S v Nkosi (Special Review) (CA&R182/2024) [2024] ZAECMKHC 115; 2025 (1) SACR 558 (ECMk) (22 October 2024)

S v Nkosi (Special Review) (CA&R182/2024) [2024] ZAECMKHC 115; 2025 (1) SACR 558 (ECMk) (22 October 2024)

The magistrate's procedure of summarily enquiring into the accused's failure to appear and imposing a fine under Section 67A was not in accordance with the requirements of criminal procedure. Section 67A creates a criminal offence, and the accused must be tried according to the normal rules and standard of proof applicable in criminal cases. Section 67 provides a separate procedure for provisional cancellation and forfeiture of bail, which was not followed. The summary enquiry and imposition of fines without proper criminal proceedings are not authorised by either Section 67A or Section 67. Therefore, the proceedings in both matters were not in accordance with justice and must be set aside.

Citation
[2024] ZAECMKHC 115
Parties
Applicant: The State; Respondent: Khanyiso Nkosi; Respondent: Mawethu Sajini
Court
Eastern Cape High Court, Makhanda
Jurisdiction
South Africa
Judgment Date
22 October 2024
Case Number
CA&R182/2024
Procedural Posture
Special Review / Special Review Under Section 304 of the Criminal Procedure Act
Outcome
The proceedings in both matters are reviewed and set aside.
Judges
N G Beshe, A S Zono
Legal Topics
Failure to Appear, Bail Forfeiture, Summary Enquiry, Criminal Liability for Nonattendance
Criminal Law Civil Procedure Failure to Appear Bail Forfeiture Summary Enquiry Criminal Liability for Nonattendance

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Parties

The State

Applicant

Khanyiso Nkosi

Respondent

Mawethu Sajini

Respondent

Procedural Posture

Special Review / Special Review Under Section 304 of the Criminal Procedure Act

Legal Issues

  1. 1 Whether the magistrate followed the correct procedure under Section 67A of the Criminal Procedure Act when dealing with the accused's failure to appear while on bail.
  2. 2 Whether summary enquiry and imposition of a fine without proper criminal proceedings is lawful under Section 67A.
  3. 3 Whether the proceedings were in accordance with justice.

Ratio Decidendi

The magistrate's procedure of summarily enquiring into the accused's failure to appear and imposing a fine under Section 67A was not in accordance with the requirements of criminal procedure. Section 67A creates a criminal offence, and the accused must be tried according to the normal rules and standard of proof applicable in criminal cases. Section 67 provides a separate procedure for provisional cancellation and forfeiture of bail, which was not followed. The summary enquiry and imposition of fines without proper criminal proceedings are not authorised by either Section 67A or Section 67. Therefore, the proceedings in both matters were not in accordance with justice and must be set aside.

Court Disposition

The proceedings in both matters are reviewed and set aside.

Orders

  • The proceedings in S v Khanyiso Nkosi under Case Number 27/518/24 and S v Mawethu Sajini under Case Number 27/835/24 in which the magistrate purported to act in terms of Section 67A of the Criminal Procedure Act are reviewed and set aside.