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[2010] ZAGPPHC 146
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S v Theko (Spec 8/09) [2010] ZAGPPHC 146; 2010 (2) SACR 339 (GNP) (13 January 2010)
I
N
THE HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG HIGH COURT. PRETORIA
)
DATE:
13/01/2010
Magistrate
BENONI
Case
no: Spec 8/09
High
court ref no: 1671
THE
STATE
.............................
v
JUSTICE
THEKO
...................
REVIEW
JUDGMENT
PRINSLOO.
J
[1]
The accused, a 33 year old male, is appearing in the Benoni
magistrate's court on a charge of theft. The accused was released
on
bail of R500.00 on 29 September 2009 in terms of the provisions of
section 59A
of the
Criminal Procedure Act 51 of 1977
. The accused
thereafter appeared in court on 30 September 2009 and his bail was
extended.
[2]
The accused failed to appear in court on 13 November 2009. when he
should have done so, and a warrant for his arrest was issued.
His
bail money was declared provisionally forfeited to the state. The
date of final forfeiture, as intended by the provisions of
section
67(2)(a)
of Act 51 of 1977, would have been 27 November 2009.
[3]
The accused, however, appeared on his own accord, within the fourteen
day period aforementioned, on 18 November 2009.
On
this occasion, the accused was remanded in custody to 19 November
2009 for an enquiry into his failure to appear in court on
13
November 2009.
[4]
On 19 November the court proceeded with an enquiry in terms of
section 170 of Act 51 of 1977. During the course of the enquiry
the
accused indicated to the court that his legal representative gave him
a wrong date. The court decided that the failure of the
accused to
appear was due to his fault and he was consequently convicted of
contravening section 170(2) of Act 51 of 1977. The
accused was
sentenced to pay a fine of R500,00 or to serve thirty days
imprisonment. The accused paid the fine and the court extended
the
bail. The matter was further postponed to 30 November 2009.
[5]
On 24 November 2009 the magistrate, Benoni, referred the matter to
this court on special review in terms of section 304(4) of
Act 51 of
1977. The main thrust of the magistrate's request for review was the
following:
"An
enquiry in terms of section 170 of Act 51 of 1977 was erroneously
held. The court should have proceeded with an enquiry
in terms of
section 67(2)(a)of Act 51 of 1977."
[6]
The query was referred to the learned Director of Public
Prosecutions. A very useful and comprehensive memorandum was received
from State Advocate K Germishuis, endorsed by a learned Deputy
Director of Public Prosecutions.
[7]
Section 170 of Act 51 of 1977 is only applicable when an accused who
is not in custody and who was not released on bail fails
to appear in
court or to remain in attendance. It does not apply to the present
case.
InSv
Ndwayana
1983(1)
PH H93(E) it was held that an accused who was on bail and who failed
to appear could not be convicted in terms of section
170 of Act51 of
1977.
[8]
Section 67 of Act 51 of 1977 deals with the failure of an accused on
bail to appear before court. If the accused appears before
court
within fourteen days of the issue of the warrant of arrest, the court
shall in terms of section 67(2)(a) confirm the provisional
forfeiture
of the bail money, unless the accused satisfies the court that his
failure to appear or to remain in attendance was
not due to fault on
his part.
[9]
Had the court, in the present instance, acted in terms of section
67(2)(a), the bail of the accused could have been cancelled
and the
bail money paid by the accused could have been declared forfeited to
the state. The forfeiture of bail money and the loss
of liberty would
thus have been the consequences of the failure of the accused to
appear in court. Failure to appear in court or
to comply with a bail
condition, were not otherwise punishable. The forfeiture of the bail
and the loss of liberty were regarded
as the appropriate "sanctions".
See Du Toit
et
al Commentary on the
Criminal Procedure Act 9-80
and
cases there quoted.
[10]
When an enquiry in terms of
section 67(2)(a)
is held the
onus
is
on the accused to convince the court on a balance of probabilities
that his failure to appear was not due to his fault. See 5
v
Cronje
1983
3 SA 739
(W).
[11]
The insertion of
section 67
A of Act 51 of 1977 (by section 9 of Act
75 of 1995) criminilised the failure of an accused on bail to appear
or to comply with
the bail condition.
[12]
In terms of this section, an accused who has been released on bail
and who fails without good cause to appear, shall be guilty
of an
offence and shall on conviction be liable to a fine or to
imprisonment not exceeding one year.
[13]
Section 67A does not empower the court to enquire in a summary manner
whether that section had been contravened.
[14]
In
S
v Mabuza
1996(2)
SACR 239 (T) it was held that when an accused is charged with the
statutory offence created by section 67A the charge-sheet
must be
drawn
and
a formal trial must be held. The state must prove the guilt of the
accused beyond a reasonable doubt. It was held, at 243e-g,
that
section 67A differed from other provisions of the Act such as, for
example, section 170, in that section 67A did not provide
that a
court could summarily enquire into an alleged breach of a condition
of bail.
[15]
In all the circumstances the "conviction" which flowed from
the abortive section 170 enquiry, cannot be sustained
and falls to be
set aside. Moreover, the section 170 "conviction" cannot be
substituted with a conviction for contravening
section 67A because a
proper trial was not held as described above.
[16]
In my view the extension of the bail after the abortive section 170
enquiry does not require any further intervention by this
court.
[17]
I make the following order:
1.
The conviction and sentence imposed following the enquiry held in
terms of section 170 of Act 51 of 1977 are set aside.
2.
The clerk of the court, Benoni, is ordered to refund the fine of
R500,00 paid by the accused.
WRC
PRINSLOO
JUDGE
OF THE NORTH GAUTENG HIGH COURT
I
agree
AA
LOUW
JUDGE
OF THE NORTH GAUTENG HIGH COURT