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2023
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[2023] ZAWCHC 47
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Hoosen v S (412/22) [2023] ZAWCHC 47 (6 March 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
High Court Ref No:
412/22
Case No:
217/2018
Magistrate
Serial No: 02/2021
In the matter between
DEEN HOOSEN
vs
THE STATE
REVIEW JUDGMENT 06
MARCH 2023
THULARE J
[1] It seems that there
is a route to justice which is only available to those who knows or
knows someone who knows a Senior Magistrate
at the Magistrates’
Courts, and by this proximity have access not only to the contents of
the case dockets, but also to the
records of the Department of
Justice and Correctional Services, including the benefit of
submissions by Senior Magistrates or Heads
of Magistrates’
Courts made to a Judge. This matter is a review of a conviction and
sentence by one of such privileged few.
Regrettably, these kinds of
matters confirm that the path to justice is not accessible to all.
Neither applicants in these types
of matters in their founding
affidavits, nor the Senior Magistrates or Heads of Courts who prepare
memoranda in these types of
matters, explain how the affidavit of the
applicant landed on that Magistrate’s desk, nor how the
applicants had access to
State records.
[2] The issue is whether
the proceedings against the applicant were in accordance with
justice.
[3] In her memorandum,
the senior magistrate said that all court documents related to this
matter have already been destroyed. Constable
Mcebisi Nzondo was
doing crime prevention on foot patrol on Saturday 21 March 2015 at
around 23H10 in civilian clothing and was
walking along Central Drive
in Camps Bay. He noticed a vehicle parked on the side of the road.
The light inside the vehicle was
on and he noticed a white man
sitting inside the vehicle on the driver’s seat. As he walked
passed he could see the man preparing
what seemed to him like a zol
of dagga. Nzondo knocked on the window to draw the attention of the
man and then asked the man to
open the door. The driver opened the
door. Nzondo introduced himself to the man and showed the man his
appointment certificate
as a member of the police.
[4] Nzondo then asked the
man what the man was doing and the man, the applicant, was apologetic
and began pleading that it was a
small amount of dagga and that he
did not smoke it regularly but only sometimes. Nzondo asked for
permission to search the vehicle,
which was granted and he searched
the vehicle further and found a minimal amount of dagga inside some
gold dagga smoking material.
Nzondo arrested the applicant and took
him to Camps Bay SAPS where he was detained. Nzondo booked the dagga
into the SAP 13 register.
An admission of guilt amount was determined
at R150-00. The applicant paid the admission of guilt and was
released. According to
the papers before me, the applicant’s
rights as envisaged in section 35 of the Constitution were explained
to him, including
that he was not compelled to make an admission
which could be used as evidence against him. He had signed a
certificate that he
had been informed of his rights and that he
understood the contents thereof.
[5] In this application
the applicant concedes that he was arrested for possession of dagga.
According to him, before he got into
the van, he was told that he
might get his friends to bail him out for R150-00. This was repeated
at the police station where he
was further told that he either stayed
in the cells until Monday morning or he paid the bail fee. He was
terrified and no other
option was given to him. He was 19 years at
the time. His friend, who was also arrested, had been robbed in the
van. He was then
told to sign papers as he was going to pay the bail
fee without knowing that he was going to sign an admission of guilt
form. He
was under the impression that he had paid bail and he did
not know that he was actually paying an admission of guilt. It was
not
explained to him that by paying the admission of guilt he would
have a criminal conviction and a criminal record. If he had known
that he was paying an admission of guilt which would lead to a
criminal record, he would not have paid the admission of guilt.
It
was only in 2016 when he applied for a job that he discovered that he
had a criminal record. He is now a BCom student at Varsity
College
and the criminal record will have a negative impact on his future.
[6] Section 304(4) of the
Criminal Procedure Act, 1977 (Act No. 51 of 1977) provides as
follows:
“
Procedure
on review 304(4) 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 were not in
accordance with justice, such court or judge shall 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.”
[7]
It is in the same league as the one in
S
v Elgin
2022 (1)
SACR 325
(WCC) at para 12 where it was said:
“
The
conviction and sentence of the accused followed upon her payment of
the admission of guilt fine paid at the police station.
It was a
consequence of the essential particulars of the notice which was
surrendered to the clerk, entered by the clerk onto the
criminal
record book for admission of guilt as a consequence of which she was
deemed to have been convicted and sentenced by the
court [section
57(6) of the Act]. A magistrate at the Wynberg Magistrates’
Courts examined the documents and did not find
any reason to set
aside the conviction and sentence, as envisaged in section 57(7) of
the Act.”
[8] The facts set out in
the accused’s affidavit, more specifically the consequences of
the admission of guilt and the failure
to explain such, are new facts
were not before the magistrate at the time. This resulted in the
failure of justice [
Elgin
para 20 and 21].It stands to be
repeated that the aim of the Chapter, that is, Chapter 8 in the Act
where the provisions of an admission
of guilt appears, is to
eliminate unnecessary formalities by making it possible for someone
who has committed a relatively minor
offence to admit guilt, pay a
fine and avoid formal court proceedings. It was not intended to
assist the State amass undeserved
criminal convictions and cloth
trivial misdemeanours with the gravity of a criminal record from a
court of law.
[9] For these reasons I
would make the following order:
1. The
conviction and sentence is set aside.
2. The
amount paid as admission of guilt should be refunded to the accused.
3. The
accused may be prosecuted in the ordinary course.
DM THULARE
JUDGE OF THE HIGH COURT
I agree
MI SAMELA
JUDGE OF THE HIGH COURT