The Magistrate recused himself from a bail-related matter because he had been subpoenaed by the Commission, which was found to be legally unsound upon review and the recusal decision was challenged.
“On or about 14 October 2025 ... the Magistrate recused himself on the basis that he had been subpoenaed by the Commission ... I was of the view that the reason given was not legally sound, and after consulting the team and Investigating Director, I ... launched an application to review the recusal ... the reasons that he was giving were not in line with the established principle of recusal”
The Magistrate recused himself without giving the parties an opportunity to address him, contrary to established principles, leading to a review application.
“He did not give us an opportunity to address him on what he was anticipating to do ... the reasons that he was giving were falling short of the established principle ... that is why we took them upon review”
The Magistrate did not give reasons for imposing bail conditions and did not engage the accused or defence before deciding, leading to those conditions being set aside on appeal.
“The Magistrate did not give reasons for imposing this condition ... he was not engaged to address the Court on that ... that led to the conditions being set aside”
The Magistrate has the power under section 60(12) of the Criminal Procedure Act to impose bail conditions in the interest of justice, even if neither party addresses him on the conditions.
“Our understanding was that he has the powers in terms of section 60, subsection 12 ... to impose any conditions which, in his opinion, were in the interest of justice ...”
The accused abandoned the section 63 application after the Magistrate recused himself, leading to a delay causing the accused to bring a section 65 bail appeal, which was opposed by prosecutors and served before the High Court.
“The accused thereafter abandoned the section 63 application. That is now after the Magistrate had recused himself ... the accused then ... brought a section 65 bail appeal”
The bail condition related to Crime Intelligence entry was imposed without reason and was set aside as irregular on appeal.
“While I contended that the Magistrate was in law entitled to impose the condition, I was constrained to concede that he had failed to give any reasons for imposing the Crime Intelligence entry condition. And it was on that basis, that is the failure to reasons, that the condition was set aside as irregular”
A D V B A L O Y I S C states that the internal prosecutor reviews the application and affidavits before they are taken to court and the magistrate approves the J50 warrant.
“It is the internal prosecutors that look at this application and the affidavits before Mr Padayachee takes it to Court. Takes it to a Magistrate who approves the J 50.”
For a warrant to be authorised, an affidavit must be read and agreed to by the authorising authority, confirming there is a case and agreeing with the charges stated in the warrant.
“One of them would have the authorised that warrant, and for one to authorise the warrant, you therefore have to read first this affidavit, and to say, yes, we have a case, I agree with this, and the warrant also states the charges, I agree with the charges. Then the prosecutor authorises that.”
Magistrates stand by to deal with warrant issues and will review affidavits, statements and charge sheets to determine if a prima facie case exists before issuing a warrant.
“There is always a Magistrate who is on standby, who is dealing with these issues. The Magistrate will also do the same, go through the statement. If there is a charge sheet attached, go through the charge sheet, and if he is convinced that there is a prima facie case, then issue a warrant.”
ADV Serunye asserts that if the case is only about fraud, it does not belong in IDAC's jurisdiction and was questioned by the Magistrate on this point during the first appearance.
“If I ended up only with fraud, then clearly it does not belong in the IDAC space. It was not, even the Magistrate questioned it on the first appearance.”
The Magistrate should not have authorised a J50 warrant of arrest for General Lushaba because the application did not disclose an offence.
“The Magistrate was not even supposed to have authorised a J50 warrant of arrest for Mr Lushaba because the application for same does not even disclose an offence.”
A bail condition was imposed that the accused must not go to any Crime Intelligence office in the country, which was not requested by the State but was issued by the Magistrate after engagement with Ms Hlatshwayo concerning witness protection.
“the bail condition , the contentious bail condition was imposed , which is the accused , they must not go to a Crime Intelligence office anywhere in the country... that condition was not asked for by the State , but we also know from the appeal record that there was an engagement between the Magistrate and Ms Hlatshwayo about the need to protect witnesses”
Adv Baloyi asserts that the bail condition was not asked for in court, and although the Magistrate imposed it on his own initiative, the prosecuting body opposed the appeal despite not being able to address the Magistrate or the accused at the time.
“I was in court . That condition was not asked for . ... The Magistrate gave it of his own initiative . We did not get to address him . The accused did not . And as an ethical prosecutor or prosecuting body that we are , IDAC , we cannot or we should not oppose this appeal .”
Adv Serunye contends there was nothing wrong with what the Magistrate did as the Criminal Procedure Act allows such conditions in the interest of justice, even if not requested by the State or addressed at the time.
“there was ... nothing wrong with what the Magistrate did ... the Criminal Procedure Act allows him to do what he did . Section 60 (12) says the Magistrate can impose any conditions which in the interest of justice would make him to come to it”
The prosecutor imposed a bail condition without being asked, based on instructions from Advocate Hlatshwayo, which the magistrate then gave.
