S v Mofokeng (168/2014(B)) [2014] ZAFSHC 178 (18 September 2014)

S v Mofokeng (168/2014(B)) [2014] ZAFSHC 178 (18 September 2014)

The magistrate failed to conduct a proper enquiry as required by section 170(2) of the Criminal Procedure Act and the principles established in S v Singo. The witness was not given a fair opportunity to explain his absence, nor was the adequacy of the subpoena's service properly examined. The explanation provided by the witness, that his transport did not arrive, was not properly considered and could constitute a reasonable excuse. Furthermore, the magistrate imposed a fine that, while permissible under the Adjustment of Fines Act, was irrelevant as the conviction itself was unlawful. The conviction and sentence must therefore be set aside.

Citation
[2014] ZAFSHC 178
Parties
Applicant: The State; Respondent: Boetie Steven Mofokeng
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
18 September 2014
Case Number
168/2014(B)
Procedural Posture
Review Application / Special Review Under Section 304(4) of the Criminal Procedure Act
Outcome
Conviction and sentence set aside.
Judges
Kruger, Motloung
Legal Topics
Failure to Attend Court, Reverse Onus, Summary Enquiry, Adjustment of Fines Act, Constitutional Rights of Accused
Criminal Law Civil Procedure Failure to Attend Court Reverse Onus Summary Enquiry Adjustment of Fines Act Constitutional Rights of Accused

Case Brief

Summary, issues, holding and outcome

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Parties

The State

Applicant

Boetie Steven Mofokeng

Respondent

Procedural Posture

Review Application / Special Review Under Section 304(4) of the Criminal Procedure Act

Legal Issues

  1. 1 Whether the conviction of Boetie Steven Mofokeng for failure to attend court after being subpoenaed was lawful.
  2. 2 Whether the magistrate conducted a proper enquiry as required by law before convicting the witness.
  3. 3 Whether the fine imposed exceeded the statutory maximum.

Ratio Decidendi

The magistrate failed to conduct a proper enquiry as required by section 170(2) of the Criminal Procedure Act and the principles established in S v Singo. The witness was not given a fair opportunity to explain his absence, nor was the adequacy of the subpoena's service properly examined. The explanation provided by the witness, that his transport did not arrive, was not properly considered and could constitute a reasonable excuse. Furthermore, the magistrate imposed a fine that, while permissible under the Adjustment of Fines Act, was irrelevant as the conviction itself was unlawful. The conviction and sentence must therefore be set aside.

Court Disposition

Conviction and sentence set aside.

Orders

  • The conviction and sentence of Boetie Steven Mofokeng on 17 January 2013 are set aside.