IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
CASE NO: CA&R 16/2025
In the appeal of:
ELIZABETH DOMINIKE 1st Appellant
CHRISTOPHER EVURULUBI 2nd Appellant
and
THE STATE Respondent
Heard on : 21 August 2025
Delivered on : 02 September 2025
Coram : Olivier AJ
Summary : Criminal Procedure – Appeal against refusal by Magistrate’s Court to grant
bail – Schedule 5 of Criminal Procedure Act, 1977 – Onus on appellants to show that release on
bail in in interests of justice – Onus not discharged – Not in the interests of justice to release
appellants on bail.
Reportable: YES / NO
Circulate to Judges: YES / NO
Circulate to Magistrates: YES / NO
Circulate to Regional Magistrates: YES / NO I I __
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ORDER
In the result, the following order is made:
1. The appeal is dismissed.
JUDGMENT
OLIVIER AJ
1. This is an appeal against the decision made by the learned Acting Senior
Magistrate MS KVD Mokoto (“the Magistrate”) on 18 June 2025 t o, subsequent
to being confronted with an application to that effect, deny bail to the appellants
pending trial.
This decision by the Magistrate forms the subject of this appeal.
2. The appellants were arrested on 28 May 2025 and are to stand trial in the District
Court of Upington on a charge of contravening the provisions of the DRUGS AND
DRUG TRAFFICKING ACT 1 (“the DDTA”) as well as on a charge of money
laundering.
It is, inter alia, alleged by the State that the appellant was found in possession of
undesirable dependence producing substances as listed in Part 3 of Schedule 2
of the DDTA with a value of R2 million.
1 Act 140 of 1992
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3. It is trite that the abovementioned substances were found in a vehicle that belongs
to the 2nd appellant and that, at the time that the substances, which were hidden
in various compartments in the vehicle of the 2 nd appellant, were found, the
vehicle was being driven by the 2nd appellant.
4. In coming to her eventual conclusion that the appellants should be denied bail,
the Magistrate reasoned as follows:
“In considering whether to grant or refuse bail the court should not speculate of what the
court thinks might happen. The court must be satisfied that there is a probability and not
a possibility of one or more of the factors mentioned in section 60(4) happening…
The presumption of innocence is merely one factor that must be considered, and must be
considered in the context that it does not relieve the applicants of the burden to prove that
the interests of justice permit their release on bail. The right must also be considered in
conjunction with the strength of the State’s evidence. If the right to be presumed innocent
was overarching it would mean that every bail applicant had to be released on the basis
that he or she was presumed innocent. That could not have been the intention of the
legislature…
The strength of the state case, ideally goes hand in hand with consideration of failure to
attend court. The stronger the case and punishment on conviction, the more incentive and
chances of decamping…
The evidence of the investigating officer demonstrates that indeed the state does have a
strong case as illustrated that the police received a tip off and the alleged drugs were
found in the 2nd applicant’s vehicle. The said drugs have been take (sic) for analysis and
the estimated street value is over 2 million Rands. The immigration officer has also
uncontested evidence that the 2 applicants are illegal immigrants who not only reside
illegally in the country but also conduct their businesses illegally as they do not have
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permits as they are not citizens nor do they have permits to conduct businesses in the
Republic of South Africa.
The applicants have evaded the rule of law pertaining to being legal immigrants, it is a
mystery as to how they have managed to secure businesses and for several years lived in
the Republic without renewing their VISA. I am further pursuad ed that there exists a
likelihood they will evade trial as it appears they have resources to be undetected by law
enforcement agencies and can be untraceable and that if released on bail they will not
attend trial.
The personal circumstances of the applicants are completely outweighed by these factors
and taking into account all the relevant considerations no bail condition in the
circumstances of this case will address the legitimate concerns of the state particularly
the probability of the applicants com mitting a schedule 1 offence. Presently 2 of the 2 nd
applicants’ vehicles are in police custody having been found to be used as instruments
used for commission of a crime, suspected of transporting illegal drugs.” (My omissions)
5. Mr Nel, who appeared for both the appellants, indicated in his heads of argument
that the primary issues for determination by this Court of Appeal were the
following:
5.1 Whether the trial Court misdirected itself by under -emphasising the
evidence by the appellants that none of the factors set out in Section
60(4)(a) to (e) of the CRIMINAL PROCEDURE ACT 2 (herein after
referred to as “the CPA”) are likely to occur if the appellants are released
on bail;
2 Act 51 of 1977
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5.2 Whether the trial Court misdirected itself by finding that the State does
have a strong case as illustrated by the fact that the police found the
alleged illegal substances in the vehicle of the 2nd appellant;
5.3 Whether the trial Court misdirected itsel f by not complying with the
provisions of Section 60(9) of the CPA;
5.4 Whether the trial Court misdirected itself by finding that there is a
likelihood that the appellants will attempt to evade the ir trial whilst no
basis for such finding exists; and
5.5 Whether the trial Court made a wrong order in denying the application for
the release on bail of both appellants pending trial.
