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[2018] ZAWCHC 75
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S v Luzil (18294) [2018] ZAWCHC 75; 2018 (2) SACR 278 (WCC) (19 June 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
REVIEW
18294
In
the matter between
THE
STATE
VS
KRIGA
LUZIL
CORAM WILLE J; THULARE AJ
JUDGMENT DELIVERED ON 19
JUNE 2018
THULARE
AJ
[1]
The matter comes before this court on review. The accused was
arrested together with another and made his first appearance before
the magistrate Bellville on 8 May 2017 for unlawful possession of
undesirable dependence producing substance. The accused elected
to
apply for legal aid and the matter was postponed to 23 August 2017
for further investigation and legal representation and the
accused
was granted to bail of R400-00.
[2]
The accused failed to appear on 23 August 2017. It is difficult, if
not impossible, to follow what really happened in court
in relation
to which of the two accused, from the minutes of the record of
proceedings kept by the presiding acting magistrate,
Mr Ahmed from 23
August 2017. This court will allow itself to be led by the two
Memoranda compiled by Magistrate Jacks and Adv
Stephen SC
respectively.
[3]
From the two Memoranda, it is said that on 23 August 2017 a warrant
of arrest was authorised against the accused and her bail
was
declared provisionally forfeited to the State with a return date of 6
September 2017. On 6 September 2017 the accused was still
absent and
the forfeiture order was extended to 20 September 2017 on which date
it was made final and her bail forfeited to the
State as she was
still absent.
[4]
The accused was arrested and brought before court on 9 February 2018.
She was represented and the matter was postponed to 14
February, 1
March and ultimately 7 March 2018 for an enquiry. The accused, a
mother of an infant less than six months old, was
kept in custody
throughout, until bail at R300-00 was fixed on 7 March 2018.
[5]
On 7 March 2018 the defense attorney made submissions that the
accused admits guilt for contravention of section 170 (1) of
the
Criminal Procedure Act, 1977 (Act No. 51 of 1977) (the Act). The
explanation given was that the accused was in hospital on
days
preceding the court appearance date and gave birth to a baby. She was
no longer in hospital on the day of appearance but the
excitement of
the newborn baby caused her to forget about the court date.
[6]
Despite a specific request by the Public Prosecutor to address the
court, no such opportunity was afforded and there is no explanation
as to why the State was not afforded an opportunity to address the
court on the merits on 7 March 2018. The magistrate simply proceeded
to pronounce judgment and found the accused guilty for failing to
attend court. It remains unknown whether the denial of the audience
of the Public Prosecutor would have saved the court from the
irregularity that occasioned.
[7]
It is only when the court had to attend to the sentencing, that the
magistrate realized that it was incorrect to conduct the
matter in
terms of section 170 of the Act, and that the court should have acted
as envisaged in section 67 of the Act. The magistrate
immediately
stopped the proceedings and submitted the matter for special review.
[8] Section 170(1) of the
Act reads as follows:
“
170
Failure of accused to appear after adjournment or to remain in
attendance
(1)
An accused at criminal proceedings
who is not in custody and who has not been released on bail, and who
fails to appear at the place
and on the date and at the time to which
such proceedings may be adjourned or who fails to remain in
attendance at such proceedings
as so adjourned, shall be guilty of an
offence and liable to the punishment prescribed under subsection
(2).”
In
Commentary on the
Criminal Procedure Act,
Du
Toit et al, service 58, 2017 22-105
the learned authors said:
“
The
wording of the section makes it plain that
s 170
is applicable only
to an accused who is not in custody and who has not been released on
bail.”
It
was irregular, which irregularity vitiates the proceedings, for a
magistrate to apply the provisions of
section 170(1)of
the Act to an
accused who had been granted to bail and had failed to appear in
court after her bail was finally cancelled and forfeited
to the
State.
[9]
An enquiry may be held if the accused appears before court within
fourteen days of the issue of the warrant of arrest –
[Section
67(2)(a) of the Act]. The enquiry is limited in its scope. It does
not attract punishment ordinarily at the discretion
of the court. It
is only qualified to satisfy the court that the failure to appear was
not due to fault on the part of the accused.
If the accused satisfies
the court that the failure to appear was not due to fault on his
part, the provisional cancellation of
the bail and the provisional
forfeiture of the bail money becomes invalid, which amongst others
includes that bail is reinstated.
The position before the provisional
cancellation and provisional forfeiture maintains –[
S
v Mabuza
1996 (2) SACR 239
(T) at
243d]. If the accused fails to satisfy the court that his failure was
not due to fault on his part, the provisional orders
may be made
final. It follows that I do not agree with Adv. Stephen SC, when he
wrote in the Memorandum on behalf of the Director
of Public
Prosecutions, Western Cape, that no enquiry is held in terms of
section 67 of the Act.
[10] The provisional
cancellation of bail and the provisional forfeiture of bail money had
become final by the time the accused
was arrested and appeared before
the court – [Section 67(2)(c) of the Act]. In my view, this is
not the end of the matter.
The court has the power to remit the whole
or any part of any bail money forfeited under section 67 –
[section 70 of the
Act].
