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[2018] ZAWCHC 172
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S v Madhinha (18617) [2018] ZAWCHC 172; 2019 (1) SACR 297 (WCC) (7 December 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
REVIEW 18617
In
the matter between
THE
STATE
V
LLOYD
MADHINHA
CORAM:
DOLAMO J; THULARE AJ
JUDGMENT
DELIVERED 07 DECEMBER 2018
THULARE
AJ
[1]
“
Application
for setting aside of conviction and sentence
The applicant paid an admission of guilt which was
examined in terms of section 57(5) Act 51/1977 on 10/12/2012.
He is now applying that the deemed conviction and
sentence be set aside and has submitted an affidavit.
The
matter is referred to the Honourable Court as the magistrate is
functus officio. The affidavit, AOG Register copy (J114) and
the
certified copy of docket are attached for ease of reference. The
Control Document cannot be attached as it was already destroyed
by
the Clerk of the Court.”
[2] This is how a Memorandum received from the
Magistrate, Goodwood, filed with the Registrar of the Division of the
High Court,
Western Cape, read. The matter, in the style of a review
in the ordinary course, was allocated to Andrews AJ as she then was.
The
remarks of the Judge and the response of the Magistrate are
strictly speaking not on point, and are referred to for the purposes
of helping further to illuminate and contextualize what in my view is
the issue. The remarks which the Judge returned to
the
Magistrate are as follows:
“
1.
Mr Madhinha’s statement is not clear in relation to the payment
of R500-00.
Kindly explain:
(a)
Why he regarded
the payment as a fine (paragraph 22).
(b)
His statement
says that he paid the fine in order to secure his release. Did Mr
Madhinha think he was paying bail?
(c)
What did Mr
Madhinha think would happen to the matter after he paid the R500-00?
(i)
What was he told
would happen to him if he paid the fine?
(ii)
Did he expect to
go to court?
2. In what language did the police officials
communicate with him? Was he able to properly comprehend what was
happening from the
time of arrest until the time of his release?
3.
Copy of receipt is required.”
[3] The relevant parts of the response of the Magistrate
are in the following terms:
“
I
am not in a position to personally answer the remarks from the
honourable reviewing Judge not having interviewed Mr Madinha
personally.
To expedite the matter and with the problems with
post being delivered very late and the representative not providing
any particulars
to contact him, I requested the Clerk Mrs B Court to
immediately call Mr Madhinha to respond to the questions posed.
She informs me that she telephonically spoke to him
on 20 July 2018 and requested him to come and see me or collect the
documents
and respond in writing. He indicated that he would report
to her and deal with it. He was telephonically called twice more, but
did not answer and she left messages to immediately contact me.
Until today he has still not come to Court to collect
the papers to respond or to see me to give an explanation to the
questions.
She further informs me that he spoke fluent English
with an accent on the phone.
If
this is not acceptable, kindly provide guidance as to what further
steps I need to take to answer the questions posed.”
[4]
An accused may, without appearing in court, admit guilt in respect of
an offence by paying a stipulated fine if the summons
or written
notice is endorsed to the effect that the fine may be paid [section
57(1) of the Criminal Procedure Act, 1977 (Act No.
51 of 1977) (the
Act). Upon entry of the essential particulars of such summons or
written notice and of any summons or written
notice surrendered to
the clerk of the court, in the criminal record book for admissions of
guilt, the accused shall be deemed
to have been convicted and
sentenced by the court in respect of the offence in question.
[5]
I have doubts as to whether the conviction referred to in section
57(6) of the Act, is a conviction as envisaged in section
271 of the
Act. As a consequence, I have doubts as to whether a conviction as
envisaged in section 57(6) of the Act is a conviction
which the Head
of the Criminal Record Centre of the South African Police Service
(SAPS) or his or her designate should enter on
the criminal record of
a person to appear as that person’s previous conviction(s) as
envisaged in section 271 of the Act.
[6]
The accused was a self-employed vendor who sold grass at a particular
spot along Plattekloof road, a public road in Bothasig,
Cape Town. On
19 October 2010 at around 10am when he arrived at this spot, he found
another vendor, the husband to complainant
Portia Vangai, having
already set out grass for display to customers just in front of this
spot. The husband was absent and only
the complainant was overseeing
the grass display. An argument ensued between the accused and the
complainant as the complainant
also claimed their right to sell on
that spot. The next day, 20 October 2010, the complainant attended to
the Bothasig SAPS and
laid a complaint in which she alleged that
during that argument, the accused slapped her twice and pushed her.
