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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA)

Case No: A212/2017

                                                       Date: 25/4/2017

High Court Reference No: 88/17

Special Review Case No:   A372/15

 

Magistrate

LESEDI (held at HEIDELBERG)

THE STATE V LERATO NHLAPO

and

High Court Reference No: 90/17

Special Review Case No:   A305/15

 

Magistrate

LESEDI (held at HEIDELBERG)

THE STATE V OCKERT JOHANNES VAN HEERDEN

and

High Court Reference No: 91/ 17

Special  Review  Case  No:  A413/15

 

MAGISTRATE

LESEDI (held at HEIDELBERG)

THE STATE V PAPI JACOB MOFOKENG

REVIEW JUDGMENT

POTTERILL  J

[1] In terms of section 304(4) of the Criminal  Procedure  Act  51 of 1977  ("CPA")  three matters are before us on special review.

[2] In all these matters the same presiding officer held a summary enquiry in terms  of section 170(2) of the CPA, pursuant to accused, released  on  bail,  warned  to  appear and failed to do so.

[3] In case number A305/15 State v Ockert Johannes van Heerden the court convicted the accused of contravening section 170(1) of the CPA and sentenced the accused  to a fine of R100 or 30  (thirty)  days  imprisonment.

[4] In case number A413/15 State v Papi Jacob Mofokeng the court found the accused guilty of contravening section 170(1) of the CPA and sentenced  the accused to a  fine of R100 or 30  (thirty)  days  imprisonment.

[5] In case number A372/15 State v Lerato  Nhlapo the accused  was also found guilty  of contravening section 170(1) of the CPA and was cautioned and   discharged.

[6] All three the matters were sent on special review because the Magistrate incorrectly conducted  summary  enquiries  into the accused's  failure  to appear  on a   specified date. These enquiries were however incorrectly held in terms of section 170( 2)  of the CPA and the provisions of section  6 7 A of the CPA should have been applied.

[7] I agree with this submission. As found in S v Theko 2010 (2) SACR 339 (GNP) at paragraph [11] section 67A of the CPA criminalised the failure of  an accused  on bail to appear  or remain in attendance  on a date determined by the court.  Section  67 A accordingly does not empower a court to enquire in a  summary  manner  whether that section has been contravened. Section 170 is only applicable when an accused who was not in custody, and were not released on bail, failed to appear in    a court or to remain in attendance. The circumstances of these three matters accordingly fall under section  67 A and not section 170.

[8] The sentences imposed were not in accordance with justice.

[9] The convictions in all three of these matters, as well as the sentences are set   aside.

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S. POTTERILL

JUDGE OF THE HIGH COURT

I agree

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S.S. MPHAHLELE

JUDGE  OF THE HIGH  COURT

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