“He said he told Hlatshwayo to ask for this condition. He is amazed also that it was not asked for. So that means the briefing was, ask for the condition. It was given without being asked for.”
The magistrate is entitled by law to issue bail conditions and can deny bail even when the prosecution does not oppose it.
“But on the side of the Magistrate, the Magistrate is entitled by law to issue those conditions. And even if we do not address him on, the Magistrate can even deny a cuse bail where we say that we are not opposing bail.”
The prosecutor Ms Hlatshwayo took the position that there was no problem protecting witnesses because the accused did not know their names, yet the magistrate still gave bail conditions.
“The prosecutor, Ms Hlatshwayo, takes that position. The Magistrate nonetheless gives her the bail condition.”
Advocate Serunye states powers to impose bail conditions are with the magistrate, but the IDAC wanted the bail condition and the head told her to defend it.
“The powers are with the Magistrate. It appears the IDAC wanted that condition. The head says to me, go and defend this.”
The accused were given a bail condition by a Magistrate prohibiting them from going to any Crime Intelligence office, which effectively suspended them from their offices and employment, though this condition was not asked for by the State prosecution in open court.
“a condition of this type, which is the accused are prohibited going to any Crime Intelligence office across the country... the consequence of that condition is effectively they get suspended from their offices, from employment.”
The bail condition given by the Magistrate was not discussed or asked for by the prosecution in open court and was only revealed after the hearing.
“the prosecutor on that day... did not ask for the condition, but then it is given... it was not discussed, at least in court. No, not in my presence in court... that condition was not discussed or asked for by the prosecutors or by anyone.”
The High Court found that the bail condition imposed without a party requesting it was arbitrary, incorrect, had no basis, and was beyond the magistrate's power.
“the High Court concluded that that bail condition ... that was no requested by the prosecutor. It had no basis and the Magistrate did not have the power to impose such a condition ... It was arbitrary and incorrect and does not reflect a proper exercise of judicial discretion”
The bail condition prohibiting Crime Intelligence officers with the Secret Service account from entering the premises was not requested by the Magistrate or the prosecution in open court, but might have been referenced in an affidavit.
“one of the conditions that I requested that the Crime Intelligence officers with the Secret Service account is that they be prohibited from entering those premises ... the main fact of it is that the Magistrate, the prosecutor, did not request for it”
The bail condition identifying Colonel Padayachee personally to assist the accused in collecting any items left at Crime Intelligence premises was imposed by the Magistrate without explicit discussion or request in open court and without the prosecutor's acknowledgment.
“that condition ... was never asked from the Magistrate ... it was never asked from the Magistrate ... the prosecutor did not put it to the Magistrate in open court”
Colonel Padayachee asserts that his name was included in the bail condition likely as part of his affidavit, and the purpose was to regulate access to Crime Intelligence offices, requiring individuals to contact him before visiting so as to control crime scene access.
“I think it was my affidavit or something. My name was mentioned there ... if they want to go to the office, they have to contact me before they go there”
The bail condition was used to gain a benefit in respect of other ongoing investigations that were not yet complete, unrelated to the current case before the magistrate.
“you are using this case to get a benefit in respect of other investigations that are not yet complete”
The prosecutor communicated to the Magistrate that the investigation was complete and there was no risk or problem with witnesses being intimidated, and they had not produced a list of witnesses.
“the prosecutor says our investigation is complete, we do not have a problem about witnesses being intimidated ... we have not even produced a list of witnesses”
The magistrate found the sentence not just and allowed parties to reconsider, due to very material and important issues not raised in the plea agreement that could have materially influenced the outcome.
“the magistrate then came back and found that the sentence was not just, and therefore gave all the parties time to go and reconsider. The issue that, that is when I got briefed to come back because there were very material and important issues that were not raised in the 105A that we believe would have materially influenced potentially the outcome of such an agreement.”
Witness B said she would oppose bail (as per last sentence of paragraph 4), but this feedback was before the magistrate hearing; after bail was granted, Witness B reacted to the gratitude expressed by the family.
“The first update is the last sentence of paragraph 4, where Tshukudu comes back and says the state is opposing bail... Witness B reacts to the gratitude being extended to her, that thank you for ensuring that Tau got bail. Witness B then says I had nothing to do with it. That was the decision of the Magistrate.”
Accused are considered dangerous contract killers and there were alleged attempts to bribe investigators, prosecutors, and/or the magistrate to get them out on bail.
“I informed them that the accused were considered dangerous contract killers and that there were alleged attempts to bribe investigators, prosecutors, and/or the magistrate.”
The information about bribe attempts came from a source alleging a lawyer was given a bag full of money to approach investigators and others to get the accused out on bail.
“the information was, remember, the attorney is already given a bag full of money. We must approach the investigators. If he fails, the prosecutors or the magistrate, because that is how disparate they showed that they want these people out on bail.”