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[2012] ZAGPJHC 38
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S v Engelbrecht (41/918/2011) [2012] ZAGPJHC 38; 2012 (2) SACR 212 (GSJ) (23 March 2012)
REPUBLIC
OF SOUTH AFRICA
SOUTH GAUTENG HIGH COURT,
JOHANNESBURG
Case No.
41/918/2011
REPORTABLE
OF INTEREST TO OTHER
JUDGES
REVISED
In the matter between:
THE
STATE
versus
BAREND
JACOBUS ENGELBRECTH
Accused
JUDGMENT
MEYER, J
[1] The question for
decision in this matter is whether the provisional forfeiture of the
bail money that was deposited for the
benefit of the late Barend
Jacobus Engelbrecht (‘the deceased’) should be confirmed
or whether it should be repaid
to the deceased’s brother, Mr
Cornelius Johannes Engelbrecht, who had paid it.
[2] This matter could not
be heard on Monday, 19 March 2012, when it was enrolled for hearing
and I accordingly stood it down until
this morning. Mr GL
Roberts SC, who appears for the state with Ms Marriot, and Mr SW van
der Merwe, who was to represent
the deceased at his criminal trial
and who presently represents the deceased’s brother, were
ad
idem
that I do not have a discretion other than to declare the
deceased’s bail money provisionally forfeited to the state in
terms
of s 67(1) of the Criminal Procedure Act 51 of 1977 (‘the
CPA’) pending argument today on the issue of a final forfeiture
order. I was unable to consider the matter and I accordingly
made such an order.
[3] The pertinent facts
are few and simple. The deceased had been arraigned for trial
on an indictment containing two charges
of the murder of his wife and
paraplegic son early in the morning on 27 May 2011. He was
granted bail pending the finalisation
of his criminal trial, which
was to commence on 19 March 2012. It is common cause that the
deceased died on 14 March 2012
as a result of a road accident.
The cause of his death is recorded as an ‘unnatural cause’
in his abridged death
certificate that was handed in at the
commencement of these proceedings. The
innuendo
is that
he committed suicide.
[4]
The relief sought in this matter requires an interpretation of the
relevant provisions of the CPA, and particularly
the provisions of
sections 67 and 70 thereof, which read as follows:
’
67
(1) If an accused who is released on bail –
(a)
fails to appear at the place and on the
date and at the time-
(i)
appointed for his trial; or
(ii)
to which the proceedings relating to the
offence in respect of which the accused is released on bail are
adjourned; or
(b)
fails to remain in attendance at such trial
or at such proceedings,
the court before which
the matter is pending shall declare the bail provisionally cancelled
and the bail money provisionally forfeited
to the State, and issue a
warrant for the arrest of the accused.
(2) (a)
If the accused appears before court within fourteen days of the issue
under subsection (1) of the warrant
of arrest, the court shall
confirm the provisional cancellation of the bail and the provisional
forfeiture of the bail money, unless
the accused satisfies the court
that his failure under subsection (1) to appear or to remain in
attendance was not due to fault
on his part.
(b) If the accused
satisfies the court that his failure was not due to fault on his
part, the provisional cancellation of
the bail and the provisional
forfeiture of the bail money shall lapse.
(c) If the accused
does not appear before court within fourteen days of the issue under
subsection (1) of the warrant of arrest
or within such extended
period as the court may on good cause determine, the provisional
cancellation of the bail and the provisional
forfeiture of the bail
money shall become final.
(3) The court may
receive such evidence as it may consider necessary to satisfy itself
that the accused has under subsection
(1) failed to appear or failed
to remain in attendance, and such evidence shall be recorded.’
…
70
The Minister or any officer acting under his or her authority or the
court concerned may remit the whole or any part
of any bail money
forfeited under section 66 or 67.’
[5] A case in point upon
which much reliance is placed by Mr Roberts on behalf of the state,
is
S v Cronje
1983 (3) SA 739
(W). There the facts were
that an accused to whom bail had been granted committed suicide on
the morning before his criminal
trial. Flemming, J held that a
court has no discretion and that it has to declare the bail money
provisionally forfeit if
an accused to whom bail had been granted
commits suicide before his trial. It was held ‘…
that
s 67(1)
of the
Criminal Procedure Act 51 of 1977
compelled the
Court to cancel bail provisionally and to declare the bail money
provisionally forfeited – an order which,
in terms of
s
67(2)(c)
, would become final after 14 days if the accused did not
appear personally before the Court so as to satisfy the Court, in
terms
of
s 67(2)(b)
, that his non-appearance was not due to fault on
his part.’ I am respectfully unable to follow the
interpretation in
Cronje
that the provisions of
s 67
of the
CPA apply to a deceased to whom bail had been granted and who, as a
result of his or her death, fails to appear or to remain
in
attendance at his or her criminal trial.
