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[2021] ZAWCHC 248
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Korver v S (A188/2021) [2021] ZAWCHC 248; 2022 (1) SACR 298 (WCC) (3 December 2021)

Republic
of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
Case
number: A188/2021
Before:
The Hon. Mr Justice Binns-Ward
Hearing:
1 December 2021
Judgment:
3 December 2021
In
the matter between:
MARTIN
LENNARD
KORVER
Appellant
and
THE
STATE
Respondent
JUDGMENT
(Delivered
by email to the parties’ legal representatives and by release
to SAFLII.
The
judgment shall be deemed to have been handed down at 10h00 on 3
December 2021.)
BINNS-WARD
J:
[1]
The appellant has come on appeal from a decision by the regional
magistrate
in the Specialised Commercial Crimes Court at Bellville
refusing his application for an amendment to his conditions of bail
to
permit him to travel to the Netherlands to visit his elderly
parents and one of his daughters who is currently living there. The

application was made in terms of
s 63
of the
Criminal Procedure
Act 51 of 1977
. An accused person who is aggrieved by the decision of
his application to a lower court in terms of
s 63
enjoys a right
of appeal to the High Court under
s 65
; see
Shefer v Director
of Public Prosecutions
2004 (2) SACR 92
(T). Such an appeal may
be heard by a single judge by virtue of
s 65(1)(b)
of the Act.
[2]
At the time of his application to the court a quo the appellant was,
and
currently remains, on bail pending his trial on a number of
charges including fraud, theft and money laundering. The amount
involved,
part of which is denominated in Euros, runs into many
millions of Rand in local currency value. If convicted, he faces a
minimum
sentence of 15 years’ imprisonment, as prescribed
under the
Criminal Law Amendment Act 105 of 1997
, unless the trial
court finds that there are substantial and compelling circumstances
to permit the imposition of a lesser sentence.
The commission of the
alleged offences involved, amongst other matters, the forging of his
business partners’ signatures
on documents for the purposes of
mortgaging the business’s immovable property in favour of a
foreign registered bank and
appropriating the proceeds of the loan
consequently advanced by the bank and the diversion of deposit
payments made by foreign
customers of the business into his own
overseas banking accounts. As far as can be gleaned from the papers,
the state appears to
have a strong prima facie case against the
appellant, although he denies criminal liability and contends,
without volunteering
corroborative detail, that the matter is
properly characterised as a civil dispute with his business partners.
[3]
The bail
conditions imposed after the appellant’s arrest on 27 March
2018 prohibit him from travelling outside the Western
and Eastern
Cape Provinces without notice to the investigating officer and
required him to surrender his travel documents, thereby
prohibiting
travel outside the country. He is a citizen of the Netherlands and
holds permanent resident status in South Africa.
He has lived in this
country for more than 27 years, and has, since 2008, been married to
a South African citizen by birth who
also holds Dutch citizenship.
His two children by his current marriage, aged 12 and 11
respectively, also hold Netherlands citizenship.
One of the primary
motivations given in support of the application was the alleged
desirability that the appellant should be able
to be with one of his
daughters by a previous marriage when she celebrated her 21
st
birthday, which he regarded to represent her coming of age.
[1]
That milestone had already been passed however by the time the
application was decided. The other was that he should be able to

visit his elderly parents.
[4]
The
appellant lives in Plettenberg Bay in a house owned by his wife, who
reportedly runs a coffee shop business in the town. The
appellant
places a value of approximately R6 million on the property,
although evidence concerning the prices at which properties
in the
area change hands (approx. R3 million) suggests it is probably
worth considerably less than that. He testified, without
specificity,
that all his moveable property is kept at the property owned by his
wife. It is evident that when a judgment creditor
sought to execute a
judgment against the appellant on 28 July 2016, he declared to the
sheriff that he possessed no exigible movable
property. At that stage
he declared to the sheriff that he owned a half share in immovable
property at 12 Klaasenbosch Drive in
Constantia, Cape Town.
[2]
The indications are that he must have disposed of that property
because there was no reference to it by him in his application
for a
variation of his bail conditions.
[5]
The appellant testified that he has established a new business of his
own locally, although the evidence concerning it is sparse. It was
uncontested that he is the sole shareholder and director of Korevest

Leisure Group BV, a company registered in the Netherlands and that he
conducts at least five banking accounts in either his own
name or
that of the company. Four of these accounts are with ABN Amro Bank in
the Netherlands and the fifth with F von Lanschot
Bankiers (Schweiz
AG) in Switzerland.
[6]
The appellant was released on bail on the day of his arrest. His
application
for bail was not opposed. Bail was fixed at R100 000.
The following conditions were attached in terms of the order granting

the appellant bail:
1.
The accused reports to his nearest police station, which is
Plettenberg Bay,
between the hours of 07h30 and 17h00 on a Monday and
Friday.
2.
The accused
notifies the investigating officer, Lieutenant-Colonel E.L. De
Villiers, of any change of his residential and work address
at
xxx@saps.gov.za
or 071 xxx xxxx.
3.
That he does not enter any port of entry.
4.
The accused does not, until the finalisation of the criminal case,
apply for
any travel documentation permitting him to leave the
borders of the Republic of South Africa, without prior notification
to the
investigating officer, Lieutenant-Colonel E.L. de
Villiers.
5.
The accused notifies the investigating officer of any travel
documentation which
is still being processed that he applied for
prior to his court dates.
6.
The accused hand over his travel documentation – passport(s)
-to the investigating
officer, Lieutenant-Colonel EL de Villiers.
7.
The accused notifies the investigating officer, Lieutenant-Colonel EL
de Villiers,
in the event that he needs to travel outside the
jurisdiction of the Western Cape / Eastern Cape with sufficient
detail of the
said travel and itinerary.
8.
In the event that the accused needs to travel outside the borders of
the Western
Cape / Eastern Cape, he needs to give the investigating
officer one (1) week’s notice.
9.
The investigating officer has to respond within 24 hours after the
notice has
been given.
10.
The accused not to interfere with or make contact with any of the
state witnesses, which are [four
persons named].
(A
‘port of entry’ is an expression defined in
s 1
of
the
Immigration Act 13 of 2002
with reference to
s 9A
of the Act
to mean any place in the Republic designated by the Minister of Home
Affairs, which complies with the prescribed requirements,
where all
persons have to report before they may enter, sojourn or remain
within, or depart from, the Republic. That was also its
evidently
intended import in para 3 of the bail conditions.)
[7]
Counsel for the state when the appeal was argued before me has, so I
was
informed from the bar, been involved in the matter against the
appellant from inception, including the proceedings when bail was

set. He advised, without objection from the appellant’s
counsel, that the bail conditions were determined by negotiation

between the state and the appellant, and the order was made by
agreement.
[8]
The magistrate refused the application for the amendment of the
appellant’s
bail conditions because she was not persuaded that
there had been a relevant alteration in circumstances from the time
when bail
was set.
[9]
The state has submitted, and the appellant’s counsel has
accepted,
that
s 65(4)
of the
Criminal Procedure Act applies
in
respect of the determination of the appeal. That provision states
that in any appeal against a decision of a lower court in
respect of
an application for bail, the court of appeal shall not set aside the
decision of the lower court unless it is satisfied
that the decision
was ‘wrong’. The approach in cases like this, where the
nature of the discretion exercised by the
court a quo was a wide (or
‘loose’) one, was summarised in
Knox D'Arcy Ltd and
Others v Jamieson and Others
[1996] ZASCA 58
;
1996 (4) SA 348
(A)
at 360D-362E; see also
Trencon Construction (Pty) Limited v
Industrial Development Corporation of South Africa Limited and
Another
[2015] ZACC 22
(26 June
2015); 2015 (5) SA 245
(CC);
2015
(10) BCLR 1199
(CC) at para 87. Its application in the context of
appeals in terms of
s 65
of the
Criminal Procedure Act was
described in
S v Porthen and Others
[2003] ZAWCHC 36
(21
August
2003); 2004 (2) SACR 242
(C) and
S v Petersen
[2008]
ZAWCHC 11
(27 February 2008);
[2008] 3 All SA 301
(C) ;
2008 (2) SACR
355
(C). The scope for interference by an appellant court is greater
than in matters such as sentencing, where the court of first instance

exercises a true (or ‘narrow’) discretion.
[10]
However, even when a wide discretion is involved, an appeal court
will, as a matter of
judicial policy, exercise restraint against too
readily interfering in the decision of the court of first instance;
cf. e.g.
South African Broadcasting Corporation Limited v National
Director of Public Prosecutions
[2006] ZACC 15
;
2007 (1) SA 523
(CC);
2007 (2) BCLR 167
(CC) at para 39,
Florence v Government of
the Republic of South Africa
[2014] ZACC 22
;
2014 (6) SA 456
(CC);
2014 (10) BCLR 1137
(CC) at para 113 and
Crompton Street
Motors CC v Bright Idea Projects 66 (Pty) Ltd
[2021] ZACC 24
(3
September
2021); 2021 (11) BCLR 1203
(CC) at para 46-47.
[11]
The magistrate was correct in considering that a material change in
circumstances is generally
the basis for a reconsideration of
originally imposed bail conditions; cf. S v
Savoi
2012 (1)
SACR 438
(SCA) at para 9 and
Shefer
supra at para 22. Were the
position otherwise,
s 63
would lend itself to abuse as an
improper substitute for appeals properly brought under
s 65
of
the
Criminal Procedure Act.
[12
]
The only change in circumstances identified by the appellant was that
his parents are older
now than they were when the bail conditions
were originally set and that more than three years have passed
without his trial commencing.
Both of his parents were already in
their early 80’s when the appellant was arrested. There is no
evidence that either of
them is in extremis or that it would not be
possible (constantly changing Covid-19 related travel restrictions
aside) for them
to visit the appellant in South Africa. The fact that
his parents would get older while the pending criminal proceedings
took their
course was foreseeable and must have been appreciated when
the appellant’s bail conditions were set. A desire for physical

contact with his parents is understandable, but his need for that has
to be assessed proportionately with the considerations considered

reasonably necessary in the interests of justice to ensure that he
stands trial. The assessment was undertaken, or must be understood
to
have been undertaken, when he was admitted to bail.
[13]
Nothing in the evidence supports the notion that circumstances have
materially changed
so as to require their reassessment. I do not
regard evidence that the appellant has faithfully complied with the
currently applicable
bail conditions, of itself, affords sufficient
reason to relax them. He must be taken to have appreciated that a
failure to comply
with them would have resulted in a possible
withdrawal of bail and resultant incarceration. His adherence to the
bail conditions
shows nothing more than that his release on those
conditions pending his trial has been justified and that the
conditions have
thus far worked effectively to ensure that he remains
available to stand trial. It does not bear with any weight on the
question
whether the conditions should be amended, even just
temporarily, to permit the appellant to leave the country.
[14]
I consider that the magistrate was justified in inferring from the
conditions imposed when
bail was originally granted to the appellant
that he was considered a flight risk. That seems to be the only
logical reason for
the imposition of the requirement that he
surrender his travel documents and prohibiting him from applying for
replacements without
first notifying the investigating officer. The
conditions imposed in this case were materially distinguishable in
this respect
from those imposed in the
Savoi
matter cited
above, which were referred to in the appellant’s counsel’s
written argument.
[15]
In
Savoi
the accused was required to surrender his travel
documents, but the investigating officer was expressly permitted to
release them
if the accused needed to use them for bona fide business
travel. Mr Savoi was not considered a flight risk. The appellant is.
What
other reason could there be for making one of the appellant’s
bail conditions a prohibition from access to any port of entry?
And
there were, furthermore, objectively identifiable reasons for
reasonably considering him to be a flight risk. He might have
lived
in South Africa for an extended period, but he has maintained
citizenship and proprietary connections with his homeland throughout

