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[2015] ZAWCHC 25
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S v Houtzamer (B7968969/08) [2015] ZAWCHC 25 (10 March 2015)
THE HIGH COURT OF SOUTH
AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
High Court Ref No:
141171
Magistrate’s
Series No: 85/2014
Wynberg Case No:
B7968969/08
DATE: 10 MARCH 2015
In the matter between:
STATE
And
DANE HOUTZAMER
Coram: HENNEY & ROGERS JJ
Delivered: 10 MARCH 2015
JUDGMENT
ROGERS J (HENNEY J concurring):
[1] This matter has been referred to
this court by the Senior Magistrate of Wynberg with a recommendation
that an admission of guilt
signed by the accused on 30 June 2008 and
the resultant deemed conviction in terms of s 57(6) of
Criminal
Procedure Act 51 of 1977
be set aside. This follows affidavits made
by the accused and his father in August 2014 in which they set out
their objections
to the admission of guilt and deemed conviction.
[2] The present case is not one which
is required by law to be sent to this court for automatic review. The
possibility that the
proceedings in the lower court were not in
accordance with justice has, however, been ‘brought to the
notice’ of this
court (cf
s 304(4)
of the
Criminal Procedure
Act) by
way of the Senior Magistrate’s letter and affidavits
mentioned above. Our courts have discouraged the use of
s 304(4)
as a
form of ‘cheap’ appeal or review, because it bypasses the
procedures which ordinarily apply to the disposition
of such matters.
Nevertheless, in the circumstances of this case it would lead to
unnecessary wasting of time and cost if we insisted
that the accused
brought a review application in terms of
rule 53.
[3] The accused, aged 19 at the time,
was allegedly found in possession of dagga on 30 June 2008. He was
detained by the police.
A written notice to appear in court as
contemplated in
s 56
was issued to him. The notice specified a trial
date of 5 August 2008. The notice further informed the accused that
he could pay
an admission of guilt fine of R200 by 17 July 2008. The
money was paid on 30 June 2008 and the accused released.
[4] According to the affidavit of the
accused, he was in the company of a friend when the police stopped
them. He says no dagga
was found on him. Two rolls of dagga were,
however, found on the ground nearby. The police claimed to have seen
him throw it there.
He remained silent. He was detained and told that
R200 would have to be paid to secure his release. He says he thought
this was
bail money and did not know it was an admission of guilt or
would create a criminal record. The accused’s father says in
his affidavit that he was informed by the police of the arrest of his
son and told he would have to pay R200 to secure his release.
He went
to the police station and paid the money without talking to his son.
When they got home his son told him what had happened.
The father
says he immediately returned to the police station to query the
matter but was told that it had been finalised.
[5] The
s 56
notice did not warn the
accused that if he admitted guilt in terms of
s 56
he would be deemed
to have been convicted and sentenced and would thus get a criminal
record.
[6] On 11 November 2014 I addressed the
following query to the magistrate:
‘3. The
s 56
notice in this case
included a statement, signed by a peace officer, D Booysen, that the
original was handed to the accused and
the importance thereof
explained to him (the case is thus distinguishable from S v Tong
2013
(1) SACR 346
(WCC) – see para 13). One only has the version of
the accused and his father at this stage to indicate that the import
of
the notice was not explained. I do not think the cases go as far
as saying that, unless the import of an admission of guilt is set
out
in writing in the notice, the admission is invalid. If that were the
position, every admission of guilt utilising the prescribed
form as
it then existed would be liable to be set aside. Do you say that this
is the position? If not, I do not think this court
should exercise
its power of review before SAPS Grassy Park and the peace officer
have been invited to comment on the procedure
followed by them in
general and in this particular case.