[7]
The accused was arrested on 27 October 2010. The case was processed
and entered into the SAPS registers, which included the
taking of
accused fingerprints and a docket being opened under Bothasig CAS
178/10/2010. The accused was detained but amongst others
handed a
written notice (J534) which included an endorsement that he may admit
guilt in respect of the offence and that he may
pay a stipulated fine
of R500-00 in respect thereof without appearing in court. The accused
paid the fine, and was released.
[8]
Bothasig SAPS surrendered the written notice and the admission of
guilt fine to Le Theron, a clerk of the court at the Magistrate’s
Court Goodwood. She entered the particulars of the written notice in
the criminal record book for admissions of guilt on 16 November
2010.
A magistrate examined the documents in terms of section 57(7) of the
Act on 23 November 2010 and it did not occur to the
magistrate to set
aside the conviction and sentence. On the strength of these
developments, the SAPS entered in their criminal
record system the
name of the accused, the date of conviction as 23 November 2010, the
charge as assault with date committed as
19 October 2010 and sentence
as AOG R500-00.
[9]
The grass selling business no longer did well. In early 2018, the
accused applied to join Uber, which is a business using smartphone
applications and transfer of funds electronically, acting as a
middleman between taxi drivers and riders, charging a commission.
The
driver is the owner of the vehicle. Uber wanted the prospective new
driver to provide a police clearance certificate. It is
the process
of acquiring a police clearance certificate which brought about a
revelation to the accused that he had a criminal
record. The SAPS
informed him that the admission of guilt he paid on the 27 October
2010 was by law a conviction and sentence.
He approached an attorney
and the Magistrate, Goodwood. He applied for an order to have the
conviction and sentence set aside.
The accused is now willing to
challenge the evidence against him, in order to ward off a conviction
and sentence.
[10] The accused in his affidavit now alleged that when
he arrived at the police station upon his arrest he was told to pay
R500-00
and stop selling in the road and go home. He paid the amount,
was asked some questions about himself and told to sign some papers.
According to him, the payment was, to quote him verbatim “akin
to my release. I was told that I must pay and go.” His
grounds
for review are set out in the following terms:
“
REVIEW
21. I respectfully request that the conviction and
sentence, which resulted from my paying an admission of guilt fine,
be set aside
as it was not in accordance with justice.
22. I believed the only option to be released from
custody was to pay a fine immediately and payment was accordingly not
made freely
and voluntarily; My actions in paying the fine in order
to secure my release in custody were reasonable;
23. I was not properly informed of my rights nor were
my rights explained to me at any stage of the process which is in
violation
of my constitutional rights in terms of section 35 of the
Constitution Act.
24.
I accordingly respectfully pray for an order to set aside the
conviction and sentence aside. I have been advised that should
the
conviction and sentence be set aside, I may still be prosecuted for
the offense.”
[11
A written notice is a method of securing the attendance of an accused
in a magistrate’s court – [section 38 read
with section
56 of the Act]. The level of court within the hierarchy of courts
alone is sufficient to indicate that this method
is meant primarily
for less serious offences – [section 166 of the Constitution of
the Republic of South Africa, (the Constitution)].
[12]
Written notice as a method of securing the attendance of accused is
issued by a peace officer who 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 - [section 38
read with section 56 of the Act]. A peace officer may
endorse the
written notice to the effect that the accused may admit guilt in
respect of the offence in question and that he or
she may pay the
stipulated fine without appearing in court. The peace officer is able
to make that endorsement only where they
on reasonable grounds
believe that a magistrate’s court, on convicting the accused of
the offence in question, will not impose
a fine exceeding the amount
determined by the Minister from time to time by notice in the Gazette
- [section 56(1) of the Act].
[13]
Generally a fine as a nature of punishment that may be imposed upon a
person convicted of an offence, which fine is determined
without
punishment alternative to such fine – [section 276(1)(f) of the
Act], is considered for trivial offences only. The
fine is generally
endorsed on a summons and a written notice for appearance in the
district courts within the magistrates’
courts. A magistrate in
a district court may impose a fine not exceeding the amount
determined by the Minister from time to time
by notice in the
Gazette, save as otherwise specially provided – [section
92(1)(b) of the
Magistrates’ Courts Act, 1944
– [Act No.
