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[2018] ZAWCHC 99
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S v Simba; S v Perrang; S v Ajouhran (A2241/17; A850/17; A2800/17) [2018] ZAWCHC 99; 2019 (1) SACR 90 (WCC) (17 August 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
High
Court Ref Nos: 1880, 18806 and 18807
Magistrate’s Serial Nos: 03/18,
05/18 and 06/18
Special
Reviews: 03/18, 05/18 and 06/18
In
the matters between:
THE
STATE
v
RICHARD
SIMBA
Case
no: A2241/17
and
THE
STATE
v
STANLEY
PERRANG
Case
no: A850/17
and
THE
STATE
v
SAMEER
AJOUHRAN
Case no: A2800/17
SPECIAL REVIEW JUDGMENT DATED 17
AUGUST 2018 IN TERMS OF
SECTION 304(4) OF ACT 51 OF 1977
ENGERS
AJ
:
[1]
These
matters come before us by way of special review. All of them
involve the power of a judicial officer presiding at a
magistrate’s
court to set aside a conviction and sentence in terms of
section
57(7)
of the
Criminal Procedure Act, No. 51 of 1977
.
[2]
Case
no. A2241/2017 involved a conviction under
section 4(b)
of the
Drugs
and Drug Trafficking Act, No. 140 of 1992
. Cases A850/2017 and
A2800/2017 involved convictions under the
Marine Living Resources
Act, No. 18 of 1998
(“MLRA”)
[3]
All
the accused admitted guilt, which was accepted by the prosecutor in
terms of
section 57A.
(i)
In
case no. A2241/2017, the accused was found guilty of possessing 15
stops of dagga. The admission of guilt fine was R800.
(ii)
In
case no. A850/2017, the accused was found guilty under
regulation
44(1)(a)
to the MLRA of being in possession of 223 crayfish.
The admission of guilt fine was R6000.
(iii)
In
case no. A2800/2017, the accused was found guilty under
regulation
51(1)
to the MLRA of being in possession of 454 undersized crayfish.
The admission of guilt fine was R9000.
[4]
In
each case, the magistrate set aside the conviction and sentence, and
directed that the accused be prosecuted in the ordinary
course.
The control prosecutor contends that the magistrate was not entitled
to do this, and that the prosecutor was entitled
to fix the admission
of guilt fine in the relevant amounts.
[5]
The relevant
portion of
section 57A
reads:
(1)
If an accused who is alleged to have committed an offence has
appeared in court…the public prosecutor may, before
the
accused has entered a plea and if he or she on reasonable grounds
believes that a magistrate's court, on convicting such accused
of
that offence, will not impose a fine exceeding the amount determined
by the Minister from time to time by notice in the
Gazette
,
hand to the accused a written notice, or cause such notice to be
delivered to the accused by a peace officer, containing an
endorsement
in terms of
section 57
that the accused may admit his or
her guilt in respect of the offence in question and that he or she
may pay a stipulated fine
in respect thereof without appearing in
court again.
…
(4)
The provisions of
sections 55
,
56
(2) and (4) and
57
(2) to (7),
inclusive, shall apply
mutatis
mutandis
to
the relevant written notice handed or delivered to an accused under
subsection (1) as if, in respect of
section 57
, such notice were the
written notice contemplated in that section and as if the fine
stipulated in such written notice were also
the admission of guilt
fine contemplated in that section.
[6]
For
present purposes,
sections 55
and
56
are not relevant, and the
relevant portions of
section 57
are as follows:
(4)
No
provision of this section shall be construed as preventing a public
prosecutor attached to the court concerned from reducing
an admission
of guilt fine on good cause shown.
(5)
(a)
An
admission of guilt fine stipulated in respect of a summons or a
written notice shall be in accordance with a determination
which the
magistrate of the district or area in question may from time to time
make in respect of any offence …
(b)
An
admission of guilt fine determined under paragraph
(a)
shall
not exceed the maximum of the fine prescribed in respect of the
offence in question or the amount determined by the
Minister from
time to time by notice in the
Gazette
,
whichever is the lesser.
(6)
…
the clerk of the magistrate's court which has jurisdiction…
shall … enter the essential particulars
… in the
criminal record book for admissions of guilt, whereupon the accused
concerned shall, subject to the provisions
of subsection (7), be
deemed to have been convicted and sentenced by the court in respect
of the offence in question.
(7)
The
judicial officer presiding at the court in question shall examine the
documents and if it appears to him that a conviction
or sentence
under subsection (6) is not in accordance with justice or that any
such sentence, except as provided in subsection
(4), is not in
accordance with a determination made by the magistrate under
subsection (5) or, where the determination under that
subsection has
not been made by the magistrate, that the sentence is not adequate,
such judicial officer may set aside the conviction
and sentence and
direct that the accused be prosecuted in the ordinary course,
whereupon the accused may be summoned to answer
such charge as the
public prosecutor may deem fit to prefer: Provided that where the
admission of guilt fine which has been paid
exceeds the amount
determined by the magistrate under subsection (5), the said judicial
officer may, in lieu of setting aside the
conviction and sentence in
question, direct that the amount by which the said admission of guilt
fine exceeds the said determination
be refunded to the accused
concerned.