4. The admission of guilt fine was
paid on 30 June 2008. The father says in his affidavit that he went
back to the police station
that night to query the procedure. Yet
their affidavits complaining about the admission of guilt were only
made in August 2014,
nearly six years later. This delay is
unexplained. If the admission of guilt were now set aside, the
accused could still be tried
for possession of dagga but the State
might well be hampered in presenting evidence by the accused’s
lengthy delay in challenging
the admission of guilt. The accused
should be required to deal with this delay.
5. Although the accused says in his
affidavit that he did not know he was admitting guilt, his signature
appears under a statement
that “I do hereby acknowledge that I
am guilty of the offence set out in the summons”. The accused
has not explained
this aspect of his conduct. He should be required
to do so.
6. In S v Cedras
1992 (2) SACR 530
(C)
the court said that one of the matters to be taken into account, when
considering the review of an admission of guilt, is whether
the
accused has an arguable defence if the admission were set aside so
that the deemed conviction is probably not in accordance
with justice
(532a-c). The accused does not in this case say that he was not in
possession of the dagga. It was apparently found
on the ground
nearby. The police claimed that they saw him throw it there. The
accused does not say in his affidavit that this
is untrue. What he
says is that he kept his silence. Again, this is something on which
the accused should be invited to elaborate.’
[7] On the same date I directed the
following letter to the Director of Public Prosecutions, Western Cape
(‘the DPP’):
‘2. I invite your office’s
comments on the case. There are three questions in particular on
which I would appreciate
your input (these are of general relevance
to reviews of this kind, where accused persons seek to have deemed
convictions arising
from admissions of guilt set aside).
3. Firstly, many admissions of guilt
and deemed convictions have presumably utilised a
s 56
notice in the
same form as in the present case. The notice itself does not explain
the consequences of signing an admission of
guilt but it does make
provision for a peace officer to certify that he has explained the
import of the document to the accused
(though the form in this case
spoke of “importance” rather than “import”).
Does your office consider that
the failure of the notice expressly to
set out the consequences of an admission of guilt per se vitiates the
deemed conviction
or would it depend on what the peace officer
actually explained to the accused and the other circumstances under
which the accused
came to sign the notice? If the propriety of the
deemed conviction depends on what the peace officer actually
explained to the
accused, the court should not in general be acceding
to review requests of this kind without input from SAPS.
4. Second, if the review court is
satisfied that the accused did not appreciate the consequences of
signing the admission of guilt,
should the court on that basis alone
set aside the deemed conviction or should the court enquire into the
merits of the conviction?
The Cedras case, mentioned in my query to
the magistrate, suggests that a relevant consideration is whether the
accused has an
arguable defence.
5. Third, what approach should the
court adopt in relation to the delays which often characterise these
cases? Sometimes the delay
is attributable to the fact that the
accused only realises, after the passing of several years, that he
has a criminal record.
However, the setting aside of the deemed
conviction after a number of years (in the present case, more than
six) may hamper the
State in a subsequent prosecution for the
offence.’
[8] I received the magistrate’s
reply on 2 February 2015, containing his own remarks as well as input
from SAPS Grassy Park
and from the accused’s father.
[9] The original J534 form was among
the documents included in the magistrate’s reply. The front
page of the form is the notice
to appear in terms of
s 56(1).
In red
print is a note (i) that the accused may admit guilt in respect of
the offence by paying the stipulated fine without appearing
in court
and (ii) explaining how the fine can be paid. On the reverse side of
the form provision is made for admission of guilt
in terms of
s 57.
The accused placed his signature on the reverse side under the words
(in Afrikaans): ‘I do hereby acknowledge that I am guilty
of
the offence set out in the summons.’
[10] The Station Commander at Grassy
Park says that the form J534 was explained to the accused, that he
signed the admission of
guilt thereby acknowledging that he was
guilty of the offence, that it was explained to the accused that the
money was not a form
of bail, and that if the accused had thought it
was a form of bail he would surely have enquired about the date of
appearance.
(It does not appear from this response whether the
Station Commander discussed the matter with the peace officer who
issued the
s 56
notice.)
