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[2018] ZAFSHC 177
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S v Thole (R251/2018) [2018] ZAFSHC 177 (28 November 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case
number: R251/2018
In
the matter between:
THE
STATE
State
and
BOKANG
THOLE
Defence
CORAM:
MHLAMBI, J
et
MOLITSOANE J
JUDGMENT
BY:
MHLAMBI, J
DELIVERED
ON:
28 November 2018
SPECIAL
REVIEW JUDGMENT
Mhlambi,
J
[1] This matter came
before me by way of special review in terms of
section 304
(4) of the
Criminal Procedure Act 51 of 1977
. The query was forwarded to the
reviewing judge by the acting senior magistrate under cover of the
letter dated 28 September 2018
which reads as follows:
“
[1]
The matter is sent on review in terms of
section 304
(4) of Act 51 of
1977 as upon systematic checks by the Acting Senior Magistrate the
following irregularities were detected.
[2] The accused was
convicted of “failure to appear” and the Magistrate did
not give an indication in terms of which
section of the Act he found
the accused guilty.
[3] The defence made
submissions on behalf of the accused that the accused failed to come
to court on the date in question as the
accused believed that the
case would be withdrawn against him, and that the investigating
officer even called the mother of the
complainant who confirmed same.
The Magistrate wanted an affidavit to this effect which was not forth
coming.
[4] The Magistrate
seemed to misconstrue the purpose of the enquiry, as the question was
not whether the complainant wished to withdraw
or not, or even if the
submission was true, the question was simply whether there was a
reasonable possibility that the failure
of the accused was not due to
fault on the part of the accused- S v Singo
[2002] ZACC 10
;
2002 (2) SACR 160
(CC).
[5] In the judgment
the Magistrate even seems to accept the submissions of the accused,
but wants support in the form of an affidavit,
with all due respect,
the Magistrate could not saddle the accused with the burden to
produce an affidavit which would normally
be contained in a docket.
[6] The Magistrate
seems to convict the accused, not on the failure to appear before
court, but because of the accused’s belief
that he need not
have appeared before court, which was not supposed to be the basis of
the enquiry, and at most negligent, that
coupled with the absence of
the section which the accused contravened, has led to my respectful
submission that the conviction
and sentence be set aside.
[7] The Magistrate is
currently acting in the Regional Court in Welkom, and I have not
solicited his views, my request is that if
the Honorable Judge so
requires, his views can be sought.
[8]
Attached hereto the charge sheet and record for the attention of the
Honorable Reviewing Judge”
[2] The proceedings did
not appear to be in accordance with justice, with the result that I
sent a query to the magistrate wherein
I asked the following:
“
1.
Request the views of the presiding magistrate to the contents of the
letter dated 28 September 2018.
2.
The presiding magistrate should also advise whether the accused was
present in court when the alleged enquiry was held”.
[3] The response from the
presiding officer was forwarded under cover of a letter dated 31
October 2018 and reads as follows:
“
1)
This matter was brought to my attention after it was sent on special
review by the Acting Senior Magistrate.
2) The Honorable
Reviewing Judge requested my views on the contents of the letter
dated 2 September 2018.
3) The said letter
referred to above was sent to me incomplete and I requested the
Acting Senior Magistrate to resend me the complete
letter which she
did.
4) My respectful
comments to the Honorable Judge’s remarks are as follows:
5) With regard to the
second remarks, I submit that the accused was present during the
enquiry. I am referring the Honorable Judge
to Page 1 lines 5-6 of
the transcribed record where the Accused Attorney Mr. Sekonyele
requested the Court to approach his client
and the Court granted him
permission to take instructions.
6) With regard to the
first remark relating to the Letter of the Acting Senior Magistrate,
my views are as follows:
7) The record speaks
for itself. I did not give an indication in terms of which section of
the Act I found the accused guilty. The
enquiry I held was in terms
of
section 170
(2) of the
Criminal Procedure Act 51 of 1977
. It is in
terms of this section because the adjournment was after the accused
had appeared before the court and it is the Court
that warned him to
appear on the next date.
8) The conviction for
Failure to attend Court is in terms of Section of 170(1) of the
Criminal Procedure Act 51 of 1977
.
9) In the case of S v
Singo
[2002] ZACC 10
;
2002 (2) SACR 160
(CC) the Constitutional Court stated that
enquiry to be held is for the accused to satisfy the court that there
is a reasonable
possibility that failure to attend court was not due
to fault on his part. The onus rest with the accused. I submit that
non-indication
of the section does not render the enquiry irregular.
10) My judgment for
not accepting the accused version is not based on the fact that the
accused did not produce an affidavit filed
in the docket about the
withdrawal.
11)
It is the Court that gave the accused the order to return back to
Court on the specified date. This is a valid Court order that
must be
complied with.
12)
I respectfully submit that there was no irregularity and that I
applied my mind and judicial discretion properly and the conviction
should stand”.
[4] Section 170 of the
Act provides as follows:
(1)
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,
shall be guilty of an offence and liable to the punishment
prescribed
under subsection (2).
(2)
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, 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 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
one hundred rand or to
imprisonment for a period not exceeding three months”.
[5]
It is so that the conviction is in terms of section 170 (1); and that
there may be support for the magistrate’s decision
in
State
vs. Singo
[1]
as
suggested. The question that arises is whether the principles, as
suggested in that case, were appreciated by the magistrate
and
correctly implemented, namely, that the accused satisfied the court
whether there was a reasonable possibility that his
failure to
comply with such warning was not due to fault on his part. This
creates an evidentiary burden on the accused to raise
a reasonable
doubt
[2]
.
[6]
Section 170 corresponds with
sections 55(3)
and
72
(4) of the
Criminal
Procedure Act which
apply to similar cases of persons who have
respectively been summoned and warned to appear and who subsequently
fail to appear.
The court has the same powers as those it has in
respect of
sections 55(3)
and
72
(4)
[3]
.
In
State
vs. Bakenlele
[4]
,
the court was of the view that the failure to ask the accused whether
he wanted to testify or call witnesses to explain his failure
to
appear at the hearing of a case, was a gross irregularity which
prejudiced the accused. The implications of the onus on him
to give a
reasonable explanation must be explained to him. The conviction and
sentence were set aside as justice did not prevail.
An enquiry in a
summary manner as suggested in
section 170(2)
means that the court
must inform the person concerned of its intentions and inform the
person there and then to defend himself
or to explain why he did not
comply with the provisions of
section 170(1).
The proceedings should
afford the accused a fair trial.
[5]
[7]
In the light of the above, notwithstanding the magistrate’s
submissions to the contrary; and despite the fact that the
accused
was legally represented, it is clear that there was a serious
irregularity in the proceedings. The matter was handled in
a slapdash
manner. Both conviction and sentence stand to be set aside.
[8]
In the circumstances, the following order is made:
The
conviction and sentence are set aside.
_____________
MHLAMBI, J
I
concur
_______________
MOLITSOANE, J
[1]
2002 () SACR 160
[2]
Singo, supra 176 paragraph 41
[3]
Hiemstra,s
Criminal Procedure Act – Albert
Kruger- May 28
22-67
[4]
1983 (1) SACR 515 (O)
[5]
State v Baloyi
[1999] ZACC 19
;
2000 (1) SACR 81
paragraph 29