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[2015] ZAGPPHC 14
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S v Mokwele (A26/2015) [2015] ZAGPPHC 14 (22 January 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Date: 22 January
2015
Case number:
A26/2015
High
Court ref. no. 835/2014
Magistrate
case No: 6/2014
NOT REPORTABLE
NOT OF
INTEREST TO OTHER JUDGES
In the matter
between:
THE
STATE
and
LESIBANA BLONDI
MOKWELE
REVIEW JUDGMENT
MAKGOKA, J:
[1] On 20 December
2012 the accused was issued with a written notice to appear in the
Mokerong magistrate’s court on a charge
of being in possession
of dagga in contravention of section
4 Act 140
of 1992. Apparently
the police had found dagga plants growing outside the fence
surrounding his premises in Mahwelereng, near Mokopane.
The notice to
appear in court made provision for payment of a guilt fine of R200,
which he opted to pay instead of appearing in
court. The accused’s
conviction and sentence were confirmed by a magistrate on 3 January
2013.
[2] On 14 November
2014, the accused filed an affidavit with the clerk of court, in
which he states that payment of the admission
of guilt fine was
preceded by threats from the police to arrest him unless he paid an
admission of guilt fine. To avert that, and
to secure his employment
at a mine, he complied. He further states that it was not explained
to him that the payment of admission
of guilt fine would result in
him having a criminal record, and that had that been explained to
him, he would have pleaded not
guilty.
[3]
Upon receipt of the accused’s affidavit, the senior magistrate
laid the matter before this court for a special review
in terms of
s
304(4)
of the
Criminal Procedure Act 51 of 1977
. The senior
magistrate seeks the setting aside of the conviction and sentence,
mainly on the authority of
S
v
Parsons
2013
(1) SACR 38
(WCC) and
S
v Tong
2013
(1) SACR 346
(WCC). The upshot of the decisions in both matters is
that police officers should warn an accused of the full consequences
of paying
an admission of guilty fine, including that the conviction
will appear on the accused’s criminal record. Failure to do so
resulted in the convictions and sentences being set aside in both
matters.
[4] I am in
respectful agreement with the reasoning of the Western Cape Court in
both the above matters. Accordingly, the conviction
and sentence in
the present matter should be set aside. The National Prosecuting
Authority may, in the exercise of its discretion,
decide to prosecute
the accused afresh. It is not for this court to order that the
prosecution should commence de novo, as requested
by the senior
magistrate.
[5] In the result
the following order is made:
1. The accused’s
conviction is set aside;
2. The accused’s
admission of guilt fine is set aside and the R200 paid by the accused
should be refunded to him;
3. The National
Prosecuting Authority is given leave to prosecute the accused afresh,
such trial to be presided over by a magistrate
other than the one who
confirmed the accused’s conviction and sentence on 3 January
2013.
T.M. MAKGOKA
JUDGE OF THE HIGH
COURT
I agree
M.J.TEFFO
JUDGE OF THE HIGH
COURT