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[2013] ZAGPPHC 503
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S v Appels (A918/13) [2013] ZAGPPHC 503 (14 November 2013)
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO. A918/13
DATE:
14 NOVEMBER 2013
MAGISTRATE:
PRETORIA HIGH COURT REF NO.: 994
MAGISTRATE’S
SERIAL NO.: H37/2013 MAGISTRATE’S
CASE NO.:
D26/278/2010
THE STATE
V
FABIAN ALJERAUE
APPELS
REVIEW
JUDGMENT
JANSEN AJ
1. This matter came
before us by way of a special review in terms of
section 304(4)
of
the
Criminal Procedure Act 51 of 1977
from the Chief Magistrate,
Pretoria, namely Mr D Nair.
2. The following was
stated by the Chief Magistrate:
“1. Attached
please find the following documents:
1.1 A letter from
Johan van Zyl Attorneys dated 10 September 2013, addressed to the
Chief Magistrate, Pretoria;
1.2 An affidavit of
Fabian Aljeraue Appel deposed to on 4 March 2013;
1.3 An affidavit of
Monrache Irene Appel deposed to on 4 March 2013;
1.4 A copy of the
receipt dated 26 July 2010 in respect of an admission of guilt fine
of R500.00 paid by F Appel;
1.5 A copy of a
clearance certificate dated 25 April 2012, issued by the SAPS
Criminal Record System in respect of Mr Appel;
1.6 The control
document of summons 32/507/10 issued to Fabian Appels on 26 July
2010;
1.7 Copies of a
charge sheet (J15 and annexure) in respect of Fabian Appel;
1.8 The original of
the criminal record book of admissions of guilt for 30 July 2010 with
admission of guilt case 00110AOG002651;
F Appels appearing as the
fourth from last entry on page 1; and
1.9 A certificate
copy of folio number H 3383339 of the criminal record book for Court
D for 26 July 2010, showing the entry of
case no D26/278/2010: Fabian
Appel.
2. From the above
documents, the following sequence of events was established:
2.1 Mr Fabian
Aljeraue Appel was arrested on 24 July 2010 (Eersterust CAS
147/07/2010).
2.2 It is not clear
what he was arrested for. According to his affidavit and the
clearance certificate obtained from the SAPS Criminal
Record System,
the charge was robbery but according to the charge sheet, the charge
was one of assault.
2.3 The matter was
enrolled in Court D on 26 July 2010 under case number D26/278/10. A
J15 indicating the name of the accused as
Fabian Appels and an
annexure setting out the charge, were completed but no case number is
indicated on the J15 (see the area on
the J15 where it appears that a
label was affixed).
2.4 In the criminal
record book for Court D for 26 July 2010 under case number
D26/278/10: Fabian Appel, the following entries appear:
By the presiding
magistrate, Mr D v Z vd Merwe: “Van die rol
verwyder. EVS
betaal. ”
In red pen: “AOG
00110 AOG 002651; Date: 2010-07-26;
Amount: R500.00”
2.5 On 26 July 2010,
a summons was issued to Fabian Appel.
2.6 On 26 July 2010
a cash amount of R500.00 was paid by F Appel as an admission of guilt
fine in respect of summons number 32/507/10
and an admission of guilt
serial number 00110AOG2651 was allocated.
2.7 The matter was
entered in the criminal record book for admission of guilt on 30 July
2010 resulting in the accused being deemed
to have been convicted and
sentenced of assault (see
section 57(6)
of the
Criminal Procedure
Act, 1977
).
2.8 The documents
were examined by a magistrate on 4 August 2010 as required by
section
57(7)
of the
Criminal Procedure Act, 1977
and found to be in order.
2.9 On 4 March 2013,
the accused deposed to the fact that:
• He was in
detention;
• Was brought
before court and told that he may leave;
• After his
release he learned that his sister had paid R500.00 for his release;
• He later
learned that the money paid was actually and admission of guilt fine;
• His sister
never consulted with him before paying the fine;
• She could not
admit guilt on his behalf;
• He never
signed any admission of guilt;
• He maintains
his innocence.
2.10 On 4 March
2013, the accused’s sister, Monrache Irene Appel deposed to the
fact that:
• She
approached the prosecutor on 26 July 2010 who then indicated that the
accused may be released if she paid an amount of
R500.00;
• She did not
talk to the accused before she deposited the money;
• She merely
paid the money to effect the accused’s release.