[11] The accused’s father says
that his son is suffering from chronic anxiety and that he does not
wish to trouble him with
questions regarding the incident. The father
states that the incident was a frightening experience. On the merits,
he says that
his son was in possession of the illegal substance but
got rid of it before he was arrested – ‘He admitted to a
past
event which was not continuing as in the case of theft’.
He proceeds:
‘The fact that he got rid of the
illegal substance before the arrest was an act of getting rid of the
control and ownership
of the illegal substance and it remains a
question of would he have retaken control and ownership of the
substance if he was not
arrested? This nobody can answer as nobody
can foresee the future, and can only make a conclusion based on the
facts.
I never denied this fact that he was in
possession. I questioned the fact that he was arrested without being
in possession (control
and ownership of the substance) and it was a
matter of the time of the arrest. We live in a Western society based
on fairness and
time is of the essence in our society.’
[12] In his thoughtful response, the
magistrate states that in the overwhelming majority of cases of this
kind one only has the
word of the accused that the import of the
notice was not explained to him whereas one has a signed summons
indicating otherwise.
He says that in all the cases he has handled
over the years, accused persons complaining about the deemed
conviction say that they
were merely ordered to sign the form without
being told the reason or consequences. The Wynberg Magistrate’s
Court has 13
police stations within its area of jurisdiction. There
has been an ongoing problem of allegations by accused persons that
the police
do not properly explain the true effect of paying an
admission of guilt fine. The problem persists despite the use of an
updated
form which incorporates an annexure expressly stating that an
admission of guilt entails a conviction and criminal record (the
update followed the decision in Tong).
[13] The magistrate then makes the
following telling observations (my underlining):
‘I have for the period 1/01/2014
until 31/12/2104 received a total of 1413 admission of guilt fines
that were issued by the
Police. There was not a single case where the
admission of guilt fine was paid after the accused was released from
custody. They
were all paid on the same day and within hours after
being arrested. This regardless of the fact that the J534 summons
indicates
a date by when it should be paid. In the case of Mr
Houtzamer, the Honourable Judge will notice that he was arrested on
30 June
2008. The admission of guilt was paid on 30 June 2008 by his
father while the accused was still in custody. Yet the form indicates
that he has until 17 July 2008 to pay the fine, either at the Clerk
of the Court or at the Police Station. Failure to do so will
result
in him having to appear in court on 5 August 2008.
Regardless of the picture painted by
the paper trail from the Police with regard to the issuing of the
summons, it never happens
in practice. Accused persons are never
released to pay the admission of guilt later. The paying of the
admission is being used
to finalise the matter. This is a disturbing
practice. The majority of petty crime offenders, who are the ones who
qualify to pay
admission of guilt, are first offenders. People who
had never interacted with the police officer before and for whom the
experience
of being locked up, and even sometimes having to share a
cell with hardened criminals, must be a traumatic experience. These
individuals
and their families will under the circumstances do
whatever is necessary to secure the accused person’s release.
It is this
vulnerability that is being exploited in order to finalise
matters that sometimes may result in wrongful convictions.’
[14] The magistrate suggests, as a
solution, that while the
s 56
notice can continue to be issued at the
police station, the paying of the admission of guilt fine should no
longer be done there
but rather at the office of the clerk of the
court. The accused, if he wishes to admit guilt, can then attend at
some stage after
his release at the magistrate’s court in order
to pay the admission of guilt fine. Having been released from
custody, the
accused person would typically have about a month in
which to obtain legal advice and consider his options. One of these
options
would be to approach the State to divert the case from the
criminal justice system (I assume the magistrate here has in mind an
‘early intervention’ diversion in accordance with a
programme contemplated in
s 10(4)(i)
of the Prevention of and
Treatment for Substance Abuse Act 70 of 2008; and see also s 37 of
the said Act read with
s 255
of the
Criminal Procedure Act). He
says
most of the offenders in question are young people who do not realise
the devastating effect which a criminal conviction will
have on their
lives. Many of them pay an admission of guilt to hide the incident
from their parents.
