Summary of Judgment

1. Introduction

The matter was heard in the Free State Division of the High Court, Bloemfontein, as a special review in terms of section 304(4) of the Criminal Procedure Act 51 of 1977. The review concerned the validity, in the interests of justice, of proceedings that culminated in the payment and magistrate’s confirmation of an admission of guilt fine.

The parties were the State and Eddie Motlogelwa Pitso (the accused). The matter reached the High Court after the accused had been dealt with in the magistrates’ court through the mechanism of a written notice and admission of guilt fine procedure, and after a subsequent quality assurance process revealed a potential injustice linked to the accused’s age and lack of assistance.

The dispute concerned the procedural regularity and fairness of an admission of guilt process involving a child. More specifically, the review focused on whether it was just for an unassisted child to have been permitted to admit guilt and pay an admission of guilt fine, and whether the magistrate’s confirmation could be set aside (and by whom) once confirmation had occurred.

2. Material Facts

The undisputed facts, as accepted by the court, were that the accused was charged with contravening section 12(a) of the National Road Traffic Act 93 of 1996, on the allegation that on or about 28 November 2015 at Hoopstad in the Free State Province he drove a motor vehicle without a driver’s licence.

Following the charge, the accused was issued with a written notice as contemplated in section 56(1)(c) read with section 57 of the Criminal Procedure Act 51 of 1977, which afforded him the option of paying an admission of guilt fine of R500 at the Hoopstad police station on or before 19 January 2016, instead of appearing in court.

The accused paid the admission of guilt fine (R500) on 13 January 2016. The fine was subsequently confirmed by the magistrate at Hoopstad on 25 January 2016 in terms of section 57(7) of the Criminal Procedure Act 51 of 1977.

During a later quality assurance process, it was discovered that, at all material times, the accused was a child, being 14 years old at the time of the alleged offence and 15 years old when the admission of guilt fine was paid. The court noted that the accused’s age was clearly stipulated as 14 years in the body of the section 56 notice. These facts were treated as not in dispute.

On the basis of the accused’s age, the court accepted that the accused was entitled, in terms of section 73(3) of the Criminal Procedure Act 51 of 1977, read with sections 1, 2, 3 and 4 of the Child Justice Act 75 of 2008, to be assisted by a guardian of choice in deciding whether to admit guilt and pay the admission of guilt fine.

3. Legal Issues

The central legal questions were whether the admission of guilt proceedings, resulting in conviction by payment and confirmation of the fine, were in accordance with justice as contemplated by the review jurisdiction under section 304(2) read with section 304(4) of the Criminal Procedure Act 51 of 1977, given the accused’s status as a child and the absence of the assistance contemplated by the applicable statutory provisions.

A further legal issue concerned the institutional question of whether the magistrate, after confirming the admission of guilt fine as envisaged in the applicable provisions, was functus officio, with the result that the confirmation and resulting conviction could only be set aside by a superior court on review. This was presented as a question of law, informed by prior case authority reflecting differing approaches.

Overall, the dispute required the court to apply statutory provisions to essentially undisputed facts and to make a value-laden assessment of whether the proceedings were not in accordance with justice for purposes of special review.

4. Court’s Reasoning

The court located its authority in the special review procedure under section 304(4) of the Criminal Procedure Act 51 of 1977, read with the powers in section 304(2)(c)(i) and (iii) to quash a conviction or set aside proceedings where, upon consideration of the proceedings, they are found not to be in accordance with justice.

In addressing whether the matter could be corrected administratively at the magistrates’ court level, the court noted that there are differences of opinion in the authorities regarding whether a magistrate becomes functus officio after perusing the documentation and confirming an admission of guilt fine. The judgment referred to authorities supporting the functus officio position and those suggesting a contrary approach. The court stated that it was entitled to follow the approach adopted in S v Louw 1982 (4) SA 556 (C), noting in particular that the full bench in S v Shange 1983 (4) SA 46 (N) made no reference to Louw. On that basis, the court concluded that the magistrate was functus officio and that setting aside the proceedings could only be done by the High Court.

Turning to the substantive fairness of the admission of guilt outcome, the court treated the accused’s age and lack of assistance as decisive. It reasoned that, under section 73(3) of the Criminal Procedure Act 51 of 1977 read with sections 1, 2, 3 and 4 of the Child Justice Act 75 of 2008, the accused, being a child, was entitled to be assisted by a guardian of choice when deciding whether to admit guilt and pay an admission of guilt fine. The court evaluated the proceedings against this statutory framework and concluded that they were not in accordance with justice, particularly because the accused’s youth was apparent from the section 56 notice itself (which reflected an age of 14), yet the accused was nevertheless allowed to plead guilty while unassisted and to pay the fine.

The court therefore exercised its review powers to set aside the admission of guilt and to undo the consequences of the payment and confirmation by ordering that the money be refunded.

5. Outcome and Relief

The High Court set aside the admission of guilt relating to the alleged contravention of section 12(a) of the National Road Traffic Act 93 of 1996. The court ordered that the amount of R500, being the admission of guilt fine paid, be refunded to Eddie Motlogelwa Pitso. The judgment did not record a separate costs order.

Cases Cited

S v Louw 1982 (4) SA 556 (C). S v Muller 1981 (C) SA 560 (O). S v Shange 1983 (4) SA 46 (N).

Legislation Cited

Criminal Procedure Act 51 of 1977. National Road Traffic Act 93 of 1996. Child Justice Act 75 of 2008.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the admission of guilt proceedings were not in accordance with justice because the accused was a child who, in terms of the applicable statutory framework, was entitled to assistance by a guardian of choice when deciding whether to admit guilt and pay an admission of guilt fine, yet was allowed to do so unassisted. The court further held that the magistrate was functus officio after confirmation of the admission of guilt fine, making it necessary for the High Court to set aside the proceedings on special review. The admission of guilt was set aside and the paid fine was ordered to be refunded.

LEGAL PRINCIPLES

A High Court may, on special review under section 304(4) of the Criminal Procedure Act 51 of 1977, intervene where the proceedings are found not to be in accordance with justice, and may exercise the remedial powers contemplated in section 304(2)(c) to set aside proceedings or quash a conviction in appropriate circumstances.

Where an admission of guilt fine has been confirmed and the magistrate is regarded as functus officio (in accordance with the approach followed in the judgment), the setting aside of the resulting conviction/proceedings falls to be dealt with by a superior court on review rather than by later reconsideration in the magistrates’ court.

In matters involving a child, the statutory scheme relied upon in the judgment—section 73(3) of the Criminal Procedure Act 51 of 1977 read with sections 1, 2, 3 and 4 of the Child Justice Act 75 of 2008—requires that the child be entitled to be assisted by a guardian of choice in deciding whether to admit guilt and pay an admission of guilt fine; failure to ensure such assistance, particularly where the child’s age is apparent on the face of the notice, may render the admission of guilt process unjust and liable to be set aside on review.