S v Esposito (1769/05) [2006] ZAWCHC 52; 2007 (1) SACR 527 (C) (31 October 2006)

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[2006] ZAWCHC 52
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S v Esposito (1769/05) [2006] ZAWCHC 52; 2007 (1) SACR 527 (C) (31 October 2006)

IN
THE HIGH COURT OF SOUTH AFRICA REPORTABLE
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
High Court Ref:
0501769
Magistrate’s Court
Ref No:
66/05
In
the matter between:
THE
STATE
vs
WILLIAM
ESPOSITO
Coram: Yekiso
et Ndita JJ
Delivered: 31
October 2006
Summary:
Admission of guilt
Deemed
conviction in terms of
Section 57(6)
of the
Criminal Procedure Act,
51 of 1977
Review
thereof – approach to be adopted – whether, on consideration of
equity and fair dealing, accused could be said to have
arguable defence
-
Since it could not be ascertained if accused informed of his
constitutional rights in terms of Section 35(1) and 35(2) of the
Constitution
of the Republic of South Africa, 1996 consideration of
equity become paramount
- Since it could not be
ascertained if evidence not illegally obtained, held that accused has
an arguable defence
Admission of guilt set
aside – fine paid ordered to be refunded to the accused
REVIEW JUDGMENT DELIVERED: 31
OCTOBER 2006
YEKISO,
J
[1] This
matter relates to the review of payment of admission of guilt fine.
It is submitted for special review in terms of
section 304(4)
of the
Criminal Procedure Act, 51 of 1977
by the magistrate, Cape Town.
[2] On
basis of the documentation contained in the case file submitted for
review, it appears that the accused was issued with a written
notice
to appear in the magistrate’s court, Cape Town. The written notice
was issued in terms of
section 56
of the
Criminal Procedure Act. The
notice was issued on 18 July 2003. In terms thereof the accused was
required to appear in the magistrate’s court, Cape Town on
6 August
2003 to answer a charge of contravening the provisions of section
4(b) of the Drugs and Trafficking Act, 140 of 1992.
The allegation
against the accused was that on 17 July 2003 and at or near Curtis
Street, Cape Town, the accused was found to be
in possession of a
small quantity of dagga, ostensibly without being issued with a
permit to possess such prohibited substance
The notice made
provision for payment of admission of guilt fine in an amount of R
300-00. On basis of the admission of guilt
receipt issued at the
charge office, S A Police Service, Cape Town, it appears that the
accused paid an admission of guilt in the
said sum of R 300-00.
[3] Once
the accused had paid the admission of guilt fine, the control
document, which ostensibly is in the same format as the written
notice to appear in court, was forwarded to the clerk of the court,
magistrate’s court, Cape Town who, in turn, entered the particulars
of the charge and the admission of guilt in the criminal record book
for admission of guilt matters. Once that had happened, the
accused
was, in terms of
section 57(6)
of the
Criminal Procedure Act, deemed
to have been convicted and sentenced in the magistrate’s court of
the offence with which he was charged. Subsequent thereto,
and as a
matter of routine, the matter was considered by the magistrate in
terms of section of
section 57(7)
of the
Criminal Procedure Act to
determine if the process leading to the admission of guilt, and the
amount determined for payment of admission of guilt fine was
in
accordance with justice. It appears on basis of the documentation
inside the case file for review that the magistrate was satisfied
that the conviction and sentence, based on payment of the admission
of guilt fine, was in accordance with justice. The accused
was then
deemed to have been duly convicted in terms of
section 57(6)
of the
Criminal Procedure Act. Once
the magistrate had determined that the
process leading to the payment of admission of guilt fine was in
accordance with justice,
he made the necessary endorsement on the
prescribed form and, from then on, the magistrate became
functus
officio.
[4] A
while later, and this appears to have been on 2 September 2004, the
accused deposed an affidavit stating that he is not guilty
of the
offence for which he had paid an admission of guilt fine. In the
same affidavit he describes, in minute detail, the circumstances
surrounding his arrest and subsequent detention in the police holding
cells, culminating in the payment of the admission of guilt
fine on
18 July 2003. In the sub-paragraphs which follow are the salient
features of events stated in the accused’s affidavit:
[4.1] On
17 July 2003, at approximately 10h00 in the forenoon, the accused was
in company of four of his friends, Lucky, Tshepo, Clifford
and
Tsepiso. At the time all of them were students at the University of
Cape Town. He states that they were standing on the pavement
next
to his motor vehicle, a two door Ford Fiesta which was parked in the
parking lot situate close to the Mount Nelson Hotel.
[4.2] Whilst
they were standing on the pavement, the accused noticed three members
of the Cape Town City Police approaching them.
They were on foot
patrol. As the police approached them, one of his friends,
Clifford, threw an object underneath a motor vehicle
parked next to
his motor vehicle. The police must have seen this happen for one of
them went to this other motor vehicle and retrieved
the object from
underneath it.
[4.3] On
being questioned by the police, Clifford admitted that he had thrown
the object underneath the car. It transpired that
the object thrown
underneath this other vehicle contained a small quantity of dagga.
All of them were thereafter searched. Asked
by the police whose
vehicle it was next to which they were standing, the accused admitted
that it belonged to him. Further asked
whether or not there were
any illegal substances in his motor vehicle, the accused replied in
the negative. He states further in
his affidavit that soon
thereafter, the police, without his consent, proceeded to search his
vehicle. One of the policemen emerged
with a piece of newspaper in
a rolled up form. It transpired that this piece of newspaper also
contained dagga. Asked by the
police if the dagga belonged to him,
he similarly replied in the negative. The accused further states in
his affidavit that he
did in fact see one of his friends, Tsepiso,
throwing the newspaper parcel into his vehicle at the time the police
were still approaching
them. All of them were there and then
arrested and taken to the police station, Cape Town where they were
detained in the police
holding cells overnight.
[4.4] The
accused further states in his affidavit that he had never fell foul
with the law in the past and the experience of his arrest
and
detention was extremely traumatic. Later in the day when the police
visited their cell, he together with one of his friends,
told the
police that the dagga found both beneath the other vehicle and the
one inside his vehicle belonged to Clifford and Tsepiso.
However,
the police ignored them. All of these events took place on Friday,
17 July 2003.
[5] By
09h00 in the morning of Saturday, 18 July 2003, all four of them,
including the accused, were taken to a certain detective
Oliver.
They were then informed that they would be charged during the course
of the weekend, that they would remain in detention
for the duration
of the weekend and that they were only due to appear in court the
following Monday which would have been 20 July
2003. The detective
ascertained from them whose dagga it was which was retrieved beneath
the vehicle next to his and also the
one found in his vehicle. The
accused states that he does recall that Clifford and Tsepiso admitted
that the dagga belonged to
them, but that the police ignored these
advices. He states further that the detective explained to him that
since the dagga was
found in his vehicle, he would be held
responsible for it. Ultimately, the detective explained to him that
if he agreed to pay
an amount of R 300-00 he would be released from
custody and no charges would be pressed against his friends. He
subsequently arranged
with another friend of his who brought the
amount of R 300-00 to the charge office which he, in turn, paid to
the police to secure
his release.
[6] Finally,
he states in his affidavit that it was expedient for him to pay the
amount of R 300-00 required as the prospect of being
detained for the
duration of the weekend was extremely traumatic. He states that no
explanation was given to him of the implication
of the payment
required and, in particular, the fact that he was admitting guilt nor
were the consequences of payment of the admission
of guilt explained
to him. Once the amount of R 300-00 was paid all of them were
released from custody. It was only after his
release from custody
that he became aware of the implication of the payment of an
admission of guilt fine. He was advised that
by making such payment
he in fact admitted guilt and that such admission has the same effect
as a conviction in a court of law.
