THE REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Before the Hon. Justice Slingers
Hearing: 4 March 2025
Judgment Delivered : 7 March 2025 Case No: CC01/2023
In the matter between:
THE STATE Applicant
and
IVAN RUITERS Accused 8
JUDGMENT
SLINGERSJ
[ l] This is an application brought in terms of section 66(3) of the Criminal Procedure
Act 51 of 1977 ('the CPA').
Section 66(3) reads as follows:
'If the accused admits that he failed to comply with the condition in question or if
the court finds that he failed to comply with such condition, the court may, if it
finds that the failure by the accused was due to fault on his part, cancel the bail
and declare the bail money forfeit to the State.'
[2] On 5 December 2024, bail in the amount of R500 was set for Mr Ruiters with
various conditions which included reporting at Grassy Park police station on
Mondays , Wednesdays and Saturdays between 06h00 and 18h00.
2
[3] On 20 December 2024, Mr.Ruiters was arrested on charges of attempted murder
and the unlawful possession of an un-licensed firearm ('the new charges'). Mr
Ruiters was remanded in custody in respect of these new charges and remains
in custody as he elected not to apply for bail following his arrest on 20 December
2024.
[4] It is common cause that because of his arrest and consequent detention, Mr
Ruiters failed to adhere to his bail conditions which required him to report at
Grassy Park police station three times a week. The state argues that his arrest,
resulting in the breach of the bail conditions , was wholly his fault and that it was
committed with intent. The defence argues that no fault can be attributed to Mr
Ruiters as he was prevented from complying with his bail conditions as a result of
his arrest and detention, which was not his fault.
[5] It is trite that these proceedings are not criminal proceedings. Consequently, the
state need not establish the requisite facts beyond reasonable doubt but need
only do so on a balance of probabilities . 1
[6] The requisite facts are (i) that Mr Ruiters breached his bail conditions and (ii) that
it was due to his fault.2 In this matter it is common cause that Mr Ruiters did not
comply with his bail conditions of 5 December 2024. The question that concerns
this court is whether it can be found that he had any fault in creating the
impossibility of complying therewith as a result of being arrested. Ms Kuun
robustly argued that this question could only be answered by entering the merits
of new charges which could be potentially prejudicial to him in those criminal
proceedings.
1Sebe l' J\/agistrwe. Zwelithsa and Another 1984 (3) SA 885 (CkS)
2 Jack v Vermeulen 1 0 and Another 1979 (!) A 659 (C)
3
[7] Mr Ruiters was either arrested without a warrant in terms of section 40 of the
CPA or with a warrant. Section 40 of the CPA provides that a police officer may
arrest any person without a warrant, if the person is reasonably suspected of
committing or of having committed an offence as listed in items (a) to (q) of
section 40(1 ). Alternatively, Mr Ruiters would have been arrested with a warrant.
A warrant of arrest may be issued in terms of section 43 of the CPA A warrant
of arrest could only be issued an written application which states that there is
information on oath that there is a reasonable suspicion that Mr Ruiters
committed the alleged offences.
[8] Therefore, irrespective of whether Mr Ruiters was arrested with or without a
warrant, his arrest could only have been effected if there was a reasonable
suspicion that he committed the offences giving rise to his arrest on 20
December 2024.
[9] A reasonable suspicion must be more than a hunch and should not be an
unparticularized suspicion. It must be based on specific and articulable facts or
information . Furthermore , the reasonable suspicion must be based on credible
and trustworthy information. 3
[1 0] Put differently there had to have been some credible and trustworthy information
that Mr Ruiters committed the new charges resulting in his arrest on 20
December 2024. Given the elements of the new charges, there had to have
been credible and trustworthy information that Mr Ruiters intentionally performed
the unlawful action(s) giving rise to the new charges. At this stage, I would be
3 Biyela v Minisler of Police 2023 (I) SACR 235 (SCA)
4
remiss not to mention that the lawfulness of the arrest of 20 December 2024 was
not questioned or disputed. Therefore, for the purposes of this judgment the
lawfulness of Mr Ruiters' arrest is assumed. Following his arrest, Mr Ruiters
would have been held in lawful custody in terms of section 39(3) which provides
that:
'The effect of an arrest shall be that the person arrested shall be in lawful custody
and that he shall be detained in custody until he is lawfully discharged or
released from custody.' The phrase 'released from custody' includes being
released on bail by the police or at court.
[11] As a result of the jurisdictional factors required for the lawful arrest and detention
of Mr Ruiters which were not disputed or challenged, I am satisfied on a balance
of probabilities that his own conduct resulted in his arrest and that he was
responsible for the situation which made it impossible for him to comply with his
bail conditions . Put differently , it was due to his own fault that Mr Ruiters was
unable to comply with his bail conditions.
[12] As the state has shown on a balance of probabilities that Mr Ruiters has
breached his bail conditions due to fault on his part, the onus passed to him to
show on a balance of probabilities such relevant facts to persuade the court not
to withdraw the bail or to declare it forfeited to the state.4
[13] It is not disputed that Mr Ruiters elected not to bring a bail application in respect
of his arrest on 20 December 2024. In the circumstances it must be accepted
that he took no steps which could possibly have secured his release which would
have resulted in his ability to comply with the bail conditions . Ms Kuun argued
4 Sebe ,, Magistrate, Zwelitsha and Another /98./ (3) A 885 (CkS)
5
that it was Mr Ruiter's prerogative not to bring a bail application at this stage and
that she does not know what advice he received not to bring a bail application at
this stage. This may be, but the election not to bring a bail application with the
absence of an explanation for such election, has consequences. An accused
may elect not to bring a bail application for various reasons which may or may
not pertain to the merits of the matter, for example insufficient funds. Had the
court been informed that Mr Ruiters had elected not to bring a bail application
because he was trying to finance same, it could have been a factor in his favour
which the court would have considered when weighing up whether he discharged
his onus.
[14] The onus shifted to Mr Ruiters to show facts relevant to persuading the court not
to withdraw. his bail. If this required him to place facts pertaining to the
circumstances of his arrest before the court, then that is what he had to do. His
election not to do so has consequences . As he elected not to present any facts
to challenge the facts and case presented by the state, the court would be
entitled to assume that there are no such facts. 5
[15] Mr Ruiters failed to discharge his onus.
[16] Section 66(3) provides that a court may cancel an accused's bail and forfeit the
bail to the state if it is found that an accused, due to fault on his part, failed to
comply with the bail condition. Thus the court is called upon to apply its mind to
the cancelling of the bail and the forfeiture thereof-these are two distinct and
separate issues.6 No facts or arguments were presented in respect of declaring
5 S v Boesak 2000 JDR 0792 (CC)
6 Sebe v i\!agistrate . Zwe/itsha and Another /98-1 (3) A 8 5 (CkS)
6
the bail forfeited to the state. Therefore , there are no facts and/or grounds on
which this court can properly exercise its discretion in respect hereof.
[17] In the circumstances , I make the following order:
(i) The bail granted to the accused, Mr Ivan Ruiters on 5 December 2024 is
cancelled in in terms of section 66(3) of the CPA. Therefore , he will be
remanded in custody in respect of this matter.
(ii) No order is made in respect of the forfeiture of the bail money.