32 of 1944]]. Currently the amount determined by the Minister is R120
000-00. The amounts determined by the Minister
in terms of section
56(1) and 57(1)(a) of the Act is currently R10 000-00. R10 000-00
represents 8.33 percent of the limit of jurisdiction
for a fine which
a district court magistrate may ordinarily impose. A fine only as
punishment (in admissions of guilt by payment
of a stipulated fine)
is intended for trivial offences.
[14] Section 57(6) and (7) of the Act reads as follows:
“
(6)
An admission of guilt fine paid at a police station or a local
authority in terms of subsection (1) and the summons or, as the
case
may be, the written notice surrendered under subsection
(3), 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 of such
summons or, as the case may
be, such written notice and of any
summons or written notice surrendered to the clerk of the court under
subsection (3), 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.”
[15] The conviction and sentence of an accused in terms
of section 57(6) is
sui generis.
It is not a verdict. It is
not even a pronouncement by the clerk of the court. It is an
automatic consequence of an administrative
act performed by a member
of the court’s support services. It automatically follows on
the clerk of the court performing
his or her clerical duties. The
administrative duties performed by the clerk of the criminal court
referred to in section 57(6)
are provided for in the
Department of
Justice and Constitutional Development, Justice Codified
Instructions: Code: Clerks of the Criminal Court,
(the Code) in
Chapter 6, deals with admission of guilt fines. Paragraph 72 of the
Code reads as follows:
“
72.
Upon receipt of an admission of guilt fine the clerk of the court
proceeds as follows:
(a)
The copies of
the summonses or notices are arranged in sequence of –
(i)
The admissions
of guilt receipt numbers (J70 or JDAS generated receipt) issued by
the clerk of the court; and
(ii)
The expenditure
receipt number (Z263 or JDAS generated receipt) issued by the clerk
of the court to the South African Police Services
or other
magistrate’s offices. The admission of guilt receipt numbers
(J70 or JDAS generated receipt) should appear in sequence
on each
expenditure receipt issued to the SA Police Services.
(b)
Each case is
allotted a serial number for the current calendar year, starting with
the number 1 for that year.
(c)
The particulars
of each case are entered in sequence of receipt numbers in the
appropriate columns of the admission of guilt register
(J114).
(d)
The fines are
entered in the appropriate columns of the admission of guilt register
(J114) according to the classification thereof.
(e)
The admissions
of guilt receipt numbers and, where applicable, the expenditure
receipt numbers must in all cases be entered in the
appropriate
columns of the admission of guilt register (J114).
(f)
The certificate
in terms of section 57(7) to be signed by the judicial officer must
be placed in the last page of the admission
of guilt register (J114)
for the day.
[16] The performance by the clerk of the criminal court
of his or administrative duties results in an automatic conviction
and sentence
of the accused, pursuant section 57(6) of the Act. The
facts of the case, whether the accused admitted or denied some of
them,
or whether the accused was in fact and in law guilty of the
offence were not considered at all in this conviction in terms of
section
57(6) of the Act. In my view, the clerk of the criminal court
simply enters on court records what is essentially an agreement
between
the State and the accused.
[17]
In my view, the Legislature has provided the mechanism in section 57
of the Act to provide for settlement of trivial disputes
between the
State and an accused person where neither party wishes to go through
a long trial procedure and both are willing to
bring their dispute to
a quick end. The issues are set out in the written notice which
identifies the accused, the charge and what
the accused needs to do
to answer it, an endorsement that he may admit guilt and the
certificate by the peace officer. In this
way the accused and the
offence are identified which the State agreed not to pursue in
exchange for the agreed payment. It is a
documented waiver of the
specific offences which the State has or could feasibly have against
an accused upon payment of a stipulated
amount. It is a waiver by an
accused of his right to have his case proved beyond reasonable doubt.
[18] This settlement mechanism of trivial criminal
offences should meet the statutory requirements, especially that
every term and
process is to be in writing, specifying with precision
or reasonable ascertainment the identity of the accused, the offence,
the
explanation of constitutional rights and the amount payable. Its
purpose is to ensure that minor offences and disputes between the
State and accused are concluded without the need for either side to
resort to a full trial process. In a settlement, the strength
of the
case of either side is never tested. The section does not require the
accused to set out the facts which he admits and on
which his
admission of guilt is based. The section does not envisage
unequivocal admission of guilt. The admission of guilt is
not the one
envisaged in section 217 of the Act.
