Nqayi v The State (C.A&R 16/2018) [2018] ZAECBHC 2 (1 June 2018)

/ / News, 2018, Bail Proceedings, Criminal Law


The Appellant was charged and sentenced to undergo 36 months imprisonment for assault with intent to do grievous bodily harm for hitting the Complainant in the eye causing him to lose his eye. The Magistrate granted the appellant leave to appeal his conviction and sentence, however, the appellant was refused bail pending the appeal.

The Appellant’s attorney moved an application for bail pending appeal and submitted as follows: “He is not a flight risk, he has a permanent place of residence and is permanently employed, he is traceable, he can if the court wishes so sign at the nearest police station twice of thrice a week – the nearest police station will be Bisho”.

The application was dismissed by the Magistrate without reason. it must be noted that a judicial officer has a duty to give reasons for his decision.

Reference was made to the case of Mokele 2012 (1) SACR 431 SCA [12] where the importance of judicial officers giving reasons for their decisions was emphasized.

It was further mentioned that appeals with regard to bail are governed by section 65 of the Criminal Procedure Act 51 of 1977 which states that “The Court or Judge hearing the appeal shall not set aside the decision against 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”.



The Magistrate’s decision was wrong in that she did not seem to have applied her mind to the application and should have gone further and considered the merits of the application for bail pending appeal.

Usually, once a court finds that the appeal does have prospects of success, it leans in favour of granting bail pending appeal. Accordingly, the appeal against the refusal of bail pending appeal succeeded.

The appellant was granted bail in the amount of R2,000.00 on condition that he handed himself over to appropriate prison authorities within a period of 7 days after the receipt of the notification of the dismissal of his appeal or within 7 days after having abandoned the appeal.

He was further ordered to report every Monday, Wednesday and Friday at the Bisho Police Station between 07h00 and 17h00 immediately after having paid bail.



This case emphasizes the importance of judicial officers giving reasons for their decisions.

Written by Puseletso Radebe and supervised by Charlotte Clarke , 20 September 2018

Share Article: