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[2011] ZAKZPHC 6
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S v Fynn (2011 (2) SACR 178 (KZP)) [2011] ZAKZPHC 6; DR 619/10 (10 February 2011)
IN
THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC
OF SOUTH AFRICA
CASE
NO. DR 619/10
REPORTABLE
In the matter between:
THE STATE
and
BARON FYNN
REVIEW JUDGMENT
D
elivered on 10 February 2011
NDLOVU
J
[1] This matter served before me as a special review,
having been submitted by the District Magistrate of Port Shepstone.
[2] On 16 September 2009 an admission
of guilt fine in the sum of R100,00 was paid by the accused in
respect of an assault common
charge preferred against him in terms of
a “Written Notice To Appear” issued in terms of the
Criminal Procedure Act
1
(the CPA). The conviction and the
fine were confirmed by the Magistrate (not necessarily the District
Magistrate) on 17 September
2009
2
.
Since then nothing happened until 28 September 2010 when the District
Magistrate received a letter from the accused in which the
accused
requested that the case be re-opened on the ground that he paid the
admission of guilt fine under some sort of coercion
at the hands of
certain police officers who attended to him at the police station in
Port Shepstone. Despite the alleged coercion,
the accused did not
report his complaint to the relevant police authorities.
[3] It was apparent from the accused’s letter that
what prompted him to pursue the matter only at this time (which was
over
a year since he paid the fine) was the fact that after he
submitted an application, through a recruitment agency, for
employment
in the body-guarding and security industry (which was his
career path) he was subsequently informed by the agency about the
fact
of his previous conviction for assault (arising from his
admission of guilt fine payment). Presumably he was also advised, or
he
simply discerned, that the previous conviction potentially damaged
his prospects of finding employment in the said industry.
[4] The matter appeared for the first
time before My Brother Swain J who issued a query to the fact that
before the matter could
be considered by way of special review the
accused would have to set out in an affidavit form what his defence
was to the charge
of common assault and further that in the affidavit
the accused would have to include the averments contained in his
letter and
also to explain why he paid the admission of guilt fine.
3
The accused has since filed the
affidavit in which he addressed the issues raised in the review
query.
[5] In his affidavit the accused elaborated on the
allegations which he made in his initial letter against the said
police officers.
Significantly, the identities of the officers
concerned are apparently unknown to the accused.
[6] Section 57 of the CPA provides, in part:
“
(1) Where-
(a) a summons is issued against an accused under section 54 (in this
section referred to as the summons) and the public prosecutor
or the
clerk of the court concerned on reasonable grounds believes that a
magistrate's court, on convicting the accused of the
offence in
question, will not impose a fine exceeding the amount determined by
the Minister from time to time by notice in the
Gazette, and such
public prosecutor or clerk of the court endorses the summons to the
effect that the accused may admit his guilt
in respect of the offence
in question and that he may pay a fine stipulated on the summons in
respect of such offence without appearing
in court; or
(b) a written notice under section 56 (in this section referred to as
the written notice) is handed to the accused and the endorsement
in
terms of paragraph (c) of subsection (1) of that section purports to
have been made by a peace officer, the accused may, without
appearing
in court, admit his guilt in respect of the offence in question by
paying the fine stipulated (in this section referred
to as the
admission of guilt fine) either to the clerk of the magistrate's
court which has jurisdiction or at any police station
within the area
of jurisdiction of that court or, if the summons or written notice in
question is endorsed to the effect that the
fine may be paid at a
specified local authority, at such local authority.”
Subsection (6) of section 57 provides that once the
clerk of the court has entered the particulars of the admission of
guilt in
the criminal record book the accused concerned shall,
subject to subsection (7), be deemed to have been convicted and
sentenced
by the court in respect of the offence in question.
Subsection (7) deals with the process of examination by “the
judicial
officer presiding at the court in question” of the
admission of guilt documents to satisfy himself or herself that the
conviction
or sentence is in accordance with justice and the
procedure incidental thereto.
[7] It is clear, from what I have said above, that the
accused only seeks to be cleared of this criminal record (even if it
was
to be for the time being pending the trial) for the purpose of
his employment application with the recruitment agency referred to
above. I have some doubt about the accused’s
bonafides
in this regard. However, it is not necessary to elaborate on this
point since I propose to deal with the matter from a different
perspective. Suffice to say that, in my view, the prospects of
success of the review would have been minimal if considered on the
ground put forth by the accused.
[8] I have perused the notice in which the charge is
embodied. Indeed, I am concerned by the incomplete and shoddy manner
in which
it was framed. In my view, it was fatally defective.
The
essentials of a charge are governed by section 84 of the CPA which
provides:
“
(1) Subject to the provisions of this Act
and of any other law relating to any particular offence, a charge
shall set forth the
relevant offence in such manner and with such
particulars as to the time and place at which the offence is alleged
to have been
committed and the person, if any, against whom and the
property, if any, in respect of which the offence is alleged to have
been
committed, as may be reasonably sufficient to inform the accused
of the nature of the charge.
Where
any of the particulars referred to in subsection (1) are unknown to
the prosecutor it shall be sufficient to state that
fact in the
charge
In
criminal proceedings the description of any statutory offence in the
words of the law creating the offence, or in similar words,
shall be
sufficient.”
[9] In
S v Hugo
4
Miller JA said: ‘An accused person is entitled to
require that he be informed by the charge with precision, or at least
with
a reasonable degree of clarity, what the case is that he has to
meet . . .’ The Constitution now gives an accused person a
right to be informed of the charge with sufficient detail in order to
enable him or her to answer it
5
.
[10] The Full Bench of this Division
in
R v Mbokazi
6
made it clear (
per
Broome JP):
“
In my opinion it is a necessary preliminary
to any admission of guilt that there shall be a formal record
somewhere of the offence
and the particulars of the offence in
respect of which the accused person is admitting his guilt. It is
outrageous to imagine a
state of affairs in which an accused person
could, on his own admission, be convicted of an offence which has
never been so formally
stated. Normally a formal statement of the
offence charged is contained in a summons and the accused person, by
signing an admission
of guilt, admits his guilt in regard to that
offence. The result of this proposition is that if an accused person
signs an admission
of guilt in respect of a statement which does not
disclose an offence, no conviction resulting therefrom can be a valid
conviction”
[11] Therefore, notwithstanding any
submissions or representations which an accused person may seek to
make, it is an essential
prerequisite that any charge referred to in
a criminal summons, written notice or other formal statement must, on
its face, be
clear and sustainable to the extent that, were the
accused to have opted not to pay the admission of guilt fine but to
proceed
to trial, he or she would have been able to plead to that
charge as it stood in the summons, notice or other formal statement,
as the case may be. On this basis, it seems to me, the signing of
admission of guilt is equivalent to a plea of guilty in a court
of
law in respect of the charge concerned
7
and, in this regard, the charge must
in every respect conform to the requirements of a valid charge as set
out in the CPA.
8
[12] In the present instance the charge of assault
common as set out in the Written Notice To Appear (Form 534) did not
indicate
the identity of the person whom the accused allegedly
assaulted and how or with what the assault was committed, nor did it
even
attempt to allege that any person was assaulted by the accused.
The notice read as follows:
“…
that upon or about
15
day of
September
2009
at or near
Wattle
Drive, Meraewood
(sic) in the said
district (Port Shepstone) he did wrongfully and unlawfully
assault
common
” (The information in
italics was inserted in ink on the form).
[13] It followed, therefore, that the accused signed an
admission of guilt based on a notice which did not disclose the
offence
but merely reflected the name of the offence. In the event,
the deemed conviction, so as the sentence in the form of admission of
guilt fine, cannot stand.
[14] Accordingly, I make the following order:
1. The conviction of the accused and the admission of
guilt fine of R100,00 (which he paid to the Clerk of the Magistrate’s
Court, Port Shepstone on 16 September 2009) are hereby set aside.
2. The matter is left in the discretion of the police
and/or the
prosecutorial authority whether or not they deem it
necessary
in the interests of justice to reinstate the matter by
recharging
the accused in the proper manner, in the light of this
Judgment.
____________________
NDLOVU J
____________________ I agree.
MOKGOHLOA J
1
Section
56 of Act 51 of 1977
2
In
terms of section 57(7) of the CPA.
3
S
v Cedras
1992 (2) SACR 530
(C)
4
1967
(4) SA 536
(A) at 540E; see also
S
v Ismail & others
1993
(1) SACR 33
(D) at 40D
5
Section
35(3)(a) of Act 108 of 1996
6
1958
(3) SA 742
(N)
at 743 F-H.
7
See
R v Mbokazi, supra,
at 743F-G.
8
See
section 84,
supra,