REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CA SE NO : REV67 /2024
(1) REPORTABLE : YES/NO
(2) OF INTEREST TO TH E JUDGES : YES /NO
(3) REV ISE D ,
In the m atter betwee n:
THE STATE
V
TIAAN FRANCOIS BESTBIER
REVIEW JUDGMENT
MULLER J:

2
[1] This is a special review in terms of section 304(4) of the Criminal Procedure Act1
pursuant to an order made by the learned Judge President revoking a certificate issued on
23 May 2024 which had certified that the proceedings appear to be in accordance with
justice.
[2] Briefly, the accused, Tiaan Bestbier, was arrested on 5 October 2023 for being in
unlawful possession of a substance suspected to be "CAT" in contravention of section S(b)
of the Drugs and Drug Trafficking Act.2 He was issued with a written notice in terms of
section 56 to appear in court on 17 November 2023. The notice indicated that the accused
contravened section S(b) of the Drugs and Drug Trafficking Act on the ground that he was
found in possession of drugs suspected to be "CA T."3
[3] The admission of guilt fine was set at an amount of R1 ,000.00 payable immediately or
before 24 October 2023 without the need to appear in court on the date of trial, if paid on
time. The accused was cautioned by a stipulation in the notice that he may consult with a
legal representative or may approach Legal Aid South Africa for assistance. He promptly
paid the admission of guilt on 5 October 2023 at the Modimolle Police station.4
[4] Subsection 57(6) and (7) of the CPA provides:
"(6) An admission of guilt paid at a police station or a local authority in terms of subsection (1) and the
summons or, as the case may be, the written notice surrendered under subsection (3), shall as soon
as is expedient, be forwarded to the clerk of the mag istrate's court wh ich has jurisdiction, and such
clerk of the court shall thereafter, as soon as expedient, enter the essential particulars of such
summons or, as the case may be, such written notice and of any summons or written notice
1 Act 51 of 1977 (Hereinafter called "the CPA ").
2 Act 140 of 1992.
3 Section S(b) deals with dealing in drugs.
4 Receipt (J70) 182920 dated 5 October 2023.

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surrendered to the clerk of the court under subsection (3), in the criminal record book for admissions
of guilt, whereupon the accused concerned shall, subject to the provisions of subsection (7), be
deemed to have been convicted and sentenced by the court in respect of the offence in question.
(7) The judicial officer presiding at the court in question shall exam ine the documents and if it appears
to him that a conviction or sentence under subsection (6) is not in accordance with justice or that any
such sentence, except as provided in subsection (4), is not in accordance with a determination made
by the magistrate under subsection (5) or, where the determination under that subsection has not
been made by the magistrate, that the sentence is not adequate, such judicial officer may set aside
the conviction and sentence and direct that the accused be prosecuted in the ordinary course,
whereupon the accused may be summoned to answer such charge as the public prosecutor may
deem fit to prefer: Provide that wh ere the adm ission of guilt fine which has been paid exceeds the
amount determined by the magistrate under subsection (5), the said judicial officer may , in lieu of
setting aside the conviction and sentence in question, direct that the amount by which the said
adm ission of guilt fine exceeds the said determination be refunded to the accused concerned."
[5] The documents were duly forwarded to the clerk of the court Modimolle who entered
the essential particulars in the appropriate criminal record book for admissions of guilt. The
result of so entering the particulars into the relevant criminal record book is that the accused
is deemed to be convicted and sentenced by the court in respect of the offence in question,
subject to the provisions of subsection 57(7). A judicial officer examined the documents on
11 October 2023 and elected not to take any of the steps envisaged by the subsection (7).
(6] This record was placed before a judge for review by virtue of an affidavit dated 31

(6] This record was placed before a judge for review by virtue of an affidavit dated 31
January 2024 filed with the magistrate Modimolle. The reviewing judge issued the required
customary certificate confirming that the proceedings were in accordance with justice and
returned the record.

