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[2017] ZAGPPHC 175
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S v Rademeyer (A186/17) [2017] ZAGPPHC 175 (12 April 2017)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
DIVISION,PRETORIA
A186/17
12/4/2017
Reportable
Of interest to other
judges
Revised.
HIGH
COURT REF. NO: 272/16
MAGISTRATE'S
CASE NO: 4542619
MAGISTRATE'S
SERIAL NO: J534
THE
STATE
And
JENNIFER
ANNE RADEMEYER
REVIEW JUDGMENT
MABUSE
J:
[1]
This matter came before me as a special review. It involves a certain
Jennifer Anne Rademeyer who, for the purposes of this
judgment, shall
be referred to as ''the accused".
[2]
Having received this record from Magistrate's Office Pretoria and the
said office having responded satisfactorily to all the
correspondence
I had sent to them, I forwarded the whole file to the office of the
National Director of Public Prosecutions, Pretoria,
and requested
that office to furnish me with their comments after perusing the
contents of the file. In the NDPP's office the matter
was assigned to
Mr. L. Williams and Adv. H van Ransburg who furnished me with an
erudite opinion. I am greatly indebted to both
of them and the office
of the NDPP.
[3] On 8 September 2014
the accused was arrested at a Checkers Store in Gezina, Pretoria,
after she had committed shoplifting which
is simply theft from a
shop. After her arrest she was taken to Gezina Police
Station ("the Moot') where she was
served with a document called
"Notice of Rights In Terms of The Constitution". This
document is also called "SAPS
14A". It was issued in terms
of s 35 of the Constitution of the Republic of South Africa Act No.
108 of 1996 ("the Constitution").
For purposes of brevity
this document will be simply referred to as "SAPS 14A". It
contains the following information:
"(1) You are
being detained for the following reason: Shoplifting.
(2) As a person who is
detained you have the following rights:
(a)
you have the right to consult with a legal
practitioner of your choice or should you so prefer, to apply to the
Legal Aid Board
to be provided by the State with the services of a
legal practitioner,·
(b)
you have the right to challenge the lawfulness of
your detention in person before a Court of Law and to be released if
such detention
is unlawful,·
(c)
you have the right to be detained under
conditions consonant with human dignity, which shall include at least
the provision of adequate
accommodation, nutrition, reading material
and medical treatment at State expense; and
(d)
you have the right to be given the opportunity to
communicate with, and be visited by, your spouse or partner, next of
kin, religious
counsellor and medical practitioner of your choice.
(3)
As a person
arrested for the alleged commission of an offence you have the
following rights:
(a)
you have the right to remain silent and anything
you say may be recorded and may be
used as
evidence against you;
(b)
you are not compelled to make a confession or
admission which could be used in evidence against you;
(c)
you have the right to be brought before a court
as soon as reasonably possible but not later than 48 hours after your
arrest or
the end of the first court day after the expiry of the 48
hours, if the 48 hours expire outside ordinary court hours or a day
which
is not an ordinary court day;
(d)
you have the right, at the first court appearance
after your arrest. to be informed of the reason for your continued
detention or
to be released; and
(e)
you have the right to be released from detention
if the interests of justice permit, subject to reasonable
contentions.
(4)
You can exercise
all the above rights at any stage during your detention."
[4]
In the middle of SAPS 14A, is a portion called Certificate
By
Detainee.
The current certificate states as follows:
"I, Ms. Jennifer
Rademeyer (name of detainee) hereby certify that I have been informed
in English "State Language"
of my rights in terms of the
Constitution as set out above by constable Rakorofe (name of person
who informed the detainee) and
that I understand the contents
thereof.
Date:
2014109108 Time:
12:30 Place: Pretoria
Signature/thumbprint
of detainee Signature of person who informed the detainee."
It
was signed by the detainee, in this instant case by the Accused and a
person who explained her rights to her.
[5]
At the time the accused was handed the said SAPS 14A, she was also
handed, in terms of s 56 of the Criminal Procedure Act 51
of 1977
("the CPA") a written notice to appear in court. This
written warning, which for purposes of simplicity, may
be called
J534, contained a warning that:
"Admission
of guilt fine of R500.00 may be accepted."
She
was notified that she would appear at Court on 9 September 2014.
