S v Nhlapo; S v Van Heerden; S v Mofokeng (A212/2017) [2017] ZAGPPHC 204 (28 April 2017)
- Citation
- [2017] ZAGPPHC 204
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- S Potterill, S S Mphahlele
- Case number
- A212/2017
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- S Potterill, S S Mphahlele
- Case number
- A212/2017
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court held that the magistrate erred by conducting summary enquiries under section 170(2) of the Criminal Procedure Act for accused who were released on bail and failed to appear. The correct statutory provision is section 67A, which criminalises such conduct but does not permit summary enquiry. Section 170(2) is only applicable to accused not on bail. As a result, the convictions and sentences imposed in all three matters were not in accordance with justice and must be set aside.
Court disposition
Convictions and sentences in all three matters are set aside.
Orders
- The convictions and sentences in State v Lerato Nhlapo, State v Ockert Johannes van Heerden, and State v Papi Jacob Mofokeng are set aside.
02
Material facts
Parties
The State
ApplicantLerato Nhlapo
RespondentOckert Johannes van Heerden
RespondentPapi Jacob Mofokeng
RespondentAmounts and remedies
- Fine Imposed on Ockert Johannes Van Heerden: ZAR 100
- Fine Imposed on Papi Jacob Mofokeng: ZAR 100
03
Procedural history
Posture
Criminal Review / Special Review
04
Questions and positions
Legal issues
- 01
Whether the magistrate correctly applied section 170(2) of the Criminal Procedure Act to accused released on bail who failed to appear.
- 02
Whether section 67A of the Criminal Procedure Act should have been applied instead of section 170(2).
- 03
Whether the convictions and sentences imposed were in accordance with justice.
Party arguments
- Applicant
- The presiding officer incorrectly conducted summary enquiries under section 170(2) of the Criminal Procedure Act for accused who were released on bail and failed to appear. The correct procedure should have been under section 67A, which specifically criminalises failure to appear by an accused on bail. Section 170 applies only to accused not in custody and not released on bail.
- Respondent
- No substantive arguments from respondents are recorded in the judgment; the review was initiated due to procedural irregularity identified by the magistrate and referred for special review.
05
Court’s reasoning
Legal principles
- 01
Criminal Procedure Act 51 of 1977
Section 67A of the Criminal Procedure Act criminalises the failure of an accused on bail to appear or remain in attendance on a date determined by the court. It does not empower a court to conduct a summary enquiry for contravention.
- 02
Criminal Procedure Act 51 of 1977
Section 170 of the Criminal Procedure Act applies only to accused who are not in custody and have not been released on bail, and who fail to appear or remain in attendance.
- 03
S v Theko 2010 (2) SACR 339 (GNP)
Incorrect application of statutory provisions in criminal procedure renders convictions and sentences not in accordance with justice.
06
Ratio, limits and disposition
Ratio decidendi
The court held that the magistrate erred by conducting summary enquiries under section 170(2) of the Criminal Procedure Act for accused who were released on bail and failed to appear. The correct statutory provision is section 67A, which criminalises such conduct but does not permit summary enquiry. Section 170(2) is only applicable to accused not on bail. As a result, the convictions and sentences imposed in all three matters were not in accordance with justice and must be set aside.
Obiter and limits
- Magistrates must ensure the correct statutory provisions are applied when dealing with accused who fail to appear, especially where bail has been granted.
- Procedural irregularities in criminal proceedings undermine the administration of justice and require correction on review.
Court disposition
Convictions and sentences in all three matters are set aside.
- The convictions and sentences in State v Lerato Nhlapo, State v Ockert Johannes van Heerden, and State v Papi Jacob Mofokeng are set aside.
Source and reliance status
North Gauteng High Court, Pretoria
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
North Gauteng High Court, Pretoria
Judgment
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA)
Case No: A212/2017
Date: 25/4/2017
High Court Reference No: 88/17
Special Review Case No: A372/15
Magistrate
LESEDI (held at HEIDELBERG)
THE
STATE V LERATO NHLAPO
and
High Court Reference No: 90/17
Special Review Case No: A305/15
THE
STATE V OCKERT JOHANNES VAN HEERDEN
High Court Reference No: 91/ 17
Special Review Case No: A413/15
MAGISTRATE
THE
STATE V PAPI JACOB MOFOKENG
REVIEW
JUDGMENT
POTTERILL J
[1] In terms of section 304(4) of the Criminal Procedure Act 51 of 1977 ("CPA") three matters are before us on special review.
[2] In all these matters the same presiding officer held a summary enquiry in terms of section 170(2) of the CPA, pursuant to accused, released on bail, warned to appear and failed to do so.
[3] In case number A305/15 State v Ockert Johannes van Heerden the court convicted the accused of contravening section 170(1) of the CPA and sentenced the accused to a fine of R100 or 30 (thirty) days imprisonment.
[4] In case number A413/15 State v Papi Jacob Mofokeng the court found the accused guilty of contravening section 170(1) of the CPA and sentenced the accused to a fine of R100 or 30 (thirty) days imprisonment.
[5] In case number A372/15 State v Lerato Nhlapo the accused was also found guilty of contravening section 170(1) of the CPA and was cautioned and discharged.
[6] All three the matters were sent on special review because the Magistrate incorrectly conducted summary enquiries
into the accused's failure to appear on a specified date. These enquiries were however incorrectly held in terms of section 170( 2) of the CPA and the provisions of section 6 7 A of the CPA should have been applied.
[7] I agree with this submission. As found in S v Theko 2010 (2) SACR 339 (GNP) at paragraph [11] section 67A of the CPA criminalised the failure of an accused on bail to appear or remain in attendance on a date determined by the court. Section 67 A accordingly does not empower a court to enquire in a summary manner whether that section has been contravened. Section 170 is only applicable when an accused who was not in custody, and were not released on bail, failed to appear in a court or to remain in attendance. The circumstances of these three matters accordingly fall under section 67 A and not section 170.
[8] The sentences imposed were not in accordance with justice.
[9] The convictions in all three of these matters, as well as the sentences are set aside.
_______
S.
POTTERILL
JUDGE
OF THE HIGH COURT
I agree
S.S.
MPHAHLELE
JUDGE
OF THE HIGH COURT
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