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[7] On 8 April 2025 attorneys acting on behalf of the accused addressed a letter to the
registrar and the deputy-director of public prosecutions at Polokwane with a request that the
Judge President refers the case to two judges or to open court for re-consideration.5 The
Judge President revoked the certificate. In S v Nkos i; S v Mchunu6 it was reaffirmed that
such certificate may be revoked in appropriate circumstances, as it does not amount to a
rescission of the judgment.7
[8] Section 304(4) of the CPA provides:
"If in any criminal case in which a magistrate's court has imposed a sentence which is not subject to
review in the ordinary course in terms of section 302 or in which a regional court has imposed any
sentence, it is brought to the notice of the provincial or local division having jurisdiction or any judge
thereof that the proceedings in which the sentence was imposed w ere not in accordance with justice,
such court or judge have the same powers in respect of such proceedings as if the record thereof had
been laid before such court or judge in terms of section 303 or this section."
(9] The withdrawal of the certificate caused the matter to be placed before this court for
special review in terms of section 304(4) of the CPA.
[1 O] There is a need for a speedy and inexpensive procedural mechanism to conclude a
prosecution by paying a fine for offences which are not regarded as serious without the need
to appear in court. The provisions of section 56 and 57 of the CPA provide for such a
procedural mechanism . It is appropriate for a proper understanding of the provisions of
5 A letter was also addressed to the Judge President in which it is stated that the judge did not consider the
merits properly when the certificate was issued.
6 1984 (4) SA 94 (n.
7 S v Pirison 1959 (1) SA 102 (N ) 102H .
7 1984 (4) SA 94 (T).

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section 57(6) and (7) to have regard to the interpretation given to the sections by various
divisions of the high court.
[11] The Transvaal Provincial Division, in S v Hoema 6 held that a magistrate is functus
officio after he has examined the documents. The court accepted that magistrate exercised
a judicial function by examination of the papers.
[12] The Natal Provincial Division, in S v Mahabeer9 following S v Hartley10 held that a
magistrate who examined the papers in terms of section 57(7) is not functus officio if he/she
has refrained from taking any action after examination of the papers.
[13] The full bench of the Natal Division, in S v Shange , after reviewing the divergent
decisions, concluded that S v Mahabeer supra was correctly decided. It held that a
magistrate may consider representations made by an accused person even after
examination of the documents. It held that the magistrate under section 57(6) was not
required to confirm the conviction and sentence since the accused is deemed to be
convicted and sentenced. It was only required from the magistrate, whenever he examines
the papers, to take steps if he is of the view that the conviction and sentence is not in
accordance with justice.
[14] Following, the above judgment a full bench of the Transvaal Division held in S v
Marion11 that a magistrate had to apply his /her m ind in each case placed before him/her to
reach the conclusion whether the deemed conviction and sentence should be set aside or
not. The magistrate is functus officio when he has done so.
8 1978 (2) SA 703 (T) 704H .
9 1980 (4) SA 492 (N) F-H.
10 Unreported review case 3248/1979.
11 1981 (1) SA 1216 (T) 1218H -1219A; S v Kubheka 1999 (1) SACR 65 0/V) 66c-e; S v Coetzer2002 (1)
SACR 174 (T) 176b.