6. It is apposite to start off by confirming that this appeal should be considered
against the backdrop of the provisions of Section 65(4) of the CPA which provides
as follows:
“The court or judge hearing the appeal shall not set aside the decision against which the
appeal is brought, unless such court or judge is satisfied that the decision was wrong, in
which event the court or judge shall give the decision which in its or his opinion the lower
court should have given.”
7. I am therefore, in view of the above-quoted statutory provision, only allowed to
interfere with the decision by the Magistrate to deny bail to the appellants, if I am
satisfied that the decision made by the Magistrate was wrong.
This was confirmed in S v Barber3 where the Court held as follows:
3 1979 (4) SA 218 (D)
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“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 for bail. 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 that would be an unfair interference with the
magistrate’s exercise of his 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, exercised that discretion wrongly.”4 (My
underlining)
8. The Court in this Division has held similar views in the past5 and has also stressed
the fact that mere doubt as to the correctness of the decision by the Court a quo
would not suffice.6
I have no reason to deviate from the above principle and arguments to the
contrary were also not presented to me.
9. It was not in dispute that the offences with which the appellants are being
charged, resort under Schedule 5 of the CPA and that it was therefore incumbent
on the appellants to place evidence before the Court a quo to the effect that, on
a balance of probabilities, the interests of justice permits their release on bail.7
10. As I understand the process, once any applicant for bail has manged to show that
it is in the interests of justice that he/she be so released, the State has the
opportunity to gainsay the applicant’s contentions by showing that one or more
of the grounds listed in Section 6 0(4) of the CPA are established and that, as a
result, it is not in the interests of justice to release the applicant on bail.
4 Barber, supra at 220. See also S v Ali 2011 (1) SACR 34 (ECP), par 14
5 See for example Mashalane and Another v S [2015] ZANCHC 19 (5 June 2015), par 15
5 See for example Mashalane and Another v S [2015] ZANCHC 19 (5 June 2015), par 15
6 Dhor v Direkteur van Openbare Vervolging [2016] ZANCHC 79 (20 December 2016)
7 See Section 60(11)(b) of the CPA
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I will return to Section 69(4) herein later again.
11. It has however been held that even if the State manages to show, based on one
or more of the grounds listed in Section 60(4) of the CPA, that the interests of
justice do not permit the release of an accused person on bail, the Court still
needs to consider the provisions of Section 60(9) of the CPA and the question
whether it can finally be found to be in the interests of justice to deny bail if the
interests of justice are weighed against the accused’s right to liberty.8
12. It is, in my view, beyond doubt that the liberty of any person is paramount and the
basic principle that should be adhered to is that any accused person is entitled to
be released on bail at any time prior to his/her conviction if it is in the interests of
justice that he/she be so released.9
13. The above was echoed in President of the Republic of South Africa v Zuma
and Others10 where the Court, with reference to the constitutionally guaranteed
right to personal freedom, stated as follows:
“That value, which is foundational to our constitutional order, may never be treated
lightly. Our history instructs us that it is a matter of pride that South Africans value and
assert our freedom above all other considerations in the face of whatever adversity we
chance upon to meet. Our law must guard that right and its exercise unreservedly.”11
14. Section 60(1)(a) of the CPA gives further recognition of the above basic principle
where it states as follows:
8 Prokureur-Generaal, Vrystaat v Ramokhosi 1997 (1) SACR 127 (O) at 155
9 See Section 35 of the Constitution of the Republic of South Africa, 1996, and also S v Mokgoje 1999 (1)
SACR 233 (NC) at 237; S v Branco 2002 (1) SACR 531 (W) at 532
10 [2023] JOL 57081 (GJ)
11 Zuma, supra, par 17
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“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 interest of justice so
permits.”