[6] The plain wording of
s 67
makes it clear that the Legislature contemplated living
persons. The provisions of
s 67
apply to ‘an accused who
is released on bail’ and ‘fails to’ appear or to
remain in attendance at his or
her criminal trial. The
dictionary meaning of the noun ‘accused’ is ‘the
prisoner at the bar’ (
The New Shorter Oxford Dictionary on
Historical Principles
– Clarendon Press, Oxford –
1993 Vol I, p 16) or ‘person or people accused of a crime in a
court’ (
Collin’s Dictionary and Thesaurus
3
rd
Ed 2006, p 7) and that of the adjective ‘accused’ is
‘charged with a crime or fault (
The New Shorter Oxford
Dictionary on Historical Principles (supra)
Vol I, p 16). A
deceased, since the moment of his or her death, cannot be a ‘person’
who is charged with or accused
of a crime or offence in a court.
The words ‘an accused who is released on bail’ used in
s
67(1)
also postulate a living person since a deceased ‘is’
not ‘released on bail.’ The release of a person
on
bail can obviously not continue after his or her death.
[7] The sanctions, which
a court has to impose upon an accused who is released on bail and who
fails to appear at his or her criminal
trial or who fails to remain
in attendance provided for in
s 67(1)
, are not separable and are
obligatory. A court, under such circumstances, must do three
things. It ‘…
shall declare the bail provisionally
cancelled and the bail money provisionally forfeited to the State,
and issue a warrant for
the arrest of the accused.’ See:
Da Costa v The Magistrate, Windhoek, and Others
1983 (2) SA
732
(SWA), at pp 741H – 743H. It makes no sense to
declare the bail provisionally cancelled in circumstances where a
deceased
is no longer at liberty on bail. The issue of a
warrant for the arrest of someone known to be deceased would be
absurd and
a
brutum fulmen
or exercise in futility. The
purpose of issuing a warrant of arrest is for the warrant to be
carried out. A warrant
can obviously not be carried out upon a
deceased. The provisional cancellation of bail and forfeiture
of bail money become
automatically final in terms of
s 67(2)(c)
if
the accused does not appear within 14 days of the issue of the
warrant of arrest or extended period as the court may on good
cause
determine. It is obvious that a deceased can neither appear nor
satisfy the court that his or her failure under
s 67(1)
was not due
to fault on his or her part.
[8] The language used in
s 67
of the CPA is clear and unambiguous and must accordingly be
given effect to. The provisions of
s 67
of the CPA find no
application when the default is due to the passing away of a former
accused, whether or not the cause of his
or her death was a natural
or an unnatural one, such as suicide. This interpretation, in
my view, also accords with the obvious
purpose of the bail
provisions, which is to ensure the attendance of an accused person.
Nothing in the context of the CPA
indicates that the words used
should not be given their plain and ordinary meaning.
[9] The Legislature, in
my view, did not intend a court to embark upon an investigation into
the question whether the accused is
alive or not before issuing an
order contemplated in
s 67(1).
If a court only becomes aware of
the passing away of an accused after it had issued a provisional
cancellation and forfeiture
order and warrant of arrest in terms of
s
67(1)
of the CPA, then, depending on the circumstances of a
particular case, the provisional order, it being interlocutory, could
be
recalled or rescinded (compare:
S v Zibula
1968 (2)
SA 956
(ECD), p 598G) or the provisions of
s 70
of the CPA could be
invoked to bring about the repayment of the bail money.
[10] The
provisional forfeiture order that was granted in
Cronje
can
never become a final one since a warrant of arrest had, in my view
appropriately, not been issued. An order for the provisional
cancellation of bail and for forfeiture of bail money can only become
final in the event of a defaulting accused, who appears before
the
court within fourteen days of the issue of a warrant of arrest, fails
to satisfy the court that his or her failure to appear
was not due to
fault on his or her part, or in the event of his or her
non-appearance within fourteen days, or any extended period,
of the
issue of a warrant of arrest.
