S v Singo
Jurisdiction | South Africa |
Judge | Chaskalson CJ, Langa DCJ, Ackermann J, Goldstone J, Kriegler J, Madala J, Ngcobo J, O'Regan J, Sachs J, Du Plessis AJ and Skweyiya AJ |
Judgment Date | 12 June 2002 |
Citation | 2002 (2) SACR 160 (CC) |
Docket Number | CCT 49/01 |
Hearing Date | 12 March 2002 |
Counsel | J G Wasserman SC (with him A Louw) for the applicant at the request of the Court. J A van S d'Oliveira SC (with him AL Collopy and R Sampson) for the State. |
Court | Constitutional Court |
Ngcobo J:
Introduction A
[1] An accused person who culpably fails to comply with a warning to appear in court commits a criminal offence. [1] Such accused may be arrested and brought to court. Once in court the hearing that the accused undergoes is not an ordinary one. The B proceedings are summary in nature and the presiding officer is required to determine whether failure to appear in court was due to any fault on the part of the accused. The State is not required to prove that it was his or her fault. On the contrary, the accused must satisfy the court that it was not the case. If the accused fails to do so, a conviction follows and he or she may be sentenced to a fine or imprisonment of not C more than three months, as the case may be. [2] That is the law as it now stands as decreed by s 72(4) of the Criminal Procedure Act 51 of 1977 (the CPA).
[2] Section 72(4) provides:
'The court may, if satisfied that an accused referred to in D ss (2)(a) or a person referred to in ss (2)(b), was duly warned in terms of para (a) or, as the case may be, para (b) of ss (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 E 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.' [3]
[3] The two features of s 72(4) that concern us in these confirmatory proceedings are: first, the summary manner in which an accused who fails to appear in court is tried, and second, the requirement that such F
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accused satisfies the court that the failure to appear in court was not due to A fault on his or her part. They concern us because it is these features that the Venda High Court found to be invalid for inconsistency with s 35(3) of the Constitution which guarantees a fair trial to accused persons. [4] The issue confronting us now is whether we should confirm the ensuing B order of invalidity. The relevant terms of that order are:
That the words ''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 C fine not exceeding R300 or to imprisonment for a period not exceeding three months'' or specifically the words ''unless such accused or such person satisfies the court that his failure was not due to fault on his part'' in s 72(4) of the Criminal Procedure Act 51 of 1977 are declared to be inconsistent with the Constitution of the Republic of South Africa Act 108 of 1996, and accordingly invalid.
That in terms of s 172(1)(b) of the Constitution, the orders in para 2 above shall not invalidate any enquiry conducted in a summary manner or application of the reverse onus D created by the words declared therein to be unconstitutional and invalid, unless:
the verdict of the court a quo was entered after 27 April 1994; and
either an appeal against or review is pending at the time for the noting of such appeal or bringing of such review has not yet expired.' [5]
Background E
[4] On 1 November 1996, Mr Singo was warned by the magistrate in Dzanani to appear in court on 17 January 1997 on charges of common assault and malicious injury to property. He did not comply with that warning. The machinery provided by s 72(4) was set in motion culminating in his arrest and appearance in court on 4 January 1999, to be dealt with in terms of s 72(4). His explanation for his F failure to appear in court was that he had settled the underlying dispute with the complainant and that they had become reconciled. He explained further that they had agreed that both would appear in court on 17 January 1997 in order to have the charges withdrawn. However, owing to a misunderstanding on his part, he did not appear but G instead he went to work and was thereafter sent to Namibia. The magistrate rejected his explanation, convicted him and sentenced him to three months' imprisonment without an option of a fine.
[5] He successfully appealed to the Venda High Court. On this occasion he was legally represented. That Court upheld his appeal and H set aside the conviction and sentence and advanced three grounds for doing so. First, s 72(4) contains an impermissible reverse onus which violates the right to be presumed innocent, while the summary procedure envisaged in the section is inconsistent with the right to a fair trial guaranteed in s 35(3) of the Constitution; I second, the magistrate had failed to advise the accused of his procedural rights with a resultant failure of justice; and third, the degree of culpability of the accused warranted nothing more J
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than a caution and discharge. It is the first of these grounds that is the A subject of these confirmatory proceedings.
