Dyakophu and Another v S

The two appellants, Siyabonga Dyakophu and Anele Komanisi, were police officers convicted by the Bellville Specialised Commercial Crimes Court of contravening section 4(1)(a)(ii) of the Prevention and Combatting of Corrupt Activities Act 12 of 2004 (accepting a gratification as public officers). They were sentenced on 30 November 2022 to 8 years' direct imprisonment, with 3 years suspended for 5 years. After their application for condonation for the late filing of leave to appeal was dismissed, they petitioned the Acting Judge President, and on 27 September 2023, two judges granted leave to appeal against conviction. The appeal was enrolled for 24 May 2024. The appellants then applied for bail pending appeal before the Regional Court Magistrate. They relied on affidavits stating they had fixed addresses in Manenberg and Du Noon, lived with their spouses, had no previous convictions, were sole breadwinners, had no passports, and had strong family ties to the Western Cape. The State opposed bail through the testimony of Lt. Col. Amon, who argued the appellants were a flight risk due to the seriousness of the offence, the low bail amount, and the prevalence of police corruption. The Magistrate dismissed the application, focusing largely on perceived errors in the petition to the High Court and the merits of the conviction, concluding that the interests of justice did not permit release on bail. The appellants appealed this refusal.

• Whether the Magistrate erred in focusing on the merits of the conviction and the petition to the High Court instead of the factors relevant to bail pending appeal.
• Whether the Magistrate erred in finding that evidence in affidavit form was insufficient for the bail application.
• Whether the appellants had discharged the onus under section 60(11)(b) of the Criminal Procedure Act 51 of 1977 to show that the interests of justice permitted their release on bail pending appeal.
• What weight should be given to the granting of leave to appeal when considering bail pending appeal.

1. The appeals of both appellants are upheld. 2. The order of the Court a quo is set aside and replaced with: (a) The applicants' application for bail pending appeal is granted. (b) Release is subject to payment of R3 000 each. (c) The applicants shall report to their nearest police stations twice a week (Wednesdays and Saturdays) until conclusion of the appeal. (d) If the appeals are unsuccessful, the applicants must report to the Department of Correctional Services immediately. (e) While on bail, the first applicant shall reside at 50 Hex Crescent, Manenberg, and the second applicant at 203 New Rest, Du Noon, and may not change residence without informing the investigating officer.

In an application for bail pending appeal under section 60(11)(b) of the Criminal Procedure Act, the court must focus on factors relevant to bail pending appeal — primarily the risk of abscondment and the interests of justice — and must not revisit the merits of the trial or question the granting of leave to appeal by the High Court, which must be accepted as an indication of reasonable prospects of success. Evidence in affidavit form is sufficient to discharge the onus of proof in bail applications. Where an applicant demonstrates fixed addresses, strong family ties, traceability, and a lack of concrete evidence of flight risk, the interests of justice may permit release on bail.

The court noted that the Magistrate's comment about a clerk signing the Magistrate's certificate without permission was irrelevant to the bail appeal and did not address it. The court further observed that the balance of convenience is not the threshold or yardstick in a bail application of this nature, and elevating it above the interests of justice would be contrary to section 60 of the Act. The court also noted that even if the Magistrate viewed the prospects of success on appeal as poor, she should have found that the appellants were not a flight risk on the facts.

This case clarifies the proper approach for magistrates when adjudicating bail applications pending appeal. It confirms that once leave to appeal has been granted by a High Court on petition, the lower court must accept that there are reasonable prospects of success and cannot revisit or critique the petition. It reinforces that the relevant inquiry is whether the applicant is a flight risk and whether the interests of justice permit bail, not a re-examination of the merits. The judgment provides binding guidance on the delineation of roles between trial magistrates and High Court judges in the petition and bail process, and endorses the use of affidavit evidence in discharging the bail onus.