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[2023] ZAKZPHC 71
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S v Zulu and Others (AR219/2022) [2023] ZAKZPHC 71 (30 June 2023)
FLYNOT
ES:
CRIMINAL
– Admission of guilt fines – Procedure – Accused
arrested and released on police bail for failing
to display route
permits for public transport – No summons or written notice
issued – Prosecutor fixing admission
of fines which they
paid – Magistrate submitting matter for review –
Reasoning that only accused who were summoned
or issued with
notice to appear can admit guilt and pay fine without appearing
before court and that arrested accused must
appear before court –
Charges found not to be in accordance with provisions of
National
Land Transport Act 5 of 2009
– Proceedings not in accordance
with justice, reviewed and set aside.
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No
:
AR219/2022
In
the matter between
:
THE
STATE
And
THULILE
RACHEL ZULU AND 21 OTHERS
REVIEW
JUDGMENT
Date
delivered ..........................
Mngadi
J (P Bezuidenhout J concurring)
1.
The magistrate submits for review in terms of section 304 (4) of the
Criminal Procedure Act 51 of 1977 (CPA) 22 matters
.
Section 304 (4) provides that: 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 or this section'.
2.
The accused persons were arrested and charged by the police
.
The police released them on police bail.
The prosecutor fixed an admission of guilt fine for the accused. The
accused paid the admission
of guilt fine. The accused appeared before
court and the magistrate struck off roll the case.
3.
The magistrate is of the view that the proceedings were not
in
accordance with justice for the following reasons
:
'1.
Only accused who were summoned or issued with notice to appear can
admit guilt and pay fine without appearing before court.
Arrested accused
must appear before court before they
are transferred from criminal court record book to the record book
prepared for admissions
of guilt
.
2.
Cases
where accused admit guilt extra
judicially are reserved only for petty crimes.
3.
Cases
where accused
are arrested are prima facie serious
offenses
.
4.
Maximum fines for offences in respect
of which all accused were charged
is
R100 000.00 (One Hundred Thousand
rand)
and
a maximum term of imprisonment
is
two (2) years imprisonment
,
and in no way this offence can be
regardless
as
petty.
5.
By virtue of seriousness of the
offence and for the fact that they were arrested and therefore did
not fall under section
57
but
under section
57
A
accused were entitled to have legal representation explained to them
as
serious
prejudice could result
so
they
could make uniformed decisions.
4.
The Deputy Director of Public Prosecutions (OPP) in a memo supports
the view of the magistrate that the proceedings are
reviewable
as they were not in accordance with
justice in that the provisions of section 57 (1) (a) and (b) of the
CPA were not complied with
because no summons in terms of s54 of the
CPA nor a written notice in terms of s56
of the CPA was issued
.
It
resulted, submits the DPP in neither s57 nor s57A of the CPA being
complied with
.
5.
The review section 304 (4) refers to a criminal case in which
a
magistrate's court has imposed a sentence. Although the admission of
guilt fine was fixed by the prosecutor
.
Sect
i
on
57(6) provides that the Clerk of Court shall enter the essential
particulars in the criminal record book for admissions of guilt,
whereupon the accused concerned shall be deemed to have been
convicted and sentenced by the court in the respect of the offences
in question
.
6.
An arrested person can be released from the arrest and be issued
with
summons or be issued with a notice to appear or be released on bail.
If the offence he faces qualifies for a fixing of admission
of guilt
fine, it may be fixed for him. Thereafter, the fact that the accused
were initially arrested is no impediment for fixing
an admission of
guilt fine.
7.
The accused faced a charge reading as follows
:
'The
accused is guilty of the offence of contravening s50 read with s90 of
the National
Land
Transport
Act
5
of
2009.
(Failure
to display
route
permit)
.
In
that or about….the said accused did operate a road based
public transport
service, upon a
public road
.
.
.
in the district of
....
The accused being the operator of a
vehicle
.
...
without displaying the permit authorising such transportation in
terms of the
National Land Transport Act'
>.
8.
The essence of the charge is to operate a road based public
transport
service on a specified public road by operating a specified vehicle
without displaying a permit authorising such transportation.
The
essence of the charge is summarised in brackets to be 'Failure to
display route permit'
.
Section
50(1)
of National Land Transport Act 5 of 2009 (NLTA) provides that
no person may operate a road based public transport service unless
he
or she is the holder of an operating licence or permit issued for the
vehicle concerned
.
9.
Section 50 does not require a display of the operating
licence or
permit. Therefore
,
the
purported charge is not in accordance with the provisions of s50
of
NLTA. It is not known whether the accused were admitting failing to
display the operating licence or permit, or they were admitting
operating a road based public transport service without being the
holder of an operating licence or permit.
10.
As a result, the proceedings relating to the under mentioned accused
are found not to have been in accordance with justice. They are
reviewed and set aside, namely
:
1.
Thulisile Rachel Zulu
case
B424/22
2.
S W Buthelezi
case
A467/22
3.
SM Ngubane
case
A468/22
4.
W B Mbatha
case
A469/22
5.
MA Ngobese
case
A470/22
6.
TA Magwaza
case
A471/22
7.
L Ntombela
case
A472/22
8.
MT Zuma
case
A473/22
9.
E T Shabalala
case
A474/22
10.
MP Mbatha
case
A425/22
11.
WP Khumalo
case
A426/22
12.
BE Magwaza
case
A427/22
13.
SK Shangase
case
A428/22
14.
K J Ngcobo
case
A429/22
15.
H B Mlotshwa
case
A430/22
16.
BA Khumalo
case
A431/22
17.
CI Thwala
case
B432/22
18.
CP Ndlovu
case
B433/22
19.
B N Masango
case
B434/22
20.
M J Mahaye
case
B435/22
21.
ME Ngobese
case
436/22
22.
SR Zungu
case
437/22
Mngadi
J
I
agree, it is so ordered.
P
Bezuidenhout J