[19] An admission of guilt in terms of section 57
differs from an unequivocal admission of guilt made in terms of
section 217 of
the Act. Unlike section 217 the admission of guilt
made in terms of section 57 does not amount to an equivocal admission
of guilt,
primarily for two reasons. It is not required:
(a) That the facts relating to the commission of the
offence upon which the admission is based be set out.
(b)
Once to made to a peace officer, it is not required that it be
confirmed and reduced to writing in the presence of a magistrate
or a
peace officer [Section 217 (1) (a) of the Act].
It
is for these reasons, in my view, that the Legislature introduced the
judicial oversight of such agreements by magistrates as
a statutory
requirement, in section 57(7).
[20]
Once entered into the admission of guilt register, the next steps for
the clerk of the court are set out as follows in paragraph
73 of the
Code:
“
Handling
of documents
73. (a) As soon as the cases have been entered in the
admission of guilt register (J114) the clerk of the court draws the
control
documents of the summonses or written notices from the clerk
of the court dealing with processes where it is kept.
(b) The clerk of the court signs for it and enters
the admission of guilt reference number as well as the amount paid in
the control
document register (J78).
(c) The documents of each case are then arranged in
the sequence of control document, followed by the summons or written
notice
received from the accused and any other documents.
(d)
The admission of guilt cases and the admission of guilt register
(J114) are then immediately submitted to the responsible judicial
officer to examine the documents.”
[21]
“Examine”, the word used in both section 57(7) as well as
the Code is a verb which ordinarily refers to a concept
of thorough
inspection by a person over the work of someone. The person doing the
inspection is a person other than the original
source, and the
purpose is to determine the nature or condition of something. The
Concise Oxford
English Dictionary,
tenth
edition, Oxford University Press, 2002 defines “examine”
as “inspect closely to determine the nature or
condition of”.
The Act read with the Code envisages a close and thorough scrutiny of
the documents by a judicial officer.
[22]
This examination is part of the judicial audit and oversight of court
processes which would not otherwise come to the attention
of the
judiciary, but which have the status of an order of a court. It is
ordinarily performed in chambers. As a unit of judicial
quality
assurance, it is part of the greater judicial administration, which
is that area of judicial office which is relatively
unknown to those
who measure judicial output in the magistrates’ courts only in
respect of the physical hours sat in an open
courtroom.
[23]
Where it appears to a magistrate doing this quality assurance and the
examination over the work of another magistrate, and
it appears to
the magistrate that a conviction or sentence is not in accordance
with justice, the magistrate seeks the comments
of his colleague who
convicted and sentenced, in writing, and submits the matter to the
High Court, with a Memorandum requesting
a Judge of the High Court to
specially review the proceedings either in terms of section 302 or
section 304(4) of the Act. It is
only a Judge of the High Court who
has the authority to set aside the proceedings before a magistrate
where it appears that the
proceedings were not in accordance with
justice. The procedure in a section 57(7) examination of the
documents submitted to a magistrate
upon which a conviction and
sentence was obtained is different. The subsection gives the
magistrate doing the examination the authority
to set aside the
conviction and sentence and direct that the accused be prosecuted in
the ordinary course.
[24]
The nature of an examination is to detect any problems with the
documents presented to the judicial officer in respect of an
accused.
On 23 October 2010 during that inspection, it did not appear to the
magistrate that the conviction and sentence of the
accused by
operation of law on 16 October 2010 was not in accordance with
justice. The magistrate formulated an opinion about the
documents and
formed a view about them, but clearly the opinion formed was not and
could not be based on the facts of the case.
[25]
It was primarily an idea about the guilt of the accused, made without
conscious thought and on the basis of little evidence,
upon
consideration of the documents. For all intents and purposes, it was
an impression and could not be a verdict on the question
whether the
accused was in fact and in law guilty. It was not a decision on the
issue of fact in the criminal case against the
accused. The
magistrate could not pronounce that the evidence proved the
commission of the offence charged, did not find the accused
guilty
and did not sentence him on 23 October 2010.
