioning of the Criminal Justice System or undermine public peace and security.

 

32.

His release is likely to disturb public under and public peace.

 

33.

The accused person is misusing his powers as a Member of Parliament and does not know where to use his title as honourable. During his arrest Mr Kula mentioned that he is honourable and I believe that was to intimidate the police and to obstruct them from doing their duties.

 

34.

Mr Kula’s signature is not like any other people his signature is “GOVERNMENT” and he misuses his powers as a Member of Parliament and thinks he is Government himself and that is to undermine the law does his release will make him undermine Criminal Justice and the proceedings of our Justice System.

 

35.

The accused does not care about the progress of his wife docket of (murder) and his visits to me (I.O) was to complete claims form for policies and to request police report about the incident to prepare payments of policies.

 

36.

The accused is not a reliable person he made agreements in arrangements to bury his wife with the Undertaker and today he did not honour the agreement. The accused should also mentioned and disclosed to this Court that he is in possession of a valid passport to be transparent.

 

37.

Being not reliable and being in possession of passport the Accused is likely to evade his trial. I request this Court to denied bail for the accused.

 

38.

The accused person is first offender and he is employed and he owns a fixed property. That’s all.”

  

The relevant bail authorities

 

[55]  In the conduct of a bail application, the sentiments of the Supreme Court of Appeal in S v Viljoen[3] (loosely translated to English) are apposite in the present appeal:

 

“[24]    There are two general aspects in respect of bail applications that merit comment.

 

 [25]     …The first is with reference to an accused faced with evidence already on record, not being able to make out a prima facie-case, in which case there is no duty on the State to adduce evidence in rebuttal. The second, and most important reservation, is that caution must be had not to turn every bail application into drawn-out trial before criminal trial…”

(my emphasis)

 

[56]  In a bail application resorting within the ambit of s 60(11)(a), the strength of the State’s case is a very relevant factor when assessing the question of exceptional circumstances. The cogency of the state case will have an impact on other factors that are interrelated and influential in considering whether the appellant is a suitable candidate to be released on bail.

 

[57]  The appellant’s version is a bare denial as stated above. The question is whether the State, in turn, has made out a case with sufficient detail for this Court to give the decision the Magistrate should have given. From the State’s evidence this Court is required to formulate a prima facie view as to its strength or weakness. If not, the benefit of doubt for bail purposes must be exercised in favour of the appellant, having regard to the authority in S v Van Wyk[4] that the function of the Court is to determine the prima facie strength or weakness for that matter of the State’s case and not to make a provisional finding of guilt or innocence.

 

[58]   The appellant, subject to the reservation that the Magistrate failed to comply with the peremptory provisions of s 60(11B)(c) of the CPA in his bail affidavit and in viva voce evidence set forth the basis of his defence to the charge of murder in challenging the strength of the State’s case. In S v Mathebula[5] Heher JA said:

 

“[12]…In order successfully to challenge the merits of such a case in bail proceedings an applicant needs to go further: he must prove on a balance of probability that he will be acquitted of the charge: S v Botha 2002 (1) SACR 222 (SCA) at 230h, 232c; S v Viljoen 2002 (2) SACR 550 (SCA) at 556c. That is no mean task, the more especially as an innocent person cannot be expected to have insight into matters in which he was involved only on the periphery or perhaps not at all. But the state is not obliged to show its hand in advance, at least not before the time when the contents of the docket must be made available to the defence; as to which see Shabalala & Others v Attorney-General of Transvaal and Another [1995] ZACC 12; 1996 (1) SA 725 (CC). Nor is an attack on the prosecution case at all necessary to discharge the onus; the applicant who chooses to follow that route must make his own way and not expect to have it cleared before him. Thus it has been held that until an applicant has set up a prima facie case of the prosecution failing there is no call on the state to rebut his evidence to that effect: S v Viljoen at 561f-g.”

(my emphasis)

 

[59]        In Mathebula[6] it was further emphasized that parroting of section 60(4)(a) to (e) of the CPA does not establish those grounds, without the addition of facts that add weight to the applicant’s say so:

 

                  “The remainder of the personal factors urged on us, are neither unusual or such as singly or together warrant release of the appellant in the interest of justice. Parroting the terms of subsec (4) of s 60, as he did, does not establish any of those grounds, without the addition of facts that add weight to his ipse dixit.”

