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I IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO: BA0S/2025
REPORTABLE~ ES
Pf\ INTEREST TO OTHER JUDGES:
~YES
REVISED.
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In the matter between:
CASPARUS CHIRISTOFFEL WILLEM BOUWER APPELLANT
and
THE STATE RESPONDENT
JUDGMENT
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NAUDE-ODENDAAL J:
[1] This is an appeal against the refusal by the Magistrate in the Magistrate's
Court for the district of Mookgopong, held at Mookgopong, to admit the
Appellant to bail. The appellant is facing two charges, one being for
Statutory Rape and the second being for Promoting Sexual Grooming of a
Child by facilitating a meeting or communication to commit a sexual act.
[2] There was a dispute between the State and the Defence whether the
charges fell under Schedule 6 or Schedule 1 of the Criminal Procedure Act
51 of 1977 ("the CPA"). Ultimately the court a quo made a ruling that these
offences fall under Schedule 1 and the Bail Application is to be henceforth
adjudicated on this basis. The Appellant was legally represente d
throughout the proceedings .
[3] During the course of the bail proceedings the Appellant filed an affidavit in
support of his bail application. The Appellant did not give viva voce
evidence. The Affidavit was read on to record, together with some of the
contents of the Annexures and appears from pages 17 to 41 of Bundle 2.
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[4] The Respondent, in opposing the granting of bail led viva voce evidence of
the Investigating Officer, Francis Constance Kruger. Mrs. Kruger testified
that the state has a strong case against the Appellant, further that there is
a likelihood that he will commit a Schedule 1 offence again and that he will
interfere with witnesses and destroy evidence. She testified that when he
heard the police was looking for him, he already started to destroy some
evidence from his phone, further he also attempted to influence the
brother of the victim.
[5] Under Cross-examination , Mrs. Kruger, reluctantly so, conceded that
should the Appellant be released on bail, a high bail amount should be set
with strict conditions .
[6] The State also called Mrs. Emily Tsita, a Social Worker employed by the
Department of Social Development. She works under the Child Protection
Unit. She testified that the victim is a 14 year old child who does home
schooling and is mostly alone at home during the day when her parents
are not there. She further testified that the victim is afraid of the Appellant
and requested that he remains behind bars in order for her to continue to
attempt to have a normal life.
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[7] Mrs. Tsitsa also testified that the Appellant has a history of a case similar
to this one, and therefore there is a real fear that he will commit a further
offence and jeopardize the safety of the children around Mookgopong.
Ms. Tsitsa requested the court not to grant bail as it will have a negative
impact on the child victim, as well as the public at the moment.
[8] It was submitted by the Defence that the child victim has presented at
least three versions of what transpired and therefore is not reliable. Under
cross-examination, Mrs. Tsitsa also conceded that should the Appellant be
released on bail, strict bail conditions should be set.
[9] The Defence called Mrs. Wolmarans, also a Social Worker. According to
Mrs. Wolmarans, the Accused and his Family is very stable. Also, the
Accused is a person who would assist people in need where ever he can.
[1 O] Mrs. Wolmarans also testified that having done her examination and
having considered all the documents in her possession , the Accused
person is suitable for bail and will abide by his bail conditions. Mrs.
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Wolmarans testified that justice would not be served if the Accused person
is kept in custody.
[11] In the judgment in the bail application, the court considered the affidavit
filed by the Appellant and the viva voce evidence given by the
investigating officer, Mrs. Tsitsa and Mrs. Wolmarans.
[12] The court a qua also took into consideration the strength of the
Respondent's case against the Appellant and found that a link was
established between the offence committed and the Appellant. The court
a qua found that the State has established that it has a strong case
against the Appellant. The court a qua further found that the safety of the
witnesses may be compromised if the Appellant can be admitted to bail
and that it would be impossible to impose a condition that the Appellant
cannot have access to any electronic device.
[13] The court a quo further found that there is a likelihood that the Appellant
will interfere with witnesses and evidence and that it would not be in the
interest of justice to grant the Appellant bail.
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[14] In the final analysis and having considered all the evidence that was
placed before the court a quo, the court a quo found that it would not be in
the interest of justice for the Appellant to be released on bail.
[15] Section 60(1 )(a) of the Criminal Procedure Act, 51 of 1977 stipulates
that an Accused who is in custody in respect of an offence shall, subject to
the provisions of section 50(6), be entitled to be released on bail at any
stage preceding his or her conviction in respect of such offence, if the
court is satisfied that the interests of justice so permit.