In
S v Mudau
1999
(1) SACR 636
(WLD) at 636h-j the court said:
“
At
this stage I want to say this. Whatever legislative provisions were
operative there was clearly an injustice done to the accused;
or more
pertinently the person who deposited the money. It offends anyone’s
sense of justice that persons (in this case clearly
poor) should
loose R1000-00 because an accused is prevented from attending court.
The facts have only to be mentioned for the injustice
to be apparent.
There was therefore a miscarriage of justice even if the law was
correctly applied.
In applying the law,
wherever there was a discretion to be exercised it should have been
so exercised that if at all possible a
miscarriage of justice was
averted.”
There
are instances where fairness to such accused would require that the
bail money deposited by him or on his behalf be remitted.
[11] In my view, upon the
appearance of an accused granted bail, whose bail had been finally
cancelled and the money forfeited,
the court should satisfy itself
whether it is fair and just for the final cancellation and forfeiture
order to stand.
In
S v Nkogatse
2002
(2) SACR 369
(TPD) the court said at 373g-i:
“
The
provisions of s 70 are not and cannot be construed as being intended
to or capable of being interpreted as requiring a court
to review its
own decision to declare as finally forfeited bail money in
consequence of the violation of bail conditions. In my
view, and
without in any way prescribing or in any way limiting the relevant
criteria, the process must determine whether, taking
all the facts
into account, including the reason, nature and the extent and
duration of the recalcitrance of the accused, the actions
taken by
the depositor to bring to an end such recalcitrant conduct by the
accused, the source of the bail funds, it would be fair
and just to
remit part or the whole of the bail money estreated.”
Earlier on, the court,
expressing itself on the onerous responsibility of administering
justice, had said at 372i-j:
“
That
responsibility must be discharged judiciously and in the spirit of
justice, fairness and reasonableness.”
The
magistrate is obliged in the interests of justice to determine
whether the final order of cancellation and forfeiture should
stand
or whether the bail money forfeited should be remitted. The enquiry
is qualified and limited to remittance.
[12] In
S v Rall
1982
(1) SA 828
(AD) at 831A-B it was said:
“
According
to the well-known dictum of Curlewis JA in R v Hepworth
1928
AD 265
at 277,
which the learned Judge a
quo obviously had in mind in his remarks quoted above:
“
A
criminal trial is not a game … and a Judge’s position …
is not merely that of an umpire to see that the rules
of the game are
observed by both sides. A Judge is an administrator of justice, he is
not merely a figure-head, he has not only
to direct and control the
proceedings according to recognized rules of procedure but to see
that justice is done’”
At 831H the court
continued:
(1)
According to the above quoted dictum
of Curlewis JA the Judge must ensure that “justice is done”.
It is equally important,
I think, that he should also ensure that
justice is seen to be done. After all, that is a fundamental
principle of our law and
public policy. He should therefore so
conduct the trial that his open-mindedness, his impartiality and his
fairness are manifest
to all those who are concerned in the trial and
its outcome, especially the accused …”
The
final loss of the money paid for bail, in my view, had to occasion in
a manner that is not only substantively fair, but also
in a manner
that is procedurally fair to the accused and the depositor of the
money as well as the State.
[13] I however agree with
Adv. Stephen SC, when he said:
“
Previously
the final forfeiture of the bail was considered sufficient punishment
but S v Mabaso
1990 (1) SACR 675
(T)
led to section 67A being inserted into
the Act by section 9 of Act 75of 1995. It criminalises the failure of
an accused to attend
court after having been released on bail. It is
not an enquiry but a separate prosecution on its own charge sheet and
it must also
be held separately from any inquiry that might be held
under section 66 of the Act.”
[See
S v Mabuza, supra,
at
243g].
If
the State wishes to hold the accused criminally liable, as a person
who was on bail, on the ground of failure, without good cause,
to
appear or to comply with a condition of bail, then such prosecution
should follow the ordinary course, and cannot be a summary
enquiry.
[14]
In my view, once the bail is finally forfeited to the State, and an
accused appears before the court after arrest, there is
a second
enquiry that should follow, and this relates to the status of the
accused. In my view, the provisions of section 50 of
the Act relating
to procedure after arrest are applicable in general, and in
particular section 50(6) read with section 60 of the
Act. It follows
that at his or her first appearance after such arrest such accused is
entitled to be informed of the reasons for
his or her further
detention if the court so orders, and that he/she is entitled to be
released on bail – [
S v Mandili
[2006] JOL 17588
(T)] or even be warned
– [
S v Rabele
(76/2014)
[2016] ZAFSHC 178
(29 September 2016) at para 35]. The failure of the
magistrate to give attention to the status of the accused was a
material misdirection.
[15]
Adv. Stephen SC urges this court to remit the matter to the
magistrate to continue with the trial.
For
these reasons, I propose the following orders:
1.
The conviction of accused under
section
170(1)
of the
Criminal Procedure Act, 1977
, for failing to attend
court, is set aside.
2.
The matter is remitted back to the
Magistrate for the accused to be dealt with in accordance with the
law.
…………………………………………………………
DM
THULARE
ACTING
JUDGE OF THE HIGH COURT
I
agree and it is so ordered;
……………………………………………
WILLE,J
JUDGE
OF THE HIGH COURT