[26] Referring to a conviction as envisaged in section
271 of the Act, in my view, in
Director of Public Prosecutions,
Limpopo v Mokgotho
(068/2017)
[2017] ZASCA 159
(24 November 2017)
Petse JA said at paragraph 18:
“
[18]
It is apposite at this stage to make general observations with regard
to the correct approach to the evaluation of evidence
in a criminal
trial. It is trite that an accused can only be convicted if the
evidence establishes his guilt beyond reasonable
doubt. And as Nugent
J observed in Van der Meyden (at 450 a-b):
‘
The
proper test is that an accused is bound to be convicted if the
evidence establishes his guilt beyond reasonable doubt, and the
logical corollary is that he must be acquitted if it is reasonably
possible that he might be innocent. The process of reasoning
which is
appropriate to the application of that test in any particular case
will depend on the nature of the evidence which the
court has before
it. What must be borne in mind, however, is that the conclusion which
is reached (whether it be to convict or
acquit) must account for all
the evidence. Some of the evidence might be found to be false; some
of it might be found to be unreliable;
and some of it might be found
to be only possibly false or unreliable; but none of it may simply be
ignored.’”
[27] In
S v Smullion (Sullivan)
1977 (3) SA 1001
at 1004D-E Lewis JP said:
“
However,
Mr. De Bourbon, in a forceful argument, pointed out that in relation
to sentence the phrase “previous conviction”
has come to
be understood in a particular way. See, e.g., R v Matlala,
1927
T.P.D. 411
; R. v Butelezi,
1960 (1) SA 659
(N) at p. 600E-H, and the
authorities there referred to and in particular Gardiner and
Lansdown, 6
th
ed., vol. I, p. 433.
The
effect of these authorities is that in relation to sentence a
conviction is not a previous conviction unless the offender was
brought to court and convicted and sentenced for the offence before
the current offence was committed.”
(
My
emphasis
)
[28]
A conviction in terms of section 57(6) does not follow only if the
evidence establishes the guilt of an accused beyond reasonable
doubt.
Not all the evidence, especially the facts setting out what happened
upon which the accused admits guilt, account for the
accused’s
conviction. The accused is never brought before court and convicted.
Papers in relation to court are surrendered
to the clerk of the
criminal court and the particulars from those documents are entered
into court records and he is convicted.
[29] The meaning and effect of a previous conviction as
referred to in section 271 was given as follows by Holmes in
R v
Zonele and Others
1959 (3) SA 319
(AD) at 330C-D:
“
A
previous conviction may be described as one which occurred before the
offence under trial. Generally speaking, previous convictions
aggravate an offence because they tend to show that the accused has
not been deterred, by his previous punishments, from committing
the
crime under consideration in a given case.”
[30]
The previous convictions envisaged in section 271 of the Act have
serious consequences for an accused, especially seen against
the
background of their effect as set out in
R
v Zonele supra.
In
my view this cannot be prior conduct and the manner in which an
accused thought he or she behaved towards others seen against
his or
her own view of the accepted norms of society, generally without
having obtained legal advice. A finding on such past conduct
and the
pronouncement of the conviction, because of its serious implications,
in my view, should only follow where the evidence
has established the
guilt of the accused beyond reasonable doubt. In a criminal matter,
in my view, the only competent authority
to make a pronouncement with
such dire consequences should be a judicial authority, which is
vested in the courts – [section
165(1) of the Constitution]. A
conviction referred to in section 57(6) of the Act is not such a
conviction.
[31] An admission of guilt register (J114) referred to
in section 57(6) is different from a criminal record book (J546),
which is
a register used for criminal matters which are ordinarily
heard in the magistrates’ courts. The criminal record book is
provided
for in the Code in Part IV paragraph 268 which reads as
follows:
“
PART
IV- THE CRIMINAL RECORD BOOK
Purpose of Criminal Record Book (J546)
268.
The criminal record book (J546) is kept in respect of every court and
furnishes a daily account of the result of all the cases
in that
specific court. The criminal record book (J546) also serves as a
control mechanism in respect of the issuing of committal
warrants
(SAP 69), warrants for detention (J7) and all orders made by the
judicial officer.”
[32] The closing and disposal instructions of both the
admission of guilt register as compared to a criminal record book, in
my
view is not without significance. Paragraph 15(a) in Part IV-
Closing and Disposal of Records, under General reads as follows:
“
Court
records
15. See Annexure A, C and E for the classes of court
records which may be disposed of. Attention is also directed to the
following:
(a)
Only completed criminal record books must be transferred to the
archives depots after a period of ten years from the date of
the last
entry therein. Pages must not be removed from the record books in
order to meet the period.”