15. The central questions therefore to be answered are:
15.1 Whether the appellants have managed to show, on a balance of
probabilities, that they should be released on bail because it would be in
the interests of justice to do so;
15.2 Whether the State has managed to show that one or more of the
factors/grounds, as listed in Section 60(4) of the CPA, have been
established and that, as a consequence, the appellants should not be
released on bail; and
15.3 Whether finally and with consideration to the provisions of Section 60(9)
of the CPA, it could be found that it is in fact in the interests of justice to
release the appellants on bail if the interests of justice are weighed up
against the right to liberty of the appellants and whether the Magistrate
was wrong in holding differently.
16. If regards are to be had to the above quoted reasons by the Magistrate for her
eventual decision to deny the appellants’ application for bail, I hold the view that
it is clear that the Magistrate based her decision on the following:
16.1 That the State has a strong case against the appellants;
16.2 That, based on the fact that the appellants are in South Africa illegally, a
likelihood exists that they will evade their trial; and
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16.3 That, based on the fact that two of the 2nd appellant’s vehicles are in the
possession of the South African Police Services (“SAPS”) for allegedly
transporting drugs, there is a probability of the appellants committing a
Schdule 1 offence.
17. The lastmentioned finding by the Magistrate , namely that there is a probability
that the appellants will commit a Schedule 1 offence is, in my view and on the
face of it, incorrect since offences relating to the illicit possession, conveyance or
supply of dependence-producing drugs are listed as Schedule 2 offences and the
Magistrate provides no other explanation for why, according to her, a likelihood
exists that a Schedule 1 offence might be committed by the appellants if they
were to be released on bail.
There is, in other words, no evidence or indications that would support this finding
by the Magistrate.
18. It should be mentioned that Mr Steyn, who appeared for th e State/respondent,
did not pursue the argument that the appellants, if released on bail, will commit a
Schedule 1 offence, and both his arguments as well as the arguments of Mr Nel,
essentially revolved around the strength (or not) of the State’s case and around
the question whether a likelihood exists that the appellants may evade their trial.
19. The relevant portion of Section 60(4) of the CPA reads as follows:
“The interests of justice do not permit the release from detention of an accused where one
or more of the following grounds are established:
(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”
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20. I do not deem it necessary to refer to, or quote the remainder of the provisions of
Section 60(4) of the CPA , and I also do not deem it necessary to deal with the
remainder of the grounds set out in said Section 60(4) by virtue thereof that the
State did not attempt to prove or focus on the remainder of said grounds.
The State hung their hat firmly on Section 60(4)(b) of the CPA and on the
argument that it would not be in the interest of justice if the appellants were to be
afforded bail, because a likelihood exists that they will evade their trial if they were
to be released on bail.
21. Section 60(6) of the CPA deals with the factors which the Court may take into
consideration to determine whether it has been established that an accused
person may evade his/her trial and lists these factors as follows:
“(a) The emotional, family, community or occupational ties of the accused to the
place at which he or she is to be tried;
(b) The assets held by the accused and where such assets are situated;
(c) The means, and travel documents held by the accused, which may enable him or
her to leave the country;
(d) The extent, if any, to which the accused can afford to forfeit the amount of bail
which may be set;
(e) The question whether the extradition of the accused could readily be effected
should he or she flee across the borders of t he Republic in an attempt to evade
his or her trial;
(f) The nature and the gravity of the charge on which the accused is to be tried;
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(g) The strength of the case against the accused and the incentive that he or she may
in consequence have to attempt to evade his or her trial;
(h) The nature and gravity of the punishment which is likely to be imposed should
the accused be convicted of the charges against him or her;
(i) The binding effect and enforceablity of bail conditions which may be imposed
and the ease with which such conditions could be breached; or
(j) Any other factor which in the opinion of the counrt should be taken into
account.”
22. Both the appellants deposed to sworn affidavits which were read into the record
during the bail application proceedings in the trial Court, and these affidavits were
accepted by the Court as Annexure “A” and Annexure “B” respectively.
The appellants did not testify on their own behalf in the proceedings in the Court
a quo whilst the Prosecutor, during said proceedings and in support of his
argument that bail should be refused , made use of the testimony of the
investigating officer, as well as an official/immigration officer of the Department
of Home Affairs.
23. During the bail application proceedings in the Court a quo, certain facts came to
light which Mr Nel, to his credit, conceded might be of concern inasfar as the
appellants are concerned.
