S v Theko (Spec 8/09) [2010] ZAGPPHC 146; 2010 (2) SACR 339 (GNP) (13 January 2010)

S v Theko (Spec 8/09) [2010] ZAGPPHC 146; 2010 (2) SACR 339 (GNP) (13 January 2010)

The magistrate erred in conducting an enquiry under section 170 of the Criminal Procedure Act, as this section does not apply to accused who are on bail. The correct procedure was to hold an enquiry under section 67(2)(a), which deals with bail forfeiture. Furthermore, the statutory offence under section 67A requires a formal charge and trial, not a summary enquiry. Since no proper trial was held, the conviction and sentence under section 170 cannot stand and cannot be substituted with a conviction under section 67A. The extension of bail after the abortive enquiry does not require further intervention.

Citation
[2010] ZAGPPHC 146
Parties
Applicant: The State; Respondent: Justice Theko
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
13 January 2010
Case Number
Spec 8/09
Procedural Posture
Review Application / Special Review Under Section 304(4) of Act 51 of 1977
Outcome
Conviction and sentence under section 170 set aside; fine to be refunded.
Judges
WRC Prinsloo, AA Louw
Legal Topics
Bail Forfeiture, Failure to Appear, Summary Enquiry, Statutory Offence, Criminal Procedure Act
Criminal Law Civil Procedure Bail Forfeiture Failure to Appear Summary Enquiry Statutory Offence Criminal Procedure Act

Case Brief

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Parties

The State

Applicant

Justice Theko

Respondent

Procedural Posture

Review Application / Special Review Under Section 304(4) of Act 51 of 1977

Legal Issues

  1. 1 Whether the magistrate erred by conducting an enquiry under section 170 of the Criminal Procedure Act 51 of 1977 instead of section 67(2)(a) when the accused failed to appear while on bail.
  2. 2 Whether the conviction and sentence imposed under section 170 are sustainable in law.
  3. 3 Whether the conviction could be substituted with one under section 67A without a formal trial.

Ratio Decidendi

The magistrate erred in conducting an enquiry under section 170 of the Criminal Procedure Act, as this section does not apply to accused who are on bail. The correct procedure was to hold an enquiry under section 67(2)(a), which deals with bail forfeiture. Furthermore, the statutory offence under section 67A requires a formal charge and trial, not a summary enquiry. Since no proper trial was held, the conviction and sentence under section 170 cannot stand and cannot be substituted with a conviction under section 67A. The extension of bail after the abortive enquiry does not require further intervention.

Court Disposition

Conviction and sentence under section 170 set aside; fine to be refunded.

Orders

  • The conviction and sentence imposed following the enquiry held in terms of section 170 of Act 51 of 1977 are set aside.
  • The clerk of the court, Benoni, is ordered to refund the fine of R500.00 paid by the accused.