IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Case No: 241/26
THE STATE
And
JECONIAH WILLIAMS ACCUSED 1
MARKO BESTBIER ACCUSED 2
Coram: Thulare, J et Gxashe, AJ
Delivered: 1 September 2026
Summary: Review -section 304 (4)- failure of the accused – on bail to appear-
section 67 (1) and (2) Act 51 of 1977- bail provisionally cancelled- bail money
provisionally forfeited to the state -accused appeared within 14 days of the
issue of the warrant of arrest under subsection (1) - accused failed to satisfy
the court that failure was not due to fault on his part - provisional cancellation
of bail and provisional cancellation of bail money confirmed - conviction in
terms of section 170 (1) - criminal procedure act- confirmation of provisional
cancellation of bail and bail money - does not affect the accused right to bring
a new application - in terms of section 60 CPA - court duty bound to explain
the rights to apply for bail after enquiry - after confirmation - provisional
cancellation of bail and forfeiture of bail money - court erroneously sentenced
the accused- sentence void and legally invalid - set aside.
ORDER
1. The sentence is set aside
JUDGMENT
GXASHE, AJ
Introduction
[1] This matter is placed before this Court for review in terms of section 304(4) of
the Criminal Procedure Act 51 of 1977 (the CPA). The accused were arrai gned
before the Bellville Magistrate’s Court for theft out of a motor vehicle and
possession of suspected stolen property in contravention of section 36 of the
General Law Amendment Act 62 of 1955. The reasons for submitting this matter
for special review are encapsulated in the magistrates covering letter.
[2] The cover letter reads as follows: ‘ [a]ccused one had been released on warning
whilst accused two on bail. The two accused failed to appear in court on the
postponement date and later appeared in court on warrants of arrest, following
which enquiries as to their absence were held ’. Following his explanation, accused
number one was convicted for contravening the provisions of section 170(1) of the
CPA and sentenced to a fine of R300.00 (three hundred rands) or ten days
imprisonment. Subsequently, the magistrate proceeded with the enquiry in respect
of accused two and confirmed the provisional cancellation of bail and forfeiture of
his bail money. The magistrate then sentenced the accused to a fine of R300 (three
hundred rands) or ten days imprisonment. On hindsight, the magistrate realised that
the proceedings should not have proceeded beyond the confirmation of the
cancellation and forfeiture in terms of section 67 of the CPA and referred it to this
court for review.
Factual matrix
[3] The two accused were arraigned before Bellville Magistrate’s Court for theft
out of a motor vehicle and possession of suspected stolen property in contravention
of section 36 the General Law Amendment Act 62 of 1955. Following a bail
application, accused one was released out on warning and accused two was granted
bail at R500 (five hundred rands ). Ultimately, the matter was postponed to 21
November 2025. However, both failed to appear before the court and, as a result ,
warrants of arrests were authorised to be issued immediately against both of them.
In addition, the court ordered the cancellation of acc used two’s bail and the
provisional forfeiture of his bail money. The return date was 5 December 2025.
[4] On 1 December 2025 , both accused appeared on warrants of arrest and the
court held an enquiry regarding their failure to appear on 21 November 20 25.
Consequently, accused one was found guilty for contravening the provisions of
section 170(1) of the CPA and was sentenced to R300 (three hundred rands) or ten
days imprisonment. In addition, the court confirmed the provisional cancellation of
bail and provisional forfeiture of accused two’s bail money. Subsequently, the
court erroneously sentenced accused two to a fine of R300 (three hundred rands) or
ten days imprisonment and remanded both accused in custody.
Applicable law
[5] Section 67(1) of the CPA provides as follows:
‘(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 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 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 remain
(3) in attendance was not due to fault on his part.’
Discussion
[6] It can be gleaned from the record that the magistrate received such evidence to
satisfy herself that the accused failed to appear on 21 November 2025. In
evidence, accused two testified that on the said day he travelled by uber with his
mother to fetch accused one. However, the driver refused to let his co -accused be
conveyed in the vehicle. As a result of the driver’s refusal , accused two
disembarked from the vehicle and consequently failed to appear as ordered by the
court. It then transpired during his evidence that he was merely 3.5 km away from
the court at the time. Evidently, the record reflects no plausible explanation why he
did not proceed to court on foot given th is short distance. Following this, the court
correctly found that failure to appear was due to fault on his part and confirmed the
provisional cancellation of bail and provisional forfeiture of bail money.
[7] In casu, the cause of complaint is the sentence imposed by the magistrate after
she confirmed the cancellation of bail and forfeiture of bail money . Notably,
section 67 is an enquiry envisaged to invest igate whether the accused ’s failure to
appear before the court was due to fault on his part. In addition, the section
provides for the confirmation of provisional cancellation of bail and forfeiture of
bail money. Certainly, the statute does not make provision for the imposition of a
sentence because the accused is not tried for committing a criminal offence . It
stands to reason that the court was not justified to impose a sentence in these
circumstances, and the error on the part of the magistrate renders the sentence void
and legally invalid.