These facts, which were not disputed, alternatively not seriously disputed, are as
follows:
23.1 Both the appellants are Nigerian citizens who have been residing and
working in South Africa for quite some time , and who are deemed to be
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in the country illegally since they are not in possession of valid visas,
residential permits, and/or work permits;
23.2 The 1st appellant made one unsuccesful application for the renewal of, or
for the issuing of a new visa/residential permit , which application was
made approximately 11 years ago , and she has not made a similar
application since;
23.3 The 2nd appellant applied for a renewal of , or for the issuing of a new
visa/residential permit on three occasions;
23.4 The above applications of the 2 nd appellant were rejected on two
occasions for the fact that he used fraudulent documents in the
application process;
23.5 The 2nd appellant entered the Republic of South Africa on fraudulent
papers, alternatively on a passport belonging to someone else;
23.6 Both the appellants initially presented the members of SAPS ,
alternatively the Court a quo, with incorrect addresses (the 1 st appellant
on one occasion , and the 2 nd appellant on two occasions) where they
purportedly permanently reside;
23.7 The 2nd appellant was involved in an incident during 2022 involving illegal
substances and the possession thereof, which matter has been
withdrawn, apparently for further investigation; and
23.8 At the time of the bail application proceedings in the Court a quo , a
second vehicle belonging to the 2nd appellant was found to be conveying
illegal substances.
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24. It was common cause that the appellants were first offen ders, and that neither
had any pending criminal matters against him/her.
25. From her affidavit that was read into the record during the proceedings in the
Court a quo, the 1st appellant stated that she was 39-years old, single and self-
employed as a hair dresser , that she earned an income of approxim ately
R11 000.00 per month , and that she had a permanent residential address in
Gauteng.
The 1st appellant confirmed that she was in possession of travel documents, but
she also confirmed that these travel documents were in the possession of SAPS.
The 1st appellant further stated that she was unaware of the illegal substances
that were being conveyed in the vehicle since she was only a passenger in the
vehicle, and neither the vehicle nor the illegal substances that were found inside
the vehicle, belonged to her.
26. The 2nd appellant stated that he was 43 -years old, married to a South African
citizen, that he also resides in Gauteng, and that he has four dependent children.
The 2nd appellant further stated that he was self -employed as musician and taxi
driver and that he earned an income of approximately R12 000.00 per month.
The 2nd appellant also confirmed that his travel documents were in the possession
of SAPS at the time.
27. Both appellants, predictably so, stated under oath that their release on bail would
be in the interests of justice and they both solemnly undertook not to make
themselves guilty of any of the acts listed in Section 60(4) of the CPA.
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What is of interest, however, is the fact that, although both appellants stated that
they were not flight risks, neither stated under oath that they will not evade their
trial.
28. I hold the view that a Court should be careful to attach too much weight to
statements made by applicants for bail in terms of Section 60 of the CPA ,
especially in instances such as the present matter where the affidavit deposed to
is in fact a draft pre-prepared document with blank spaces that are completed
with the deponent’s particulars and certain other presonal information, and which
are then commissioned and read into the record.
I make the above remark whilst being well aware thereof that even such an
affidavit is deemed to be evidence under oath, but I am of the view that such a
draft pre-prepared affidavit should be approached with caution simply because
the question might very well be posed whether the af fidavit contains the actual
evidence of the deponent, or whether it is merely a draft pre-prepared document
where the deponent deposes to evidence thought out by someone else in order
to create sympathy with the Court hearing the application.
I am well aware of the pressures and time constraints often faced by practitioners,
but I hold the view that in instances where the liberty of persons is at stake, more
thought and effort should be put into the evidence placed before Court and into
the manner in which this evidence is placed before Court.
29. It was argued on behalf of the 1st appellant that the State does not have a strong
case against her, since the 1 st appellant was merely a passenger in the vehicle
in which the illegal substances were found , that the 1st appellant was not the
owner of the vehicle, that she was not the driver of the vehicle , and that there is
currently no evidence to suggest that the 1st appellant was aware of the drugs in
the vehicle.
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Mr Nel submitted that , by virtue of the above, there is no reason for the
1st appellant to evade her trial , and that she would , in fact , welcome the
opportunity to convince a Court of her innocence.
I agree that it appears as if the case of the State against the 1 st appellant might
be precarious, but I hold the view that in light of what is set out herein under, this
is of little consequence.
30. Reliance was further placed on the fact that the 1st appellant does not have any
previous convictions and that she has a confirmed and fixed residential address,
albeit an address in Gauteng, and it was argued that although the 1st appellant is
currently in South Africa illegally, it is is a situation that can easily be remedied by
simply applying for the necessary visa/permit.