[15] In regard to Mr Houtzamer’s
case, the magistrate adheres to his opinion that the admission of
guilt should be set aside
because the fine was paid by the father
without the accused’s knowledge and while he was still in
custody.
[16] Mr ADR Stephen SC of the DPP’s
office furnished a helpful memorandum in response to my query, the
views in which were
endorsed by the DPP. Mr Stephen’s comments
may be summarised thus:
(a) The absence, in the
s 56
notice, of
a detailed description of the explanation given to the accused, is
not per se fatal. When a person is arrested (as would
occur in a case
such as the present involving alleged drug possession), s 35 of the
Constitution requires the arresting officer
to explain the accused’s
rights to him or her. This is currently done in writing by way of
form SAPS14A. The accused is notified,
among other things, of his
right to remain silent and his right not to be compelled to make a
confession or admission which could
be used in evidence against him.
(b) While it may be correct that the
court should be reluctant to grant applications such as the present
one without hearing SAPS,
there are practical problems. Such
applications often arise long after the event, at a time when dockets
cannot be found and the
memories of police officers have faded. Where
the matter is more recent, it might be appropriate for the review
court to seek input
from SAPS if the circumstances suggest that this
would be desirable.
(c) The review court should not enquire
into the merits of the charge. The accused should be entitled to
relief if he can establish
that he paid the admission of guilt fine
in ignorance and wishes to defend himself in court. This flows from
the fact that every
person has a constitutional right to be presumed
innocent until his guilt is proved beyond reasonable doubt.
(d) Review applications of the present
kind are limited to petty offences and are relatively rare. Mr
Stephens has not observed
a marked increase in such applications, ie
he has not detected a trend suggestive of opportunistic reliance on
recent judgements
as to what police officers should tell the accused
in regard to admissions of guilt. The prejudice to the State in
trying to reinstitute
a prosecution after lengthy delay has to be
accepted.
[17] Even prior to the advent of the
Constitution, our courts always insisted that a fair procedure be
followed where an accused
is invited to consider paying an admission
of guilt fine. See, for example, S v Cedras
1992 (2) SA 530
(C) and S
v Price
2001 (1) SACR 110
(C), where the court laid down the
following guidelines which a review court will apply in such cases:
[a] Are there considerations
of equity and fair dealing which compel
the court to intervene to prevent a probable failure of justice? [b]
The accused must show
good cause for mistakenly or erroneously
admitting guilt. [c] The accused must show that, were the charge to
go to trial, he would
have a probable or arguable defence.
[18] More recently, in S v Parsons
2013
(1) SACR 38
(WCC) and S v Tong 2013 (1) SACR (WCC), this court, with
particular emphasis on constitutional values, has held that an
accused
person should be properly warned of the consequences of
signing an admission of guilt. See also S v Claasen
[2012] ZAFSHC
231
, S v Gilgannon [2013] ZAGPJHC 226, S v Mutobvu
2013 (2) SACR 366
(GNP) and S v Mokwele [2015] ZAGPPHC 14 where a similar approach was
taken in other divisions.
[19] Following the decision in Tong,
the J534 now incorporates an annexure, also signed by the accused,
expressly warning that if
he pays an admission of guilt fine he will
be deemed to have been convicted and sentenced and will thus have a
criminal record
and that by admitting guilt he will be waiving his
right to be sentenced only upon proof beyond reasonable doubt in a
trial in
which he would be entitled to confront his accuser, call
witnesses and have legal representation.
[20] Mr Stephen also annexed to his
memorandum a letter addressed on 28 September 2012 by the Provincial
Commissioner for SAPS,
Western Cape, to all Cluster Commanders,
Station Commanders and Provincial Heads in the Western Cape,
explaining the import of
the Tong judgment, stating that SAPS members
should ensure that the rights reflected in the new annexure to the
J534 were properly
explained to the accused and instructing them not
to use the payment of an admission of guilt fine ‘as a
bargaining instrument
to secure a release of an accused from
custody’.
