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Kedumetse Macwilliam Ngakantsi vs. The State - (19 Aug 2020)

An accused released on warning who fails to appear, shall be guilty of an offence and liable to the punishment


The issue in present appeal, with the special leave of this Court, is whether the Appellant’s petition for leave to appeal in terms of Section 309C of the Criminal Procedure Act 51 of 1977 (the CPA) ought to have been refused by the North West Division of the High Court, Mahikeng (the high Court). The Appellant, a constable in the Stock Theft Unit (the Unit) of the South African Police Service (the SAPS) was charged in the Vryburg Regional Court with one count of corruption under Section 4(1) of the Prevention and Combating of Corrupt Activities Act 12 of 2004 (the Corrupt Activities Act). The Court convicted him of contravening Section 4(1) of the Corrupt Activities Act. The Appellant was sentenced to five years’ imprisonment for this offence.

In the course of the trial the Appellant, who had been released on warning, failed to appear in Court on two occasions, namely 8 October 2015 and 18 April 2016. A week before he had to appear in court on 8 October 2015, the Appellant consulted his family doctor, who referred him to Dr Tshabalala, a psychiatrist. The latter admitted him to hospital where the Appellant remained for three weeks. Dr Tshabalala certified that, he was unable to attend the court proceedings from 5 October 2015 to 9 December 2015.

The trial Court concluded that, the Appellant’s failure to appear was wilful, found him guilty on two counts of contravening Section 72(2) of the Criminal Procedure Act 51 of 1977 (CPA) and sentenced him to a fine. The Appellant’s application for leave to appeal was dismissed by the regional Court. He then petitioned the high court in terms of Section 309C of the CPA. Djaje J and Morwane AJ, who considered the petition, dismissed it. The Appellant thereupon petitioned present Court for special leave to appeal the dismissal of his petition by the high Court.

Section 72(2) of the CPA provides, that an accused released on warning who fails to appear, shall be guilty of an offence and liable to the punishment prescribed in sub-section (4). In terms of Section 72(4), if a court is satisfied that an accused was duly warned to appear and has failed to do so, it may, ‘ in a summary manner enquire into his failure and, unless such accused or such person satisfies the Court that [there is a reasonable possibility 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.’

The argument advanced in respect of the Appellant’s conviction on these charges is that on the evidence in its totality, and in particular the medical evidence adduced, there is a reasonable prospect of a Court on appeal arriving at the conclusion that, his failure to appear in court on the two occasions in question, was not due to any fault on his part. As to the sentence imposed upon the Appellant by the regional Court for his conviction on each of these two counts, the argument is that the sentence appears, on the face of it, to have exceeded the maximum amount prescribed by the section.

Regarding the sentence for the contravention of Section 4(1) of the Corrupt Activities Act, the Appellant’s counsel submitted that the charge, albeit serious, was a single count that did not involve a large amount. The Appellant was a first offender. He was not dismissed from the SAPS after disciplinary proceedings were brought against him, and at the time of sentencing was still employed at the Unit. There is a reasonable prospect that, an appellate Court may alter the sentence imposed, or consider another form of sentence to meet the legitimate expectation of society that corrupt officials be duly punished, having regard to the particular circumstances of this case.

The order of the high Court refusing the Appellant leave to appeal in terms of Section 309C of the CPA, is set aside and replaced with the following order: ‘The appellant is granted leave to appeal to the full court of the North West Division of the High Court against: (a) his convictions in respect of the contraventions of Section 72 of the CPA and the sentences imposed pursuant thereto; and (b) the sentence imposed on him in respect of his conviction of corruption in terms of Section 4 of the Prevention and Combating of Corrupt Activities Act 12 of 2004.’


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