The State v Keith Meyering, Review 2/25, High Court of South Africa (Western Cape Division, Cape Town), 05 August 2025
This judgment is reportable because it addresses a procedural lacuna that frequently confronts lower courts yet remains largely unexplored in the reported law: the correct manner in which criminal proceedings must be terminated when an accused person dies after pleading but before conviction, together with the proper handling of any outstanding warrants of arrest. The ruling offers authoritative guidance on the interaction between common-law principles (that prosecution is personal and abates on death) and the statutory framework of the Criminal Procedure Act 51 of 1977, thereby filling a gap of national significance for trial courts, prosecutors and reviewing courts alike.
S v Engelbrecht (41/918/2011) [2012] ZAGPJHC 38; 2012 (2) SACR 212 (GSJ) (23 March 2012)
Criminal Procedure Act 51 of 1977
National Road Traffic Act 93 of 1996
No specific Rules of Court were cited.
The accused, Keith Meyering, pleaded not guilty in the George District Magistrates’ Court to a charge of driving under the influence of alcohol in contravention of section 65(2)(d) of the National Road Traffic Act 93 of 1996. Evidence was led over several sittings. Before the next hearing date the accused died, yet a warrant of arrest issued at the previous postponement remained extant.
At a subsequent appearance the prosecutor produced the death certificate and informally requested that the charge be “withdrawn” and the outstanding warrant be cancelled. The presiding magistrate, unaware that evidence had already been led, acceded to the request. Realising later that the order might be ultra vires, the magistrate invoked the special-review procedure and referred the matter to the High Court.
On review the High Court held that death terminates criminal proceedings by operation of common law; that section 6 of the Criminal Procedure Act, which regulates withdrawal or stopping of prosecutions, was misapplied; and that the warrant could not be cancelled without following the mechanisms provided in sections 43 or 170 of the Act. The reviewing court therefore set aside the impugned order and remitted the matter with directions.
• Whether a magistrate may “withdraw” a charge after the accused has pleaded and evidence has been led, solely on proof of the accused’s death.
• The proper procedure for cancelling a warrant of arrest issued under section 170 of the Criminal Procedure Act when the accused has since died.
• The relevance of sections 6, 106 and 118 of the Criminal Procedure Act in circumstances where the accused dies mid-trial.
• The source and content of the common-law principle that prosecution is personal and abates on death.
The High Court held that the magistrate acted ultra vires in “withdrawing” the charge and cancelling the warrant. Upon an accused’s death, the correct course is to record the death and mark the proceedings as terminated on the ground that criminal liability is personal and cannot survive the accused. Neither section 6 nor section 106 nor section 118 of the Criminal Procedure Act authorises a withdrawal in such circumstances. The outstanding warrant, issued under section 170, could not be cancelled without adherence to that section’s requirements; however, because the accused was deceased, the warrant had become a nullity. The order of the magistrate’s court was consequently reviewed and set aside, and the matter remitted for proper termination in accordance with the judgment.
Keith Meyering was charged in the George District Magistrates’ Court with driving under the influence of alcohol. He pleaded not guilty on 11 July 2024, whereafter the State led evidence on two further dates. The trial was postponed to 8 October 2024.
On 8 October the accused failed to appear and, unaware that he had died four days earlier (4 October 2024), the presiding magistrate issued a new warrant of arrest in terms of section 170(2) of the Criminal Procedure Act.
When the matter next came before a different magistrate on 19 February 2025, the prosecutor produced a death certificate and asked that the charge be withdrawn and the warrant cancelled. The magistrate, mistakenly believing no plea had been taken, granted both requests. He later realised the procedural misstep and referred the matter on special review.
The central legal questions were, first, what procedure should a trial court follow when an accused dies after pleading and after evidence has been led; and, second, whether and how an outstanding section 170 warrant may be cancelled in those circumstances. Ancillary questions included the applicability of sections 6, 106 and 118 of the Criminal Procedure Act and whether common law supplies the governing rule.
The High Court began by reaffirming the common-law maxim that criminal liability is personal and abates with death; a prosecution therefore terminates automatically once the accused dies. While the Criminal Procedure Act is largely silent on the point, nothing in the statute displaces that common-law position.
Section 6 governs prosecutorial withdrawals and stoppages, but its bifurcated scheme distinguishes between pre-plea withdrawals (s 6(a)) and post-plea stoppages (s 6(b)), the latter requiring the National Director of Public Prosecutions’ consent and culminating in an acquittal—an outcome inapposite where the accused is deceased. The magistrate’s reliance on section 6 was thus misplaced, as was any reference to section 106, which merely enumerates permissible pleas. Section 118, dealing with judicial continuity where no evidence has been adduced, likewise had no application because evidence had in fact been led.
Turning to the warrant, the Court noted that section 170 provides a self-contained mechanism for enquiries into non-attendance and for cancellation of warrants. Because the accused was already dead when the warrant issued, any subsequent cancellation should have been effected by the magistrate who issued it or, if unavailable, by a functionary of equal rank, on proof of death. Cancelling the warrant sua sponte without reference to the governing section was irregular; nonetheless, the death rendered the warrant functus in practical terms.
The High Court set aside the magistrate’s order withdrawing the charge and cancelling the warrant. The matter was remitted to the George District Magistrates’ Court with directions, specifically instructing the court to record the accused’s death formally, terminate the prosecution on that basis, and note that the warrant has lapsed by operation of law.
Criminal prosecution is inherently personal; the death of the accused immediately abates the proceedings and extinguishes criminal liability.
Statutory provisions regulating withdrawal (section 6), pleas (section 106) and judicial continuity (section 118) of the Criminal Procedure Act must be read in harmony with this common-law doctrine and cannot be invoked to create forms of termination not contemplated by the Act.
Warrants issued under section 170 for failure to appear are procedural instruments contingent on the continued existence of the accused; upon proof of death they lose efficacy, but any formal cancellation must comply with the statutory mechanism or be recorded by a court of competent jurisdiction.