S v Kavari (CR 30/2025) [2025] NAHCNLD 50 (25 April 2025)

Case Title:

The State v Uezeongavi Kavari

CR: 30/2025

High Court Ref No:

117/2025

Division of Court:

Northern Local Division

Heard before:

Salionga J et Kesslau J

Delivered on:

25 April 2025

Neutral citation: S v Kavari (CR 30/2025) [2025] NAHCNLD 50 (25 April 2025)

It is hereby ordered that:

1. The conviction and sentence in respect of count 1 are set aside.

2. The fine in respect of count 1, if paid, should be refunded to the depositor.

3. The conviction and sentence in respect of count 2 are confirmed.

4. A copy of this order to be served on the Chief Magistrate.

Reasons for the order:

KESSLAU J (SALIONGA J concurring)

[1] The matter from the Magistrate’s court of Opuwo, is before this court for review in terms of s 302 of the Criminal Procedure Act 51 of 1977, as amended (the CPA).

[2] The accused was charged with count 1: Contravening s 82(1) of the Road Traffic and Transport Act 22 of 1999 (the Act) - Driving with an excessive blood alcohol level and; Count 2: Contravening s 31(1)(a) of the Act – Driving without a valid driver’s license. He pleaded guilty and, after questioning by the magistrate in respect of count 1 in terms of s 112(1)(b) of the CPA, and by applying s 112(1)(a) of the CPA in respect of count 2, was convicted as charged and sentenced.

[3] In respect of count 1, the charge sheet, NAMCIS generated order and the court record erroneously refer to a contravention of s 82 (1) of the Act,¹ whilst the heading and content of the charge sheet contained details of a charge of ‘Driving with an excessive blood alcohol level’ (which would be a contravention of s 82(2) of the Act). It appears that this error on the NAMCIS system exist at various Magistrate’s Courts and needs to be rectified.²

[4] The following queries were sent to the magistrate:

‘1. The accused was absent from court on 9 March 2022 and his bail was finally forfeited to the State 14 days later. On what basis was the bail re-instated and refunded to the depositor?

2. The accused applied for Legal Aid, however, a plea was taken from him without counsel present. The record is silent on if and when he waived his right to have counsel present. Kindly explain.’

[5] The Magistrate conceded that, when she re-instated and later refunded bail that was finally forfeited to the State, it amounted to an irregularity which should be set aside. On the second query the magistrate stated that the record should reflect whenever an accused waived his right to be legally represented.

[6] The forfeiture of bail is provided for in s 67 of the CPA with s 67(2)(c) stating:

‘If the accused does not appear before court within fourteen days of the issue under subsection (1) of the warrant of arrest or within such extended period as the court may on good cause determine, the provisional cancellation of the bail and the provisional forfeiture of the bail money shall become final.’

[7] The position was previously discussed in S v Paulus³:

‘Section 67 makes clear the procedure to be adopted by the court when an accused on bail fails to appear. It makes no provision for the summary enquiry and the punishment thereafter when convicted adopted by the magistrate. It only makes provision for the estreatment of bail. It appears that the legislature regarded the forfeiture of bail a sufficient punishment in the case where accused failed to appear. Therefore the magistrate had no authority in terms of s 67 to act as she did. (See S v Mabaso 1990 (1) SACR 675 (T) at 676G - I.) This is so when regard is had to ss 55, 56(5), 72(4) and 170 which criminalise the conduct of an accused who fails to appear when he/she has been summoned or received notice in terms of s 56 or has been released on warning after a postponement of the case. In these instances a summary enquiry and punishment after the accused's arrest is specifically provided for.’

[8] It is thus trite that s 67 makes no provision for the summary inquiry as adopted by the magistrate and does not provide for punishment in that regard. The legislature clearly regards the final cancellation of bail and forfeiture of the bail money as sufficient punishment.⁴

[9] Once bail is finally forfeited, the practise is to informally enquire and note the reason for the absence of an accused on record and thereafter inform the accused that bail had finally been forfeited. The magistrate does not have the power to re-instate such forfeited bail much less to refund it to the depositor. An accused who feels aggrieved by the forfeiture, has the redress to take that up with the Minister of Justice in the form of a claim upon finalization of the case. In this matter, the re-instating and refunding of forfeited bail amounts to a gross irregularity and will be set aside.

[10] Still on the subject of bail, the matter was finalized in August 2024 when the magistrate made the order for bail to be refunded. Alarmingly, from the record it appears that a ‘general payment voucher (re-payment)’ was issued by the clerk of court almost two years prior to the finalization of the case. According to the ‘voucher’, the person acknowledging receipt of the bail money was the accused. Thus, on face value, instead of forfeiting the money to the State, it was refunded to the accused without such order. This might be an administrative error, however this incompetence needs to be investigated.

[11] Turning now to the second query, to wit the failure to record the waiving of Legal Aid by the accused. In respect of count 2, driving without a driver’s license, it is generally regarded as a less serious and complicated offense. Most laymen would be able act in their own defence and normally offenders proceed without legal representation. Thus, I will not interfere with such conviction and sentence.

[12] The same cannot be said for the first count which is technically more complicated and carries a substantial punishment. There is no indication on record that the accused was an educated person or that he had prior altercations with the law as he was a first offender. It can therefore not be argued that the accused was aware of his legal rights. The failure of the magistrate, to enquire about the position of the application for Legal Aid from the accused and whether he wished to waive such fundamental right, tainted the conviction to such an extent that it cannot stand.

[13] The accused had since serve his term of imprisonment and remitting the case for failure to comply will serve no purpose but to prejudice the accused.

[14] In the result, the following orders are made:

1. The conviction and sentence in respect of count 1 are set aside.

2. The fine in respect of count 1, if paid, should be refunded to the depositor.

3. The conviction and sentence in respect of count 2 are confirmed.

4. A copy of this order to be served on the Chief Magistrate.

Judge(s) signature

Comments:

KESSLAU J:

None

SALIONGA J:

None