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  • S v Meyering (Review) (2/25) [2025] ZAWCHC 333 …

S v Meyering (Review) (2/25) [2025] ZAWCHC 333 (5 August 2025)

80 Reportability
Criminal Procedure
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Brief Summary

Criminal Procedure — Death of Accused — Termination of charges and cancellation of arrest warrant — Accused died after pleading not guilty but before conviction — Magistrate's cancellation of arrest warrant and withdrawal of charges deemed procedurally incorrect — Common law principle that death terminates prosecution upheld — Review of lower court's decision to set aside withdrawal of charges and remittance for proper procedural handling.

Comprehensive Summary

Case Note


The State v Keith Meyering

Review 2/25, High Court of South Africa (Western Cape Division, Cape Town)

Judgment delivered 5 August 2025


Reportability


This judgment is reportable because it squarely addresses a recurring procedural vacuum: the correct way for a lower court to dispose of criminal proceedings when an accused dies after pleading but before conviction, and how extant warrants of arrest should thereafter be dealt with. The decision articulates that the death of an accused brings the prosecution to an immediate and automatic end, rooted in common-law notions that criminal liability is strictly personal. It also provides rare appellate guidance on the limited administrative role of a magistrate faced with such circumstances and clarifies why neither section 118 nor section 6 of the Criminal Procedure Act 51 of 1977 furnishes the appropriate mechanism.


Cases Cited


The single authority expressly relied upon is S v Engelbrecht (41/918/2011) [2012] ZAGPJHC 38; 2012 (2) SACR 212 (GSJ), cited for the proposition that the issue of a warrant for the arrest of a deceased person is a futile act.


Legislation Cited


The court discussed and applied the following statutes: the Criminal Procedure Act 51 of 1977, specifically sections 6, 43, 106, 118 and 170, and the National Road Traffic Act 93 of 1996, section 65(2)(d).


Rules of Court Cited


No distinct rules of court were cited in the judgment.


HEADNOTE


Summary


The High Court, on special review, considered the propriety of a district magistrate’s order that withdrew charges of driving under the influence against the late Keith Meyering and simultaneously cancelled a warrant of arrest that had been issued after he failed to appear. The magistrate who made that order later realised that the accused had already pleaded and that evidence had been led. He therefore referred the matter for special review, expressing doubt as to the legitimacy of his earlier decision.


The reviewing judges held that the magistrate’s initial instinct—to terminate the proceedings because the accused had died—was correct in substance but wrong in form. They confirmed that the death of an accused automatically terminates the prosecution and that no statutory authority is required to note that fact. Nonetheless, they ruled that the procedure adopted by the magistrate was flawed, particularly his reliance on section 6 of the Criminal Procedure Act and his purported cancellation of the warrant without jurisdiction.


The court therefore set aside the magistrate’s order in toto and remitted the matter to the district court with directions on how properly to record the death, terminate the proceedings, and administratively cancel the warrant.


Key Issues


The judgment isolates three principal issues. First, it examines whether a magistrate may withdraw or stop a prosecution under section 6 once an accused has pleaded and evidence has been led. Second, it addresses the competence of a magistrate to cancel a warrant of arrest issued by another judicial officer after the accused’s death. Third, it considers the broader question of which statutory or common-law mechanisms govern the termination of criminal proceedings upon the death of an accused.


Held


The court held that the prosecution terminated automatically upon Keith Meyering’s death and that the district court’s role was merely to record the fact of death and close the proceedings. It further held that section 6 of the Criminal Procedure Act does not authorise the withdrawal of charges after plea absent the National Director of Public Prosecutions’ consent, and that section 118 is concerned solely with judicial continuity, not with the demise of an accused. Lastly, it found that the magistrate lacked authority to cancel the outstanding warrant in the manner he did, since neither section 43 nor section 170 permitted such cancellation in the circumstances. The reviewing court therefore set aside the impugned order and remitted the matter with directions for correct procedural disposal.


THE FACTS


Keith Meyering was charged in the George District Magistrates’ Court with contravening section 65(2)(d) of the National Road Traffic Act by driving under the influence of alcohol. On 11 July 2024 he pleaded not guilty and the State led its first witness. Further evidence was taken on 27 August 2024. The case was then postponed to 17 September 2024. On that day Meyering arrived late; a warrant issued earlier that morning was withdrawn when his explanation was accepted, and the matter was postponed to 8 October 2024.