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[15] The Free State Provincial Division, in S v Miller12 remarked that a magistrate may not
review the conviction and sentence after same have been confirmed by him. The Northern
Cape Division, in S v Makhele13 also followed the decision in S v Marion supra.
[16) The full bench of the Cape Division, in S v Louw 14 disagreed with S v Mahabeer supra
on the basis that the judicial officer is to consider the documents and information referred to
in subsection (6) and is therefore precluded from considering any other document and that
the election of the judicial officer not to act is a decision which he cannot later be altered.
[17] It seems appropriate that this division also deal with the fundamental issue whether
a magistrate who examined the papers is functus officio and therefore unable to reconsider
representations made by the accused, after he/she had done so. There are other issues
flowing from what is required when a notice in terms of section 56 (or summons in terms of
section 54) is issued that must also be considered.
[18] Judicial officers (magistrates, additional magistrates, assistant magistrates as well as
acting magistrates, additional and assistant magistrates)15 are appointed in terms of section
9 of the Magistrate's Courts Act.16 They are authorized to hold court.17 They also possess
the powers and perform the duties conferred or imposed upon them by any law, for the time
being, in force in the province wherein their district is situated.18 Magistrates have jurisdiction
12 1981 (3) SA 560 (0) 562B .
13 1981 (4) SA 956 (NC ) 958A .
14 1982 (4) SA 556 (C); S v Tenga 200 7 (1) SACR 138 (C).
15 Hereinafter called "mag istrates." See also Nkab inde v Judicial Services Comm ission 2016 (4) SA 1 (SCA )
par 108-110.
16 Act 32 of 1944.
17 Section 8 of the Magistrate's Courts Act. In terms of section 1 '"Court' m eans a magistrate's court for any
district or for any regional division."
18 Section 12 of the Magistrate's Courts Act.

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over all offences except treason, murder, rape as contemplated by section 3 and 4 of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively.19
[19] A clerk of the court, appointed for a magistrate's court for a district is not a judicial
officer. 20 It is the function of the clerk of the court to enter the particulars of an accused from
the notice to appear in court (or summons) in the criminal record book for admission of guilt
fines. It is administrative action which is equated with a judicial decision by a court by means
of a deeming provision contained in subsection (6).
[20] It was held in S v Rosentha/21 that a deeming provision is to be construed that:
"The words "shall be deemed " ("word geag" in the signed, Afrikaans text) are a familiar and useful
expression often used in legislation in order to predicate that a certain subject-matter, eg a person,
thing, situation, or matter, shall be regarded or accepted for the purposes of the statute in question as
being of a particular, specified kind whether or not the subject-matter is ordinarily of that kind. The
ascertained from its context and the ordinary canons of construction. "22
[21] The intention of a deeming provision was explained in the case of Mouton v Boland
Bank Ltd. 23 Citing Bennion Statutory Interpretation 3rded (1997) 736, the court stated that
purpose is:
"The intention of a deeming provision, in lying down an hypothesis, is that the hypothesis shall be carried
as far as necessary to achieve the legislative purpose, but no further. "24
19 Section 89(1) of the Magistrate's Courts Act.
20 Section 13(2 ) of the Magistrate's Courts Act. The refusal of the clerk of the court to perform any act he/she
is by law empowered to do is reviewable by the magistrate's court on application either ex parte or on notice.
See Nelson Mandela Bay Metropolitan Mun icipality v Nobumba and Others 2010 (1) SA 579 (ECG) par 5.
21 1980 (1) SA 65 (A).
22 75G-H .
23 2001 (3) SA 877 (SCA).
24 Par 13.

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Bennion Statutory Interpretation supra 735 was recently referred to with approval in Eastern
Cape Parks and Tourism Agency v Medbury (Pty) Ltd t/a Crown River Safari:25
"Deeming provisions in Acts often deem things to be what they are not. In construing a deem ing
provision it is necessary to bear in mind the legislative purpose."26
[22] The purpose of the deeming provision, in the context of section 57, is to elevate a
non-judicial administrative function of the clerk of the court, who is only required to enter the
essential particulars of the written notice (or summons) in the criminal record book for
admission of guilt fines, to be what it is not, name ly, a conviction and sentence by the
relevant magistrate's court. The administrative action by the clerk of the court is not a judicial
act. The entry of the particulars of the notice (or summons) in the criminal record book,
together with the documents are a record of having been convicted and sentenced by a
magistrate's court for that district, in respect of the offence(s) stated in the notice
(summons). The deemed conviction is actualized ex lege by the recording of the information.
[23] The aim and objective of the legislative provisions are to provide a simple and
relatively speedy mechanism for an accused person to admit his/her guilt by signing the
relevant part of the notice as proof that he/her understood that he/she is guilty of the offence
referred to in the notice in respect of which the admission of guilt fine is paid without the
need to appear in court on the date of trial.
[24] The powers of the judicial officer who examines the documents are circumscribed by
section 57 of the CPA. Section 57(7) provides that a judicial officer appointed for that court
25 2018 (4) SA 206 (SCA ).
26 Par 29; See also Chotabhai v Union Government (Minister of Justice) and Registrar of Asiatics 1911 AD
13, 33.

