High Court in Pretoria dismisses Fannie Nkosi’s bail appeal

The High Court in Pretoria has ruled that the Pretoria North Magistrate’s Court was correct in dismissing Sergeant Fannie Nkosi’s bail application.

Nkosi returned to the high Court on Wednesday to appeal the decision of the Pretoria North Magistrate’s Court to deny him bail. On 22 April, magistrate Thandi Theledi ruled Nkosi had failed to prove he would not pose a danger to others, evade prosecution, or interfere with the investigation and witnesses.

He was arrested by the Madlanga Commission of Inquiry task team on Thursday, 2 April, following his testimony before the commission and a raid at his home in Pretoria. Nkosi faces charges including defeating the ends of justice, possession of illegal ammunition and explosives and theft.

‘Magistrate was wrong’

On Tuesday, 26 May, advocate Hendrik Potgieter, for Nkosi, argued the magistrate was wrong in her findings in respect of the facts and the law. He said the High Court was in a position to interfere with those findings.

The state previously argued that Nkosi might attempt to interfere with evidence, police officials, administrative systems, case documents or exhibits. However, Potgieter argued that the state did not provide the bail court with any substantive reasons for the probability or likelihood of any of those.

Judge Mokhine Mosopa and advocate Potgieter further argued about the ammunition allegedly found in Nkosi’s house during the raid.

“Why does he have to keep such a large amount of ammunition relating to the R5 rifle in his house? It doesn’t end there; only five [out of 62] of the ammunition found there were found to be police-issued. It means the rest were not police-issued,” commented the judge.

“With the number of firearms that the appellant has registered to his name, 400 rounds of ammunition is not a large quantity. He’s a licensed gun owner. The firearms and ammunition were seized by the police; they’re no longer in his possession. So, the reason that he would place society in danger does not exist any more because they were taken by the police,” Potgieter said.

‘I cannot interfere’

Previously, Potgieter argued that the magistrate’s decision to deny Nkosi bail had infringed on his right to be presumed innocent until proven guilty.

However, on Wednesday, Judge Mosopa said he could not come to that conclusion.

“On a proper reading of the magistrate’s judgment, it is difficult for one to come to the conclusion that such rights were taken away from the appellant, as there’s nothing in the judgment that suggests,” said the judge.

“In a bail application, the enquiry is not really concerned with the question of guilt. By merely denying the appellant bail does not entail interference with the bail applicant’s right to be presumed innocent, but the magistrate was exercising the discretion she possessed.”

‘Bail conditions’

Potgieter also argued that the magistrate should have considered imposing bail conditions on Nkosi as an alternative to refusing bail.

In response, the judge said: “The provision of the above section is plain; an alternative can be considered by the court at any stage in the event bail is granted. The above does not state that, in the event bail is refused, the bail court must consider the alternative as provided. Mr Potgieter’s reliance on the above provision is, in my considered view, misplaced.”

The magistrate found that the prospect of a lengthy sentence in the event of a conviction can serve as an incentive to evade trial, given the seriousness of the offences. She further found that the appellant had not placed sufficient evidence before the bail court that he would stand trial.

The magistrate also took issue with Nkosi’s possession of large sums of money, saying it could assist him to evade trial. Although Nkosi disclosed that he has no ties outside the country, the magistrate found that this is outweighed by the gravity of the charges he faces.

“I cannot agree that the magistrate did not properly apply the law in refusing the appellant,” said the judge.

“I see no need to interfere with the judgment of the bail court, as the magistrate did not exercise his discretion wrongly. This appeal ought not to succeed. I make the following order: the appeal against the Pretoria North Magistrate Court’s refusal to grant bail is hereby refused.”

Another case against Nkosi

While still in custody earlier this month, the Madlanga Commission of Inquiry’s Recommendations Investigative Task Team brought additional charges of defeating and obstructing the course of justice against Nkosi.

The state alleges that, on 10 November 2022, a suspect was arrested for possession of dagga, unlicensed firearms and explosives.

Following the arrest, Nkosi allegedly fetched the original case docket under the pretence that he had been sent by the head office. A few months later, he allegedly returned to Thohoyandou, identified himself as a colonel from head office and removed the confiscated dagga from police custody.

He booked the exhibit at the head office, but it was later discovered that one of the exhibit bags containing the dagga had allegedly been tampered with.

The state now seeks to consolidate the two cases and will return to court on 22 July for this matter.

Nkosi has denied all charges against him, maintaining that the state has a “weak” case.