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[2021] ZAECBHC 3
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S v Kondile (11/2020) [2021] ZAECBHC 3 (12 February 2021)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(
EASTERN
CAPE DIVISION, BHISHO)
Case
No. 11/2020
Case
reference 23/20
THE
STATE
and
ANELE
NONDODA KONDILE
REVIEW
JUDGMENT
HARTLE
J
[1]
This matter came before me as a “special review”.
[2]
The accused
was released on bail in the sum of R300.00 pending a charge of
housebreaking. He failed to appear in the district court
on 13
October 2020 which was the date to which the proceedings had been
postponed. As a result, his bail was provisionally
cancelled and declared forfeited to the State and a warrant for his
arrest was authorized. He failed to appear within the 14 day
threshold
contemplated in Section 67 (2) of the Criminal Procedure Act 51 of
1977 (“the CPA”) and ultimately both the
provisional
cancellation of bail and its estreatment were made final.
[1]
[3]
On 18 November 2020 the Magistrate held a purported enquiry
into his
failure to have appeared on 13 October 2020 and thereupon convicted
and sentenced him to three months’ imprisonment.
[4]
Section 67A of the CPA provides as follows in respect
of the
procedure to deal with absconders released on bail who fail to
appear:
“
67
Failure of accused on bail to appear
(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.”
[5]
The enquiry is the absconder’s opportunity, if
he appears
within the fourteen day period after the issue of the warrant for his
arrest or such extended period as the court may
on good cause
determine, to persuade the court that his failure to appear was not
due to fault on his part. There are
two significant
consequences that may flow from his failure to appear which the court
will determine at such an enquiry. Firstly
his bail may be revoked.
Secondly, the bail monies paid by him (or by someone on his behalf)
may be declared forfeited to the State.
This is likely to be the
default position if he is not vindicated in the envisaged enquiry,
assuming the provisional cancellation
of bail and the provisional
forfeiture of the bail monies has not yet become final.
(If it has become final the absconder’s
remedy is to make a
fresh application for bail. He can also apply under section 70 of the
CPA for the bail monies forfeited to
be remitted to him.)
[6]
But there are also criminal consequences of his failure
to appear.
For criminal liability to ensue as a result of his breach, he will
however have to be separately charged with the offence
contemplated
by the provisions of section 67A. This section, in turn, provides as
follows:
“
67A
Criminal liability of a person who is on bail on the ground of
failure to appear or to comply with a condition of
bail
Any person who has been
released on bail and who fails without good cause to appear on the
date and at the place determined for
his or her appearance, or to
remain in attendance until the proceedings in which he or she must
appear have been disposed of, or
who fails without good cause to
comply with a condition of bail imposed by the court in terms of
section 60 or 62, including an
amendment or supplementation thereof
in terms of section 63, shall be guilty of an offence and shall on
conviction be liable to
a fine or to imprisonment not exceeding one
year.”
[7]
In the present instance the accused was evidently not
formally
charged although he was “convicted” and sentenced to 3
months direct imprisonment under the mantle of a “summary
enquiry” held after his bail had already been finally cancelled
and the bail monies declared forfeited to the State. In this
respect
the magistrate appears to have conflated the two sections referred to
above. An enquiry in terms of section 67 (2) of the
CPA was however
no longer applicable and would have been for a different purpose in
any event as I have indicted above. Contrariwise,
if the State was
intent on prosecuting the accused for his failure to appear under the
provisions of section 67A of the CPA he
should have been charged and
a proper trial ought to have been held with the objective of
convicting and punishing him for his
failure to appear.
[8]
Both the enquiry and consequent conviction and sentence
were clearly
a mistake. The magistrate conceded as much by submitting the matter
on special review for the situation to be reversed.
[9]
In the result, I issue the following order:
1.
The conviction (and subsequent sentence imposed) by the
magistrate for the accused’s failure
whilst then on bail to
appear on 13 October 2020 is set aside.
B
HARTLE
JUDGE
OF THE HIGH COURT
I
AGREE
P
ZILWA
JUDGE
OF THE HIGH COURT
DATE
OF JUDGMENT: 12 February 2021
[1]
On 13 November 2020 the accused appeared. The warrant was cancelled
and his bail was finally declared forfeited to the State,
but was
remanded in custody for an “enquiry”, which was
ultimately held on 18 November 2020.