[6] The National Director of Public Prosecutions was represented by counsel. As Mr Singo was not represented, the Johannesburg Bar, at the request of this Court, appointed counsel to advance argument in support of confirmation. Mr J G Wasserman SC together with Mr A Louw undertook that task. We are indebted to them for B their assistance.
The questions presented
[7] Three questions are presented in these proceedings, and they are:
whether the summary procedure envisaged in s 72(4) limits the right to a fair trial, more particularly, whether the phrase C 'unless such accused or such person satisfies the court that his failure was not due to fault on his part' limits the right to be presumed innocent and the right to remain silent;
if the right to a fair trial is limited, whether such limitation is justifiable under s 36(1) of the Constitution; and D
if any of the limitations imposed by s 72(4) is not justifiable, what the appropriate relief is.
General overview of s 72(4)
[8] Read in the context of the whole of s 72, the summary enquiry E procedure may be applied in a variety of different circumstances. First, it may be applied in a case such as the present where an accused who is in custody in respect of any offence is released on warning and fails to appear in accordance with the warning. Second, it may be applied to such an accused who is warned to remain in attendance at the F proceedings relating to the offence and who fails to do so. Third, it may be applied to an accused who is released and warned subject to a condition in connection with the release and who fails to comply with the condition. [6] In the fourth place, it may be applied to an accused who is released on warning by a police official and who fails to appear in accordance with the police official's warning. Finally, it may be applied to a guardian in whose care an G accused who is under the age of 18 years is released on warning, that the accused is to be brought to the specific court or to cause the accused to be brought before the court and who fails to comply with such warning. [7]
[9] The procedure envisaged by s 72(4) consists of two distinct H yet connected enquiries. It is important to note that the court may, but need not, undertake either enquiry. The first is when the court considers
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whether or not to issue a warrant for the arrest of the A accused person. At this stage the accused is absent and the court of its own accord establishes whether the two pre-conditions to issue a warrant of arrest exist. These conditions are that the accused person, in the first place, had been duly warned in terms of ss (1)(a) or (b) [8] and, secondly, fails to comply with the warning. The second phase begins when the accused person is brought to court and the summary procedure B is invoked. At this stage it is not necessary for the court to be satisfied afresh as to whether the two pre-conditions exist. [9] Their existence will ordinarily appear from the record and therefore be prima facie established in terms of s 235(1) of the CPA. [10] The court is indeed required to record in full the proceedings at which the warning C is given and an extract of such proceedings, if certified as correct, is prima facie proof of the warning given. [11] It is therefore imperative that the warning be recorded in full. Where the warning was issued by a police official, the terms of the warning will appear from a written notice completed by the official in terms of s 72(3)(a). [12]
[10] It is the second phase of s 72(4) with which we are D concerned. When the accused appears in court pursuant to the provisions of s 72(4) he or she may be asked by the presiding officer whether non-compliance with the warning is conceded. Depending on the response to the question, the summary procedure may continue.
[11] In order to comply with the obligation imposed by s 35(3) E of the Constitution, the presiding officer implementing the 72(4) procedure must ensure that it is fair. Therefore unless the accused is legally represented the court ought, the moment it decides to pursue the matter of the ostensible non-compliance with the warning, to explain the nature, requirements and effect of the proceedings about to be commenced. The explanation should include telling the accused that F it appears from the record that he or she was duly warned (the contents of
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the warning may have to be explained) and that there was a A non-appearance or other failure to comply with the warning. It should include telling the accused that such non-compliance is an offence for which the law allows a fine or imprisonment of up to three months; that unless the pre-conditions are cogently challenged, they may be regarded as having been established, whereupon the court will be...
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