[21] As already noted, the experience
of the magistrate in the present case unfortunately suggests that in
many instances police
station is still not giving effect to the
Provincial Commissioner’s letter.
[22] The relevant events in the present
case occurred before Tong and the changes implemented as a result of
that decision. The
affidavits of the accused and his father allege
that the true import of the J534 was not explained to the accused.
Indeed the latter
did not himself pay the fine; his father did.
Although the accused placed his signature beneath the acknowledgment
of guilt, I
would not regard as far-fetched the notion that he did so
without reading the form or understanding its contents. The same part
of the document records the receipt number for the fine. In all
likelihood the accused was only asked to append his signature once
his father had already paid the sum of R200. The accused may well
have regarded his signature as a formality.
[23] Although the Station Commander has
stated that the J534 form was properly explained to the accused, it
is not apparent whether
or not the Station Commander consulted with
the peace officer in question before providing the response. One
might also think it
somewhat unlikely that the peace officer would
specifically remember this incident, which occurred more than six
years ago.
[24] Furthermore, the Station
Commander’s response does not specifically state that the
accused was told that if he signed
the admission of guilt he would be
deemed to have been convicted and have a criminal record. The
magistrate’s recordal of
his experience strongly suggests that
the true import of admissions of guilt is routinely not properly
explained to accused persons.
[25] What I regard as particularly
significant is that the admission of guilt fine was paid while the
accused was still being held
at the police station. He was only
released once his father paid the fine. According to the magistrate,
this is invariably the
practice followed by the police as a means (in
the magistrate’s opinion) of finalising cases speedily. The
police are not
entitled to make payment of the fine a condition of
the release of the accused person from custody. Section 56(2)
specifically
states that the effect of a written notice in terms of s
56(1) is that if the accused is in custody he shall be released
forthwith.
The notice must specify a date on which the accused person
shall appear to answer the charge. The notice must also contain the
endorsement contemplated in s 57, part of which may include a
stipulation of the date by which the admission of guilt fine must
be
paid to avoid appearance (s 57(2)(a)). If a date by which the fine
must be paid is not stipulated, the fine, so it seems, can
be paid at
any time up to the date of appearance. Indeed, s 57(2)(b) states that
an admission of guilt fine may even be accepted
by the clerk of the
court (though not by the police) after the stipulated date or the
date for appearance has expired.
[26] In the present case a s 56(1)
notice was issued, from which it follows that the peace officer in
question must have believed
on reasonable grounds that a magistrate’s
court convicting the accused would not impose a fine exceeding the
prescribed amount.
In such circumstances s 56(2) entitles the accused
to his immediate release upon the issuing to him of the notice. Even
if the
accused person is aware of this guilt and believes he will be
convicted, there is no advantage to his signing the admission of
guilt and paying the fine forthwith (ie prior to his release), since
he will have at least until the date specified in the notice
to pay
the fine. In the intervening period the accused can, as the
magistrate has remarked, consider his options. I cannot believe
in
the present case that the accused’s father would have paid the
fine or that the accused would have signed the admission
of guilt at
the police station if they had been aware that the accused was at
liberty to leave and pay the fine at any stage during
the period 30
June 2008 to 17 July 2008.
[27] At the risk of stating the
obvious, a peace officer is not entitled to act on the basis that he
will only issue a s 56(1) notice
if the accused is willing to admit
guilt and pay the fine there and then. The use of the word ‘may’
in s 56(1) (‘…
such peace officer may … hand to
the accused…’) perhaps indicates that a peace officer is
not obliged to issue
a s 56(1) notice even though he has reasonable
grounds for believing that a magistrate’s court, on convicting
the accused,
would not impose a fine exceeding the prescribed amount.