Instead of attending Court where the case against her
would
have been dealt with by the court, she opted, without the benefit of
any legal advice, to pay, on 8 September 2014 and at
Gezina Police
Station, the admission of guilt of R500.00. Upon payment of the
said amount of R500.00 she was issued with
an admission of guilt
receipt number WR892680. She was then released from custody.
[6]
One can only guess that she subsequently sought a clearance
certificate from the South African Police Services. The
certificate,
dated 23 March 2016, recorded that she was convicted of
theft and furthermore that she was, upon conviction, fined R500.00.
This
revelation was unexpected. She was stunned, confused and
frustrated. On 19 May 2016, she made the following affidavit
which she sent to the Magistrate Pretoria:
"AFFIDAVIT
I,
the
undersigned
JENNIFER ANNE
RADEMEYER
Hereby make oath and
state as follows:
1.
The facts deposed to in this affidavit are true
and correct
2.
On the 9
th
of September 2014 I was arrested for shoplifting. At the
time I was permanently ill and needed vitamins to be able to continue
my
studies and did not have the money to pay for it. My parents were
also going through a rough patch, divorce, so asking them for
money
was
not an option.
3.
I was caught and sent to the nearest police
station (PTA Moot).
4.
At the police station it was not explained to me
that signing an admission of guilt will be held against me for a 10
year period.
I was unaware of the consequences by signing the
admission of guilt
5.
I found out recently that I am missing papers
related to my crime. I never received nor signed
a
summons. The option of going to court was not even mentioned to
me by the police station.
6.
I paid a R500 fine and was released.
7.
I now have a support system in place which I
didn't have before committing this crime.
8.
Since then I have been struggling to get a decent
job and would really like to clear my name so that I can move forward
and start
building a promising future.
JENNIFER RADEMEYER
I,
Jennifer
Rademeyer, state the information provided in this affidavit are true
and was signed on 19 May 2016."
Based
on the aforegoing affidavit, the magistrate then sent the matter to
the registrar of this Court as a special review in terms
of s 304(4)
of the CPA.
[7] Now that she has
become aware of the effect of admitting her guilt [by the admission
of guilt] coupled with her payment of the
admission of guilt fine of
R500.00, the accused wants to retract her admission. In a way, she
wants her conviction of theft to
be set aside and the resultant fine
of R500.00 to be refunded to her. The grounds of doing so appear in
her affidavit. She states
that:
"4. At the police
station it was not explained to me that signing an admission of guilt
will be held against me for a 10 year
period. I was unaware of the
consequences by signing the admission of guilt.
5. I found out
recently that I am missing papers related to my crime. I never
received nor signed
a summons. The option of
going to court was not even mentioned to me by the police station."
[8]
Section 56(1) of the CPA provides that:
"(1) If an
accused is alleged to have committed an offence and a peace officer
on reasonable grounds believes that 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 a notice in
the Gazette, such peace officer may, whether or not the accused is in
custody, hand to the accused
a written notice which shall
–
(a)
specify the name, the residential address and
occupation or status of the accused;
(b)
call upon the accused to appear at a place and on
a date and at a time specified in the written notice to answer a
charge of having
committed the offence in question;
(c)
contain an endorsement in terms of s 57that the
accused may admit his guilt in respect of the offence in question and
that he may
pay a stipulated fine in respect thereof without
appearing in court,·and
(d)
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 thereat
(2) If the accused is
in custody, the effect of a written notice handed in under subsection
(1) shall be that he be released forthwith
from custody.
(3)
The
peace officer shall forthwith forward a duplicate original of the
written notice to the clerk of the Court which has jurisdiction.
(4)
The
mere production to the court of the duplicate original referred to in
(2) shall be prima facie
proof of the issuing of
the original thereof to the accused and that such original was handed
to the accused.”
[9]
Section 56 requires no more from the police officer that he must sign
a certificate and a warning that he has handed the original
of such
written notice to the accused and that he has explained to the
accused the import thereof.
[10]
Section 57 provides as follows:
"(1) Where -
(a)
…
(b) a written notice
under s 56 (in this section referred to as the writf8n notice), is
handed to the accused and the endorsement
In terms of paragraph (c)
of subsection (1) of that
section purports
to
have been made by a police officer;
The accused may,
without appearing in court, admit his guilt in respect of the offence
in question by paying the fine stipulated
(in this section referred
to as the admission of guilt fine) either to the clerk of the
magistrate's court which has jurisdiction
or at any police station
within the area of jurisdiction of that court or, if the summons or
written notice in question is endorsed
to the effect that the fine
may be paid at a specified local authority. at such local authority.
