S v Hewu and Others (170002) [2017] ZAECGHC 44; 2017 (2) SACR 67 (ECG) (6 April 2017)

S v Hewu and Others (170002) [2017] ZAECGHC 44; 2017 (2) SACR 67 (ECG) (6 April 2017)

The review court held that the repeated striking of the matter from the roll by the magistrate, without conducting a proper enquiry under section 342A of the Criminal Procedure Act, was not in accordance with justice. The magistrate failed to investigate the reasons for the delay, the prospects of proceeding to trial, and the impact on the accused's rights. While section 60(11) requires accused charged with Schedule 5 or 6 offences to be brought before court in custody, this does not override the need for judicial discretion and proper enquiry into delays. The immediate re-arrest of the accused after their release appeared to undermine the magistrate's order and resembled contempt of...

Citation
[2017] ZAECGHC 44
Parties
Applicant: The State; Respondent: Xolani Hewu; Respondent: Andile Nkata; Respondent: Sithembela Sophangisa; Respondent: Thanduxolo Thandani
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
6 April 2017
Case Number
170002
Procedural Posture
Review Application / Special Review of Criminal Proceedings Following Repeated Striking Off the Roll and Re Arrest of Accused.
Outcome
The proceedings on 19 August 2016 were not in accordance with justice; the accused may be re-arrested for purposes of trial.
Judges
E Revelas
Legal Topics
Warrant of Arrest, Bail Procedure, Unreasonable Delay, Striking Off Roll, Section 342a Investigation
Criminal Law Civil Procedure Warrant of Arrest Bail Procedure Unreasonable Delay Striking Off Roll Section 342a Investigation

Case Brief

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Parties

The State

Applicant

Xolani Hewu

Respondent

Andile Nkata

Respondent

Sithembela Sophangisa

Respondent

Thanduxolo Thandani

Respondent

Procedural Posture

Review Application / Special Review of Criminal Proceedings Following Repeated Striking Off the Roll and Re Arrest of Accused.

Legal Issues

  1. 1 Whether the repeated re-arrest of accused after the matter was struck from the roll was lawful and procedurally fair.
  2. 2 Whether the magistrate's refusal to postpone and decision to strike the matter from the roll was justified under section 342A of the Criminal Procedure Act.
  3. 3 Whether section 60(11) of the Criminal Procedure Act mandates that accused charged with Schedule 5 or 6 offences must always be brought before court in custody.

Ratio Decidendi

The review court held that the repeated striking of the matter from the roll by the magistrate, without conducting a proper enquiry under section 342A of the Criminal Procedure Act, was not in accordance with justice. The magistrate failed to investigate the reasons for the delay, the prospects of proceeding to trial, and the impact on the accused's rights. While section 60(11) requires accused charged with Schedule 5 or 6 offences to be brought before court in custody, this does not override the need for judicial discretion and proper enquiry into delays. The immediate re-arrest of the accused after their release appeared to undermine the magistrate's order and resembled contempt of...

Court Disposition

The proceedings on 19 August 2016 were not in accordance with justice; the accused may be re-arrested for purposes of trial.

Orders

  • The magistrate presiding in the matter is directed to hold an enquiry in terms of section 342A of the Criminal Procedure Act if a further postponement is sought by the State.
  • The accused may be re-arrested for purposes of trial.