S v Engelbrecht (41/918/2011) [2012] ZAGPJHC 38; 2012 (2) SACR 212 (GSJ) (23 March 2012)

S v Engelbrecht (41/918/2011) [2012] ZAGPJHC 38; 2012 (2) SACR 212 (GSJ) (23 March 2012)

Section 67 of the Criminal Procedure Act 51 of 1977 does not apply to an accused who dies before trial. The statutory language clearly contemplates living persons who can appear or explain their absence. The sanctions under section 67(1)—provisional cancellation of bail, forfeiture of bail money, and issuance of a warrant for arrest—are not applicable to a deceased accused, as the release on bail ceases at death and a warrant for arrest cannot be executed. The purpose of bail is to ensure attendance at trial, and death renders compliance impossible. The provisional forfeiture order was interlocutory and, in the circumstances, should be recalled. The bail money must be repaid to the...

Citation
[2012] ZAGPJHC 38
Parties
Applicant: The State; Respondent: Barend Jacobus Engelbrecht
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
23 March 2012
Case Number
41/918/2011
Procedural Posture
Criminal Law Application / Application for Confirmation or Recall of Provisional Bail Forfeiture Order
Outcome
The provisional forfeiture order is recalled. The bail money is to be repaid to the deceased's brother. The criminal case against the deceased is struck from the roll due to his death.
Judges
Meyer
Legal Topics
Bail Forfeiture, Criminal Procedure Act, Death of Accused, Interpretation of Statute
Criminal Law Civil Procedure Bail Forfeiture Criminal Procedure Act Death of Accused Interpretation of Statute

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Parties

The State

Applicant

Barend Jacobus Engelbrecht

Respondent

Procedural Posture

Criminal Law Application / Application for Confirmation or Recall of Provisional Bail Forfeiture Order

Legal Issues

  1. 1 Whether the provisional forfeiture of bail money paid for the deceased accused should be confirmed or repaid to the depositor.
  2. 2 Whether section 67 of the Criminal Procedure Act applies to an accused who dies before trial.
  3. 3 Whether the court has discretion to recall a provisional forfeiture order when the accused is deceased.

Ratio Decidendi

Section 67 of the Criminal Procedure Act 51 of 1977 does not apply to an accused who dies before trial. The statutory language clearly contemplates living persons who can appear or explain their absence. The sanctions under section 67(1)—provisional cancellation of bail, forfeiture of bail money, and issuance of a warrant for arrest—are not applicable to a deceased accused, as the release on bail ceases at death and a warrant for arrest cannot be executed. The purpose of bail is to ensure attendance at trial, and death renders compliance impossible. The provisional forfeiture order was interlocutory and, in the circumstances, should be recalled. The bail money must be repaid to the...

Court Disposition

The provisional forfeiture order is recalled. The bail money is to be repaid to the deceased's brother. The criminal case against the deceased is struck from the roll due to his death.

Orders

  • The order made on 19 March 2012 declaring the deceased's bail money provisionally forfeited to the state in terms of section 67(1) of the Criminal Procedure Act is recalled.
  • The state is ordered to repay to Mr Cornelius Johannes Engelbrecht the bail money that he paid for the benefit of the deceased.