(2)
(a) the summons or the written notice may
stipulate that the admission of guilt fine shall be paid before a
date specified in the
summons or a written notice, as the case may
be.
(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
hasjurisdiction, 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 concemed
shall; subject to the provisions of
(7), be
deemed to have been convicted and
sentenced by the Court in respect of the offence in question.
[11]
No duty is imposed on the police officer to "warn the accused of
the full consequences of paying an admission of guilt
fine", as
stated by Henney J, in S v Tong 2013(1) SACR 346 (WCC) at paragraph
25 ("Tong"). He continued and stated
that:
'As such, the accused
must be informed that he or she will be deemed to have been sentenced
and convicted by the court with jurisdiction
In respect of the
offence in question. It must be furthermore explained to an accused
that, if it is indeed the case, such conviction
will appear on the
accused's criminal record. A police officer must further inform the
accused that, as a consequence of paying
an admission of guilt fine,
an accused would be waiving the right to be sentenced only upon proof
beyond reasonable doubt that
one is guilty of the commission of the
offence, the right to contest the allegations in open court. the
right to confront one's
accusers, the right to call witnesses and the
right to legal representation. A police officer must
state in a certificate referred to in s 56(1}(d) of the
Act
contained in a written notice, that he/she has indeed warned the
accused in the above manner.”
[12]
In my view, Henney J's approach is reasonable and well founded. The
approach could be included either In s 56 or 57 in order
to make it
easier for the police to act upon it. The police do not consider it
as part of their duties to explain the effect of
the payment of an
admission of guilt as long as such warning is not contained in any of
the documents they give to the accused.
Failure by the police to warn
the accused carries no consequences either for them or the accused. A
police officer effecting an
arrest on a suspect is duty bound to warn
the suspect of his "Constitutional rights". This duty is
imposed by the law
on the police officer. It is therefore obligatory
for the policemen to do so. On the other hand no such duty exists on
the policemen
in terms of s 56 of the CPA. Accordingly an accused
person cannot be heard to complain that he or she was not warned or
that certain
explanations were not made. In considering such a
complaint the starting point should be was there a duty imposed on
the police
officer who hands the accused person a notice to appear in
court in
terms of s 56 of the CPA to warn the
accused of anything outside the summons?
If
the answer is no
, cadit quaestio
.
[13] In the instant
matter, it is not the accused's case that she was misled nor that she
did not understand her rights or the contents
of the documents given
to her. She complains that it was never explained to her that paying
the admission of guilt would end in
her having a criminal conviction.
There was no duty upon the policemen to do so. Would the situation
have been different if she
had gone to court as she now wants to do
so and pleaded guilty? Would she have been warned at any stage during
the trial that upon
conviction she would have a criminal record?
Neither magistrate nor Judge warns an accused in advance that if she
is convicted
she will have a criminal record. Nowhere is it
prescribed that a magistrate or Judge should do so. In S v Cedras
1992(2) SACR 530
C at 531j - 532b the court set out the principles at
great length applicable to a review of this type which may be
summarised as
follows:
13.1
Are there considerations of equity and fair dealing which compel the
court to intervene to prevent a probable failure of justice?
13.2
The accused must show good cause for mistakenly or erroneously
admitting guilt; and
13.3
The accused must show that, where the charge to go to trial, she
would have a probable or arguable defence.
13.4
The accused in this case must explain why it took her so long to take
steps to challenge her conviction.
In casu
she paid the
admission of guilt on 8 September 2014 but only complained or took
steps to challenge her conviction on 19 May 2016
when she made the
affidavit. The fact that it took her so long is indicative of the
fact that she had found nothing wrong with
the manner in which the
policeman had handled the s 56 notice; she had accepted her fate. If
there was anything wrong with the
manner in which the s 56 notice was
handled she would have done something between 8 September 2014 and 19
May 2016 in order to
challenge the conviction
13.5
Lastly, regard must be had to the reason for setting aside the
conviction. In this case it is clear that the desire to challenge
the
conviction only arose after she had become aware that she has a
previous conviction.