It is against the background of
what is stated in the accused affidavit that the matter was submitted
to this Court for special
review with a request that the admission of
guilt be set aside and that the amount of R 300-00 paid be refunded
to the accused.
[7] Once
the case file for the proposed review was received and referred to me
for my attention, I addressed a letter to the magistrate,
Cape Town
directing that he or she ascertain from the case docket if there is
any indication if the accused, once arrested, was informed
of any one
of those cluster of rights contained in
sections 35
(1) and 35(2) of
the Constitution of the Republic of South Africa, 1996 and in
particular if the accused was informed of the following:
[7.1] the
right to remain silent;
[7.2] the
right to be informed promptly –
(i) of the right to remain silent and
(ii) of the consequences of not
remaining silent.
[7.3] the
right not to be compelled to make any confession or admission that
could be used in evidence against him and
[7.4] the
right to choose and consult with a legal practitioner.
[8] The
magistrate responded and advised that subsequent to the arrest of the
accused, no case docket was opened but only the First
Information of
Crime form was completed; that the specific First Information of
Crime form could not be traced; that the police officers
who dealt
with the accused on arrest have since left the South Africa Police
Service and, accordingly, it could not be ascertained
if the accused
was informed of his constitutional rights in terms of section 35(1)
and 35(2) of the Constitution.
[9] On
receipt of a response from the magistrate, Cape Town, I addressed a
further letter to the Director of Public Prosecutions under
cover
whereof was enclosed all the material documentation received from the
magistrate and requested a comment from that institution
as to
whether, in the circumstances of this matter and, assuming the
accused’s allegations in his affidavit are correct, the accused
has
an arguable defence and also as to whether, on consideration of
equity and fair dealing, the admission of guilt fine should be
set
aside.
[10] The
Director of Public Prosecutions responded per a letter dated 16
January 2006, under cover whereof was enclosed an elaborate
and
detailed memorandum by
Mr Sidaki,
a senior State Advocate in
the office of the Director of Public Prosecutions. I am grateful
to
Mr Sidaki
for his detailed and elaborate comment.
Mr
Sidaki
holds the view that, on basis of the documentation made
available to him, which included the written notice to appear in
court on
basis of which the accused paid the admission of guilt and
also on basis of the affidavit deposed by the accused, his view is
that
the accused made a
“conscious, free and voluntary
decision to take responsibility for the amount of dagga found and the
payment of the admission of
guilt fine and that, in so doing, his
erstwhile co-accused escaped liability”.
Mr Sidaki
further comments that there is no indication on basis of the
documentation made available to him to suggest that the accused was
coerced into admitting guilt.
[11] The
approach to be adopted and the principles applied in instances of
review of payment of admission of guilt fines have been
stated on
several occasions and in a number of reported and unreported cases.
The reported decisions that come to mind are those
such as
S v
Marion
1981(1) SA 1216 (T);
S v Mthiya
1991(1) SACR 615
(E) and
S v Cedras
1992(2) SACR 530 (C), to name but few of
the decisions pertinent to this point. The approach in dealing with
this issue seems to
be that the Courts are prepared to come to the
assistance of the accused and have had the deemed convictions and
sentence set aside
in instances where it is evident that the accused
could be said to have an arguable defence and that, on consideration
of equity
and fair dealing, the admission of guilt ought to be set
aside.
[12] In
S v Cedras,
supra
,
Rose-Innes J made the following
observation at 531j to 532 a-b:
“
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 an 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.”
[13] In
S v Marion,
supra, the Court set aside the deemed conviction
on the strength of an affidavit by the accused himself deposing to
the facts which
indicated that he had probably been wrongly charged.
It is always important to bear in mind that the affidavit relied
upon clearly
establishes a probable defence.