Four days before that date, on 4 October 2024, the accused died. Unaware of the death, the presiding magistrate on 8 October 2024 nevertheless issued a new warrant after the accused failed to appear. When the matter came before another magistrate, Olivier, on 19 February 2025, the prosecutor produced Meyering’s death certificate and orally requested the court to withdraw the charge and cancel the warrant. Acting on that request, and citing section 106, Magistrate Olivier purported to do so. He later realised the legal difficulties and referred the matter for special review on 5 June 2025.


THE ISSUES


The High Court had to decide whether the magistrate was empowered to withdraw the charge and cancel the outstanding warrant after the accused’s death, which statutory provisions, if any, regulated such steps, and what the correct procedure ought to have been in order to give proper effect to the principle that criminal liability is personal and dies with the accused.


ANALYSIS


The court began by reaffirming the common-law principle that the death of an accused person automatically ends criminal liability and any pending prosecution. It then scrutinised the statutory framework invoked by Magistrate Olivier. Section 118 of the Criminal Procedure Act, concerned with judicial continuity, was found irrelevant because it presupposes a living accused whose trial must continue before a different presiding officer; it offers no basis for terminating proceedings upon death.


Turning to section 6, the court highlighted its bifurcated scheme. A prosecutor may withdraw charges before plea without higher consent, but once an accused has pleaded, stopping a prosecution requires the National Director of Public Prosecutions’ written approval and results in an acquittal. As neither condition was met, section 6 could not justify the magistrate’s action. Section 106 deals only with pleas and provides no authority for disposing of charges.


Regarding the warrant, the court distinguished between section 43 pre-trial warrants and section 170 in-court warrants for failure to appear. The warrant at issue fell under section 170, which envisages a summary inquiry into the accused’s absence; obviously such an inquiry cannot occur when the accused is deceased. However, the magistrate who issued the warrant, or an equally competent judicial officer acquainted with the matter, retains administrative power to cancel it upon proof of death. Magistrate Olivier could have done so once properly informed, yet he cited the wrong statutory bases, rendering his order susceptible to review.


REMEDY


The reviewing court therefore set aside the district court’s order that had withdrawn the charge and cancelled the warrant. It remitted the matter to the George District Magistrates’ Court with instructions, set out in paragraph 10 of the judgment, to record the accused’s death, formally terminate the proceedings on that ground, and administratively cancel the outstanding warrant in a manner consonant with section 170 and the common law.


LEGAL PRINCIPLES


The judgment reinforces several principles. First, criminal liability is strictly personal and a prosecution abates upon the death of the accused. Second, section 6 of the Criminal Procedure Act distinguishes between pre-plea withdrawals, which require no external consent, and post-plea stoppages, which do, but neither pathway is appropriate when the accused is deceased. Third, warrants issued under section 170 may be administratively cancelled once the issuing court is satisfied that the subject has died; failure to ground such cancellation in the correct statutory authority renders the order reviewable although not necessarily substantively wrong. These principles ensure procedural regularity while respecting the foundational tenet that death extinguishes both the person and the prosecution against him.

IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

Review 2/25

In the matter between

THE STATE

and

KEITH MEYERING ACCUSED

CORAM: THULARE J; BHOOPCHAND AJ
Delivered: 05 August 2025

Summary: Criminal procedural law . Death of an Accused after pleading, during an
adjournment and before conviction. Procedure to be applied to terminate charges and
cancel extant arrest warrants. Principle that death terminates prosecution and criminal
liability is personal, grounded in the common law. No direct statutory or caselaw in point.
Review Courts approach to judicial review and remittal to referring Court in a special
review.

ORDER

1. The order of the George District Magistrates’ Court pertaining to Accused, Keith
Meiring under case number D221/23 to withdraw charges and cancel the extant
arrest warrant is reviewed and set aside,
2. The matter is remitted to the George District Magistrates Court’ to act in
accordance with paragraph 10 of this judgment.


JUDGMENT
________________________________________________________________
THULARE J

[1] This is a special review. The matter concerns the procedure applicable in two
instances. The first relates to when an Accused dies after pleading to the charges
preferred against them , and the second to any warrants of arrest that were issued
during the life of the Accused . The purpose of this special review was explained by the
District Magistrate of George . The Accused pleaded not guilty on 11 July 2024 to a
charge under s 65(2) (d) of the National Road Traffic Act 93 of 199 6 before Magistrate
Henderson. The trial commenced. On 8 October 2024, the Accused failed to appear and
a warrant of arrest was authorised and issued immediately. The matter was brought
before Magistrate Olivier, the presiding officer, requesting this special review, on 19
February 2025. The Prosecutor informed the Court that the Accused had died and
handed up a death certific ate. The Prosecutor requested the warrant of arrest be
cancelled and the charges against the Accused withdrawn. The Prosecutor did not
apply under s118 of Act 51of 1977 (the CPA’). Magistrate Olivier states he was unaware
that the Accused had pleaded, and the matter was partly heard before Magistrate
Henderson. Magistrate Olivier submits that he erroneously cancelled the warrant of
arrest and withdrew the charges against the Accused contrary to s 106 of the CPA.
Magistrate Olivier requested the special review on 5 June 2025.