[16] Section 60(4) of the Criminal Procedure Act, 51 of 1977 stipulates as
follows:-
"(4) The interests of justice do not permit the release from detention of
an accused where one or more of the following grounds are established:
(a) Where there is the likelihood that the accused, if he or she were
released on bail, will endanger the safety of the public or any particular
person or will commit a Schedule 1 offence;
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(b) Where there is the likelihood that the accused, if he or she were
released on bail, will attempt to evade his or her trial; or
(c) Where there is the likelihood that the accused, if he or she were
released on bail, will attempt to influence or intimidate witnesses or to
conceal or destroy evidence; or
(d) Where 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;
(e) Where in exceptional circumstances there is the likelihood that the
release of the accused will disturb the public order or undermine the
public peace or security."
[17] If any one of these requirements or factors are found to be present, it is
not in the interest of justice that the Accused person be released on bail.
Only one factor is sufficient to be present for a refusal of the granting of
bail, and not all factors taken cumulatively.
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[18] In S v Schietekat 1998 (2) SACR 707 (C) at 713h-714 j Slomowitz AJ
stated the following:
"Bail proceedings are sui generis ... The State is thus not obliged in its turn
to produce evidence in the true sense. It is not bound by the same
formality. The court may take account whatever information is placed
before it in order to form what is essentially an opinion or value judgment
of what an uncertain future holds. It must prognosticate. To do this it must
necessarily have regard to whatever is put up by the State in order to
decide whether the accused has discharged the onus .... "
[19] The test appears to be whether there was a likelihood that the Appellant
would evade trial and a likelihood of something more than a mere
temptation. The strength of the State's case and the probability of
conviction , although an important consideration , does not displace the
main issue which the court is required to decide, that is whether or not the
interests of justice permit the release on bail of the Appellant.
[20] Section 65(4) of the Act provides that a Court hearing an appeal against a
refusal to release an applicant on bail will not set aside the decision of the
Magistrate unless such Court is satisfied that the decision was wrong in
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which event the issue of bail may be considered afresh. The proper
approach for the Court hearing the appeal was set out in S v Barber 1979
(4) SA 218 (D) at 220 E-H) as follows:
"It is well-known that the powers of this Court are largely limited where the
matter comes before it on appeal and not as a substantive application.
This Court has to be persuaded that the magistrate exercised the
discretion which he has wrongly. Accordingly , although this Court may
have a different view, it should not substitute its own view for that of the
magistrate because it would be an unfair interference with the magistrate's
exercise of discretion. I think it should be stressed that, no matter what
this Court's own views are, the real question is whether it can be said that
the magistrate who had the discretion to grant bail but exercised that
discretion wrongly ... "
[21] A finding that the Magistrate 's decision is wrong will ensue once it is
shown that he misdirected himself/herself in some material way in relation
to fact or law. Absent a finding that the magistrate misdirected
himself/herself, the appeal must fail. Tritely, the powers of an appellate
court are limited where a matter comes before it on appeal and not as a
substantive application for bail. For that reason, when considering if the
decision by a court of first instance is wrong, an appellate court will accord
deference and attach appropriate weight to the fact that the court of first
instance is vested with a discretion. The appellate court will eschew any
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inclination to impose its own decision unless it is persuaded that the court
of first instance is wrong.
[22] I have had regard to the affidavit of the Appellant and the viva voce
evidence and report by Mrs. Wolmarans , as well as the viva voce
evidence of the Investigating Officer, Mrs. Kruger and the Social Worker,
Mrs. Tsitsa and the court a quo's judgment. I cannot find that the court a
quo misdirected itself in any way in reaching the conclusion that it did.
[23) In S v Vanta 2000 (1) SACR 237 at page 239 para c-d, Van Zyl J stated
as follows:-
"Because bail applications are neither civil nor criminal proceedings , but a
unique judicial function, the rules of evidence in trial actions are not strictly
adhered to. Therefore hearsay evidence is admissible at bail applications
(in casu hearsay evidence by the police investigating officer, about the
content of witness statements implicating the accused in the commission
of the offence with which she was charged). "
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[24] In my view, it cannot be said that the Magistrate was wrong in refusing to
admit the Appellant to bail. What is noteworthy and cannot be ignored is
that the Appellant deleted certain whatsapp messages, directly or
indirectly attempted to threaten and interfere with witnesses and that the
State has prima facie, a strong case against the Appellant.
[25] In my view, the court a quo correctly found that the interest of justice does
not permit the Appellant's release on bail. There is no basis for the appeal
court to interfere with the discretion exercised by the Magistrate. The
appeal must therefore fail.
[26] I accordingly make the following order:-
1. The bail appeal is dismissed .
2. A copy of this order must be forwarded to the Appellant by the Registrar of
this Court.
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APPEARANCES:
HEARD ON: 5 MAY 2025
JUDGMENT DELIVERED ON: 12 MAY 2025
For the Appellant: Adv. Essa
For the Respondent: Boucher Attorneys
C/0 Ramusi Attorneys
Polokwane
Adv. M. Mohale ISION, POLOKWANE
Office of the Director of Public Prosecutions
Limpopo Division, Polokwane.