IN THE SUPREME COURT OF SOUTH AFRICA

In the matter between: 
THE STATE 
versus
VICTOR MODISE

JUDGMENT

THRING, J

On the appointed date the appellant failed to appear in the said court in answer to the summons, and a warrant for his arrest was duly issued.

"The court may, if satisfied from the return of service referred to in paragraph (b) of section 54(2) that the summons was served on the accused in terms of paragraph (a) of that section and that the accused has failed to appear at the place and on the date and at the time specified in the summons, or of satisfied that the accused has failed to remain in attendance at the proceedings in question, issue a warrant for his arrest and, when he is brought before the court, in a summary manner enquire into his failure so to appear or so to remain in attendance and unless the accused satisfies the court that his failure was not due to any fault on his part, convict him of the offence referred to in subsection (1) and sentence him to a fine not exceeding R300 or to imprisonment for a period not exceeding three months..."

No evidence was led at this enquiry, but the appellant made an unsworn statement to the Court in exptanation of his failure to appear, to which I shall turn presently. However, the statement was apparently insufficient to satisfy the magistrate and she found as follows:

"Die Hof is oortuig dat die genoemde persoon se versuim om te verskyn en aanwesig te bly aan skuld van genoemde persoon se kant te wyte was."

The appellant was thereupon presumably convicted by the magistrate of a contravention of section 55(1) of the Criminal Procedure Act in that, having been duly summoned to appear at criminal proceedings, he had failed to do so. The fact of this conviction is not stated anywhere in the record in so many words: but be that as it may, the appellant was thereupon sentenced to pay a fine of R300,00, the maximum fine sanctioned by the relevant statutory provision, or to undergo imprisonment for ten days, the whole of which sentence was conditionally suspended for five years.
With the leave of the magistrate, the appellant appeals to this Court against both his conviction and sentence.

The appellant's unsworn explanation to the magistrate for his failure to appear was recorded by the magistrate in longhand as follows:

"A few days before trial date, I wrote a letter to Traffic Department and was told by them telephonically that this would be sufficient."

In her reasons for conviction and sentence, which, for some reason, were furnished by the magistrate only about 11 months after she had presided over the enquiry into the appellant's failure to appear, she said the following:

The magistrate has misdirected herself in a fundamental respect. She approached the enquiry on the basis that, according to the appellant, in response to his letter to the Traffic Department, there was an "absence of an answer from the Traffic Department". This is not so, according to the appellant's unsworn explanation for his failure to appear. He said in his explanation that he:

"...was told by them telephonically that this would be sufficient,"

It must be accepted, then, that he was informed by an official of the Traffic Department that his fetter was sufficient and, by implication, that he need not appear at court. That, to my mind, was a satisfactory explanation which ought to have satisfied the magistrate that the appellant's failure to appear was not due to any fault on his part.

For these reasons I am of the view that the magistrate erred in convicting and sentencing the appellant.

It is disappointing to see how fundamentally the magistrate has erred, especially in misdirecting herself on the content of the appellant's explanation. The matter was a very simple one. It ought not to have been difficult for the magistrate to get it right. Instead, when coming to her decision, she seems to have already forgotten, or at least to have overlooked, the very terms of the appellant's explanation, which was both short and simple, and which she herself had just recorded on the record

in her own hand. Taxpayers are surely entitled to a higher standard of adjudication of their matters than this.

	THRING, J

I agree.