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[2017] ZAGPPHC 307
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S v Nhlapo; S v Van Heerden; S v Mofokeng (A213/17) [2017] ZAGPPHC 307 (25 April 2017)
IN
THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG
DIVISION, PRETORIA)
Date:
25/4/2017
Case
no: A213/17
Reportable:
No
Of
interest to other Judges: No
High
Court Reference No: 88/17
Special
Review Case No: A372/15
Magistrate
LESEDI
(held at HEIDELBERG)
THE
STATE V LERATO NHLAPO
and
High
Court Reference No: 90/17
Special
Review Case No: A305/15
Magistrate
LESEDI
(held at HEIDELBERG)
THE
STATE V OCKERT JOHANNES VAN HEERDEN
and
High
Court Reference No: 91/ 17
Special
Review Case No: A413 / 15
MAGISTRATE
LESEDI
(held at HEIDELBERG)
THE
STATE V PAPI JACOB MOFOKENG
REVIEW
JUDGMENT
POTTERILL
J
[1]
In terms of section 304(4) of the Criminal Procedure Act 51 of 1977
("CPA”) three matters are before
us on special
review.
[2]
In all these matters the same presiding officer held a summary
enquiry in terms of section 170(2) of the CPA, pursuant to accused,
released on bail, wamed to appear and failed to do so.
[3]
In case number A305/15 State v Ockert Johannes van Heerden the court
convicted the accused of contravening section 170(1) of
the CPA and
sentenced the accused to a fine of R100 or 30 (thirty) days
imprisonment.
[4]
In case number A413/15 State v Papi Jacob Mofokeng the court found
the accused guilty of contravening section 170(1) of the
CPA
and sentenced the accused to e fine of
R100 or 30 (thirty)
days imprisonment.
[5]
In case number A372 / 15 State v Lerato Nhlapo the
accused was
also
found guilty of contravening section 170(1) of the CPA and
was cautioned and discharged.
[6]
All three the matters were sent on special review because
the
Magistrate
incorrectly conducted summary
enquiries into the accused's failure to appear on
a
specified date.
These enquiries were however
incorrectly held in terms of section 170(2) of the CPA and the
provisions of section 67A of the CPA
should have been applied.
[7]
I agree with this submission. As found in
S v Theko
2010
(2)
SACR 339
(GNP)
at
paragraph
[ 11] section 6 7A of
the CPA criminalised the failure of an accused on
ball
to
appear or remain in attendance on a date determined by the court.
Section 67A accordingly does not empower a court to enquire
in a
summary manner whether that section has been contravened.
Section 170 Is only applicable when an
accused
who was not in custody, and were not released on bail, failed to
appear in a court or to remain in attendance. The circumstances
of
these three matters accordingly fall under section 6 7A and not
section 170.
[8]
The sentences Imposed were not in accordance with Justice.
[9]
The convictions in all three of these matters, as well as the
sentences
are
set aside.
__________________________
S.
POTTERILL
JUDGE
OF THE HIGH COURT
I
agree
__________________________
S.S.
MPHAHLELE
JUDGE
OF THE HIGH COURT