[8] This is in li ne with Xaliphi v Cape Town Regional Magistrate and Another ,1
(383/23) [2024] ZAWCHC 85 para 10 where this Court held that:
‘Section 67 deals with the provisional cancellation of bail and forfeiture of bail money.
Proceedings as envisaged in section 67 is a summary enquiry and not a formal trial. Its
consequences may be loss of liberty and forfeiture of bail money , but does not result in a
conviction and a sentence could not be imposed [S V Williams 2012 (2) SACR 158
(WCC) at para 3]. The procedure in section 67 differs from the one in section 67A, which
criminalized failure to appear or to comply with a bail condition. For purposes of section
67A proceedings, a charge sheet must be drawn and a formal trial held [S v Mabuza 1996
(2) SACR 239 at 243e -245c]. The State did not prosecute the applicant’s failure to
appear in the ordinary way and did not put him on trial. The State did not trigger section
67A proceedings and a conviction and sentence were thus incompetent.’
[9] Furthermore, it is also apparent from the record that both accused were arrested
on warrants of arrest and were unrepresented during the enquiry . Ultimately, they
were remanded in custody after sentencing without being apprised of their right to
reapply for bail. Nonetheless, upon the appointment of legal representation , the
matter was postponed for a formal bail application in respect of accused two.
Accused one unequivocally abandoned bail.
[10] The purpose of the warrant issued in terms of section 67 is to bring the
accused before the court. It is not a method of securing the accused ’s detention
until the completion of the trial. In other words, it is not an act done in execution of
1 Xaliphi v Cape Town Regional Magistrate and Another (383/23) [2024] ZAWCHC 85 (19 March 2024) para 10.
an imposed sentence of imprisonment for an indefinite term, which depends on the
contingency until the completion of the trial.2
[11] Since the advent of our constitutional dispensation, an accused enjoys a right
to be released from detention if the interests of justice permit, subject to reasonable
conditions.3 In addition, section 60(1)(a) of the CPA provides that:
‘An accused who is in custody in respect of any offence shall, subject to the provisions of
section 50 (6), be entitled to be released on bail at any stage preceding his or her
conviction in respect of such offence , if the court is satisfied that the interests of justice
so permit.’
[12] This statutory right does not preclude the accused whose bail has been finally
cancelled and bail money forfeited to the State, or the accused who is convicted
and sentenced for contravening the provisions of section 170 of the CPA for that
matter from reapplying to be released from detention. This is evidence d by the
clear wording of section 60 (1)(a) of the CPA, which stipulates that the entitlement
to be released from detention shall be exercised at any stage prec eding the
accused’s conviction. Notably, the accused in this matter were not convicted at that
stage and were in custody thus falling within the category of those who are entitled
to be released from detention should the interests of justice so permit.
[13] In S v Nkosi en Andere, the court held that:4
‘According to section 60, an accused may apply for bail at his first appearance or at any
stage thereafter. The Legislature could hardly have used a br oader concept than the one
2 S v Nkosi en Andere 1987 (1) SA 581 (T).
3 Section 35(1)(f) of the Constitution of the Republic of South Africa, 1996.
4 Ibid fn 2.
cited. The word ‘any’ is in its ordinary context a concept without limitations . . . In the
Barnard case5 it was decided that section 60 only refers to case where bail has not
previously existed. That conclusion cannot be derived from the so -called ‘inner logic’ of
the ‘scheme’ of section 60 read together with section 67. I prefer to take a broader
approach.’
[14] It is important to note that S v Nkosi was decided prior to our constitutional
dispensation, and the court adopted a purposive and expansive interpretation of
section 60 rather than a restrictive approach . In my mind , restricting the
interpretation of this section to accused persons not yet admitted to bail would be
inconsistent with the constitutional imperatives and would defeat the legislative
purpose as well. Of importance is the fact that section 60 no longer refers to ‘first
appearance’ but extends to any stage in the proceedings prior to conviction.
[15] Based on this analysis, it is untenable to conclude that the accused whose bail
has been cancelled and bail money forfeited to the State in terms of section 67
cannot be subjected to bail. A revocation of bail and forfeiture of bail money in
terms of the mandatory provisions of section 67 (1) and (2 of the CPA does not
render a new application for bail in terms of section 60 inadmissible. The fact that
the bail has been revoked will , however, be a relevant fact that may be taken into
account when considering the new application for bail.6
[16] To sum up on this point, magistrates are duty bound to explain the right to
apply for bail following confirmation of bail cancellation and forfeiture of bail
money to unrepresented accused , to enable them to make an informed decision
5 S v Barnard and Another 1985 (4) SA 439 (W).
6 S V Nkosi en Andere supra
whether to bring an application to be released from detention or not. This equally
applies to the accused who is convicted of contravening the provisions of section
170 of the CPA, thereby safeguarding the constitutional right of fairness
throughout the criminal proceedings.
Order
[17] In the result, the court makes the following order:
(a) The sentence imposed in respect of accused two is set aside.
____________________
N GXASHE
Acting Judge of the High Court
I agree, and it so ordered.
____________________
D THULARE
Judge of the High Court