9
must examine the documents (the notice and the control document of the notice). If it
appears to him/her, when doing so:
(a) that the conviction or sentence is not in accordance with justice; or
(b) that any such sentence is not in accordance with a determination made by the
magistrate; or
(c) where a determination has not been made by the magistrate, that the sentence is not
adequate such judicial officer may set aside the conviction and sentence and direct
that the accused be prosecuted in the ordinary course; or
(d) where the amount of the fine paid exceeded the determination by the magistrate, the
judicial officer may direct that the portion of the amount that exceeds the determination
be refunded to the accused in lieu of setting the conviction and sentence.
[25] The next question to be answered is whether the examination of the documents by
the judicial officer, the particulars of which have been recorded in the relevant criminal
record book, is a judicial function. It is a requirement that a judicial officer, in the first
place, must satisfy himself/herself that the essential particulars of the notice (summo ns)
have been correctly recorded in the relevant criminal record book which is purely
administrative. Secondly, to be satisfied that the conviction and sentence is in accordance
with justice is, in my view, a judicial decision. It would, from a practical point of view, entail
that the judicial officer must be satisfied that the conviction is in order, ie that an offence
has indeed been committed and that the sentence accords with the determination by the
magistrate, and, if no determination has been made by the magistrate in respect of the
particular offence, that the sentence is adequate if regard is had to the prevalence and
seriousness of the particular offence in the district. If the judicial officer concluded that the
sentence exceeded the determination made by the magistrate, he/she may direct {the

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clerk of the court) to refund the accused or may set the conviction and sentence aside
and direct the public prosecutor to prosecute the accused in the ordinary course.
[26] Notably, subsection (7) provides for judicial oversight whereby the mere entry
in a criminal record book that brought about a legal fiction that an accused is deemed to
be convicted and sentenced by a court, is judicially reviewed by a judicial officer. The
documents that are presented to a particular judicial officer for examination may (or may
not) be accompanied by a representation by an accused. It was held in S v Louw 27 that:
"As appears from s 57 (7) the judicial officer is charged with the duty of examining "the
documents", ie the documents referred to in the preceding subsection, viz the summons or written
notice which has been issued or handed to the accused containing the "admission of guilt" form
completed by him, evidence of the payment by him of the fine, the duplicate of the summons or
w ritten notice marked "beheerstuk-control document" and the criminal record book for adm ission
of guilt wherein the essential particulars have been entered by the clerk of the court. All that the
judicial officer is entitled to consider is these documents and any additional information referred
to in the section to which he is obliged to have regard for the proper carrying out of is functions
under the section, eg information as to the amount determined in terms of section 57(5). He is
not entitled to have regard to extraneous matter, eg representations by or on behalf of the
accused. The fact that nowhere in the section is provision made (as was the case ins 351 (2) of
the repealed Act 56 of 1955) for written representations to be laid before the magistrate,
strengthens this view. Consequen tly the magistrate cannot set aside a conviction or sentence as
a result of such extraneous informa tion coming to his knowledge, he feels that action is called for

in respect of either the conviction or the sentence, the judicial officer must submit the matter for
review by this Court."28
27 1982 (4) SA 556 (C ).
28 558C-G .

