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[2018] ZAWCHC 100
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S v Mhlola; S v Motselbane (A1052-17; A988-17) [2018] ZAWCHC 100; 2019 (2) SACR 422 (WCC) (17 August 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
High
Court Ref Nos: 18803 and 18804
Magistrate’s Serial Nos:
A1052/2017 and A988/2017
Special
Reviews: 02/18 and 04/18
In
the matters between:
THE
STATE
v
NONKOSI
MHLOLA
Case
no: A1052/17
and
THE
STATE
v
NELSON
MOTSELBANE
Case
no: A988/17
SPECIAL REVIEW JUDGMENT DATED 17
AUGUST 2018 IN TERMS OF
SECTION 304(4) OF ACT 51 OF 1977
CLOETE
J
:
[1]
The issue in both of these
matters is whether a prosecutor is entitled to fix the amount of an
admission of guilt fine which is
in excess of a determination made
under s 57(5)(a) of the Criminal Procedure Act 51 of 1977 (‘
the
Act’
) and, if so,
whether a magistrate is bound to confirm it when exercising his or
her discretion under s 57(7) thereof.
[2]
The relevant part of ss
57(5)(a) and (b) of the Act reads as follows:
‘
(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
or, if the magistrate has not made such a determination, in
accordance with an amount determined in respect of any particular
summons or any particular written notice by… a public
prosecutor attached to the court of such magistrate…
(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.’
[emphasis
supplied]
[3]
Both accused were charged with
contravening
s 4(b)
of the
Drugs and Drug Trafficking Act 140 of
1992
.
Section 13(d)
read with
s 17(d)
thereof prescribes the
statutory penalty for such an offence as being ‘
such
fine as the court may deem fit to impose or imprisonment for a period
not exceeding 15 years, or to both such fine and such
imprisonment’.
There is accordingly no
statutorily prescribed maximum fine for such a contravention. The
ordinary jurisdictional limit would otherwise
apply, which for
magistrates courts is R120 000 in terms of s 92(1)(b) of
the Magistrates’ Court Act 32 of 1944
read with GN 217 of
27 March 2014. However in terms of s 57(5)(b) of the Act,
the maximum amount is limited to that determined
by the Minister,
which is currently R10 000 in terms of GN R62 in GG 36111 of 30
January 2013.
[4]
In case no. A1052/17 the
accused was charged with possession of 12
stoppe
of dagga. The prosecutor fixed an admission of guilt fine at R1 200,
i.e. R100 per
stop
of dagga in the s 57(5)(a) notice. The accused paid the fine.
[5]
In case no. A988/2017 the
accused was charged with a similar contravention, having been found
in possession of 23
stoppe
of dagga. The same sequence of events followed, save that the
prosecutor fixed the admission of guilt fine at R2 300.
[6]
The current determination
applicable to the District of Strand in terms of s 57(5)(a)
provides that, although a maximum fine
of R100 per
stop
of dagga may be imposed, a fine may only be imposed, for purposes of
admission of guilt under s 57, for a maximum of 10
stoppe
of dagga. If the charge relates to 11 or more
stoppe
then no admission of guilt fine may be fixed and the accused must be
prosecuted in the ordinary course.
[7]
The learned magistrate advised
that she set aside the conviction and sentence in each instance
because she was of the view that
the admission of guilt fine paid was
not in the interests of justice, having regard to the determination
made for the District
of Strand and the serious nature of the
offence. She thus directed that each accused be prosecuted in the
ordinary course in terms
of s 57(7) of the Act.
[8]
The learned magistrate also
advised that the prosecutor at Strand holds the view that s 57(4)
of the Act should be interpreted
in such a manner that the prosecutor
nonetheless retains a discretion to impose the fines that she did.
This sub-section provides
that:
‘
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.’
[9]
The prosecutor thus asked the
magistrate to submit the setting aside of the two convictions and
sentences for special review ‘
as
she holds the view that I am not entitled to set aside the conviction
and sentence for the reasons submitted above, and I am
required to
simply confirm her decision to reduce the admission of guilt fine’
in each instance. By
‘
reduce’
I understand the magistrate to mean the prosecutor’s
entitlement to fix an admission of guilt fine in an amount less than
that determined by the Minister of R10 000 in circumstances
where no magisterial determination exists.
[10]
The prosecutor did not provide
any submissions in this regard which she was, of course, at liberty
to do.
[11]
The magistrate however annexed
a letter addressed to her by – it would appear – the
control prosecutor at Strand in
which it was stated that her
decisions are reviewable because:
‘
I
am of the opinion that the prosecutor was entitled to determine an
admission of guilt
[fine]
in
terms of section 57A exceeding the maximum determination which the
magistrate has made.’
[12]
Section 57A was applicable in
both instances because both accused paid the fines after receiving
the notice to appear and appearing
in court but before pleading.
Nothing turns on this since s 57A(4) makes the provisions of
s 57(2) to (7) applicable
in such instances.
[13]
In case no. A1052/2017 the
notice to appear served on the accused stipulated that an admission
of guilt fine of R1 200 was
payable in respect of the charges.
In case no. A988/2017 the notice stipulated that an admission of
guilt fine of R2 300 was
payable. Accordingly, in both such
notices the admission of guilt fine stipulated was
not
in accordance with the determination made by the magistrate for the
District of Strand, and exceeded such determination. Section
57(5)(a)
makes it clear that it is only in instances where a magistrate has
not made such a determination that the admission of
guilt fine in a
notice may be fixed by a prosecutor.
[14]
It follows that both such
notices were issued
ultra
vires
the statutory
provisions of s 57(5)(a). This alone rendered the proceedings
resulting in payment of the admission of guilt fines
irregular.
[15]
Furthermore, ss 57(6) and
(7) of the Act provide that:
‘
(6)
An admission of guilt fine paid… shall, as soon as is
expedient, be forwarded to the clerk of the magistrate’s
court
which has jurisdiction, and such clerk of the court shall thereafter,
as soon as is expedient, 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…’
[emphasis
supplied]
[16]
To my mind, a reading of ss
57(4) to (7) as a whole makes it clear that the prosecutor’s
discretion under s 57(4) is
limited to
reducing
the amount of an admission of guilt fine on good cause shown to an
amount
less
than a determination made under s 57(5)(a) where such determination
has been made. Moreover, it is for the judicial officer concerned,
not the prosecutor, to determine whether or not ‘
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)’
[my
emphasis]. 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]
It is accordingly my 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]
The following order is thus
made:
1.
The setting aside of the
conviction and sentence in both case numbers A1052/2017 and A988/2017
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.
______________________
CLOETE
J
ENGERS
AJ
I
agree.
______________________
ENGERS
AJ