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2024
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[2024] ZAECMKHC 115
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S v Nkosi (Special Review) (CA&R182/2024) [2024] ZAECMKHC 115; 2025 (1) SACR 558 (ECMk) (22 October 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
Case Number:
CA&R182/2024
Case Number 27/518/24
In the matter between:
THE STATE
and
KHANYISO NKOSI
Case Number:
CA&R182/2024
Case Number: 27/835/24
In the matter between:
THE STATE
and
MAWETHU SAJINI
JUDGMENT –
SPECIAL REVIEW
Beshe
J
[1]
The two matters mentioned above have been placed before me in terms
of Section 304 of the
Criminal Procedure Act
[1]
for special reviewal. In both cases, the accused persons who had been
out on bail, failed to appear in court after a postponement.
This
resulted in warrants of arrest being authorised against them. When
the accused in the two matters appeared before court, the
Magistrate
purportedly dealt with their non-attendance in terms of Section 67A
of the Act. This she did by summarily enquiring
why the accused in
each matter failed to appear in court on a previous date when their
respective matters were on the roll, whilst
on bail. She then found
in both cases that the explanation given by each of the accused was
not reasonable. She ordered the accused
in each matter to pay a fine
of R100.00. The Magistrate states that the proceedings were in terms
of Section 67A. The fact that
she imposed a fine in each of the
matters is indicative of the fact that she was purporting to act in
terms of Section 67A of the
Act.
[2]
Section 67A creates an offence
by providing that:
‘
67A
Criminal liability of a person who is on bail on the ground of
failure to appear or to comply with a condition of bail
Any
person who has been released on bail and who fails without good cause
to appear on the date and at the place determined for
his or her
appearance, or to remain in attendance until the proceedings in which
he or she must appear have been disposed of, or
who fails without
good cause to comply with a condition of bail imposed by the court in
terms of section 60 or 62, including an
amendment or supplementation
thereof in terms of section 63, shall be guilty of an offence and
shall on conviction be liable to
a fine or to imprisonment not
exceeding one year.
’
It
is clear therefore that the normal rules and standard of proof in
criminal cases apply in proceedings held in terms of Section
67A.
Section 67A does not empower the court to enquire in a summary manner
whether there has been a contravention of the section.
[3]
Section 67 which also deals with
accused who whilst out on bail fail to appear in court,
provides
thus:
‘
67
Failure of accused on bail to appear
(1) If an accused who is
released on bail-
(a) fails to appear at
the place and on the date and at the time-
(i) appointed for his
trial; or
(ii) to which the
proceedings relating to the offence in respect of which the accused
is released on bail are adjourned; or
(b) fails to remain in
attendance at such trial or at such proceedings, the court before
which the matter is pending shall declare
the bail provisionally
cancelled and the bail money provisionally forfeited to the State,
and issue a warrant for the arrest of
the accused.
(2) (a) If the accused
appears before court within fourteen days of the issue under
subsection (1) of the warrant of arrest, the
court shall confirm the
provisional cancellation of the bail and the provisional forfeiture
of the bail money, unless the accused
satisfies the court that his
failure under subsection (1) to appear or to remain in attendance was
not due to fault on his part.
(b) If the accused
satisfies the court that his failure was not due to fault on his
part, the provisional cancellation of the bail
and the provisional
forfeiture of the bail money shall lapse.
(c) If
the accused does not appear before court within fourteen days of the
issue under subsection (1) of the warrant of arrest
or within such
extended period as the court may on good cause determine, the
provisional cancellation of the bail and the provisional
forfeiture
of the bail money shall become final.
’
[4]
It is clear that the procedure
adopted by the Magistrate is not envisaged by any of these
provisions, be it Section 67A or Section 67. The proceedings in both
matters were therefore not in accordance with justice and
fall to be
set aside.
[5]
Accordingly, the proceedings in
S v Khanyiso Nkosi under Case Number 27/518/24 and S v
Mawethu Sajini
under Case Number 27/835/24 in which the Magistrate purported to act
in terms of Section 67A of the Criminal Procedure
Act are reviewed
and set aside.
N G BESHE
JUDGE OF THE HIGH
COURT
ZONO AJ
I agree.
A S ZONO
ACTING JUDGE OF THE
HIGH COURT
Delivered: 22 October
2024
[1]
51 of
1977.