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[27] I, with respect, do not share the view that subsection (7) precludes the judicial officer
from considering representations made by an accused. The reference to "documents" in
subsection (7) may very well include a written representation which the accused has
submitted with the original notice (or summons) when the admission of guilt fine was paid.
It seems absurd that the judicial officer is obliged to ignore such a representation for
purposes of review under section 57. It defeats the very object of the review by a judicial
officer under the broad rubric that the deemed conviction and sentence is in accordance
with justice.
(28] It was held in S v Eg/in29 that section 57 is a mechanism in terms whereof arrest and
prosecution may be avoided. I disagree. If a peace officer after the arrest of an accused is
of the opinion that a magistrate's court will not impose a fine exceeding an amount
determined by the minister, he may hand him a written notice which inter a/ia must contain
an endorsement in terms of section 57.30 Section 56(1)(a) to (d) provides that the written
notice shall:
"(a) specify the name , the residential address and the occupation or status of the accused;
(b) call upon the accused to appear at a place and on a date and at a time specified in the written
notice to answer to a charge of having committed the offence in question;
(c) contain an endorsement in terms of section 57 that the accused may admit his guilt in respect
thereof without appearing in court; and
(d) contain a certificate under the hand of the peace officer that he has handed the original of such
written notice to the accused and that he has explained to the accused the import thereof."
29 2022 (1) SACR 325 (WCC) par 17-18.
30 Section 56(1) and 56(1 )(c) of the CPA

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(29] It does not mean that the accused is not prosecuted when he is handed a notice in
terms of section 56(1 ). On the contrary, the accused is prosecuted when the written notice
in terms of section 56(1) is issued and handed to him.
[30] Section 341, on the other hand, provides for compounding certain offences referred
to in Schedule 3 of the CPA. Such offences are offences under by-laws or regulations made
by or for local authorities and also certain offences involving motor vehicles, by payment of
a ftne.31 Section 341(1) and (2) provides:
"(1) If a person receives from any peace officer a notification in writing alleging that such person has
committed, at a place and upon a date and at a time or during a period specified in the notification,
any offence likewise specified, of any class mentioned in Schedule 3, and setting forth the amount
of the fine which a court trying such person for such offence would probably impose upon him,
such person may within thirty days after receipt of the notification deliver or transmit the
notification, together with a sum of money equal to the said amount, to the mag istrate of the
district or area whe rein the offence is alleged to have been committed, and thereupon such
person shall not be prosecuted for having committed such offence.
(2)(a) Where a notification referred to in subsection (1) is issued by a peace officer in the service of a
local authority in respect of an offence committed within the area of jurisdiction of such local
authority, any person receiving such notification may deliver or transmit it together with a sum of
money equal to the amount specified therein to such local authority.
(b) Any sum of money paid to a local authority as provided in paragraph (a) shall be deemed to be
a fine imposed in respect of the offence in question.
31 "Afkoopboete" in Afrikaans.

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(c) Not later than seven days after receipt of any sum of money as provided in paragraph (a), the
local authority concerned shall forward to the magistrate of the district or area wherein the offence
is alleged to have been committed a copy of the notification relating to the payment in question.
(d) If the magistrate finds that the amount specified in the notification exceeds the amount determined
in terms of subsection (5) in respect of the offence in question, he shall notify the local authority
of the amount specified in the notification exceeds the amount so determined and the local
authority concerned shall immediately refund the amount of such excess to the person
concerned.
(e) .... "
[31] In respect of offences referred to in Schedule 3, section 341 only requires that the
offender be informed of the date, place and time and of the offence allegedly committed and
also that if the stipulated amount is paid within thirty days he/she will not be prosecuted. The
said notice neither requires, as section 56(1) demands , that the offender be informed of a
date specified in the notice to appear in court to answer a charge of having committed the
offence in question nor that should the admission of guilt fine endorsed on the notice be
paid before the specified court date that the offender need not appear in court on the said
date.
[32] The purpose of a notice issued in terms of section 341 is to invite an agreement not
to be prosecuted for a specified less serious offence in return for consideration. 32 It stands
to reason that a fine paid pursuant to a section 341 notice cannot be regarded as a previous
conviction. The position is different where accused persons are charged and prosecuted by
means of notices in terms of section 56.
32 Section 341 (5) provides that the amounts specified in any notification under section 341 which a court
would probably impose in respect of any offence, may differ from admission of guilt fines determined under
section 57(5)(a) for the same offence.

