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[2018] ZAFSHC 137
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Dludla v S (R210/2018) [2018] ZAFSHC 137 (13 September 2018)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No.: R210/2018
In
the matter between:-
BAFANA
ERIC DLUDLA
and
THE
STATE
CORAM:
MBHELE, J
et
MOLITSOANE,
J
JUDGMENT
BY:
MOLITSOANE,
J
DELIVERED:
13 SEPTEMBER 2018
[1]
This matter came before us on special review in terms of s304 (4) of
the Criminal Procedure Act 51 of 1977(the CPA).
[2]
The accused was found guilty of failure to appear in court after a
summary enquiry as contemplated in s170 (2) of the CPA. He
was
sentenced to R300 or 30 days imprisonment.
[3]
During a routine systemic check the Acting Senior Magistrate
discovered that the trial Magistrate convicted the accused without
enquiring from the accused as to whether there was a reasonable
possibility of the absence of fault on the part of the accused.
[4]
The accused appeared before court on the 19
th
September 2016 on a charge of contravention of s37(1) read with
s37(2) of the General Laws Amendment Act 62 of 1955(Receiving
suspected stolen property). He was released on warning and he was
again warned to appear before court on the 10
th
October 2016.
[5]
On the 10
th
October 2016 he failed to appear before court.
A warrant of arrest was authorised for his immediate arrest and
detention .On the
24
th
January 2018 he appeared before
court on a warrant of arrest. The following transpired upon his
appearance in what purports to
be an enquiry for failure to appear:
“
Accused appears on a
warrant. Accused confirms his identity as it appears on a J165.
Warrant of arrest cancelled and attached .Rights
to legal
representation explained. Accused elects to apply for legal aid.
Ms.Mdlulwa on record. The instructions from the accused
is that he
was a witness in the case and that the investigating officer will
tell him which [when?] to come to court.
Case remanded until 13/02/2018 for
further investigation. Accused in custody bail fixed at R800.00. If
bail paid warned for 8:30
and to remain in attendance. Court 36.”
[6]
The magistrate noted that the accused was convicted of contravention
of s 72(4) and 170(1) of Act 51 of 1977(Failure to appear).It
is
contended in essence that the accused stood to be acquitted if there
was a reasonable explanation that his failure to appear
was not due
to fault on his part.
[7]
When requested for reasons for the conviction, the trial Magistrate
made concessions and indicated that he had nothing further
to add.
[8]
S170 of the CPA, is applicable in circumstances where an accused
fails to appear in court after a matter had been adjourned
and in
circumstances where the accused was not
released
on bail. The enquiry is summary in nature and the court is
enjoined to determine whether there is a reasonable possibility
that
the failure to appear was not due to fault on his part. See
S
v Singo
2002(20 SACR 160 (CC) par
[44], although this case dealt with s72(4) of the CPA. The accused
bears the onus to show that there
was no wilful default on his part.
The
presiding officer has a duty to explain to an undefended
accused the existence of such an onus,-See
S v Blenkele
1983(1) SA 515(O)].Section170 (2) of the CPA contemplates that mere
failure to appear will justify a conviction in the absence
of an
explanation. - See S
v Chaplin
1995(2) SACR 490(C) at
494 f-g.
[10]
The provisions of s170 correspond substantially to the provisions of
section 55(3) and 72(4) where the accused is summoned
or warned to
appear in court and he subsequently fail to do so. In
S
v Singo
2002(4) SA 858 (CC) the court considered s72(4) of the CPA which is
similar to s170(2) of the CPA and held as follows:
“
[13] The court must be
conducted in a fair and impartial manner. As part of the enquiry, the
presiding officer must establish
from the accused whether he or she
disputes the fact that he or she was duly warned, giving the details
of the warning recorded,
and that he or she failed to comply with the
warning. If the accused does not dispute the two basic facts, the
presiding officer
must establish from the accused the reason for his
or her failure to appear in court.”
Although
these remarks were made in respect of an undefended accused, it is my
considered view that they are also equally appropriate
where the
accused is legally represented. Surely a legal representative acts on
behalf and in the stead of the accused person.
Such a legal
representative is obliged to confirm that the accused was indeed duly
warned and must also give reasons for failure
to comply with the
warning. As may be seen from above the court must establish the
reason for the accused’s failure to appear
in court.
[11]
The accused in this case through his attorney gave an explanation to
the court. He indicated that he was told that he was a
witness in the
case. He also said that he was told that the investigating officer
will tell him when to come to court. Without
any further ado the
accused was convicted and sentenced. The magistrate failed to
interrogate further the explanation of the accused
that a reasonable
possibility existed that he might have been under a misconception
that he was a witness in the case and further
that the investigating
officer would inform him later as to when to come to court. The court
is obliged as of fairness to the accused
to attempt to determine the
truth in the enquiry. See
S v Baloyi
2000(1) SACR 81 (CC)
par[29]. Failure to interrogate the explanation further and
thus to attempt to get the truth, led to
a failure to establish fault
on the part of the accused .In this regard there was a misdirection
and the conviction can thus not
be sustained. In the circumstances
the following order is made:
ORDER:
[19]
The conviction and the sentence are hereby set aside.
___________________
P.E.
MOLITSOANE, J
I
agree
________________
N.M.
MBHELE, J