[14] In
S v Mthiya,
supra
,
it was held that only the Supreme
Court (now the High Court) has the power to set aside the deemed
conviction and sentence and that,
for this purpose, it is sufficient
for an accused to set out, by means of an affidavit or otherwise,
sufficient averments which,
if true, would raise a reasonable doubt
as to the correctness of the deemed conviction. In the matter in
point it would appear,
on basis of the affidavit deposed by the
accused that, once arrested, he was not informed of his rights in
terms of sections 35(1)
and (2) of the Constitution; that he paid the
admission of guilt fine as an expedient and the only way in which he
could avoid being
detained or kept in custody in the police holding
cells over the weekend coupled with the trauma that goes with it.
To me this
appears to be an acceptable explanation as to how it came
about that the accused admitted guilt.
[15] The
authorities cited in paragraph [11] of this review were obviously
decided before the advent of the Constitutional order.
Whereas
before 1994 criminal procedure was subject to the sovereignty of
Parliament and the whims of the executive, resulting in
the
oppressive and authoritarian criminal justice system of the apartheid
era, the Constitution, protecting the rights of the individual,
including those of the accused and convicted persons, is now supreme.
The right to freedom and the security of the person, the
right to
privacy and the rights of arrested, detained and accused persons
place the courts, as guardians of the Constitution, in
a pivotal
position to prevent abuse of the criminal justice system by the state
and to contribute to the development of a fair law
of criminal
procedure. (See Nico Steytler:
Constitutional Criminal Procedure
1998 at p1)
[16] The
observations made in the preceding paragraph are appropriate in the
matter in point. I have already made a point in paragraph
[7] of
this review that once the case file for the proposed review was
brought to my attention and had read the accused’s affidavit,
I
directed the magistrate to ascertain from the case docket if there is
any indication whether the accused was informed by the police
of his
rights in terms of sections 35(1) and 35(2) of the Constitution. No
such indication could be given as no case docket was
opened. The
First Information of Crime form, which appears to be the only
essential document completed after the arrest of the
accused, could
not be located. The accused states in his affidavit that he was not
informed of these rights. In the absence of
any clear indication
that the accused was informed of his constitutional rights once
arrested and subsequently detained, I cannot
just assume that such
advice and information was given. This, in my view, strengthens the
view that on consideration of equity
and fair dealing, the deemed
conviction and sentence ought to be set aside.
[17] In
making the observations I make in the preceding paragraph I
particularly bear in mind that an accused person has a fundamental
right to be treated fairly. Fair trial rights would not have been
limited to the trial itself if the accused would ultimately have
been
charged. The right to fair trial is extended to an accused person
from the inception of the criminal justice process, which
would mean
on arrest, until its culmination up to and including the trial
itself: as it is often said from the gatehouses of the
criminal
justice system (that is in the interrogation stage) as well as in the
mansions (that is in the trial court). [See also
S v Melani
1996 (2) BCLR 174
(E) at 188G-F)]
[18] In
the light of the observations I make in the preceding paragraph, it
therefore follows that I do not share the view held by
Mr Sidaki
that the accused made a
“conscious, free and
voluntary decision to take responsibility for the amount of dagga
found”
. It is, for an example, arguable that the search
of the accused’s motor vehicle without his consent and the
subsequent discovery
of an amount of dagga therein, constitutes
illegally obtained evidence which ought to be excluded on the basis
that it would render
the trial unfair or otherwise would be
detrimental to the administration of justice. It therefore follows
in my view that the accused
has an arguable defence and that, on
consideration of equity and fair dealing, the deemed conviction and
sentence ought to be set
aside.
[19] In
the result, I propose making the following order, namely:
[19.1]
That the conviction of and the sentence imposed on the accused,
pursuant to the provisions of
section 57
of the
Criminal Procedure
Act, be
and are hereby set aside;
[19.2]
That the particulars relating to the admission of guilt by the
accused, and the subsequent payment of the admission of guilt
fine,
be expunged from the register of previous convictions;
[19.3]
That the admission of guilt fine in an amount of R 300-00 be
refunded to the accused;
[19.3]
This order does not preclude the Prosecution Authorities from
prosecuting the accused in the ordinary course.
_____________________________
N J Yekiso, J
I
agree.
_____________________________
T
Ndita, J
It
is so ordered.