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[2019] ZAWCHC 45
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S v Z.G (70/W 3389548) [2019] ZAWCHC 45; 2019 (2) SACR 162 (WCC) (27 February 2019)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
High
Court Ref No:
1994
Case
No:
70/W
3389548
Magistrate’s
Ref No:
01/2019
Date:
27
February 2019
In
the review matter of:
THE
STATE
vs
Z
G
REVIEW JUDGEMENT
FRANCIS,
AJ
1.
This matter
has been referred to this Court by the Magistrate of Montagu with a
recommendation that the admission of guilt fine
paid by the accused,
on 24 June 2011, when he was still a minor, and the resultant deemed
conviction in terms of
section 57(6)
of the
Criminal Procedure Act 51
of 1977
, be set aside. This follows representations made by the
accused’s legal representative, Mr Johann Bester, as well as an
affidavit
made by the accused himself and a confirmatory affidavit by
his mother. They all set out their objections to the admission of
guilt
and deemed conviction.
2.
According to the accused’s affidavit, he was apprehended at his
mother’s residence for the unlawful possession of
cannabis in
contravention of section 4(b) of the Drugs and Drugs Trafficking Act,
140 of 1992. He was aged 17 at the time. The
accused was taken to the
Montagu Police Station, accompanied by his mother, where he was
charged for the illegal possession of
cannabis and his fingerprints
were taken. The fact that he was under 18 years of age was apparently
an issue for the police officers
but the arresting officer told the
accused and his mother that if the accused paid an admission of guilt
fine of R40, the Accused
would be released and that would be the end
of the matter. Both the Accused and his mother were relieved by this
offer and immediately
agreed. The Accused was given a written notice
making provision for the payment of an admission of guilt fine in
terms of
section 56(1)(c)
of the
Criminal Procedure Act, his
mother
paid the fine of R40, and the Accused was then released from custody.
At no stage was either the accused or his mother made
aware of the
full consequences of paying an admission of guilt fine. Nor were the
provisions of section 18 of the
Child Justice Act, 75 of 2008
applied
- in terms of this section, it was obligatory to hold a preliminary
inquiry relating to the nature of the allegations,
and the ensuing
consequences thereof for the accused, prior to any sanction being
imposed.
3.
The accused’s mother was with him during the arrest and the
payment of the admission of guilt fine and signed an affidavit
in
which she confirmed the accuracy of the facts recounted in the
accused’s affidavit.
4.
Mr Bester furnished a helpful submission which may be summarised
thus:
4.1
The accused was a child at the time of his arrest and ought to have
been treated as such by the
arresting officer.
4.2
The accused was alleged to have been in possession of a small
quantity of drugs and his alleged
offence is listed as item 16 on
schedule 1 to the
Child Justice Act. As
such, the accused ought to
have appeared at a preliminary inquiry.
4.3
Section 18(2)
of the
Child Justice Act expressly
provides that
section 56(1)(c)
of the
Criminal Procedure Act
- relating to an
admission of guilt and payment of a fine - does not apply to a
written notice in terms of the
Child Justice Act.
4.4
Contrary
to the provisions of
sections 18(1)
and
18
(2) of the
Child
Justice Act, the
accused was given a notice in terms of
section 56
of
the
Criminal Procedure Act and
advised to pay an admission of guilt
fine of R40.
4.5
It was not possible to obtain a copy of the
section 56
notice which
the arresting officer had issued to the accused due to the lapse of
time. Once the audit of the admission of guilt
records had been
conducted, these records were destroyed in terms of the Departmental
and Archival Instructions.
4.6
The arresting officer did not advise the accused, and/or his mother,
of the accused’s rights
and the consequences of paying the
admission of guilt fine.
5.
On the basis of the documents contained in the record as well as the
facts recounted in the accused’s affidavit, there
is much to
find support in the submissions made by Mr Bester. The courts,
especially after the advent of the Constitution, have
insisted that a
fair procedure be followed where an accused is invited to consider
paying an admission of guilt fine (see, for
example
S
v Pryce
2001 (1) SACR 110
(C)
).
In
S
v Parsons
2013 (1) SACR 38
(WCC)
and
S v
Tong 2013 (1) SACR (WCC)
,
this Court, with particular emphasis on constitutional values, has
held that an accused person should be properly warned of the
consequences of signing an admission of guilt fine.
6.
The irregularity ought to have been picked up by the judicial officer
at the Montagu Magistrates Court when subsequently examining
the
documents as the Magistrate was obliged to do in terms of
section
57(7)
of the
Criminal Procedure Act. If
the Magistrate had done
his/her job properly, it would have been noticed that the accused was
a child and the payment of an admission
of guilt fine by him was
proscribed by
section 18(2)
of the
Child Justice Act. The
failure of
justice was compounded by the fact that the accused was a minor at
the time of his arrest and the arresting officer
was aware of this
fact but nonetheless continued with the issue of a
section 56
notice.
7.
The
Child Justice Act approaches
the plight of children in conflict
with the law comprehensively, taking into account their vulnerability
and special needs. It
aims to prevent children from being exposed to
the adverse effects of the formal criminal justice system by using,
where appropriate,
processes, procedures, mechanisms, services or
options more suitable to the needs of children, including use of
diversion (see
the Preamble and
section 2(d)
of the
Child Justice
Act). Where
a child is alleged to have committed a minor offence,
such as in the case of the accused, police officials considering
release
or detention of a child after arrest, but prior to the first
appearance at a preliminary inquiry, should ideally release the child
on written notice into the care of a parent, an appropriate adult, or
a guardian
(section 21(2)(a)
of the
Child Justice Act).
8.
In
the matter at hand, the conduct of the arresting officer fell far
short of what is required when issuing a
section 56
notice. In
addition, because the accused was a child, the issuing of the
section
56
admission of guilt notice by the arresting officer was contrary to
the provisions of
section 18(2)
of the
Child Justice Act; this
, in
and of itself, is fatal. This failure of justice is buttressed by the
fact that the
Child Justice Act was
ignored in its entirety. For
these reasons, I consider that the accused’s admission of guilt
was not in accordance with justice
and should be set aside.
9.
In the circumstances, the following order is made:
(a) The accused’s
admission of guilt in terms of
section 57
of the
Criminal Procedure
Act 51 of 1977
, made on 24 June 2011, is set aside.
(b) The resultant
entering in the criminal record book of the particulars contemplated
in
section 57(6)
of the
Criminal Procedure Act by
the clerk of the
court is set aside and such particulars shall be expunged from the
criminal record book.
__________________________
FRANCIS,
AJ
I
agree and it is so ordered.
__________________________
NUKU,
J