FAILURE TO APPEAR IN COURT – PROCEDURE

COOPER v DISTRICT MAGISTRATE, CAPE TOWN 2018 (1) SACR 369 (WCC)

Trial — Accused — Failure to appear in court — Enquiry in terms of s 170 of Criminal Procedure Act 51 of 1977 — Procedure at — Magistrate conducting summary enquiry without informing accused of nature of proceedings, charge or his rights — Furthermore, ignoring fact that accused was represented and not involving legal representative at all — Proceedings not in accordance with justice and set aside.

Trial — Accused — Failure to appear in court — Enquiry in terms of s 170 of Criminal Procedure Act 51 of 1977 — Magistrate convicting accused of contravention of s 55 of Act instead of s 170(1) where accused out on warning.

 

The applicant was summoned to appear in court and duly appeared. The case was then postponed on more than one occasion, and he was warned to appear in court on 1 March 2017. On that day, suffering from chest pain, the applicant went for a consultation with a medical practitioner instead of appearing in court. His attorney appeared in court and explained his absence. It was not clear whether a warrant of arrest was authorised to be held over as the inscriptions on the record were inconsistent, the final endorsement indicating that the warrant of arrest was to be held over. When the appellant appeared in court on the next occasion, although once again represented by his attorney, he was instead told by the presiding officer to enter the witness box. The magistrate then held a warrant enquiry and sentenced him to a fine of R3000 for his failure to appear in court in contravention of s 55 of the Criminal Procedure Act 51 of 1977 (the CPA). This conviction was entered, despite the applicant not having been informed of the charge, the nature of the proceedings or his rights. In an application for the review of this conviction and sentence,

Held, that the manner in which the enquiry into the applicant’s failure to attend court was conducted amounted to a substantial injustice since it infringed his constitutionally entrenched rights to a fair trial. His right to access to justice was curtailed when his legal representative was ignored, and his presence not even acknowledged during the enquiry. The court had furthermore erred in finding him guilty of contravening s 55 of the CPA instead of s 170(1), as he was on a warning to appear in court and at that stage had not been summoned to appear. The proceedings were not in accordance with justice and therefore had to be set aside.

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