[7]
In
terms of subsection 57(5) there are limitations on the amount of an
admission of guilt fine. It cannot exceed the LESSER
of:
(a)
A
determination made for that district for that offence (if such
determination exists); and
(b)
The
amount determined by the Minister, which at present stands at
R10 000.
[8]
A
determination for the magisterial district of Strand does exist.
It provides for the following:-
(i)
For a
contravention of section (4)(b) of Act 140 of 1992, the fine is
specified for up to 10 stops of dagga at R100 per stop.
For 11
stops or more it states “No J534 – DOCKET TO PP”.
Effectively this means that no admission of guilt
can be accepted
where 11 or more stops of dagga are involved.
(ii)
For
contravention of section regulation 44(1)(a) to Act 18 of 1998, the
determination provides for a fine of R500 per lobster for
a first
offence, but says “No AOG for more than 5 lobster”.
(iii)
For
contravention of regulation 51(1) to the same Act, the determination
is R500 per lobster for a first offence, but with no limitation
for a
first offender in respect of the number of lobsters concerned.
[9]
In
cases A2241/2017 and A850/2017, the number of articles found in the
possession of the accused exceeded the maximum for which
an admission
of guilt could be paid in terms of the determination for that
district. Notwithstanding this, the prosecutor
proceeded by way
of sections 57 and 57A.
[10]
Section
57(5)(a) requires that the admission of guilt fine be “in
accordance with” the said determination. Section
57(7)
permits the magistrate to set aside the conviction and sentences if
they are not in accordance with the determination.
The
admission of guilt fines in these cases were manifestly NOT in
accordance with the determination, and it follows that the magistrate
was entitled to set aside the conviction and sentence. The fact
that the admission of guilt fine was not in accordance with
the
determination means that it was
ipso
facto
not in accordance with justice, and the magistrate would be entitled
to set the conviction and sentence on this basis as well.
[1]
[11]
In
case no. A2800/2017, the contravention was of regulation 51(1) to the
MLRA. The determination for the district does not
include any
maximum number of crayfish. The prosecutor was thus entitled to
impose the admission of guilt fine of R9000.
[12]
However,
the magistrate was equally entitled, in the exercise of the
discretion given to her by way of section 57(7), to find that
the
conviction or sentence was not in accordance with justice. On
so finding, she was entitled to set aside the conviction
and
sentence.
[13]
It
appears to be the contention of the control prosecutor that a
prosecutor may determine an admission of guilt fine in excess of
the
maximum laid down in the determination for the district. This
goes directly against the clear wording of section 57(5)(a).
The proviso to section 57(7) allows the magistrate,
in
lieu of setting aside
,
to reduce the fine to accord with the maximum.
[14]
To
the extent that reliance is placed on section 57(4) which gives the
prosecutor the right to “reduce” an admission
of guilt
fine, this is misconceived. The reduction can apply only to the
maximum possible, which as stated above, is the
LESSER of the
determinations of the Minister and the district magistrate. In
other words, where a determination exists for
the district, the
prosecutor may reduce the fine below that specified in the
determination. In the cases under review, the
prosecutor did
not reduce the admission of guilt fine; he or she imposed a fine
in excess of the maximum permitted by the
district determination.
[15]
In
case A2241/2017, the offence fell outside the limit for which an
admission of guilt could be accepted. The fine which was
imposed and accepted did fall within the monetary limit prescribed in
the determination for the district. The magistrate took the
view that
in the light of the seriousness of the offence, the fine imposed was
not in accordance with justice, and set the conviction
and sentence
aside.
[16]
Section
57 gives the presiding judicial officer an overriding discretion.
Even where the admission of guilt fine has been imposed
in accordance
with all legal requirements, the magistrate is still entitled to set
aside the conviction and/or sentence, if he
or she considers that
they are not in accordance with justice.
[2]
Any other interpretation would lead to the absurd result that the
powers of a judicial officer under subsection 57(7) are
subject to a
prosecutor’s overriding discretion under s 57(4).
[17]
In
the light of the above, I am of the view that the magistrate was
correct in setting aside the convictions and sentences and directing
that the accused be prosecuted in the ordinary course.
[18]
I
therefore propose that the following order be made:
1.
The setting
aside of the conviction and sentence in case numbers A2241/17,
A850/2017 and A2800/2017 is confirmed.
2.
The fines paid
by the accused are to be refunded forthwith.
3.
The accused are
to be prosecuted in the ordinary course as provided for in section
57(7) of Act 51 of 1977.
______________________
ENGERS AJ
CLOETE
J
I
agree, and it is so ordered.
______________________
CLOETE J
[1]
It should be noted
that section 57(7) allows the magistrate to reduce a fine which
exceeds the district determination, so as to
accord with the
determination. This would in my view not apply where the
determination specifically prohibits the imposition
or acceptance of
an admission of guilt fine.
[2]
The discretion
must, of course, be properly exercised.