A Mahikeng High Court judge has dismissed a bail appeal brought by a 29-year-old North West man who allegedly committed a string of violent offences while on bail for a murder case.
The court said that the interests of justice do not permit his release.
Charges
Blessing Tshegofatso Diseko appeared before Acting Judge Matlhape in the North West Division of the High Court in Mahikeng after appealing a decision by Magistrate Van Vuuren at the Itsoseng Magistrate’s Court, who had refused him bail in June 2025.
According to court records, Diseko faces charges of assault, assault with intent to do grievous bodily harm, malicious injury to property and attempted murder.
What significantly complicated his bail application was that at the time of the alleged offences, he was already out on bail, set at R1 000, in a separate pending murder case before the regional court.
Because his new charges fell within Schedule 5 of the Criminal Procedure Act, the court noted that “the onus remained with the appellant to convince the court that the interests of justice permits that he be released on bail”, rather than on the state to justify his continued detention.
Original bail hearing
At the hearing before Magistrate Van Vuuren, Diseko chose to present his case through an affidavit rather than giving oral testimony or calling any witnesses.
He outlined his personal circumstances, that he is a South African citizen, born and raised at his family home in Zone 2 Extension, Itsoseng, where he still lives.
The court heard that he has two young children, aged two and three, was unemployed at the time of his arrest and has no previous convictions.
He maintained that he was not a flight risk and would not interfere with state witnesses.
The state called Constable Taunyane to testify in opposition.
Taunyane told the court that he opposed Diseko’s release because he “resides within the same vicinity as the complainant”, who had spent four days in hospital after the incident and feared for his life.
Taunyane further testified that just before the alleged attack, Diseko had threatened the complainant directly, reportedly saying, “we told you that we will get you”.
The constable also informed the court that “the community has expressed anger towards the appellant and has petitioned the court not to admit him to bail”. Given the pending murder charge alongside the current attempted murder charge, Taunyane said he believed that Diseko “will commit another violent offence” if released on bail again.
What grounds did Diseko raise in his appeal?
Diseko’s legal representative raised 11 grounds of appeal.
Among them was the argument that the magistrate had failed to consider the constitutional right enshrined in section 35(1)(f), which entitles an accused “to be released from detention if the interest of justice permits, subject to reasonable conditions”.
The defence also argued that refusing bail amounted to what it called “a form of anticipatory punishment in that the learned magistrate made a number of conclusions against the appellant based on the state’s version of events, which are still to be challenged by the appellant in the subsequent trial”.
The appeal further took aim at the threshold applied by the magistrate, arguing she had wrongly exercised her judicial discretion “by placing the requirement to prove interests of justice in a Schedule 5 bail application so high to make it impossible for the appellant to get bail even though the interests of justice clearly called for the release of the appellant on bail.”
On the question of his children, the defence argued the magistrate had “failed to take into account the constitutional rights of the appellant’s minor children (aged 2 and 3), especially the minor children’s best interests, as is required by case law, despite her conclusion that the appellant has a duty of care towards the two minor children.”
How did Matlhape approach the appeal?
Acting Judge Matlhape was clear from the outset that an appeal court’s powers in bail matters are limited.
Relying on the 1979 judgment in S v Barber, the court quoted directly from that precedent, noting that “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,” and that “the real question is whether it can be said that the magistrates who had the discretion to grant bail exercised that discretion wrongly.”
The court also drew on S v Porthen and Others, which reaffirmed that an appellate court may not substitute its own view merely because it would have arrived at a different conclusion.
Matlhape made it clear that the court would “not approach this matter as if it is a rehearing of the bail application, but will seek to consider whether the magistrate’s decision in refusing to admit the appellant to bail was wrong”.
High Court finds magistrate was not wrong
The court found that the central issue was not simply the gravity of the charges, but what Diseko’s alleged conduct revealed about his attitude toward the bail system.
The judgment noted that the magistrate correctly applied section 60(4)(d) of the Criminal Procedure Act, which requires courts to consider “whether there is the likelihood that the accused, if he or she were released on bail, will undermine or jeopardise the objectives or the proper functioning of the criminal justice system, including the bail system”.
The court found that the magistrate had correctly identified that Diseko, “having been released on bail in the pending case of murder, still went to commit yet another offence, showing disobedience towards the objectives of proper functioning of the criminal justice system”.
On the question of personal circumstances, the judgment held that while important, they “do not operate in isolation” and “must be weighed against the interests of society and the proper administration of justice”.
Insufficient evidence and appeal dismissal
The court was also satisfied that Diseko had failed to place sufficient evidence before the magistrate to counter the state’s concerns.
As the judgment put it, “apart from placing his personal circumstances on record, little was advanced to counter the state’s legitimate concerns regarding public safety and the risk of further violent conduct.”
Matlhape dismissed the appeal in its entirety and confirmed the magistrate’s refusal of bail.
