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[2014] ZAFSHC 134
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S v Tsholo (161/2014) [2014] ZAFSHC 134 (4 September 2014)
IN THE HIGH
COURT OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Review
No: 161/2014
In
the matter between:-
THE
STATE
and
ANDRIES
TSHOLO
CORAM:
JORDAAN, J
et
POHL, AJ
JUDGMENT
BY:
POHL,
AJ
DELIVERED
ON:
4
SEPTEMBER 2014
[1]
The control magistrate, Bloemfontein, sent this matter as a special
review to this court in terms of the provisions Section
304(4) of the
Criminal Procedure Act, Act 51 of 1977.
[2]
The accused was charged with one count of assault with intent to do
grievous bodily harm and released on bail of R500.00. The
matter was
then remanded to the 3
rd
of October 2013, but on that date
the accused defaulted and a warrant for his arrest was authorized and
issued. The accused’s
bail was provisionally cancelled and
provisionally forfeited to the State on that same day. The
provisional cancellation and the
forfeiture of the bail money were
made final by the Court on 17 October 2014, due to the accused’s
continued absence.
[3]
The accused was rearrested on a warrant of arrest and appeared before
the Court on 5 August 2014. The magistrate then proceeded
to hold a
“default enquiry”. The magistrate did not refer to any
Section of the Criminal Procedure Act in terms of
which the said
enquiry was held. At the end of the enquiry the accused was then
convicted for “failure to appear in court”
as reflected
on the charge sheet and he was sentenced as follows:
“
R200.00
or twenty days imprisonment”
[4]
Section 67 of the Criminal Procedure Act, Act 51 of 1977 does not
make provision for this procedure the magistrate adopted.
It does not
make provision for the conviction and sentence after bail money has
been finally cancelled and forfeited. In the premises
the magistrate
committed an irregularity by the convicting and sentencing of the
accused.
[5]
In the decision of
S v Williams
2012(2) SACR 150 (WCC) the following dicta appears at page 159,
paragraph 3:
“
Dit
is duidelik dat Art 67(2) soos bo uiteengesit nie daarvoor
voorsiening maak dat daar op die stadium dat die beskuldigde hom
voor
die hof bevind het, op hierdie wyse ‘n ondersoek na sy versuim
ingestel en/of geloods kan word waaruit ‘n skuldigbevinding
en
vonnis kan voortspruit nie. Art 67A skep wel ‘n misdryf, maar
die gesag is dit eens dat ‘n skuldigbevinding
en vonnis
slegs kan volg op ‘n formele verhoor en nie op ‘n
summiere ondersoek nie.”
[6]
In the work Hiemstra’s Criminal Procedure at page 929, the
authors has the following to say about this issue:
“
Failure
to appear or to comply with a condition of bail is now an offence
but, in contradiction to Sections 55 and 72 there is no
summary
enquiry. A charge sheet has to be drawn up and a formal trail must be
held.”
[7]
I agree with the above mentioned authority. Compare also
S
v
Mabuza
1996(2) SACR 239 (T).
[8]
I would therefore set aside the conviction and sentence for the
failure to appear in Court and furthermore direct the Clerk
of the
Court to pay any fine that the accused may have paid back to the
accused forthwith.
_______________
L.
le R. POHL, AJ
I
agree and it is so ordered.
_______________
A.F.
JORDAAN, J