[2] The information provided by Magistrate Olivier was supplemented from the
bundle of documents , including the record of proceedings relating to the Accused’s

prosecution, accompanying the review. The tr ial in this matter commenced on 11 July
2024 after the Accused pleaded not guilty to the charge of driving under the influence of
alcohol. The State called its first witness on that date. The trial resumed on 27 August
2024, and the State tendered further evidence. The trial was then postponed to 17
September 2024 . The Accused failed to appear timeously in Court. When he did
appear later that day, the Magistrate referred to the issue of a warrant for his arrest that
morning. She informed the Accused that she was withdrawing the authority for the
warrant after she accepted his explanation for failing to appear that morning. The
following Court Day was scheduled for 8 October 2024. The Accused once again failed
to appear. The Accused’s lawyer informed Magistrate Henderson that he did not receive
any response to a call to the Accused the previous day. Magistrate Henderson issued a
new warrant of arrest for the Accused. The death certificate indicates that the Accused
died on 4 October 2024, four days before the trial was to resume.

[3] Section 118 of the CPA relates to the nonavailability of the judicial officer to
continue with the trial after an Accused has pleaded not guilty and no evidence has
been adduced . The trial may continue before any other judicial officer of the same
Court. Section 118 is about judicial continuity. It is not about the death of the Accused ,
nor is it about terminating proceedings due to the death. It ensures that a trial can
proceed before a different magistrate if the original one becomes unavailable before
any evidence is led . Section 118 does not apply to the peculiar facts of this case . The
Accused had pleaded not guilty to the charge, the trial had commenced, evidence had
been led, and the Accused died during the trial. Magistrate Olivier is thus incorrect in
suggesting that the Prosecutor should have applied under s118 for him to deal with the

suggesting that the Prosecutor should have applied under s118 for him to deal with the
death of the Accused and the issue of the outstanding warrant of arrest.

[4] Magistrate Olivier did not require statutory authority to deal with the situation that
eventuated. Magistrate Henderson w as unavailable for unknown reasons . Magistrate
Olivier did not need section 118 authority to act in this limited administrative capacity.
His role was not to continue the trial, but to record the death and terminate the

proceedings. This amounted to a procedural necessity and not a continuation of
adjudication.

[5] As Magistrate Olivier correctly surmised, the withdrawal of the charge and the
cancellation of the warrant against the Accused was procedurally incorrect. Withdrawal
of a charge implies prosecutorial discretion under section 6 of the CPA. Section 6
applies to two situations. The National Director of Public Prosecutions (the NDPP’) or
any person conducting a prosecution at the instance of the State may in the first
scenario, before an Accused pleads to a charge, withdraws that charge. The first
scenario does not apply to the ci rcumstances of this case. The second situation allows
for the same personnel to stop the prosecution on a charge a t any time after an
Accused has pleaded, but before conviction . The second situation requires the consent
of the NDPP , or any person authorised by the NDPP. The information provided by
Magistrate Olivier does not elaborate on whether the Prosecutor obtained any
permission from his superiors , let alone any permission to request a withdrawal of the
charge or the cancellation of the warrant of arrest. Therefore section 6 (a) does not
apply, as a charge may only be withdrawn before an Accused has pleaded.
Furthermore, a prosecution may be stopped, not withdrawn , after an Accused has
pleaded, and before conviction has occurred. In the latter instance, section 6(b)
envisages a situation where the Accused is entitled to be acquitted by the Court. It does
not envisage a situation where the Accused has died . The reference to a person
authorised by the NDPP would mean that Prosecutors may withdraw charges before an
Accused has pleaded but would require the consent of the NDPP or her delegate to
stop a prosecution after the Accused has pleaded and before conviction occurs.