3. The following
comments are made in respect of the above:
3.1 Comments
relating to the issuing of the summons:
3.1.1 Only the copy
of the summons commonly referred to as the “control document”
is available;
3.1.2 Serial number
32/507/10 was allocated to the summons;
3.1.3 The date of
trial is indicated on the summons as 26 July 2010, Court D, Pretoria;
3.1.4 An endorsement
that an admission of guilt fine of R500.00 may be paid appears on the
document. It had clearly been entered
with a pen different from the
one with which the rest of the document was completed;
3.1.5 Letters
(ostensibly the initials of the person who made the endorsement)
appear next to the endorsement);
3.1.6 A single date
stamp, that of the Control Prosecutor, Pretoria, appears on the
document. The date on the stamp is for 2010-07-26;
3.1.7 There is no
indication that the clerk of the court has issued the summons as
required by
section 54(1
)(a) of the
Criminal Procedure Act, 1977
;
3.1.8 There is no
indication that the summons was served on the accused as required by
section 54(2)
of the
Criminal Procedure Act, 1977
;
3.1.9 The date of
trial is the same as the date on which the summons was issued. The
requirements of
section 54(3)
of the Criminal Procedure Act, 1977
were, therefore, not adhered to.
3.2 Resulting from
the comments in paragraph 3.1 above, it is submitted that the issuing
of the summons and, consequently, the subsequent
proceedings in terms
of
section 57
of the
Criminal Procedure Act, 1977
, were irregular.
3.3 The accused,
having been arrested and brought before court in custody, could only
have paid an admission of guilt fine in terms
of
section 57A
of the
Criminal Procedure Act, 1977
.
3.4 The section
provides as follows:
57A Admission of
guilt and payment of fine after appearing in court
(1) If an accused
who is alleged to have committed an offence has appeared in court and
is-
(a) In custody
awaiting trial on that charge and not on another more serious charge;
(b) Released on bail
under
section 59
or
60
; or
(c) Released on
warning under
section 72
, the public protector may, before the
accused has entered a plea and if he or she on reasonable grounds
believes that a 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 notice in the
Gazette, hand to
the accused a
written notice, or cause such notice to be delivered to the accused
may admit his or her guilt in respect of the offence
in question and
that he or she may pay a stipulated fine in respect thereof without
appearing in court again.
(2) Such notice
shall contain-
(a) The case number;
(b) A certificate
under the hand of the prosecutor or peace officer affirming that he
or she handed or delivered, as the case may
be, the original of such
notice to the accused and that he or she explained to the accused the
import thereof; and
(c) The particulars
and instructions contemplated in paragraphs (a) and (b) of
section
56(1).
(3) The public
protector shall endorse the charge-sheet to the effect that a notice
contemplated in this section has been issued
and he or she or the
peace officer, as the case may be, shall forthwith forward a
duplicate original of the notice to the clerk
of the court which has
jurisdiction.
(4) The provisions
of
sections 55
,
56
(2) and (4) and
57
(2) to (7), inclusive, shall
apply mutatis mutandis to the relevant written notice handed or
delivered to an accused under subsection
(1) as if, in respect of
section 57
, such notice were the written notice contemplated in that
section and as if the fine stipulated in such written notice were
also
the admission of guilt fine contemplated in that section.
[S. 57A inserted by
s. 1
of Act 86 of 1996.]
3.5 None of the
provisions of the above-quoted section have been adhered to. The
prosecutor neither:
• Handed a
written notice to the accused containing an endorsement in terms of
section 57 that he may pay the stipulated fine
without appearing in
court again or caused such notice to be delivered to the accused by a
peace officer; nor
• Endorsed the
charge sheet to the effect that a notice as contemplated in section
57A had been issued.
3.6 It cannot be
argued that the R500.00 admission of guilt fine was paid in terms of
the said section 57A because the proceedings
that were followed were
irregular.
4. It appears that
the entire process relating to the appearance of Mr Appel in court
and the subsequent payment of an admission
of guilt fine of R500.00
was irregular and not in accordance with justice. It will therefore
be appreciated if the matter could
be placed before the Honourable
the Review Judge in terms of
section 304(4)
of the
Criminal Procedure
Act, 1977
for consideration.”
3. It is clear that
the proceedings were indeed irregular.
4. Hence the alleged
admission of guilt in respect of robbery by Mr Fabian Aljeraue Appel
(although the charge against him was apparently
that of assaulting an
individual by hitting him with his fists) on 26 July 2010 should be
set aside as no admission of guilt was
made by Mr Appel. According to
the sworn affidavit made by Mr Appel, on 4 March 2013, the
complainant also withdrew the complaint.
5. In the result,
the following order is made:
The admission of
guilt made by Mr Fabian Aljeraue Appel on 26 July 2010 in respect of
a robbery is set aside, the entry of his name
in the AOG
Classification Register (G114) is ordered to be deleted, and
repayment of the amount of R500.00 to Mr Fabian Aljeraue
Appel is
ordered within ten (10) days of this court order.
’
M.M.
JANSEN
ACTING JUDGE IN
THE HIGH COURT
I agree.
P.M. MABUSE
JUDGE IN THE HIGH
COURT