By Dr Llewelyn Curlewis
The Western Cape High Court delivered a judgment in the matter of S v Tong 2013 (1) SACR 346 (WCC) on 7 September 2012. The matter related to a case where the appellant (Tong) paid an admission of guilt fine in November 2008 after he had been arrested on a charge of possession of dagga in contravention of s 4(b) of the Drugs and Drug Trafficking Act 140 of 1992 and was subsequently released from custody.
In 2011, Tong discovered that he had a criminal record as a result of the possession charge in 2008. The criminal record severely prejudiced him and limited his employment opportunities. Tong alleged that he had not been afforded an opportunity to present his defence in court or to adduce evidence in his defence and stated that he would have elected to defend the charge leveled against him had he known of the implications of paying the admission of guilt fine.
In an article, entitled: ‘Section 57 and 57A of the Criminal Procedure Act 51 of 1977 – use them with discretion’ 2008 (Apr) Society News, no 124 at p 8, I warned against the short-sighted, irresponsible and sometimes ill-considered payment of admission of guilt fines purely for the sake of expediting and finalising criminal proceedings, that is, basically using it as a nonchalant quick-fix method. Practitioners should not be confused by the sometimes artificial advantage created by these sugar-coated sections.
Section 56(1) of the Criminal Procedure Act 51 of 1977 (CPA) provides that, if a peace officer on reasonable grounds believes that a magistrate’s court will not, on conviction for that offence, impose a fine exceeding an amount determined in the Government Gazette by the Minister of Justice and Constitutional Development, he or she may issue a notice to the accused to pay an amount specified by the peace officer. Section 56(1)(d) of the CPA requires that the written notice must, inter alia, contain a certificate by the peace officer that he or she has handed the original written notice to the accused and explained the importance of the notice to the accused.
If an accused elects to pay an admission of guilt fine on being issued a written notice in terms of s 56 of the CPA, s 57 of the CPA will also apply, and the accused may admit his or her guilt without appearing in court by paying the fine stipulated on the written notice. Once the admission of guilt fine is paid by the accused, the particulars of the accused are recorded as a criminal record and the accused is deemed to have been convicted and sentenced by the court in respect of the offence concerned.
The practical implications of these sections of the CPA, as amended, are not always properly understood. In laymen’s terminology and also in legal jargon, the words ‘admission of guilt’, sounds perfectly descriptive, but this view would amount to seeing only the tip of the iceberg.
It is foreseeable that practitioners will come under fire in future because of these sections. This may even entail a possible claim for malpractice, due to the hasty acceptance of an admission of guilt fine (in the trend of following old habits), without carefully explaining and/or considering all the concomitant effects of such acceptance. Such a claim may possibly even arise from a failure to advise a client against paying the fine in certain circumstances. An admission of guilt fine is very often considered a quick fix, an easy way out, or a short-cut conclusion by defence practitioners and prosecutors alike, where it might – in fact – represent a significant threat.
It is well argued that ss 57 and 57A (inserted into the CPA by s 1 of the Criminal Procedure Second Amendment Act 85 of 1997), are for the benefit of both the justice system and the individual since they reduce overburdened court rolls, relax the stringent and non-user friendly adversarial court process and generally cut to the chase.
Section 57 provides for the admission of guilt in respect of the offence and for the payment of a stipulated fine without appearance in court. Section 57A, on the other hand, provides for the admission of guilt and the payment of a fine, after appearing in a court but before the accused has entered a plea in terms of s 106 of the CPA.
Section 57 may be used where a summons is issued under s 54 (s 57(1)(a) has been substituted by s 3(a) of the Criminal Procedure Matters Amendment Act 109 of 1984 and by s 6(a) of the Criminal Procedure Amendment Act 5 of 1991) or where a written notice under s 56 is handed to the accused.
The aim of this article is not to discourage the payment of admission of guilt fines in meritorious cases. Rather, it serves as a warning signal, suggesting a cautious approach to beg reconsideration by those practitioners and/or members of the public with an attitude of: I would rather pay an admission of guilt fine of R 1 000 now than try and convince a court of my innocence in a lengthy, frustrating and costly court case later.
The payment of an admission of guilt fine is based on the fact that an accused would be fully appraised of his or her rights and the consequences thereof before electing to do so. By electing to pay the admission of guilt fine, an accused waives a number of procedural rights that he or she would have had at a trial (including the right to be sentenced only after proof beyond reasonable doubt that he or she did in fact commit the offence, the right to confront his or her accusers and the right to call witnesses, etc).
The payment of admission of guilt fines is undoubtedly an important component of the criminal justice system, as it affords the opportunity to admit guilt for less serious offences and relieves the burden on the overloaded criminal justice system. However, the payment of an admission of guilt fine may and should not be used as a bargaining tool by the South African Police Service (SAPS) to effect the release of a person from custody. I submit that such an approach is unlawful.
In the Tong judgment, the court held that the accused person must be informed and warned by the police officer serving the notice that, should he or she elect to pay the admission of guilt fine, a conviction will be noted against his or her name. As a result, the court held that the existing written notice usually used (J 534 form) is inadequate and may not pass constitutional scrutiny.
The existing J 534 form does not mention the constitutional rights of an accused person, which must be highlighted and a police officer or attorney must surely warn the accused about the criminal record that he or she will have as a result of the decision to pay the admission of guilt fine. The court further held that the existing J 534 form must be amended to include this warning, and that the accused must also be informed that he or she will be waiving –
In order to comply with the abovementioned judgment, the SAPS recently drafted an amended J 534 form. However, it is important to note that the J 534 form is an official form of the Department of Justice and Constitutional Development and, as such, the SAPS is apparently not in a position to amend the form without the permission of that department. According to a memorandum by the National Police Commissioner, Riah Phiyega, dated 12-4-2013, consultations are currently taking place with the department on the amended J 534 form.
In the meantime, it is important that a member of the SAPS must inform an accused who is not legally represented and to whom a J 534 form is issued, of the following information:
Where the accused person is represented by an attorney, the obligation to explain the above-mentioned information is placed on the legal representative. As explained above, it is a loaded burden resting on such person.
In a number of cases I have recently been involved in, the client (the accused) elected to follow the review application route (similar to the Tong case) and elected to hold the former attorney, who had initially advised the client to pay the admission of guilt fine (without explaining the consequences), accountable for damages and costs.
In the case of a police officer, a SAPS member should make an entry in his or her pocket book, stating the information as set out above, and record that the accused person has accordingly been informed thereof. I suggest that attorneys should also record this in their file and even require the client to sign a document as proof that he or she was in fact informed.
Llewelyn Gray Curlewis LLM (Unisa) BLC LLD Cert Forensic Accounting (UP) is an attorney at Pieterse & Curlewis Inc in Pretoria. Dr Curlewis is the president of the Law Society of the Northern Provinces, a member of its criminal law committee and, vice-chairperson of the criminal law committee of the Law Society of South Africa.
This article was first published in De Rebus in 2014 (April) DR 24.
