JOHANNESBURG – The High Court of South Africa, Gauteng Division in Johannesburg has granted the State leave to appeal a controversial bail decision that saw twelve South African Defence Force (SANDF) Special Forces members released pending trial on serious charges including kidnapping and murder.
The State successfully launched an application for leave to appeal, challenging the Randburg Regional Court Magistrate’s decision to grant bail to the accused military personnel.
The twelve SANDF Special Forces members face charges related to the alleged kidnapping of Abdella Abadiga and Kadir Jemal Abotese at the Mall of Africa on 29 December 2022. More seriously, they are also charged with the murder of Hawks Investigator Lieutenant Colonel Frans Mathipa on 6 August 2023.
When initially granting bail of R10 000 each, the Regional Court found that the State had presented a weak case against the accused. The magistrate determined that the accused had successfully demonstrated exceptional circumstances that, in the interest of justice, warranted their release on bail.
Dissatisfied with this outcome, the State filed notice of leave to appeal, arguing that the magistrate had incorrectly placed the burden of proof on the prosecution. According to the State’s submissions, the magistrate required them to prove the strength of their case through evidence presented in court, contrary to section 60(11)(a) of the Criminal Procedure Act.
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Under the Act, the evidentiary burden falls on the accused to convince the court, on a balance of probabilities, that exceptional circumstances exist warranting their release on bail.
The State further contended that the magistrate failed to properly consider the strong circumstantial evidence presented and that the accused’s simple denial of involvement did not constitute exceptional circumstances.
In responding documents, the accused argued that State appeals against bail decisions should be limited to disputed points of law. However, the High Court disagreed, noting that bail appeals have no such qualification and that wrongness in a magistrate’s decision can relate to either points of law or factual findings.
The presiding judge concluded there was a reasonable prospect that an appeal court might find the magistrate had misdirected themselves in exercising their discretion. Consequently, leave to appeal the bail decision was granted.
The case has been postponed to 17 September for further investigations.
