S v Luzil (18294) [2018] ZAWCHC 75; 2018 (2) SACR 278 (WCC) (19 June 2018)

S v Luzil (18294) [2018] ZAWCHC 75; 2018 (2) SACR 278 (WCC) (19 June 2018)

The magistrate erred by convicting the accused under section 170(1) of the Criminal Procedure Act after her bail had been finally forfeited. Section 170(1) applies only to accused persons who are not in custody and have not been released on bail. Once bail is forfeited, the proper procedure is to conduct an enquiry under section 67 to determine fault and, if appropriate, consider remittance of bail under section 70. Furthermore, the accused was not afforded procedural fairness, as the Public Prosecutor was denied an opportunity to address the court and the accused's status after arrest was not properly considered. The conviction was therefore irregular and must be set aside, with the...

Citation
[2018] ZAWCHC 75
Parties
Applicant: The State; Respondent: Kriga Luzil
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
19 June 2018
Case Number
18294
Procedural Posture
Criminal Review / Review of Magistrate's Conviction and Procedure
Outcome
Conviction under section 170(1) of the Criminal Procedure Act set aside; matter remitted to the magistrate for proper procedure.
Judges
Wille, Thulare
Legal Topics
Failure to Appear, Bail Forfeiture, Criminal Procedure Act, Procedural Irregularity
Criminal Law Civil Procedure Failure to Appear Bail Forfeiture Criminal Procedure Act Procedural Irregularity

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Parties

The State

Applicant

Kriga Luzil

Respondent

Procedural Posture

Criminal Review / Review of Magistrate's Conviction and Procedure

Legal Issues

  1. 1 Was it irregular for the magistrate to convict the accused under section 170(1) of the Criminal Procedure Act after bail had been finally forfeited?
  2. 2 Should the accused have been dealt with under section 67 and section 70 of the Criminal Procedure Act instead of section 170(1)?
  3. 3 Was the accused afforded procedural fairness in the proceedings?

Ratio Decidendi

The magistrate erred by convicting the accused under section 170(1) of the Criminal Procedure Act after her bail had been finally forfeited. Section 170(1) applies only to accused persons who are not in custody and have not been released on bail. Once bail is forfeited, the proper procedure is to conduct an enquiry under section 67 to determine fault and, if appropriate, consider remittance of bail under section 70. Furthermore, the accused was not afforded procedural fairness, as the Public Prosecutor was denied an opportunity to address the court and the accused's status after arrest was not properly considered. The conviction was therefore irregular and must be set aside, with the...

Court Disposition

Conviction under section 170(1) of the Criminal Procedure Act set aside; matter remitted to the magistrate for proper procedure.

Orders

  • The conviction of the accused under section 170(1) of the Criminal Procedure Act, 1977, for failing to attend court, is set aside.
  • The matter is remitted back to the Magistrate for the accused to be dealt with in accordance with the law.