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2023
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[2023] ZAFSHC 324
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S v Sompane - Review (B403/2022; R36/2023) [2023] ZAFSHC 324 (15 August 2023)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case
no: B403/2022
REVIEW NO: R36/2023
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE TO MAGISTRATES:
YES/NO
In
the matter between:
STATE
and
TUMELO
ORIEL SOMPANE
ACCUSED
CORAM:
MOLITSOANE, J
et
THAMAE, AJ
DELIVERED
ON:
15 AUGUST 2023
JUDGMENT
BY:
THAMAE,
AJ
[1]
This is a review in terms of section 304 (4) of the Criminal
Procedure Act, Act 51 of 1977 (the
Act)
[1]
.
[2]
The Senior Magistrate Welkom, SF Ferreira provided us with a
memorandum setting out the factual background
of the district court’s
dealings with the accused person until the current referral. From
what appears on the memorandum,
the accused was arrested, detained
and charged with
kidnapping and robbery.
He appeared and was subsequently granted bail on 25 November 2022. He
paid bail on 30 November 2022. His
matter was due back in court on 16
January 2023 but the accused failed to appear whilst on bail. His
bail was cancelled, his bail
money provisionally forfeited to state
and a warrant of arrest authorised against him. 30 January 2023 was
set as a day for final
forfeiture of his bail money. On 30 January
2023 his bail money was finally forfeited to the state and a warrant
for his arrest
remained in circulation.
[3]
He was subsequently arrested and brought for appearance before the
District Court,
Welkom
on 14 March 2023. Upon his appearance, the District Magistrate
conducted an inquiry into his failure to appear in terms of section
170(2) of the Act.
[2]
The
accused was accordingly convicted for contravening the provisions of
section 170(1)
[3]
of the Act.
He was sentenced to payment of a fine of R300.00 or 30 days
imprisonment. He did not pay the fine and was
thus subsequently
remanded in custody. His matter was eventually transferred to the
Regional Court. I should remark that by the
time the Registrar of
this court received the referral, being the 02 August 2023. The
accused would have since completed the serving
of the sentence
imposed in terms of section 170(2).
[4]
During the performance of quality assurance duties, the Senior
Magistrate came across the charge sheet
of the accused and discovered
the anomalies that necessitated this referral. I briefly, hereunder
encapsulate the essence of his
concerns as they appear on the
memorandum. The learned Senior Magistrate is of an opinion that:
(a)
The learned Magistrate should not have proceeded with an inquiry into
failure to appear in terms of section 170(2) of the Act
[4]
.
[5]
I am in agreement with the Honourable Senior
Magistrate’s opinion on this score. Upon reading
section 170(1)
of the Act, one can see from there that the section is meant to
govern the procedure in dealing with a defaulting
accused who is not
in custody and who was not released on bail.
[5]
Thus, the learned Magistrate did not act in accordance with the law,
in proceeding with an inquiry in terms of section 170(2) of
the Act.
The
learned Senior Magistrate is of an opinion further that:
(b)
Section 67(2)(c)
[6]
of the Act
is applicable
[7]
.
[6]
From an understanding that I gathered, upon reading the summary of
background facts supplied to
this court by the learned Senior
Magistrate, I understand that an order for the final forfeiture of
the accused bail money was
made on 30 January 2023. If this be the
case; section 67(2)(c) found application and was applied at the time
an order for final
forfeiture of accused bail money was made. The
effect of the order for final forfeiture of accused bail is that, the
accused, against
whom the order for final forfeiture is made, no
longer has bail as at the time of the order. Section 67(2)(c) was
thus no longer
applicable on 14 March 2023 when the accused was
eventually arrested on a warrant of arrest previously authorised.
[7]
On 14 March 2023 when the accused appeared
before the district court, his status was that of an accused
in
custody without bail. An enquiry into the position of the accused
ought to, have then been conducted. Since the accused was
in custody
and without bail. The provisions of section 50 of the Act relating to
procedure after arrest would then have been applicable,
in general,
and in particular, section 50(6) read with section 60 of the Act. The
accused, should then, have been informed of the
reasons for his
further detention if the court so ordered, and that he was entitled
to bring an application for his release on
bail or warning.
[8]
[8]
The learned Senior Magistrate further opined, lamenting the manner in
which the section 170 inquiry
was conducted by the learned District
Magistrate. The learned Senior Magistrate went on to correctly refer
to and cite the authority
in
S
v Singo
[9]
.
In order to avoid unnecessarily convoluting issues, I remark that
continuous training and refresher courses even for magistrates
with
extensive years of experience
[10]
is indispensable in ensuring that quality justice is dispensed. The
need for refresher courses is evident because the learned Magistrate
who committed the irregularity complained of, is an additional
magistrate with substantial years of experience, gauging from the
appointment dated noted as 08/08/91. This case serves as an example
that the relevant requirements of the law and the appropriate
application of the law may at times elude even those with great years
of experience.
[9]
In the light of the procedural irregularities noted above, I am of
the view that the proceedings were
not in accordance with justice.
In the circumstances, I
propose to make the following order:
ORDER
1.
The conviction and the sentence are set
aside.
2.
A copy of this judgment must be forwarded
to the Chief Magistrates Welkom and Bloemfontein.
MS THAMAE, AJ
I concur and it is so
ordered.
P MOLITSOANE, J
[1]
Section
304 (4) provides:
If
in any criminal case in which a magistrate’s court has imposed
a sentence which is not subject to review in the ordinary
course in
terms of section 302 or in which a regional court has imposed any
sentence, it is brought to the notice of the provincial
or local
division having jurisdiction or any judge thereof that the
proceedings in which the sentence was imposed were not in
accordance
with justice, such court or judge shall have the same powers in
respect of such proceedings as if the record thereof
had been laid
before such court or judge in terms of section 303 or this section
.
[2]
Section
170(2) provides:
The
court may, if satisfied that an accused referred to in subsection
(1) has failed to appear at the place and on the date and
at the
time to which the proceedings in question were adjourned or has
failed to remain in attendance at such proceedings as
so adjourned,
issue a warrant for his arrest and, when he is brought before the
court, in a summary manner enquire into his failure
so to appear or
so to remain in attendance and, unless the accused satisfies the
court that his failure was not due to fault
on his part, convict him
of the offence referred to in subsection (1) and sentence him to a
fine not exceeding R300 or to imprisonment
for a period not
exceeding three months
[3]
Section
170(1) provides:
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)
.
[4]
Line
17 – 19 on page 2 of the Memorandum by SF Ferreira:
Reference1/4/13/1
[5]
See:
Cooper v District Magistrate, Cape Town 2018 (1) SACR 369 (WCC)
[6]
Section
67(2)(c) provides:
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.
[7]
Line
19 on page 2 of the Memorandum by SF Ferreira: Reference1/4/13/1
[8]
See:
S v Luzil 2018 (2) SACR 278 (WCC)
[9]
2002(2) SACR 160 (CC) para 11-13.
[10]
See
the reasoning by Daniso AJ (as she then was) in S v Setho and
Another (R153/2017) ZAFSHC 183 (26 October 2017) at par 11-13:
Whilst the Judge was addressing special review cases that were
referred to this court, which were dealt with by a contract
magistrate. I believe, Daniso AJ’s (as she then was)
reasoning, regarding continuous monitoring and training are
significant
even in the current case.