This
is how the court put it at page 531 J - 532 B:
"In such cases
the question must always be whether there are considerations of
equity and fair dealing which compel the court
to Intervene to
prevent a probable failure of justice. There must be evidence before
the court showing the likelihood of such inequity
should it not
intervene. A court must be satisfied that the admission of guilt was
probably mistaken or incorrect and that the
accused or other person
deposing on oath on his behalf must give a satisfactory explanation
as to how the admission of guilt came
to be mistakenly and
erroneously made. Good cause must be
established
for condoning the error or mistake in making the admission of guilt
It must be
e
stablished
that, were the charge to go to trial, the accused would have a
probable or arguable defence to the judge and that his
deemed
conviction of sentence is, accordingly, probably not in accordance
with justice.”
[14]
In the instant case, as I pointed out earlier, the accused did not
complain about being misled into admitting her guilt, nor
did she
state that she pleaded guilty by mistake. She did not say that she
believed that if the matter went to court she would
probably not be
convicted on a plea of guilty. Most importantly she does not say that
if convicted by a court of law she would
not have picked up a
criminal record. She does not state that she could avoid a conviction
that follows upon an admission of guilt
by being convicted by a court
under normal circumstances. It serves no purpose for me to set aside
the conviction following the
admission of guilt in order to avoid
having a criminal record when even a conviction ordinarily by a court
of law would have had
the same effect. A criminal record is an
unavoidable consequence of a criminal conviction. Once convicted,
whether after paying
an admission of guilt or by a court in the
ordinary conduct of its proceedings, an accused has no choice of
avoiding a record of
the criminal conviction. Consideration of
whether or not to set aside this conviction must be done with
fairness and without
prejudice to the interest of the administration
of justice. The State may be prejudiced by the unavailability of
witnesses who
may have died in the meantime or have moved to other
places and have become untraceable. Moreover if this conviction is
set aside
and the matter is sent to trial it is always open to the
State to prove against her that the accused had admitted guilt and
had
also paid a fine. The accused may not be able to cross this
bridge.
[15]
In S v Viviers 1988(1) SA 984 (SWA) ("Viviers"), the court
set the scene as follows at page 988 C-D:
"Dit
is gemene saak dat die dagvaarding ingevolge die bepalings van
artike/ 57(1)(a) van die Strafproseswet
ge-endosseer was dat
die appellant sy skuld ten opsigte van die misdade kon erken, en dat
hy 'n boete kon betaal sonder om in die
hot te verskyn.
Verrier is dit gemene saak dat die appellant we/ die betrokke
boete betaal het …”
Similarly
the summons in the instant matter was issued in terms of s 56. The
accused was warned that she could pay an admission
of guilt in the
sum of R500.00 and similarly that the accused admitted her guilt and
paid the said amount of R500.00. Surprisingly
she states in her
affidavit that she received no summons or a copy of the summons. She
also contends that the option of going to
court was not even
mentioned to her by the police. In my view, the accused was not
honest with this Court when she testified in
her affidavit that she
never received nor signed a copy of the summons. The only place where
an amount of R500.00 fine was mentioned
was on the summons that she
claimed that she did not receive. The said document, called J534,
makes it clear that it was a written
notice to appear in
court
.
She was informed in the same document that the
Place
of Trial
was
Pretoria
Magistrate
; that she must appear before
Court
on 2014.09.09 and finally that she may admit her guilt in respect of
the offence in question by paying the stipulated fine in respect
thereof without appearing in
Court
.
By claiming in her affidavit that the option of going to Court was
not even mentioned the accused is being disingenuous. In my
view, the
accused was not honest with this Court in this respect. The Court in
Viviers continued and made the following remarks:
"Mnr. Maritz het
aangevoer dat die landdros se beslissing ingevolge artikel 57(7)
daarop neerkom dat die appellant se handelinge
met betrekking tot die
beta/ing van die boete geheel en al ter syde gestel was en as pro non
scripto beskou moet word Gevolglik
was die Staatsaanklaer, volgens
Mnr. Maritz, nie geregtig om enige vrae daaroor onder
kruisondervraging te stel nie.
