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[2019] ZAWCHC 68
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S v Matross (47/2019) [2019] ZAWCHC 68; 2019 (2) SACR 331 (WCC) (13 June 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
High
Court Ref No: 19255
Case
No: 47/2019
Magistrates
Ref No: 1/4/13-1
Date:
13 June 2019
In
the review matter of:
THE
STATE
vs
THEMBISA
MATROSS
REVIEW JUDGMENT
FRANCIS,
AJ
1.
This matter
came before me on special review from the Senior Magistrate, Cape
Town. The review was prompted by an application by
Ms Thembisa
Matross (“the accused”) to, in effect, review her
conviction after having paid an admission of guilt fine.
2.
I was provided with a copy of the accused’s application which
was made by way of an affidavit, as well as a copy of the
docket.
3.
In summary, the accused’s version is as follows:
3.1 During the early
hours of Sunday morning, 4 September 2016, the accused was
apprehended at her neighbour’s residence for
the unlawful
possession of dagga in contravention of section 4(b) of the Drugs and
Drugs Trafficking Act, 140 of 1992. The accused
was taken to the
Table View Police Station where she was charged and detained. She had
a traumatic night given the unhygienic and
traumatising conditions
under which she was detained. She cried incessantly and was
particularly concerned that she would lose
her job if she had to
appear in court the following day. Eventually, during the afternoon,
one of the arresting officers presented
her with a written notice in
terms of
section 56(1)(c)
of the
Criminal Procedure Act 51 of 1977
which makes provision for the payment of an admission of guilt fine.
Given her physical surroundings, her traumatising experience,
and the
fear of losing her job, the accused decided to pay a fine of R100 and
she was then released from custody. According to
the accused,
although she denied guilt, the force of circumstances made her accept
the admission of guilt proposal. However, had
she known of the
consequences of paying the fine, and of the resultant criminal
record, she would have not paid the fine (and presumably
defended
herself).
3.2 One of the arresting
officers, Sergeant Hilary Claasen, also made a statement. She
disputes the version proffered by the accused
in relation to the
reason for the accused’s arrest. According to Sergeant Claasen,
when she entered the room, the accused
was sitting in front of a
table on which there was a white plate containing a small bag of
dagga. On asking the occupants in the
room whose dagga it was, they
all stated that it was not theirs but that it was the accused’s
dagga and that she was the
one smoking it. The accused did not
dispute that the dagga was hers. She indicated that she might have
smoked it, and her eyes
were red. The accused was then arrested for
possession of dagga and taken to the police station.
4.
Section 56(1)(d)
of the
Criminal Procedure Act provides
that a
written notice handed by a peace officer to the accused shall
“
contain
a certificate under the hand of the peace officer that he has handed
the original of such written notice to the accused
and that
he
has explained to the accused the import thereof
”
(own underlining). The concise Oxford English Dictionary (10
th
Edition, 2002) defines the word “import” as the “
implied
meaning of something. > importance
”
and “important” is defined as “
of
great significance or value
”.
What
section 56(1)(d)
of
Criminal Procedure Act thus
requires
is that the peace officer must explain the implied meaning and the
importance or significance of the written notice to
the accused. This
must of necessity include the consequences of the notice in the event
that the accused chooses not to appear
at court but instead to pay an
admission of guilt fine in
lieu
of having to go to trial.
5.
The consequences of a previous conviction can be devastating to an
accused who is in fact not guilty but is under the mistaken
apprehension that the payment of the fine will get rid of a
“nuisance” and will not result in a previous conviction.
If a police officer tells an accused person that the payment of an
admission of guilt fine will result in a criminal record, it
is
highly unlikely that an accused would pay such a fine if he or she
genuinely believes that he or she has a defence. Quite simply,
in my
view, the plain wording of
section 56(1)(d)
of the
Criminal Procedure
Act imposes
a duty on the police officer to disclose to an accused
the serious consequences of paying an admission of guilt fine.
Accordingly,
I respectfully disagree with the judgement of the
court in the
S
v Jennifer Anne Rademeyer (A186/17) ZAGPPHC 175 (12 APRIL 2017)
,
where the court expressed a contrary view and held that there was no
duty on a police officer to warn the accused of the full
consequences
of paying an admission of guilt fine.
6.
The explanation of the full consequences of an admission of guilt
fine is part of a fair procedure which the courts, especially
after
the advent of the Constitution, have insisted 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)
,
this court, with particular emphasis on constitutional values, held
that an accused person should be properly warned of the consequences
of paying an admission of guilt fine. Indeed, there have been several
cases in which admission of guilt fines were set aside precisely
because at the time of payment of the fine, the accused was not aware
of the serious consequences of paying such a fine (see,
S
v Claasen 2012 JDR 2524 (FB)
,
and
S
v Tong 2013(1) SACR 346 (WCC))
.
7.
In the matter at hand, it is apparent from the documents contained in
the docket, the accused’s affidavit, as well as the
statement
filed by Sergeant Claasen, that the true import of the written notice
was not explained to the accused. The accused did
not know, and was
never informed, that the payment of such a fine would result in a
previous conviction and criminal record. She,
of course, denies
guilt. The
ratio
in this
matter is the same as that in cases such as
S
v Tong
.
Accordingly, there is no why the admission of guilt fine should not
be set aside as not being in accordance with the interests
of
justice. I am aware that i
n
S
v Madhinha
2019 (1) SACR 297
(WCC)
,
the court held that the payment of an admission of guilt fine may be
merely “administrative” in nature and does not
result in
a previous conviction and criminal record. Even if this is the case,
and I express no view in this regard, the fact of
the matter is that
the import of the consequences of the accused paying the admission of
guilt fine was not explained to her; it
is this deficiency that
results in the failure of justice.
8.
In the circumstances, the following order is made:
8.1 The accused’s
admission of guilt in terms of
section 57
of the
Criminal Procedure
Act 51 of 1977
, made on 4 September 2016, is set aside.
8.2 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.
__________________________
HENNEY,
J