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Jerome Levitz states: ