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[2012] ZAGPPHC 289
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S v Mutobvu (A800/12) [2012] ZAGPPHC 289; 2013 (2) SACR 366 (GNP) (15 November 2012)
IN THE HIGH OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
Magistrate:
Louis Trichardt
Case
no: 13/2012
High
Court Ref No: 937
Case
no.:A800/12
DATE:15/11/2012
THE
STATE vs MPHO VINCENT MUTOBVU
REVIEW
JUDGMENT
RANCHOD
J
[1]
This matter lay before me on special review.
[2]
The accused, a 24-year-old male, paid an admission of guilt fine of
R500.00 in terms of
section 57
of the
Criminal Procedure Act 51 of
1977
. The relevant charge in respect of which the fine was paid was a
contravention of
section 61
(1) (a) of Act 93 of 1996 - failure to
stop after an accident. On receipt of the review I invited the office
of the Director of
Public Prosecutions (‘DPP’) to comment
on the matter. A helpful memorandum has been received from the DPP’s
office,
for which I am grateful.
[3]
The facts of the case appear from two affidavits deposed to by the
accused and the complainant, who is the owner of the other
vehicle
involved in the accident.
[4]
The accused says in his affidavit supporting the application for
special review that on 19 April 2012 he was reversing his motor
vehicle from a parking bay when he scratched another parked vehicle.
He thought the other vehicle was not damaged and therefore
drove
home. Unbeknownst to him, a security guard observed the incident and
took down his car’s registration number. The complainant
appears to have tracked him down through his vehicle registration
number. The complainant contacted the accused and he went to
see her.
She informed him that she had already reported the matter at the
Makhado police station.
for
a security check. It was then that he learned, much to his surprise,
that he had a criminal record. Apart from the admission
of guilt fine
that he had paid he had never before been convicted of a criminal
offence. He went to the criminal records centre
in Pretoria where he
was told that the R500 he had paid was not for a traffic fine but for
an admission of guilt fine and that
that record will only be removed
after 10 years. He then went back to the head prosecutor’s
office where he was told to apply
for a special review.
[9]
The accused says that he has been severely prejudiced in his attempts
to find a job because of the criminal record. In S v Cedras
1992 (2)
SACR 530
(C) at 531j - 532b the following was held regarding a
court’s approach to a review:
“
In
such cases the question must always be whether there are
considerations of equity and fair dealing which compel the court to
intervene to prevent a probable failure of justice. There must be
evidence before the court showing the likelihood of such inequity,
should it not intervene. A court must be satisfied that the admission
of guilt was probably mistaken or incorrect and the accused
or other
person deposing on oath on his behalf must give a satisfactory
explanation as to how the admission of guilt came to be
mistakenly or
erroneously made. Good cause must be established for condoning the
error or mistake in making the admission of guilt.
It must be
established that, were the charge to go to trial, the accused would
have a probable or arguable defence to the charge
and that his deemed
conviction or sentence is, accordingly, probably not in accordance
with justice.”
[5]
He inspected her vehicle and, on seeing the scratch, apologised to
her and agreed to pay for the costs of repair, which amounted
to
R6000.00.
[6]
The accused says further that the complainant agreed to withdraw the
charge and they then proceeded to the police station for
the
complainant to do so. However, they were told at the police station
that they would have to go to the office of the head prosecutor
for a
withdrawal of the case. He was also given a letter of warning to
appear in court. (Presumably, this is a reference to the
summons that
was issued.)
[7]
The accused duly paid the R6000.00 to the complainant and on 23 April
2012 they went together to the head prosecutor to have
the case
withdrawn. He says the head prosecutor told him to pay R500.00 in
cash at the office of the clerk of the court. The complainant
lent
him the R500.00 to do so as he did not have any money with him at the
time. He alleges that he did not know that he was paying
an admission
of guilt fine (for failure to stop after an accident). He was under
the impression that he was paying the equivalent
of a traffic fine.
He did not know that a consequence of having paid the fine would be
that he would have a criminal record.
[8]
It appears that shortly thereafter the accused was called for an
interview in respect of a post he had applied for at a gold
mining
company as an environmental officer. He says he passed the initial
interview and was then called.
[10]
The complainant filed a confirmatory affidavit in support of the
application for special review. In the absence of facts to
the
contrary, and given the actions by the accused to pay for the repair
of the damage done to the complainant’s vehicle
as well as the
view of the complainant that she would have preferred the charge to
be withdrawn, this case is, in my view, ripe
for the application of
restorative justice. To continue with a prosecution under the
circumstances would not have been apposite.
So much is also conceded
by the DPP.
[11]
The accused was clearly not legally represented when the prosecutor
was consulted in this case. The inference is inescapable
that the
accused, in the light of the circumstances, could have equated the
admission of guilt with a traffic fine. A layperson
would not know
that a criminal record is the result of the payment of such a fine.
It is also important to note that the official
summons (J175) which
was handed to the accused does not set out the consequences of paying
an admission of guilt fine. On the face
of it the summons appears to
be akin to a traffic fine.
[12]
In all the circumstances, I would set aside the payment of the
admission of guilt fine and subsequent conviction and sentence
and
order that the fine paid be refunded to the accused.
N
Ranchod
Judge
of the High Court
I
agree,
S
P Mothle
Judge
of the High Court