Bail Appeals: Nxumalo v S (A612024) (2024) ZAFSHC 216

Bail is a fundamental constitutional right enshrined in section 35(1)(f) of the Constitution of the Republic of South Africa (“the Constitution”), which guarantees that anyone arrested for an alleged offence has the right to be released from detention if it is in the interests of justice, subject to reasonable conditions. The denial of bail has significant consequences for an accused’s liberty. Therefore, courts must approach such decisions carefully, ensuring due process and thorough consideration. If an arrested person disagrees with a bail denial decision, the Criminal Procedure Act (CPA)¹ provides clear procedural and substantive guidelines for bail appeals.

A recent case, Nxumalo v S,² serves as an illustrative case study for this discussion on the bail appeal process. The facts of the case were as follows:

The appellants, Nxumalo and others, were arrested on 10 December 2022, and charged with tampering with Transnet’s fuel pipeline and with theft of 50,000 litres of diesel. The charges stem from an incident on 9 December 2022, where security guards observed men siphoning fuel from the pipeline and transporting it in tanker trucks. The appellants applied for bail, which was denied twice, and were, in casu, appealing the magistrate’s refusal to admit them to renewed bail on new facts. The appellants argued that the State’s case was weak and that they had been incarcerated for a prolonged period. The State argued that the appellants failed to provide evidence of a weak case and that the delay in the trial was not extreme. The magistrate decided that the State’s case was strong despite some evidence being unavailable. The appeal court agreed and thus found no basis to overturn the decision of the court a quo.

The Right to Appeal Against Bail Denial

Section 65 of the CPA establishes the right of an accused person to appeal against a lower court’s refusal to grant them bail or against conditions imposed on the granting of bail. Bail appeals are prima facie urgent, as was held in Prokureur-Generaal, Vrystaat v Ramokhosi.³ This urgency reflects the importance of what is at stake, i.e. the constitutionally protected right to freedom.⁴ However, as noted in Shefer v Director of Public Prosecutions,⁵ the urgency of a bail appeal does not absolve the parties from complying with the procedural requirements of section 65 of the CPA. Nxumalo serves as a reminder that procedural integrity must be maintained even in urgent matters.

Noticeably, the Nxumalo appeal was heard in the High Court (Free State Division). This is procedurally in accordance with section 65(1)(a) of the CPA, which permits an appeal to the High Court or any judge of that court if the court is not in session. Per section 65(1)(b), the appeal may be heard by a single judge, as was the case in Nxumalo. Jurisdiction for such appeals is vested in the local division of the High Court where the lower court’s jurisdiction overlaps with that of the High Court.⁶

A crucial aspect of bail appeals is the consideration of new facts in subsequent bail applications. The decision in S v Nwabunwanne⁷ reinforces the right to present new facts in a second application, which recognises that the accused must be given a reasonable opportunity to bring new facts to the court’s attention. This right is essential in cases where the passage of time or other circumstances may reveal new information relevant to the bail decision.

What are new facts?

According to Du Toit et al., the accused must establish that new facts have emerged or become known since the initial bail denial.⁸ The CPA does not specify or define what constitutes “new facts,” nor does it provide a prescribed procedure for renewed bail applications.⁹ However, case law has established several general principles relevant to courts when considering bail applications based on new facts.¹⁰ These principles can be summarised as follows:

1. The facts must have come to light after the initial bail refusal. This includes circumstances that have changed since the first bail application, such as the duration of incarceration à la Nxumalo. For example, in S v Mousse,¹¹ the court held that significant time passing combined with the state’s failure to advance the investigation constituted new facts. Similarly, in S v Hitschmann,¹² the court considered changes in circumstances after the initial application.

2. As held in S v Mohamed,¹³ the new facts must be “sufficiently different in character” from those presented in the earlier unsuccessful bail application. They should not merely represent a “reshuffling of old evidence.”¹⁴

3. The new facts must be relevant in that if considered by the court, they could contribute to re-evaluating the bail decision, either independently or in conjunction with the facts presented initially. In the matter of Davis v S,¹⁵ it was held that if the evidence is adjudged to be new and relevant, then it must be considered in conjunction with all the facts placed before the court in previous applications, and not separately.