"
-
at 988 E-F
Referring
to the conduct of the appellant in admitting guilt and paying the
fine the Court had this to say:
“
Dit beteken
egter nie noodwendig dat getuienis aangaande sodanige handelinge
toelaatbaar is nie. lndien die handelinge 'n affeiding
regverdig wat
neerkom op 'n bekentenis of die erkenning van 'n wesenlike nadelige
feit is dit slegs toelaatbaar indien dit vrywilliglik
geskied het en
nie deur dwang of onbehootfike belnvloeding uitge/ok was nie. Die
vervolging moet die vrywilligheid van die bekentenis
of erkenning
bewys, maar daardie plig ontstaan eers wanneer die omstandighede 'n
aanduiding gee van dwang of onbehootfike beinvloeding.
"
-
at 988 G-1
[16]
According to Viviers an admission of guilt with the accompanying
payment of the fine must be regarded as a confession or admission,
depending on the circumstances, of an essential fact detrimental to
the accused's case. Such a confession or admission is admissible,
against the accused, provided that it was made freely and voluntarily
or provided furthermore that it was not a product of force
or undue
influence. In other words, in order to succeed with the request to
set aside the conviction and the sentence, the accused
must satisfy
the Court that when she admitted g4ilt that she had committed the
offence of theft, she was forced to do so or was
unduly influenced to
do so. This means that she did not make an admission freely and
voluntarily. As pointed out, she does not
contend that her admission
was not freely and voluntarily made.
[17]
In Viviers, this court cited with approval the following passage from
R v Melozani
1952 (3) SA 639
A at page 644 where Van den Heaver JA,
as he then was, had the following to say:
“
It was held,
however, that unless something suggested by the accused, by the
circumstances
under which the statement had been
made, or by the nature of the statement itself, or otherwise, raised
some doubt in the mind of
the court as to whether the statement
sought to be proved had been made freely and voluntarily, there was
no duty cast upon the
prosecution to prove that it had been so made,
and the Court might infer it was free and voluntary without any proof
of fact."
[18]
I agree with Mr. Williams and Adv. Van Ransburg that while a
certificate to the effect that the police officer has explained
the
full import of the process may be desirable, the absence thereof does
not imply that the accused's rights to a fair trial or
process were
trampled. Both Mr. Williams and Adv. Van Ransburg contend that the
Tong judgments set out the requirements to be adhered
to before a
magistrate can confirm the conviction. These requirements are so
onerous and open to interpretation that all admissions
of guilt fines
currently paid where the necessary averments are made will be set
aside, increasing the burden on the Court. An
example of this is the
nature of the evidence required before the magistrate can be
satisfied ''that an accused person has been
given an opportunity to
consider payment of the fine or to be given an opportunity to appear
in court to contest it." Now
the law does not impose any legal
duty on a police officer who acts in terms of s 56 to warn the
accused of the ramifications of
any admission of guilt.
[19]
Only if the law could be developed to incorporate into the relevant s
56 the approaches set out in S v
Tong
and
s v Parsons 2013(1) SACR 38 wee at p 41 at e-h where the Court stated
that:
"Nowhere in the
above quoted written notice to appear is there a warning that payment
of the
stipulated admission of guilt fine
translates into a conviction. This is not fair to unsuspecting
members of the public. This form
needs improvement, because, as it
stands, it may not pass constitutional muster. It cannot be
left to the police officer
serving an accused person with the
written notice to appear to also explain to such accused
person that, "look, upon payment of this
admission
of guilty fine you shall be deemed (for legal purposes) to have been
duly convicted, and
an entry shall be made
correspondingly in the SAP69." The form quoted above came into
existence prior to the present Constitutional
era. At that time no
emphasis was placed on the rights of an accused person at all. The
correct procedure is that the police officer
must warn the accused
about the conviction record. An endeavour must also be made by the
powers that be to include this warning
on the prescribed notice to
appear which Is handed to an accused person.”
[20]
In this case it is as clear as crystal from the affidavit submitted
by the accused herself that she still admits her guilt.
Had she gone
to trial and been convicted, she would still have a previous
conviction. I am satisfied that the accused was extensively
appraised
of her rights prior to the payment of the admission of guilt fine.
This appraisal occurred on 8 September 2014, a day
before she paid
the fine. At the time she was informed in a written notice that she
may admit the guilt in respect of the offence
in question by paying
the stipulated fine in respect thereof without appearing in court
.
[21]
In conclusion, the proceedings in the current matter are hereby
confirmed.
____________________
P.
M. MABUSE
JUDGE OF THE HIGH COURT
I
agree,
____________________
W.R.C. PRINSLOO
JUDGE OF THE HIGH COURT
-oOo-