 

[60]   The sentiments expressed in Mathebula at paragraph [15] accords with those in S v Viljoen[7], insofar as it in my view finds equal application to section 60(11)(b):

 

         “[10] Section 60 of the Act finds its basis in section 35 (1) (f) of the Constitution, and section 60 (11) already has the test of constitutional validity passed (see S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat [1999] ZACC 8; 1999 (4) SA 623 (KH); 1999 (2) SASV 51 (KH). The provisions of section 60 (11) differs substantially from that of section 60 (4) - (9); it does more than just repeating the former bail provisions or rephrase (see par [64] of S v Dlamini et al). Nevertheless, the Constitutional Court stated that by testing to state extraordinary circumstances, section 60 (11) (a):

          ‘... does not say they must be circumstances above and beyond and generically different from those enumerated [in ss (4) - (9)].’

 

[61]  In the final analysis, the sentiments expressed in paragraph [65] of the Constitutional Court judgment, S v Dlamini, S v Dladla and Others; S v Joubert; S v Schietekat[8] are apposite in respect of section 60(11)(b) of the CPA and now with equal applicability to section 60(11)(c):

 

         “[65]     This view is strengthened by a consideration of s 60(11)(b).  That subsection stipulates that an accused must satisfy a magistrate that the “interests of justice” permit his or her release.  It clearly places an onus upon the accused to adduce evidence.  However, apart from that, the exercise to determine whether bail should be granted is no different to that provided for in sub-ss 60(4) - (9) or required by s 35(1)(f).  It is clear that an accused on a sch 5 offence will be granted bail if he or she can show, merely, that the interests of justice permit such grant.  The additional requirement of “exceptional circumstances” imposed by s 60(11)(a) is absent.  A bail application under s 60(11)(a) is more gravely invasive of the accused person’s liberty right than that under s 60(11)(b)…” 

 

Discussion

 

[62] The appellant’s version of events constitutes a bare denial of any involvement in the death of the deceased (his wife) with whom he was in a domestic relationship. The extent of the State’s evidence implicating the appellant in the alleged murder as set out at paragraph 17 of the bail affidavit of the investigating officer is that witnesses have:

 

          “..on the day of the incident, mentioned that there was a quarrel at Mr Kula’s house between Mr Kula and Mrs Kula that lead both of them to a physical fight and in the process Mrs Kula was stabbed by Mr Kula and Mrs Kula started to bleed heavily until she collapsed and after that Mr Kula took her to the nearby clinic where she was declared dead upon arrival.” 

 

         And further at paragraph 18 that:

 

        “There is a history of domestic violence between Mr Kula and Mrs Kula and there is a protection order against Mr Kula. The order has a valid warrant of arrest.”

 

[63]  The Magistrate in her judgment quoted the authorities of S v Maki en andere and S v Tshabalala [9] on the approach to hearsay evidence in bail proceedings, but unfortunately misconstrued the ratio in these decisions in considering the evidence of the investigating officer. The headnote in the Maki case succinctly captures in English what Froneman J (as he then was) stated:

        

         “In a bail application there is a real dispute between the subject and the State concerning the subject's freedom pending adjudication of the criminal trial and direct relief is sought against the State, namely that the subject be released by the relevant State organ. It is couched in the form of an application with some characteristics of civil proceedings. It is accordingly ‘civil proceedings’ for the purposes of s 3 of the Law of Evidence Amendment Act 45 of 1988 and hearsay evidence is admissible. Hearsay evidence is in any event admissible on the basis that it is an established rule of practice which has been applied in the past in bail applications, analogous to the approach followed in applications which deal with disciplinary action against legal practitioners.”

(my emphasis)

 

[64]     In the Tshabalala case, Comrie J observed that “Though hearsay evidence is admissible in a bail application, it will often carry less weight than if the persons having personal knowledge of the facts were themselves to testify.” I immediately point out that the affidavit of the investigating officer in the Tshabalala case was comprehensive in dealing with the State’s case against Tshabalala, unlike the affidavit in the present matter.