4. When assessing an application based on new facts, the court must determine (considering previously presented evidence), whether these facts are indeed new and warrant reconsideration.¹⁶

5. An accused cannot repeatedly submit the same application for bail based on identical facts, as this would constitute an abuse of the process. In S v Vermaas,¹⁷ Van Dijkhorst J emphasised that, while repeated applications based on the same facts are impermissible, if new facts are presented, the court should consider both new and old facts in totality. In Yanta v S,¹⁸ the court held that renewed bail applications, where old and previously known facts are simply restructured, and no real new facts exist, amount to an abuse of process.

6. Evidence known and available to the bail applicant but not presented during the initial application generally cannot be considered new facts. In S v Le Roux en andere,¹⁹ it was explained that allowing such evidence as new could lead to abuse and repetitive applications. However, as noted by Van der Meer, this rule should not be rigid; courts may consider why relevant information was not submitted initially.²⁰

The right of lower courts to hear new facts

Section 65(2) states the following:

An appeal shall not lie in respect of new facts which arise or are discovered after the decision against which the appeal is brought, unless such new facts are first placed before the magistrate or regional magistrate against whose decision the appeal is brought and such magistrate or regional magistrate gives a decision against the accused on such new facts.

This procedural requirement ensures that the lower court has an opportunity to reconsider its decision in light of the new facts before the matter is escalated to a High Court.²¹ In Nxumalo, the arrested persons did bring a subsequent bail appeal on new facts. However, the magistrate who had denied their initial bail application also denied their follow-up bail application, which was based (in the accused’s opinion) on new facts.

So where to for Nxumalo and his co-accused?

Nxumalo and his co-accused may appeal against the High Court’s decision to uphold the magistrate’s refusal of bail. However, such an appeal is typically subject to stringent conditions. As established in S v Mohamed,²² such an appeal requires the leave of the High Court or, if refused, the leave of the Supreme Court of Appeal (SCA). The Superior Courts Act²³ abolished the automatic right of appeal to the SCA in these circumstances, as affirmed in S v Banger.²⁴

Given the likelihood of a similar outcome in any further appeal, it might be advisable to abandon additional bail attempts unless new facts (novel and substantial new facts) emerge. If such new facts are unavailable, focusing on preparing for the trial may be the most strategic approach for the accused.

You can read the full Nxumalo judgement here.

Written by Theo Tembo

citation: Tembo, T. “Bail Appeals: The Nxumalo case” (29 Sep 2024). The Legal Desk. Available at: https://wp.me/pfvcwT-50

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1. 51 of 1977. ↩︎
2. (A61/2024) [2024] ZAFSHC 216 (17 July 2024). ↩︎
3. 1997 (1) SACR 127 (O). ↩︎
4. Section 12 of the Constitution. ↩︎
5. [2004] 2 All SA 88 (T) at [24]. ↩︎
6. s 65(1)(c) of the CPA. ↩︎
7. 2017 (2) SACR 124 (NCK). ↩︎
8. Du Toit, E., 1987. Commentary on the Criminal Procedure Act (Vol. 1). Juta. ↩︎
9. S v De Villiers 1996 (2) SACR 122 (T) at 124i–125c. ↩︎
10. Criminal Justice Review, No. 2 of 2017, “New Facts” for Purposes of a Renewed Bail Application: Principles, Issues, and Procedures by Steph van der Meer. ↩︎
11. 2015 (3) NR 800 (HC) at par [7]. ↩︎
12. 2007 (2) SACR 110 (ZH) at 113b. ↩︎
13. 1999 (2) SACR 507 (C) at 512. ↩︎
14. See also S v Petersen 2008 (2) SACR 355 (C) at [57]. ↩︎
15. (2888/2015) [2015] ZAKZDHC 41 (8 May 2015). ↩︎
16. S v Vermaas 1996 (1) SACR 528(T) at 531e-g. ↩︎
17. Ibid ↩︎
18. [2023] JOL 58000 (WCC). ↩︎
19. 1995 (2) SACR 613 at 622. ↩︎
20. S v Nwabunwanne 2017 (2) SACR 124 (NCK) at par [27]. ↩︎
21. S v Yanta 2000 (1) SACR 237 (TkH. ↩︎
22. 1977 (2) SA 531 (A). ↩︎
23. 10 of 2013. ↩︎
24. 2016 (1) SACR 115 (SCA). ↩︎