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[2017] ZAGPPHC 204
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S v Nhlapo; S v Van Heerden; S v Mofokeng (A212/2017) [2017] ZAGPPHC 204 (28 April 2017)
IN
THE
HIGH COURT OF SOUTH
AFRICA
GAUTENG
DIVISION, PRETORIA)
Case
No: A212/2017
Date: 25/4/2017
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, warned 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 a 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 6
7
A 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
7
A of the CPA criminalised the failure
of an accused
on
bail
to appear or
remain in attendance on a date determined by the court.
Section 6
7
A 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
7
A 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