        

[65]   Save for alleging that witnesses on the day of the incident mentioned a quarrel between the appellant and the deceased which led to a physical fight during which the deceased was stabbed by the appellant, no further details are provided as to whether or not such witnesses were eye witnesses and have deposed to affidavits in which they attest to these allegations. And there is further no explanation why, if such witnesses on the day of the incident mentioned the alleged fight and stabbing of the deceased by the appellant, if statements were obtained from the witnesses on that day. And if such statements were obtained on the day of the killing of the deceased, there is no explanation why the appellant was not arrested on the same day on the strength of those statements. The investigating officer further embarks on a very personal attack of the appellant with reference to him as a father and certain incidents which are alleged to have transpired in the past. The source of such information is, however, not identified by the investigating officer. The affidavit of the investigating officer misconstrues the purpose of bail in relation to gender based violence matters when he says that “…not long the President have amended a bill in the Parliament that an accused of Gender-based-violence should not be granted bail.” There is no such provision in our bail legislation and that most certainly is not what the President would have said. The investigating officer relied on by the State in opposing bail, leaves more questions than answers.

 

[66]     The Magistrate on 23 January 2023 granted the State a postponement to prepare for the bail application. Notwithstanding this indulgence, the bail affidavit prepared by the investigating officer is not of much assistance. The Magistrate should have invoked s 60(3) of the CPA to call for more clarity on the source of the allegations (without necessarily revealing the identity of the witnesses) and specificity as to the evidence which such witnesses have made themselves available to testify to in favour of the State.

 

[67]     The Magistrate in dealing with the provisions of s60(4)(a) – (e) relied heavily on the ipse dixit of the investigating officer, without questioning the source of the hearsay on which the evidence was predicated. The Magistrate placed heavy reliance on paragraphs 18 and 21 to 26 of the investigating officers bail affidavit. The source of the allegation at paragraphs 22 to 26 in particular is not identified by the investigating officer and could only have come from a source or sources which the investigating officer does not identify. It is not clear if the witness(es) referred to by the investigating officer are in fact eye witness/es and if their statements have been obtained. The appellant’s evidence must be evaluated against the unsubstantiated hearsay evidence of the investigating officer.

 

[68]     The appellant testified in addition to the affidavit adduced as evidence and must be accorded greater weight than the unsubstantiated hearsay evidence of the State. The appellant’s evidence is greatly uncontested that he had discovered the deceased injured. There is only an indication by the investigating officer that on the day of the incident witness(es) saw a quarrel and physical fight and the deceased being stabbed by the appellant. No further detail is provided. The evidence of the state in this form as presented in the court a quo, certainly did not establish that the murder was planned or premeditated. The Facebook posting did little to reinforce an averment of premeditation.  

 

[69]     Considered as a whole none of the allegations constitutes evidence pointing to premeditated or planned murder to have brought the bail application within the ambit of s 60(11)(a). The Magistrate seized with the evidence of the appellant and that of the investigating officer, was in a position to decisively find that s 60(11)(a) was not applicable and notwithstanding the material misdirection by the Magistrate in having no regard to s 60(11)(c), to even consider the application in terms of s 60(11)(b) on the same standard of proof as section 60(11)(b).

    

[70] The hearsay evidence or substantive absence thereof in the investigating officer’s bail affidavit, places the bail application squarely within the provisions of the recently enacted section 60(11)(c) of the CPA. The onus on the appellant is therefore akin to the onus in section 60(11)(b). That being the case, it begs the question whether or not the appellant had proven that the interests of justice would permit his release on bail.   

 

[71]     As alluded to earlier, in terms of the preordained legal process, hearsay evidence is admissible in an application for bail. This principle is unarguable. From this settled legal premise, the contents of the investigating officer’s affidavit in opposition to bail must be given due recognition as to whether the interests of justice warrant the continued detention of the appellant. Put differently, whether the appellant had proven that the interests of justice would permit the release of the appellant on bail. The interests of justice are defined by the various factors set out in section 60(4) (a)-(e). These factors are not a numerus clausus. Notably section 60(4) (a)-(e) must be read with section 60(9) (a) – (g), which accentuates the weighing of the interest of justice against the right of the appellant to his personal right to freedom and any prejudice that he is likely to suffer if he is to be detained, taking into account other variables listed in section 60(9) (a)-(g).

 

[72]     Regarding, the interest of justice, there is no evidence establishing that there is a likelihood of the appellant will endanger the safety of the public or any particular person or will commit a schedule 1 offence, or a likelihood that he will evade his trial and the identity of the state witnesses are for now at best unknown to appellant. This axiomatically excludes any interference or intimidation of witnesses until such time that a list of witnesses is provided to him. The appellant’s ability to conceal or destroy evidence does not feature, resultantly is of no concern. The release of the appellant will not undermine or jeopardize the objectives or the proper functioning of the criminal justice system including the bail system. No cogent evidence was presented that the release of the appellant will disturb the public order or undermine the public peace and security.  A conspectus of the evidence presented indicates that the appellant has passed the threshold of establishing that the interests of justice warrant his release on bail. The decision of the Magistrate was clearly wrong, justifying an interference by this Court.