that period and it cannot be overlooked the alleged offences include
the diversion of funds that should have come to South Africa
in the
ordinary course of business into foreign bank accounts. I do not
think that there is anything to be made in the circumstances
of the
investigating officer’s omission in her affidavit opposing the
appellant’s application for a variation to expressly
reiterate
that he is considered to be a flight risk. As it was, the state also
filed affidavits by the complainants in support
of its opposition to
the variation application. The content of those affidavits was
plainly directed in part to highlight the danger
that the appellant
could flee the country to avoid trial. They pointed out that in
addition to the criminal charges, the appellant
is beset with a raft
of civil proceedings against him in the High Court involving claims
totalling in the tens of millions.
[16]
It was
plainly contemplated when bail was granted to Mr Savoi that he would
require to travel for business purposes. By contrast,
the bail
conditions set in the current case make no provision for the
investigating officer to return the appellant’s travel

documents to enable him to travel internationally. The appellant is
forbidden from even entering a port of entry. He cannot even
go to an
international airport to meet someone visiting from abroad. His
movements even within most of the Republic of South Africa
are
restricted by being subject to report and monitoring. Endeavours by
the appellant’s counsel to construe the currently
applicable
bail conditions as something other than an absolute ban on the
appellant travelling abroad were unpersuasive. They relied
on reading
individual conditions and parts of individual conditions in isolation
and out of context when the order in terms of
which bail was granted
is considered as a whole. That plainly reflected a misdirected
approach to the proper interpretation of
the order.
[3]
[17]
Emphasis was placed in argument on the fact that the appellant had
returned voluntarily
to South Africa even after he was made aware
that a case against him was being investigated. Parallels were sought
be drawn between
his conduct in that regard and that of the accused
in
S v Savoi
. I do not consider that there is any
profit in the comparison. The appellant’s conduct in returning
to South Africa was an
established fact that must have been taken
into account when his bail conditions were set, just as they were
when materially different
conditions were attached when Mr Savoi
applied for bail. As already remarked, the logical basis for the
distinction between the
conditions set in the respective cases is
that Savoi was not regarded as a material flight risk and the
appellant was.
[18]
The appellant’s counsel also sought to rely on a passage in the
judgment of the Namibian
High Court (per Frank AJ, Silungwe AJ
concurring) in
S v Pentz
[2008] NAHC 104
(2 June 2008) at para
17. That matter is distinguishable for similar reasons to those upon
which I have distinguished
Savoi
.
[19]
In
Pentz
,
just as in
Savoi
,
the originally set bail conditions required the accused, who faced a
charge of murder, to surrender his travel documents to the

investigating officer who was vested by the court’s order with
the discretionary power to temporarily return them to him
for travel
to South Africa ‘for business reasons or for whatever other
purpose’.
[4]
The
investigating officer had under that condition permitted the accused
to travel to South Africa on several occasions. The historically

permitted visits had all gone off without incident. However, on the
eighth occasion that the accused applied for his passport to
be
released to him so that he could spend the end of year festive season
holidays visiting family in South Africa, his application
was refused
without reason. He thereupon applied for the amendment of his bail
conditions, alternatively for an order that his
passport be released
to him
for
the purposes of his visit to South Africa and also to apply for the
renewal of his residence permit in Namibia, which was about
to
expire. At the hearing in the magistrate’s court, the
prosecutor agreed to the release of the passport for the purpose
of
the residence permit renewal. For reasons which were not apparent,
the magistrate nevertheless refused the accused’s application

in its entirety.
[20]
On the facts of the case, namely the unproblematic nature of
the accused’s seven previous visits to South Africa under the

prevailing bail conditions and the state’s failure to provide
any reason for the refusal to accede to the accused’s
request
to use his passport for an eighth trip, the Namibian High Court
concluded that the decision to withhold the passport had
been
capricious. It was in that quite distinguishable context that Frank
AJ made the following remarks relied upon by counsel in
support of
his argument in the current case: ‘
I
however do wish to point out that the prosecuting authority must take
cognisance of the remarks aforesaid and that the return
of the
passport to the appellant on request is not to be refused on
capricious reasons but is to be considered on a case by case
basis
’
.
[21]
The judgment in
Pentz
accordingly bears no relevance in the determination of the current
case. As it was, the court, whilst holding that the accused’s

passport should have been temporarily released to him to use for his
intended visit to his family, nevertheless upheld the magistrate’s

