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[2015] ZAGPPHC 217
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S v Mahlangu (A255/15) [2015] ZAGPPHC 217 (20 April 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
High
Court ref. no. 112/2015
Magistrate
case No: 494/07/2012
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
DATE: 20 APRIL
2015
CASE NUMBER:
A255/15
In the matter
between:
THE
STATE
and
CATHERINE
MAHLANGU
REVIEW JUDGMENT
MAKGOKA, J;
[1] On 18 July 2012
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 a body lotion and a toy from Shoprite
in Pretoria West. 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 on 20 July 2012.
[2] On 6 November
2014, the accused filed an affidavit with the clerk of court, in
which she states that she was shopping with her
small child who,
without her being aware, placed those items in her hand-bag. She was
only alerted by the security officer at the
exit. When the police
arrived they told her to pay an amount of R300. She did not know that
this was an admission of guilt fine,
which 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 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.
[5]
The accused’s admission of guilt was paid and confirmed before
the decision in
S
v
Tong
,
above, the chief magistrate is of the view that in the light of the
accused’s averments that she was unaware of the fact
that she
was admitting guilt and that it would be deemed to be a previous
conviction, doubt could still exist whether the proceedings
were in
accordance with justice. I agree.
[6] 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 her;
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 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