 

[73]     I accordingly find the interests of justice as envisaged in section 60(11)(c) merit the release of the appellant on bail with strict bail conditions. Having regard to the financial position of the appellant as set out in his bail affidavit and particularly the availability of cash investments to the tune of R50 000.00 (fifty thousand rand), an amount of R50 000.00 bail in cash is reasonable and bail should accordingly be fixed in an amount of R50 000.00.    

 

Order

 

[74]      In the result the following order is made: 

 

(i)            The appeal against the refusal of bail is upheld.

 

(ii)          Bail is granted subject to the following conditions:

 

1.    The appellant is granted bail in the sum of R 50 000-00 (fifty thousand rand) cash;

 

2.            Upon payment of the said sum of money, the appellant shall be released from custody on condition that:-

 

He appears personally at the Orkney District Court at 08h30am on the 17^th day of April 2023 and remain in attendance up until he is excused by the court and thereafter on such dates and times and to such places to which these proceedings are adjourned until a verdict is given in respect of the charge to which the offence in this case relates;

 

3.            That the appellant does not communicate with his children who have been moved to protective care, whether directly or indirectly for the duration of this matter.  The appellant is prohibited from contacting or communicating directly or indirectly with any of the witnesses or possible witnesses in this case until finalization of this matter.  A list of the witnesses will be provided to him by the prosecutor/investigating officer on Tuesday 05^th April 2023.

 

4.            That the accused reports in person to the person in charge of the Charge Office (Community Service Centre) at Orkney Police Station twice a day, every day (Monday to Sunday) between the hours 07h00AM and 09h00AM and 16h00PM and 18h00PM with his identity document. The appellant shall first report in accordance with this order on Wednesday, 05 April 2023 or the very first day following his release on bail and every day thereafter;

 

5.            The appellant is restricted to the Magisterial district of Orkney and may not leave the magisterial district without prior written approval of the investigating officer. If granted permission to leave the magisterial district, which permission may only be withheld on reasonable grounds, the appellant is to provide a valid itinerary of his movements and keep the investigating officer updated at all times as to his whereabouts. The appellant will be required to report to his nearest police station at his destination in accordance with condition 4 and upon his return to Orkney in accordance with paragraph above.

 

6.            The appellant is to surrender all passports in his possession to the investigating officer, prior to his release on bail and is prohibited from approaching any office of the Department of Home Affairs to apply for a passport. 

 

7.            The appellant’s residential address is recorded as 4[...] N[...] Road, Kanana Township, Orkney. If he should change such address he will notify the Clerk of the Court, Orkney and the investigating officer of such change within 24 hours.

 

8.            The appellant is informed that in terms of section 67(1) Act 51 of 1977, if, after his release on bail, he fails to appear at the place and on the date and at the time appointed for his trial or to which the proceedings are adjourned, or fails to remain in attendance at such trial or at such proceedings, or fails to comply with the above conditions, the relevant Court shall declare the bail provisionally cancelled, and the money provisionally forfeited to the State, and issue a warrant for his arrest. The appellant is further informed that it is also a punishable offence for failing to appear or for non-compliance with a stipulated condition.

 

9.             A copy of this order with the bail conditions must be served on the appellant personally by the Investigating Officer before his release on bail. A copy of such service duly signed as acknowledgement by the appellant certifying that he is fully conversant with the conditions of his release in bail must be filed as part of the record in the District Court with the Clerk of the Court.

 

A H PETERSEN

JUDGE OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG

 

 

APPEARANCES

FOR THE APPELLANT:	ADV. NASE
INSTRUCTED BY:	G S Dlanjwa Attorneys
	c/o Thuto Kgaoganyeng Attorneys
	21 Main Street
	Noordhoek Building
	MAHIKENG
FOR RESPONDENT:	ADV. TBS KALAKGOSI
INSTRUCTED BY:	DPP, MMABATHO
	MegaCity Building
	EAST GALLERY
	MMABATHO
DATE OF HEARING:	23 March 2023
DATE OF JUDGMENT:	04 April 2023

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