refusal to accede to his application deleting the condition that he
be required to surrender the passport to the investigating
officer.
[22]
The appellant’s counsel sought in argument to identify other
aspects of the matter
that he contended evidenced altered
circumstances. In this regard, apart from the appellant’s
adherence to the existing conditions
– a matter that I have
already addressed, he pointed to (i) the time the matter has
taken to come to trial, (ii) the
increased age and fragility of
the appellant’s parents (iii) the Covid-19 epidemic and (iv)
the amendment of paragraph 1
of the above quoted bail conditions to
permit the appellant to report by email to the investigating officer
twice a week rather
than by physically presenting himself at the
Plettenberg Bay police station every Monday and Friday.
[23]
The matter has indeed been much delayed in its progress towards
trial, but save for on
one occasion, in April 2021, when the state
requested, and was, without objection from the appellant’s
senior counsel, granted,
a postponement, the delays have been
attributable to the appellant. The appellant has changed legal
representatives on three occasions
and a delay of nearly two years
was caused by the time taken to compile a forensic auditor’s
report that he commissioned
for the trial. I was, moreover, informed
that in the period intervening between the dismissal of his
application for a variation
of the bail conditions and the hearing of
the appeal, the appellant had applied for an order reviewing and
setting aside the decision
to prosecute him and for a permanent stay
of the proceedings. I do not consider that in the circumstances that
I have just summarised
the appellant can place much stock on the
delay. It seems that were it not for his own actions his trial would
have already been
underway.
[24]
As already remarked, the increasing age of his parents was an
identifiable factor when
the bail conditions were originally set. The
appellant has described that his father has undergone cardiac surgery
and that his
mother has had a mastectomy, but he has given no detail
as to when these procedures were carried out or as to how, once his
parents
had recovered from surgery, their condition prevented them
from travelling to visit him. I am not persuaded in the circumstances

that the magistrate’s approach to this aspect of the matter was
wrong.
[25]
The Covid-19 pandemic does not bear on the central issue which is
whether circumstances
have changed such as to indicate that the
appellant should no longer reasonably be considered to be a flight
risk. If anything,
the Covid-19 related travel restrictions summarily
imposed and lifted by governments around the world during the
ever-changing
course of the pandemic show that if the appellant
leaves the country his ability to return on the date he is required
for the purpose
of court appearances could easily be compromised even
if he wished to come back.
[26]
It seems that the amendment of paragraph 1 of the originally imposed
conditions concerning
twice weekly reporting by the appellant may
have been inspired by the constraints occasioned locally by
Covid-related emergency
measures. Whatever, the reason, however, the
amendment did not in any material manner detract from or dilute the
conditions left
unaltered that were unmistakably directed at
forbidding the appellant from holding travel documents or accessing a
port of entry.
I do not consider that the amendment was a relevant
consideration for the magistrate to have weighed and there is no
indication
that it was a factor especially urged before her.
[27]
For all these reasons, the appeal is dismissed.
A.G.
BINNS-WARD
Judge
of the High Court
APPEARANCES
Appellant’s
counsel:

R. Liddell
Appellant’s
attorneys:

Mathewson Gess Inc.
Cape Town
Respondent’s
counsel:

D. Combrink
Directorate of Public
Prosecutions
Western Cape
Cape Town
[1]
Article
233 of the Burgerlijk Wetboek prescribes the age of majority in the
Netherlands to be 18.
[2]
Annexure GS 3 to the affidavit by one of the complainants, Mr Gustav
Shaefer jurat 12 July 2021. The annexure was detached from
the
affidavit in the compilation of the appeal record and appears at p.
81 of the record.
[3]
Judgments and court orders are subject to the same rules of
interpretation applicable to other jural documents; see
Firestone
SA (Pty) Ltd v Gentiruco AG
1977
(4) SA 298
(A) at 304E-G and
Eke
v Parsons
2016 (3) SA 37
(CC) at para 29. They fall to be construed and
understood consistently with their apparent purpose, determined
contextually;
cf.
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA) at para 18.
[4]
S
v Pentz
supra,
para 1.