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[2022] ZAKZPHC 52
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S v Dlamini (R39/2022) [2022] ZAKZPHC 52 (12 September 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: R39/2022
In
the matter between:
THE
STATE
and
LUNGILE
STABULI DLAMINI
ACCUSED
REVIEW
JUDGMENT
Delivered
on: 12 September 2022
Khallil
AJ ( Mossop J concurring)
Introduction
[1]
This matter is not subject to review in the ordinary course
(automatic review) as contemplated in section 302 (1) (a) of the
Criminal Procedure Act 51 of 1997 (CPA).
[2]
The learned magistrate after convicting and sentencing the accused
for the offence of ‘failure to attend court’
endorsed the
face of the charge sheet with the direction ‘please send for
review’ .Nothing more.
[1]
[3]
The matter serves on review ostensibly in terms of Section 304 (4) of
the CPA which provides that ‘where it is brought
to the
attention of any Judge of the Provincial or Local Division having
jurisdiction that the proceedings in which the sentence
was imposed
in any criminal case in the magistrate’s court (regional or
district) was not in accordance with justice’,
such Judge shall
have the same powers as when considering a Review in terms of section
303 of CPA.
[2]
[4]
Unfortunately no grounds of review were submitted by the learned
magistrate nor was there any indication by the magistrate that
the
proceedings were not in accordance with justice as contemplated in
Section 304 (4) of the CPA. Having read the record of proceedings,
it
was decided to deal with the matter by virtue of the court’s
inherent jurisdiction in order to promote the interests of
justice
within the context of the values in the constitution.
Proceedings
in the Court a quo
[5]
The accused, Mr L S Dlamini, was indicted in the district court
sitting at uMzimkhulu on a single count of a contravention of
section
17(a)
of the
Domestic Violence Act 116 of 1998
. He was legally
represented.
[6]
The accused was released on bail but failed to appear in court on a
subsequent date when he was required to, namely, 16 September
2021. A
warrant for his arrest was authorised and his bail money estreated in
favour of the State.
[3]
[7]
The accused was re-arrested pursuant to the warrant of arrest and
brought before court on the 26 January 2022. The matter was
postponed
until 3 February 2022 for an enquiry envisaged in
section 67A
of
the CPA pertaining to his failure to appear
[4]
.
He was held in custody pending the outcome of the enquiry.
[8]
The matter was postponed on a few occasions thereafter
[5]
and on 21 February 2022, the enquiry was conducted. The accused
elected to be self-represented at the enquiry. He was convicted
of a
failure to attend court and was sentenced to undergo ‘
30
days’ imprisonment, alternatively, pay R500-00 fine (sic),
wholly suspended for period of 3 years on condition that the
accused
is not again (sic) convicted of a failure to attend court which is
alleged (sic) to have been committed during the period
of
suspension.’
[9]
The insertion of
section 67A
to the CPA, criminalises the failure,
without good cause, of an accused on bail to appear in court when
required to do so. Upon
conviction of such offence ,the accused is
liable to a fine or to imprisonment not exceeding one (1) year.
[6]
The transcribed record of the enquiry is annexed to the bundle of
documents.
[7]
[10]
When the matter first served before me, the following queries were
raised with the learned magistrate dated 29 April 2022:
‘
1.
Why was the accused unilaterally stopped by the magistrate when
tendering his explanation for non-appearance in court? Can it
be said
that the accused was allowed an opportunity to be heard? (record page
19, lines 11-12)
2.
It appears from the record that the accused was under the impression
that because he was in default of appearance, therefore
he is guilty
(record, page 19, lines 9-10). Should the magistrate have not
corrected this misconception on his part moreso because
he was
self-represented?
3
.Is
there any evidence that the accused was in wilful default? If not,
can the conviction stand? “
[11]
In an undated letter received by the Registrar on 3 August 2022, the
learned magistrate responded as follows:
‘
1.
Indeed, the accused was not given an opportunity to explain his
failure to attend court. The accused should have been questioned
by
me with reference to the alleged facts of the case in order to
ascertain whether he fully admits the allegations of his failure
to
attend court.
2.Upon
realizing that I did not give the accused an opportunity to explain
why he was pleading guilty. I felt that the conviction
was unfair and
I sent the matter for review.
3.
I completely concede with the remarks by the Honourable Judge. The
accused must be afforded the opportunity to be heard at all
times.
Especially if he is not represented.
’
Conclusion
[12]
From a reading of the record, it is clear that the accused was not
given a fair hearing in that he was,
inter alia,
effectively
denied the fundamental right to be heard before rendering of a
verdict. As such, the proceedings leading to his conviction
and
sentence were tainted with gross irregularity. The concession by the
learned magistrate of a failure of justice is noted. The
conviction
and sentence accordingly fall to be set aside.
[13]
The manner in which this matter was submitted to the High Court on
Review warrants comment. A magistrate who approaches a High
Court
with a view to having proceedings reviewed in terms of
section 304
(4) of the CPA should, at the least, indicate that the proceedings
were not in accordance with justice, as well as the reasons
for
holding such belief.
[8]
This was
not done in the present case and such practice must be
discouraged.
[9]
Order
[15]
In the result, I propose the following order:
15.1
The conviction and sentence is set-aside.
KHALILL
AJ
I
agree.
MOSSOP
J
[1]
Indexed
bundle, page 1-Enquiry conducted in terms of
section 67
A of the
Criminal Procedure Act
[2]
Section
304
(4) of the
Criminal Procedure Act 51 of 1977
[3]
Indexed
bundle pages 4 and 6 -7.
[4]
Indexed
bundle, page 8:
Section 67(3)
of the
Criminal Procedure Act 51 of
1977
which provides” 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”
[5]
Indexed
bundle, pages 10-14
[6]
Section
67A
(inserted by
section 9
of act 75 of 1995)
[7]
Indexed
bundle, pages 16-27
[8]
S
vs De Wee and others
2006 (1) SACR 210
(NC)
9. S v Singh
2013 (2)
SACR 372
(KZD), para 15