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[2015] ZAGPPHC 214
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S v Dakalo (111/15, 126/09/2014) [2015] ZAGPPHC 214 (20 April 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
High Court ref.
no. 111/15
Magistrate
case No: 126/09/2014
NOT REPORTABLE
NOT OF
INTEREST TO OTHER JUDGES
DATE: 20 APRIL
2015
In the matter
between:
THE
STATE
and
SIPHALI DAKALO
REVIEW JUDGMENT
MAKGOKA, J:
[1] On 13 September
2014 the accused was arrested and issued with a written notice to
appear in the Pretoria magistrate’s
court on a charge of
shoplifting. It was alleged that she stole goods worth R62,77 from
Checkers Gezina, Pretoria. The notice to
appear in court made
provision for payment of a guilt fine of R300, which she opted to pay
instead of appearing in court. The accused’s
conviction and
sentence were confirmed by a magistrate.
[2] On 27 October
2014, the accused filed an affidavit with the clerk of court, in
which she states that she was given two options
at the police
station, either to pay a fine or to remain in custody over the
weekend and appear in court the following Monday.
She opted to pay
the R300 as she had left a small baby and a sickly and infirm mother
at home.
She further states
that it was not explained to her that the payment of the fine was an
admission of guilt, and that it would result
in her having a criminal
record.
[3]
Upon receipt of the accused's affidavit, the chief magistrate of
Pretoria laid the matter before this court for a special review
in
terms of
s 304(4)
of the
Criminal Procedure Act 51 of 1977
. He seeks
the setting aside of the conviction, 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
.
[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 R300 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.
4. The Registrar of
this court is directed to bring a copy of this judgment to the
attention of the Senior Control Prosecutor of
the magistrate’s
court, Pretoria.
T. M. MAKGOKA
JUDGE OF THE HIGH
COURT
I agree
E.M. KUBUSHI
JUDGE OF THE
HIGH COURT