S v Lerumo and Others (08/2017) [2017] ZANWHC 63; 2018 (1) SACR 202 (NWM) (10 August 2017)

S v Lerumo and Others (08/2017) [2017] ZANWHC 63; 2018 (1) SACR 202 (NWM) (10 August 2017)

Section 67(1) of the Criminal Procedure Act is clear and mandatory: when an accused released on bail fails to appear, the court must provisionally cancel bail, provisionally forfeit bail money, and issue a warrant of arrest. There is no discretion to stay the execution of the warrant. The practice of staying execution is inconsistent with the statutory prescripts and must cease unless the legislature amends the section. The accused retains the right to explain their absence and, if successful, the provisional orders lapse. The court's role is limited to applying the statute as written, and any deviation constitutes a procedural irregularity. The reviewing court confirms that the...

Citation
[2017] ZANWHC 63
Parties
Applicant: The State; Respondent: Thabang Lerumo; Respondent: Thsepiso Masango; Respondent: Bafana Matana; Respondent: Nkosinathi Mtshweni; Respondent: Calvin Motsenga
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
10 August 2017
Case Number
08/2017
Procedural Posture
Special Review / High Court Review of Magistrate's Bail Forfeiture and Warrant of Arrest Decision
Outcome
The special review is dismissed. The Magistrate's decision to issue a warrant of arrest and provisionally forfeit bail money was correct and not reviewable.
Judges
R.D Hendricks, T.J Djaje
Legal Topics
Bail Forfeiture, Warrant of Arrest, Criminal Procedure Act Section 67, Judicial Discretion, Non Appearance
Criminal Law Bail Forfeiture Warrant of Arrest Criminal Procedure Act Section 67 Judicial Discretion Non Appearance

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Parties

The State

Applicant

Thabang Lerumo

Respondent

Thsepiso Masango

Respondent

Bafana Matana

Respondent

Nkosinathi Mtshweni

Respondent

Calvin Motsenga

Respondent

Procedural Posture

Special Review / High Court Review of Magistrate's Bail Forfeiture and Warrant of Arrest Decision

Legal Issues

  1. 1 Whether a Magistrate has discretion to stay the execution of a warrant of arrest issued under section 67(1) of the Criminal Procedure Act when an accused released on bail fails to appear in court.
  2. 2 Whether the practice of staying execution of warrants of arrest in such circumstances is lawful under section 67.
  3. 3 Whether the accused's bail and bail money may be provisionally forfeited and a warrant issued, and what remedies exist for the accused.

Ratio Decidendi

Section 67(1) of the Criminal Procedure Act is clear and mandatory: when an accused released on bail fails to appear, the court must provisionally cancel bail, provisionally forfeit bail money, and issue a warrant of arrest. There is no discretion to stay the execution of the warrant. The practice of staying execution is inconsistent with the statutory prescripts and must cease unless the legislature amends the section. The accused retains the right to explain their absence and, if successful, the provisional orders lapse. The court's role is limited to applying the statute as written, and any deviation constitutes a procedural irregularity. The reviewing court confirms that the...

Court Disposition

The special review is dismissed. The Magistrate's decision to issue a warrant of arrest and provisionally forfeit bail money was correct and not reviewable.

Orders

  • The practice of staying execution of warrants of arrest under section 67 of the Criminal Procedure Act is unlawful and must be discontinued unless amended by the legislature.
  • A copy of this judgment must be forwarded to the Director of Public Prosecutions North West Province, the Chief Magistrate, the Acting Regional Court President of the North West Province, and the Magistrate Commission.