[11] Mr Roberts, on
behalf of the state, also relies on
Ex parte Estate Phillips:
In re R. v. Phillips
1958 (1) SA 803
(N), wherein the Full Bench
of the then Natal Provincial Division held that ‘… an
accused person who takes his life
to avoid standing his trial clearly
makes default in the condition of his recognizance or deposit.’
The condition referred
to was that the accused should appear in court
on a specific date ‘… to answer the charge and at all
such times and
places to which the case may be postponed.’
The contention that ‘… the forfeiture provisions of
s
106
[of the former Criminal Procedure Act 56 of 1955] must inevitably
be interpreted as applying only to
living persons
’ was
rejected by the court based on its construction of ‘…
the plain language of the statute.’ It
was held that
‘[t]he statutory condition of the recognizance or deposit is
that the accused appear to answer the charge against
him. If he
makes default, the Court may order a forfeiture.’ See:
Per
Holmes, J, at p 806 B-C and at pp 806G – 808C.
The Full Bench decided that suicide in order to avoid standing trial
was not a sufficient reason not to declare bail forfeited.
[12] S 106, the
provisions of which section applied
mutatis mutandis
also in
respect of any deposit of money in terms of s 105(1)(b), and s 107 of
the former Criminal Procedure Act 56 of 1955, which
were
inter
alia
considered and interpreted in
Phillips
supra)
,
read as follows:
‘
106
If it appears to the court, Judge, magistrate or other judicial
officer concerned that default has been made in any condition
of a
recognizance taken before it or him, or if it appears to the court,
Judge, magistrate or other judicial officer before which
or whom an
accused person has to appear in terms of any recognizance entered
into before another court, Judge, magistrate or judicial
officer,
that default has been made in any condition of such recognizance,
such court, Judge, magistrate or other judicial officer
may –
(a)
issue an order declaring the recognizance
forfeited, and such order shall have the effect of a judgment on the
recognizance for
the amounts therein named against the person
admitted to bail and his sureties respectively;
(b)
issue a warrant for the arrest of the
person admitted to bail and afterwards, upon being satisfied that the
ends of justice would
otherwise be defeated, commit him, when so
arrested, to a goal until his trial.
107
The Minister or any person acting under his authority, may in his
discretion remit any portion of any amount forfeited
under this
Chapter and enforce payment in part only.’
[13] The
differences in wording between the relevant statutory provisions of
the former Criminal Procedure Act 56 of 1955
and of the CPA presently
under consideration are such that the interpretation given to s 106
of the Criminal Procedure Act 56 of
1955 in
Phillips (supra)
cannot inform the interpretation of s 67 of the CPA. A few
illustrations suffice: s 106 does not refer to ‘an
accused who is released on bail’; it does not enjoin the
court before which the matter is pending in an event of default
to
declare the bail provisionally cancelled ‘and’ to declare
the bail money provisionally forfeited ‘and’
to issue a
warrant for the arrest of the defaulting accused; it does not
afford an opportunity to a defaulting accused to
appear and to
satisfy the court that his or her default was not due to fault on his
or her part before the provisional cancellation
of the bail and
forfeiture of the bail money is confirmed by the court; and
sub-secs (a) and (b) of s 106 were held in
Phillips
, at p
807F, to ‘…contain separable remedies’, which
finding served to refute the submission made ‘…
that the
provisions of sub-secs. (b) dealing with the arrest of the accused,
showed that throughout sec. 106 the Legislature had
in mind an
accused
in esse
’.
[14] I am in all
the circumstances of the view that the provisional order in this
instance should not have been issued and
should be recalled.
The bail money must be repaid to the deceased’s brother.
[15] In the result
the following order is made:
1. The order made on 19
March 2012 declaring the deceased’s bail money provisionally
forfeited to the state in terms of s
67(1) of the CPA, is hereby
recalled.
2. The state is ordered
to repay to Mr Cornelius Johannes Engelbrecht the bail money that he
had paid for the benefit of the deceased.
3. The criminal case
against the late Mr Barend Jacobus Engelbrecht is struck from the
roll due to his death on 14 March 2012.
P.A. MEYER
JUDGE OF THE HIGH COURT
Date
of Hearing: 23 March 2012
Date
of Judgment: 23 March 2012
Counsel
for the state:
Mr GL Roberts SC
Ms Marriot
Attorney
for the former accused and for the bail depositor: Mr SW van der
Merwe
Linden,
Johannesburg