S v Singo

• Jurisdiction: South Africa
• Judge: Hetisani J, Patel AJ
• Judgment Date: 12 November 2001
• Docket Number: 138/99
• Court: Venda High Court
• Hearing Date: 12 November 2001
• Citation: 2002 JDR 0064 (V)

Hetisani J et Patel AJ

A. INTRODUCTION

[1] This is an appeal. The Magistrate of Dzanani found the appellant guilty of contravening the provisions of section 72(4) of the Criminal Procedure Act 51 of 1977 [1] ("CPA") and sentenced him to three months imprisonment.

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[2] Section 72(4) primarily deals with the procedure when an accused fails to appear in court. It reads as follows:

"(4)

The court may, if satisfied that an accused referred to in subsection (2)(a) or a person referred to in subsection (2) (b), was duly warned in terms of paragraph (a) or, as the case may be, paragraph (b) of subsection (1), and that such accused or such person has failed to comply with such warning or to comply with a condition imposed, issue a warrant for his arrest, and may, when he is brought before the court, in a summary manner enquire into his failure and, unless such accused or such person satisfies the court that his failure was not due to fault on his part, sentence him to a fine not exceeding R300 or to imprisonment for a period not exceeding three months." [2]

[3] Before considering the procedural aspects and merits of the enquiry, at the outset we indicate that this appeal raises an important issue regarding the

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constitutionality of section 72(4), that is, whether the latter part of the subsection [3] in general and particularly the words: 'unless such accused or such person satisfies the court that his failure was not due to fault on his part' are inconsistent with the right to a fair trial contemplated by section 35(3) of the Constitution, [4] and especially the comprehensive set of component rights contained in paragraphs (a), (b ), (h), (i) and (j). For present purposes they are:

"(3)

Every accused person has a right to a fair trial, which includes the right -

(a)

to be informed of the charge with sufficient detail to answer it,"

(b)

to have adequate time and facilities to prepare a defence,"

...

(h)

to be presumed innocent, to remain silent, and not to testify during the proceedings;

(i)

to adduce and challenge evidence,"

(j)

not to be compelled to give self-incriminating evidence;

..."

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B. FACTUAL BACKGROUND

[4] The factual background that gave rise to this appeal can be very shortly stated that the appellant, Maluto Singo, who was 21 years old at the time, was charged with the crimes of malicious injury to property and common assault allegedly perpetrated on 31 October 1996. He first appeared in Dzanani Magistrates Court on 1 November 1996 when he and the complainant, Constance Musekwa, were warned to appear in court on 17 January 1997. From the magistrate's handwritten notes it is apparent that both of them failed to appear in court on remand date. The magistrate authorised warrants for their arrest.

C. THE ENQUIRY

[5] There is no indication on the record when the appellant was arrested in terms of the warrant, but he was brought before the court on 4 January 1999. He was unrepresented at the time. The prosecutor applied to the presiding magistrate, Mr Ndwambi to conduct an enquiry in terms of section 72(4). The proceedings, as appears from the certified record, reads as follows:

"PROSECUTOR: Accused has been brought before this court on the strength of a warrant of arrest in that on 17 January 1997 he was in default, and a warrant of arrest was authorised against him. That was after he was warned to turn up on 1 November

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1996. I am therefore applying that this court conduct an Inquiry in terms of section 72(4) criminal code.

COURT: Yes accused, this court is being informed that you are here on the strength of arrest in that you failed to (inaudible) court attendance on 17 January 1997. And as such this court is going to conduct an inquiry as to your failure to (inaudible) court attendance on that day. But before conducting such an inquiry this court would like to inform you that this is a very serious offence, whereupon this court can impose a sentence not exceeding R1 500,00 or three months' imprisonment, or both. However that can be the position if it is found that your explanation is not accepted by this court, but if your explanation is accepted by this court you can be discharged on that count. Is that clear?

ACCUSED: It is clear.

INQUIRY

COURT: Yes you are Maluta Singo, not so?

ACCUSED: Yes.

COURT: Is it correct that on 1 November 1996 you were before court?

ACCUSED: I was before court.

COURT: Is it further correct that on that day you were warned to come back to court on 17 January 1997? Will you answer the question and stop saying what you were not asked.