[33]
On the other hand, in the Code under List of Records in Offices of
Magistrates for the Disposal of which Authority has been
obtained,
Archives Annexure (C), Form J 114, the admission of guilt register
also sometimes referred to as the Loose-leaf admission
of guilt
record book, the disposal period is given as D3. The order of
preservation and disposal of records of magistrates’
courts in
the Code explains the symbols as “D- Destroy, after expiration
the number of years indicated, e.g. D.2.”.
The admission of
guilt register is disposed of after 3 years. The case record of
admission of guilt in terms of section 57 of the
Act is a D1, which
means it is disposed after one year of the date of finalization. This
explains why the documents in respect
of the accused could not be
found at the Magistrates’ Court Goodwood.
[34]
A previous conviction, which follows a verdict after court
proceedings before a magistrate and entered into a criminal record
book (J546), is never destroyed. It is kept at a magistrates’
court for ten years and thereafter it is transferred to National
Archives for permanent preservation. The documents received by the
clerk from the SAPS following a written notice in which a fine
is
stipulated and paid, and entered into an admission of guilt register
are destroyed after one year, and the admission of guilt
register
also called the loose-leaf admission of guilt record book (J114), is
destroyed after 3 years. The record of a conviction
by a court
following proof of the charge beyond reasonable doubt is permanent.
The record of a conviction by of entry of particulars
into a register
has a limited life.
[35]
The provisions of section 57A of the Act makes the distinction
between a prosecution geared towards a section 271 conviction
and
that leading towards a section 57(6) conviction clearer. For purposes
of this judgment, I deem it necessary to only refer to
subsections
(1), (3) and (4) of section 57A:
“
57A
Admission of guilt and payment of fine after appearing in court
(1)
If an accused
who is alleged to have committed an offence has appeared in court and
is-
(a)
In custody
awaiting trial on that charge and not on another more serious charge;
(b)
Released on bail
under section 59 or 60; or
(c)
Released on
warning under section 72,
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. …
(3) The public prosecutor shall endorse the
charge-sheet to the effect that a notice contemplated in this section
has been issued
and he or she or the peace officer, as the case may
be, shall forthwith forward a duplicate original of the notice to the
clerk
of the court which has jurisdiction.
(4)
The provisions of sections 55, 56(2) and (4) and 57 (2) to (7z0,
inclusive, shall apply mutatis mutandi 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 I such
written notice were also the admission of guilt fine contemplated
in
that section.”
[36]
An accused referred to in section 57A would have been entered in the
criminal record book (J546). He would have appeared before
a
magistrate and would have been facing the imminent putting of the
charge to him or her to which he or she would have to enter
a plea,
which would entitle him or her to a verdict which might lead to a
conviction as envisaged in section 271 and have a criminal
record
entered under his name. An opportunity is then provided by section
57A, because of the trivial nature of the offence, for
him to opt out
of such a permanent criminal record at the instance of and with the
public prosecutor, and admit guilt in terms
of section 57 of the Act
and have a conviction which does not carry such lifetime and serious
consequences of a section 271 conviction.
[37]
The issue that the court dealt with in
S
v Parsons
2013 (1)
SACR 38
(WCC) in a review of a section 57(6) conviction of the
accused, was the accused alleging that it was not explained to him
that
he would receive a criminal record. The gist of the judgment of
the learned Judges seems to me to be founded on the acceptance,
without deciding the question that a section 57(6) conviction was a
conviction as envisaged in section 271, worthy of being entered
as a
permanent record of previous convictions of the accused. In
S
v Tong
2013(1) SACR
346 (WCC) the court also dealt with a section 57(6) conviction where
the accused was also surprised after 3 years to
learn that he had a
criminal record. My reading of the judgment is that the court also
accepted, without deciding, that a conviction
envisaged in section
57(6) was a previous conviction envisaged in section 271 and as such
a previous conviction to be entered on
the criminal record.
[38]
I am in agreement with what appears in the unreported judgment,
S
v Houtzamer
(B7968969/08)
[2015] ZAWCHC 25
(10 March 2015) where the view is expressed that a
review court should not enquire into the merits of the charge and
that the accused
should be entitled to relief if he or she can
establish that he paid the admission of guilt fine in ignorance and
wishes to defend
himself in court. It is for that reason that I am
unable to pursue the trajectory set out by the remarks of the first
reviewing
Judge in this matter.
