S v Andries (157/2003) [2003] ZANCHC 2 (1 April 2003)

S v Andries (157/2003) [2003] ZANCHC 2 (1 April 2003)

The magistrate failed to exercise judicial discretion by not investigating the accused's ability to pay the fine in instalments and by not explaining the statutory provisions for such payment. The mere fact that the accused was unemployed and unable to pay bail does not necessarily mean he could not pay the fine in instalments. The absence of an inquiry into his ability to pay constitutes a procedural irregularity, and the matter must be remitted for proper consideration in accordance with section 297(5) of the Criminal Procedure Act.

Citation
[2003] ZANCHC 2
Parties
Applicant: The State; Respondent: Maluyeselo Vava Andries
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
1 April 2003
Case Number
157/2003
Procedural Posture
Criminal Review / Review Judgment
Outcome
The matter is remitted to the magistrate to explain the provisions of section 297(5) of the Criminal Procedure Act to the accused and to conduct an inquiry into his ability to pay the fine in instalments.
Judges
C.C Williams
Legal Topics
Sentencing Discretion, Payment of Fines, Magistrates Court Procedure
Criminal Law Sentencing Discretion Payment of Fines Magistrates Court Procedure

Case Brief

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Parties

The State

Applicant

Maluyeselo Vava Andries

Respondent

Procedural Posture

Criminal Review / Review Judgment

Legal Issues

  1. 1 Whether the magistrate properly exercised discretion regarding the possibility of payment of the fine in instalments.
  2. 2 Whether the accused was adequately informed of the provisions for payment of fines under section 297(5) of the Criminal Procedure Act.
  3. 3 Whether failure to investigate the accused's ability to pay the fine in instalments constituted a procedural irregularity.

Ratio Decidendi

The magistrate failed to exercise judicial discretion by not investigating the accused's ability to pay the fine in instalments and by not explaining the statutory provisions for such payment. The mere fact that the accused was unemployed and unable to pay bail does not necessarily mean he could not pay the fine in instalments. The absence of an inquiry into his ability to pay constitutes a procedural irregularity, and the matter must be remitted for proper consideration in accordance with section 297(5) of the Criminal Procedure Act.

Court Disposition

The matter is remitted to the magistrate to explain the provisions of section 297(5) of the Criminal Procedure Act to the accused and to conduct an inquiry into his ability to pay the fine in instalments.

Orders

  • The case is referred back to the magistrate to immediately explain the provisions of section 297(5) of the Criminal Procedure Act 51 of 1977 to the accused.
  • The magistrate must conduct an inquiry into the accused's ability to pay the fine in instalments and act accordingly.