[6] Magistrate Olivier’s reliance on section 106 of the CPA has little relevance to the

[6] Magistrate Olivier’s reliance on section 106 of the CPA has little relevance to the
cancellation of the arrest warrant or the withdrawal of the charges against the Accused.
Section 106 applies to the plea of the Accused alone . The Accused pleaded to the
charge preferred against him and the charge cannot be withdrawn unless proper
procedure is followed. Section 106 does not apply to the procedural disposal of a
charge before or after an Accused has pleaded.

[7] Whilst dealing with the procedural disposal of the charge against the Accused in
circumstances sketched by Magistrate Olivier, a valid question would be whether the
charge could be dismissed or struck from the roll. Dismissal is inappropriate as it implies
that the Accused is exonerated or that the case against him is without merit. A striking
out of a matter implies that the case is removed from the Court’s schedule for that day
or indefinitely. The Court refuses to proceed with the matter due to a procedu ral defect,
absence of a party or a lack of readiness to proceed. The case is paused, not
terminated. Death terminates the proceedings because the Accused can no longer
stand trial , not because the charges are invalid. Termination is the cue to the
appropriate procedure that should have been implemented.

[8] Before proceeding to examine the procedure appropriate to the special review,
the Court shall deal with the cancellation of the arrest warrant that was authorised and
issued by Magistrate Henderson. Section 170 of the CPA concerns the failure of the
Accused to appear after an adjournment to remain in attendance. Section 170 renders
an Accused’s failure to appear at adjourned proceedings on the next date and place, a
punishable offence. Section 43 of the CPA applies to warrants of arrest that may be
issued by a Magistrate or Judge at the request of the NDPP , a Prosecutor, or a
commissioned police officer. Section 43 warrants are usually pre-trial warrants issued to
secure the initial arrest of a suspect. They may be cancelled by the person who issued
it, or if unavailable, by a person with like authority. Section 170 warrants of arrest are in-
court procedural warrants. Section 170 provides its own mechanism for the cancellation
of a warrant. Section 170 (1) provides for a summary enquiry of the Accused. The
situation contemplated is an impossibility as the Accused has died. 1 Neither section 43

situation contemplated is an impossibility as the Accused has died. 1 Neither section 43
nor 170 is authority for Magistrate Olivier to have cancelled the arrest warrant issued by
Magistrate Henderson.


1 See S v Engelbrecht (41/918/2011) [2012] ZAGPJHC 38; 2012 (2) SACR 212 (GSJ) (23 March
2012) at para 7 where the Court states: ‘The issue of a warrant for the arrest of someone known to be
deceased would be absurd and a brutum fulmen or exercise in futility. The purpose of issuing a warrant
of arrest is for the warrant to be carried out. A warrant can obviously not be carried out upon a
deceased.’

[9] Surprisingly, and after a n extensive search, there is no statutory or case law
authority on point. The Court is cognisant of its responsibility to provide guidance and
clarify a point of procedure as it will serve as a binding precedent to the lower Courts
under its jurisdiction. The cancellation of the arrest warrant is a necessary administrative
step. The withdrawal of charges is a procedural error as it implies the possibility of
reinstatement. A review is concerned with the legality of a decision.

[10] This Court relies on the common law principle that criminal prosecution is a
personal action.2 The principle that a criminal trial abates or terminates upon the death
of the Accused is a deeply entrenched rule of the common law repeatedly confirmed
and applied by our Courts. As the death of the Accused rendered the trial moot, it must
be formally stopped. Magistrate Olivier’s role was limited to recording the death of the
Accused, cancelling the arrest warrant, and ensuring that the record reflects termination
of the proceedings. It follows that the cancellation of any extant arrest warrant should be
done under this procedure. The procedure is best described as an abatement or
termination of proceedings upon the death of an Accused.

[11] In the premises, the decision to withdraw the charges against the Accused and
cancel the arrest warrant in case number D221/23 of the George District Magistrate’s
Court is reviewed and set aside. The matter is remitted to the Court to deal with it as
specified.


________________________
DM THULARE
JUDGE OF THE HIGH COURT

I agree,

2 In S v P 1972 (2) SA 513 (NC) , the Court dealt with a situation where the Accused died after
conviction and before the hearing of an appeal. The court held that an appeal by a convicted person is a
personal proceeding that lapses u pon the death of the Appellant. S v Msimango and Another (187/2005)

[2009] ZAGPJHC 34; [2009] 4 All SA 529 (GSJ) ; 2010 (1) SACR 544 (GSJ) (27 July 2009) deals with a
situation where a witness dies during a criminal trial.

________________________
AJAY BHOOPCHAND
ACTING JUDGE OF THE HIGH COURT

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