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[33] I am , therefore, unable to agree with the reasoning in S v Madhinha33 that a conviction
and sentence under section 57(6) is not to be regarded as a previous conviction. There may
be instances where an accused person is prosecuted for a less serious offence mentioned
in Schedule 3 and an admission of guilt fine is paid which would constitute a conviction and
sentence in terms of section 57(6). It is better left for the legislature to determine whether
such convictions and sentences should not constitute previous convictions.
[34] In the present matter, the accused submitted an affidavit to the magistrate Modimolle
in terms whereof he explained what caused him to be arrested and why he paid an
admission of guilt fine for being in unlawful possession of a suspected drug called "CAT."
Also included is an affidavit by the investigating officer and certain documents from the
police docket. The affidavit of the investigating officer sets out that the accused was
observed hiding something in his trousers when he was stopped. He was searched and a
drug called "CAT" was discovered in his trousers. The investigating officer also stated in his
affidavit that:
"I read and explain the constitutional rights from SAPS 14(a) in English and he understood. I issued him
J 534 for R1000. He paid and was released without injury."
[35] Rogers J in S v Houtzamer34 observed, correctly in my view, that a peace officer is
not entitled to require from an accused to admit his guilt and pay an adm ission of guilt fine
prior to releasing him. An accused is entitled to be released immediately when the written
notice is issued and handed to him. Lip service was paid to the provisions of section 56(2)
in present case.
33 2019 (1) SA 297 (WCC) par 44.
34 [2015] ZAWCHC 25 (10 March 2015) par 26-27.

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[36] The version proffered by the accused generally in his affidavit seems suspect. The
accused is not an uneducated individual who can barely read or write. I do not believe that
he was unable to read the documents which he signed at the police station or understand
what transpired. According to the police documents he elected to remain silent after his
rights were explained to him when he was afforded the opportunity to explain how he came
to be in possession of the drug. The fact that the wrong section of the Drugs and Drug
Trafficking Act was quoted is neither here nor there. The explanation in the notice that he
was in unlawful possession of a drug called "CAT" was sufficient to have informed the
accused of the charge against him.
[37] Unsurprisingly, the accused elected to call his girlfriend to come to his rescue. A week
after the fine was paid, he was confronted with the conviction and sentence by the principal
of the school where he is employed as a teacher. An informal investigation was very properly
launched into his suitability as a teacher. No explanation is offered by him why it took the
best part of four months for him to have taken any steps to set the conviction and sentence
aside. On the probabilities he acted only after he obtained legal advice when his employer
investigated his conduct.
[38] The accused, furthermore, makes very serious allegations against police officers. He
adm itted paying a police officer a R1 ,000.00 to be released from custody over and above
the admission of guilt fine of R1 ,000.00 that he paid. His conduct prima facie constitutes an
offence in terms of section 4(b) of the Prevention and Combating of Corrupt Activities Act.35
[39] The Deputy Director of Public Prosecutions agrees with the submissions made by
the accused and proposed that the conviction and sentence be set aside.
35 Act 12 of 2004.

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[40] The conviction and the sentence in my judgment, must be set aside and the accused
is to be prosecuted in the ordinary course.
ORDER
1. The conviction and sentence are set aside.
2. The Deputy Director of Public Prosecutions: Limpopo Division is directed to
prosecute the accused in the ordinary course.

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JUDGE OF THE HIGH COURT
LIMPOPO DIVISION, POLOKWANE
I, Concur
M.ZMAKOTI
ACTING JUDGE OF THE HIGH COURT
LIMPOPO DIVISION, POLOKWANE