31. In respect of the 2 nd appellant, it was conceded that the State might be better
positioned inasfar as the strength of their case is concerned, but it was argued
that it must still be proven that t he drugs in the vehicle was the 2 nd appellant’s
and, so it was submitted, it must be shown that a likelihood exists that the
2nd appellant will evade his trial if he is released on bail.
32. Mr Steyn submitted that the fact that, on face value, the State currently does not
have a strong case against the 1 st appellant should not be the defining factor in
this instance, and that it should be regarded as only one factor to consider.
I agree with this contention, as was already alluded to above.
It was argued that more reliance should be placed on the dishonesty of both
appellants, and on the fact that neither has any ties to the jurisdictional area of
the Court a quo, either personally or financially , and on the fact that both are in
South Africa illegally.
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33. It is commmon cause that neither appellant has any emotional, family, community
or occupational ties to the region where they are to be tried, and it is also common
cause that neither holds assets within the jurisdiction of the Court a quo.
Argument and/or evidence on how their continued incarceration would impact on
the appellants’ family and professional lives was not presented to Court.
34. Counsel for both parties were further ad idem about the fact that the offences on
which the appellants are to be tried are of a serious nature , and that these
offences, if the appellants are to be found guilty, might attract serious sentences.
35. It also appears, prima facie from the papers at my disposal , as well as from the
arguments presented, that the State appears to have a reasonably strong case
against at least the 2nd appellant and it should be considered that both appellants
initially provided the Court a quo / members of SAPS with incorrect addresses
under circumstances that can, at best, be described as dubious.
36. I am, however, of the view that the decisive factor in this instance is the fact that
both appellants are in the country illegally and that neither has any documentation
in their possession which would validate their presence in the country.
The 1st appellant does not provide any explanation why, for the past 10 years, no
attempt was made to apply for documentation that would rende r her stay in the
country legal, and I agree with the argument that this raises the valid question
whether she would have made any effort to do so, if she had not been arrested.
In the case of the 2 nd appellant, the position is even worse in the sense that he
attempted to obtain documen tation that would legalise his stay by using
fraudulent means.
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37. I am aware that the general principle is that a person should not be disqualified
from being released on bail simply because such a person is an illegal immigrant,
and that each case should be determined on its own merits,12 but in this instance
I hold the view that the release of the appellants on bail, whilst they are in the
country illegally, would be to perpetuate an illegality , and that this Court should
not allow this to be the case.
38. I consequently hold the view that, if all of the above is taken into consideration, in
other words , the seriousness of the allegations against the appellants, the
seriousness of the punishment that they might face, the fact that bo th presented
incorrect / false information to the Court / members of SAPS, the fact that neither
has any ties to the area of jurisdiction of the Court where they are to stand trial ,
and the fact that both are in the country illegally, I am of the considered view that
a likelihood does exist that the appellants will evade their trial and that, as a
consequence, it is not in the interest of justice to release either appellant on bail.
In the case of the 1 st appellant, I also considered the fact that she is single and
has no dependants , and in the case of the 2 nd appellant I also took into
consideration the fact that this was not his first involvement in a matter involving
illegal substances and, if regards are to be ha d to the fact that a second vehicle
of his was found to convey illegal substances during the time that the bail
application proceedings were ongoing, it would appear as if the 2 nd appellant is
regularly involved in matters involving illegal substances.
39. I am therefore in agreement with the decision of the Magistrate , and I will
consequently not interfere with the decision of the Magistrate to deny bail to the
appellants.
12 S v Branco 2002 (1) SACR 531 (W) at 536; Imran v S [2023] ZAWCHC 320 (7November 20230, par 50. Also
see Afali v S [2024] ZAECMKHC 121 (1 November 2024)
ORDER:
40. After having considered all of the above, I ma ke the follow ing order:
THE APPEAL IS DISMISSED.
Counse l for the Appellants:
Instructed by:
Counse l for the Responde nt:
Instructed by:
ACTING JUDGE AD OLIVIER
HIGH COURT O F SOUT H A FRICA
NORTH ER N CAP E D IV ISION
K IMB ER LEY
ADVINEL
VANZYL INC.
Upington
c/o ELLIOT MARIS INC.
Kimberley
ADVRSTEYN
Office of the D irector of Pub lic Prosecutions
Kimberley
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