ACCUSED: It is true.

COURT: Did you attend court on 17 January 1997 as warned?

ACCUSED: I did not come.

COURT: Do you know that it is unlawful for one to fail to attend court after having been duly warned to do so?

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ACCUSED: I was not aware of that.

COURT: Did you think that if you were warned to attend court by a court of law you can stay away as you wish?

ACCUSED: No.

COURT: So you were aware that whenever you are told by a court of law to appear before it on a certain date, you have to honour that date? Not so? Answer the question. Not so?

ACCUSED: It is true.

COURT: Now why didn't you attend court on 17 January 1997 as warned?

ACCUSED: It is just because I approached the complainant and we settled the matter, we thereafter consult.

COURT: Yes, but you were not warned by the complainant to appear before court, but you were warned by a court of law, not so?

ACCUSED: Yes.

COURT: Do you now realise that you committed an offence by having failed to attend court on the date in question, that is 17 January 1997?

ACCUSED: Immediately after we settled this matter we reconciled, and the complainant indicated that on 17 January we will have to come and make, an application that this matter be withdrawn. And due to lack of knowledge I went to my employment place and I was thereafter sent to Namibia.

COURT: Yes but my question, do you now realise that you committed an offence?

ACCUSED: I realise that I committed an offence by not attending the court.

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FINDING

Yes you are accordingly found GUILTY for having failed to attend court on 17 January 1997.

COURT: Anything to say in mitigation? Will you comply with what you are being requested to do.

ACCUSED ADDRESSES COURT: May this court forgive me for what I did. And I am promising this court that I will not repeat same in future. That is all.

SENTENCE

Your mitigatory factors would be considered if it could have been last year's case, or you could have stayed away from attending court somewhere last year during December. But you stayed away from attending court somewhere on 17 January 1997. It is almost two years. And therefore in order that we do not encounter such problems we would like to keep you here. And you are accordingly sentenced to undergo THREE MONTHS' IMPRISONMENT without an option of a fine."

[6] Thereafter the trial was postponed to 8 April 1999. On 7 January 1999 the appellant, who was now legally represented, noted an appeal and was released on bail pending the prosecution of his appeal.

D. MAGISTRATE'S REASONS

[7] The relevant portion of the magistrate's reasons for convicting the appellant were as follows:

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"Accused explained that he failed to attend court on that day because he approached the complainant and they settled their problems. Such kind of explanation cannot be accepted by any reasonable court hence accused's conviction. There was no evidence which was led by the State to prove that accused didn't attend court on 17 January 1997 because this was just an inquiry in terms of section 72(4) of Act 51 of 1977 as amended."

[8] The reasons for sentencing the appellant were as follows:

"Accused in this case was sentenced to undergo three (3) months' imprisonment without an option of a fine which sentence I feel is appropriate under the circumstances. When the court imposed such sentence it has taken into consideration all necessary factors, that is accused's mitigatory factor, rifeness of the offence, the interest of the community, the fact that this case was on the roll since 1996, etc."

E. SECTION 72(4) OF CRIMINAL PROCEDURE ACT

[9] Broadly section 72(4) deals with the failure of an accused person in a criminal trial to appear, attend and remain in attendance at court after being warned to do so. The subsection contemplates two procedural stages. The first phase culminates in the issuing of warrant of arrest for the absent accused or an accused who fails to comply with any condition upon which he or she was released. The second phase comes into play when the recalcitrant accused person is brought to court under the warrant of arrest. The court either mero motu or at the instance of the prosecutor conducts a summary enquiry into

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whether the arrested person was in fact in default and also whether it was due to his or her fault. The onus is on him or her to tender a satisfactory explanation for his or her default, that is, that he or she must show on a balance of probabilities that his or her failure was unattended by guilt on his or her part. [5]

[10] In summary proceedings the essential features of an ordinary criminal trial, such as a formal charge sheet or indictment, a formal plea, tendering evidence under oath and calling witnesses are not part of the procedure. [6] In such a situation according to Cloete J in S v Du Plessis, [7] that:

"What justice and common sense require is that the presiding officer should explain to the accused the position in which he finds himself, namely that prima facie he is in default, ... and that the onus is upon him to rebut the...