(Police Standing Order (G) 341 states that police members should
normally
refrain from arresting a person if the circumstances
specified in s 56(1) are satisfied: see Minister of Safety and
Security v
Van Niekerk
2008 (1) SACR 56
(CC) para 19 note 13.)
However, and on the assumption that s 56(1) confers a discretion
rather than a power coupled with a duty,
the discretion must
nonetheless be exercised for a proper purpose. It would not be a
proper purpose for the peace officer to base
his or her decision to
issue the notice on the accused’s willingness or otherwise to
admit guilt and pay the fine immediately.
Such a purpose could never
be proper, because the peace officer’s objective would be to
use the threat of continued custody
to put pressure on the accused to
admit guilt (cf Erasmus v MEC for Transport, Eastern Cape 2011 (2)
367 (ECM) para 22). Furthermore,
the said purpose would be at odds
with the standard s 56(1) notice which, as in the present case,
records that the admission of
guilt fine can be paid by a specified
future date. It would also be in violation of the Provincial
Commissioner’s instruction
of 28 September 2012.
[28] In Cedras it was said that the
accused must demonstrate an arguable defence on the merits of the
charge. In the current constitutional
regime, however, I do not think
this should be regarded as a requirement, at least not invariably. As
Mr Stephen has pointed out,
an accused, even if he knows he committed
the offence, is entitled to require the State to prove its case
beyond reasonable doubt.
For any number of reasons the State may not
be able to adduce sufficient evidence and the accused might thus be
entitled to a discharge
at the end of the State’s case. And as
the magistrate has said, the State might be persuaded to drop the
charge or (in the
case of drug possession) divert the case from the
criminal justice system.
[29] I would simply add, in the present
case, that, in the absence of confirmation from the accused himself,
the court cannot be
certain that what his father says regarding the
offence is correct. The father’s view is clearly misconceived
if he believes
that a charge of drug possession could not succeed
merely because his son threw the dagga to the ground before the
police searched
him. However, the court does not know as a certain
fact that this is what occurred. Even if it did, the State might have
been persuaded
not to pursue the charge.
[30] For these reasons I consider that
the accused’s admission of guilt was not in accordance with
justice and should be set
aside. It will be for the State to decide
whether to proceed with a prosecution.
[31] In my view the magistrate’s
suggested solution is one which warrants careful consideration by the
lawmaker. The problem
which has arisen in this and similar cases
could be avoided if the accused person were required to be released
before signing an
admission of guilt and paying the fine. The
magistrate’s suggestion is that the fine should have to be paid
to the clerk
of the court and that the police should not be entitled
to receive the fine. While this would ensure some separation, in
point
of time, between release and admission of guilt, it would come
with the potential inconvenience to the accused of having to travel
what might be some distance to the office of the clerk of the court.
An alternative might thus be to stipulate that an admission
of guilt
cannot be signed or the fine paid until a specified period has
elapsed after the accused’s release from custody.
This
procedure, together with the use of the updated s 56(1) form which
properly explains the import of an admission of guilt,
should be
sufficient to avoid injustice while preserving the convenience to the
accused of being able to pay the fine at the nearest
police station.
[32] In the meanwhile, the police
should not be surprised if the courts look askance, and set aside,
admissions of guilt signed
and paid while the accused is still in
custody.
[33] The following order is made:
[a] The accused’s admission of
guilt in terms of
s 57
of the
Criminal Procedure Act 51 of 1977
, made
on 30 June 2008, is set aside.
[b] The resultant entering in the
criminal record book of the particulars contemplated in
s 57(6)
by
the clerk of the court below is set aside and such particulars shall
be expunged from the criminal record book.
[c] The clerk of the court shall
procure that the fine of R200 paid by the accused on 30 June 2008 is
refunded to him within one
month of this court’s order.
HENNEY J
ROGERS J