Magistrate's bid to jail mom and newborn irks judge

The high court in Port Elizabeth has set aside a warrant of arrest issued by a magistrate to a mother who could not attend court as she had given birth by Caesarean section 15 days earlier.

Lusanda Sulani was supposed appear in the Port Elizabeth Magistrate’s Court to attend her case on January 29 but was unable to travel because to her medical condition.

Her attorney presented a medical certificate stating she was unfit to travel from Durban.

Despite her medical certificate‚ magistrate Tandeka Mashiyi declared Sulani’s bail provisionally forfeited to the state and issued a warrant for her arrest.

Mashiyi based her decision on her interpretation of section 67 of the Criminal Procedure Act (CPA).

The section states that if an accused who is released on bail fails to appear on the appointed date‚ the court shall declare the bail provisionally cancelled and the bail money provisionally forfeited to the State and issue a warrant for the arrest of the accused.

Judge Fatima Dawood disagreed with the interpretation taken by the magistrate and said the CPA did not prevent the magistrate from determining whether or not the warrant should be executed immediately or stayed until a further date.

Dawood said: “A medical certificate from a gynaecologist was provided to court and accepted by the magistrate and the prosecutor as being correct that [Sulani] was unable to travel from Durban to Port Elizabeth as a result of the caesarean section and was accordingly unable to attend court for a legitimate justifiable reason.”

She said in this case‚ it was not just the question of the liberty of an accused person who had just delivered a baby by caesarean section but also the rights of a 15-day-old infant that needed to be considered in determining whether or not to have her mother arrested immediately and brought to court in two weeks.

“It would be unfathomable that this factor would play no role in determining whether or not to order the immediate execution of a warrant of arrest which would mean the mother of a 15-day-old child being incarcerated for a possible two week period of time without any regard being had for the rights of this vulnerable extremely young child that is completely dependent on her mother for her care.”

Dawood said the magistrate was not compelled to order the immediate execution of the warrant.