[39] It is against this background that I hold the view
that the section 304(4) review is the appropriate way to bring a
review
of the proceedings where the magistrate did not set aside the
conviction and sentence in terms of section 57(7) of the Act after
examination. Section 304(4) reads as follows:
“
304
Procedure on review
(1) If in any criminal case in which a magistrate’s
court has imposed a sentence which is not subject to review in the
ordinary
course in terms of section 302 or in which a regional court
has imposed any sentence, it is brought to the notice of the
provincial
or local division having jurisdiction or any judge thereof
that the proceedings in which the sentence was imposed were not
in accordance with justice, such court or judge shall have the same
powers in respect of such proceedings as if the record thereof
had
been laid before such court or judge in terms of section 303 of this
section.”
The
accused, although not expressly stated, denied having assaulted the
complainant. The conviction and sentence in terms of section
57(6) of
the Act is deemed to be a conviction and sentence of the magistrate’s
court. In my view, the accused had placed
sufficient material before
the court to set the proceedings aside and allow, should the State
still be inclined to prosecute, to
have the accused’s guilt be
proved beyond reasonable doubt in a court of law.
[40] The SAPS Standing Order (G) 341 issued under
Consolidation Notice 15/1999 provides as follows in 3(3)(b):
3
Securing the
attendance of an accused at the trial by other means than arrest
…
(3)
A member, even though authorised by law, should normally refrain from
arresting a person if –
(b)
the member believes on reasonable grounds that a magistrate’s
court, on convicting such person of that offence, will not
impose a
fine exceeding the amount determined by
the
Minister from time to time by notice in the Government Gazette, …
, in which event such member may hand to the accused
a written notice
(J534) as a method of securing his or her attendance in the
magistrate’s court in accordance with
s 56
of the
Criminal
Procedure Act, 1977
.”
[41]
Where a police officer desires to secure the attendance of an accused
through handing such accused a written notice instead
of effecting an
arrest, in my view, in lieu of an arrest, it is not unfair of the
police official to ask such an accused to accompany
them to the
police station where the prescribed documents are secured, in order
to complete them and hand them to an accused. In
my view such a
request would not ordinarily amount to an unlawful limitation of an
accused’s freedom – [
Isaacs
v Minister van Wet en Orde
1996(1)
SACR 314 (A) at 320i].
[42]
In this matter, once at the police station, instead of simply issuing
a written notice (J534), the police official went further.
A docket
was opened and the accused was detained. The inescapable impression
is that the detention of the accused and the threat
of continued
custody, whilst the police officer was well aware that the Standing
Order enjoined him to refrain from arresting the
accused, had as its
objective putting pressure on the accused to admit guilt and pay the
stipulated fine.
[43]
In my view, the time has arrived for the National Commissioner of
Police (Commissioner) in the interests of the citizens and
residents
of this country, the integrity of the committed members of the SAPS,
the reputation of the section 57 procedure and that
of the
administration of justice in general, to require a member of the SAPS
who detains an accused in a matter where a written
notice (J534)
would have been appropriate and is in fact used after an initial
detention, in writing to record such detention and
their reasons, and
to submit such monthly returns to the Commissioner for his
consideration and intervention. The reasons must
show why such arrest
was necessary and unavoidable before the written notice was handed to
an accused. In this way, the Commissioner
will be able to know the
extent of the problem and will be able to intervene. The Commissioner
will also be in a position to advise
the Minister of Police in
devising policy to address the criticism that the SAPS use arrest and
detention to force vulnerable members
of society who fear being
locked up, to admit guilt on petty crimes using arrest and the threat
of continued detention.
[44]
For these reasons, I find that the conviction of the accused in terms
of
section 57(6)
of the
Criminal Procedure Act, 1977
was not a
conviction as envisaged in section 271 of the Act. A conviction and
sentence following an entry into the admission of
guilt record book
by the clerk of the criminal court in the magistrates’ court is
not a conviction whose record is permanent.
It was not a conviction
and sentence to be entered in the Criminal Record System by the South
African Police Services. I further
find that if the facts alleged by
the accused are proved at trial, they stand as a valid answer to the
charge against him. It appears
to me that the proceedings were not in
accordance with justice.
I would make the following order:
1.
The conviction and
sentence of the accused in terms of
section 57(6)
of the
Criminal
Procedure Act is
set aside.
2.
A copy of this order is
to be served on the Minister of Police for his attention.
DM
THULARE
JUDGE
OF THE HIGH COURT
I
agree and it is so ordered
MJ
DOLAMO
JUDGE
OF THE HIGH COURT