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[2014] ZAGPPHC 136
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S v Mlondo (A53/2014) [2014] ZAGPPHC 136 (30 January 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
Case
No.: A53/2014
Date:
30 January 2014
Not
reportable
Not
of interest to other judges
High
Court Reference No: 1123 Magistrate’s Serial No: 14/13
Magistrate’s Case No: 2041/2013
In
the matter between:
THE
STATE
And
SPHAMANDLA
MLONDO
REVIEW
JUDGMENT
MOLEFE
J:
[1]
This is a review which came
before this Court in terms of Section 302 (1) of the Criminal
Procedure Act 51 of 1977 (“the CPA”).
In
this matter the accused was found guilty of contravening Section 170
(1) of the CPA, (failure to appear) and sentenced to pay
a fine of
R300-00 or in default of payment to thirty (30) days imprisonment.
[2]
Mrs S. Kusche, the
magistrate, Piet Retief, sent the matter on special review under
cover of a letter dated 20 November 2013 which
read as follows:
‘
1.
Attached please find the above-mentioned case for consideration by
the Honourable Reviewing Judge.
2.
The accused was found
guilty of contravening section 170 (1) of Act 51 of 1977, failure to
appear and sentenced to pay a fine of
R300-00, or in default of
payment to thirty (30) days imprisonment.
3.
When checking the cases the
following lacuna was noted by me and I decided, after a discussion
with the Presiding Magistrate, to
bring it under the attention of the
Honourable Reviewing Judge to consider whether conviction was in
accordance with justice.
3.1
Accused defaulted coming to
court on the 05/11/2013 and the magistrate held an enquiry into his
failure to appear.
3.2
Section 170 (1) of Act 51
of 1977 specifically states that “an accused who is not in
custody or on bail can be convicted.
”
3.3
Accused was released on
bail and therefore could not have been found guilty’.
[3]
The Presiding Magistrate’s
reasons for judgment were attached to the letter and the reasons read
as follows:
‘
1.
Introduction
The
matter
was
brought to my attention by Mrs Kusche, Head of Judiciary, after I had
found the accused guilty and sentenced him. This case
was heard by me
on 08/11/2013.
2.
Reasons for Judgment
The
accused in this case was brought before court after being arrested on
a J165 warrant. Accused has paid bail. He failed to appear
on
05/11/2013 and the Warrant of Arrest was authorised and his bail
money was declared provisionally forfeited to the state until
19/11/2013. On the 08/11/2013, I then proceeded with an enquiry into
accused’s failure to appear, whereas the accused had
been out
on bail. An enquiry into failure of an accused to appear cannot be
held where the accused who had defaulted was released
on bail.
The
enquiry into accused’s failure to appear was held without
properly referring to the record of proceedings and not in accordance
with the
Criminal Procedure Act, which
is regretted and will not be
repeated.
The
main case against the accused is still pending and is ready for
trial.
The
bail money was re-instated.
The
accused has been informed of the special review proceedings. Your
review of the proceedings pertaining the enquiry into the
accused’s
failure to appear, will therefore, be appreciated’.
[4]
Section 170
(1) of the CPA
reads 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 or who fails to remain in attendance at such proceedings
as
so adjourned, shall be guilty of an offence and liable to the
punishment prescribed under subsection (2)”.
[5]
The magistrate, Mrs S.
Kusche correctly pointed out that the accused in this case was not in
custody and was released on bail. He
could not therefore have been
found guilty in accordance with
section 170
(1) of the CPA.
[6]
I agree with Mrs Kusche’s
submission. The
section 170
(1) of the CPA is concerned only with
persons who are not in custody and have not been released on bail.
(See
S
v
Swartbooi
1991 (2) SACR 54
(Nm)
at 55
I
)
The
proceedings pertaining to the accused’s failure to appear and
his being found guilty of contravening
section 170
(1) of the CPA
were therefore not in accordance with justice.
[7]
In the circumstances, the
accused’s conviction and sentence are set aside. The pending
main case against the accused should
proceed for trial.
D.
S. MOLEFE
JUDGE
OF THE HIGH COURT
I
agree.
H.J.
DE VOS
JUDGE
OF THE HIGH COURT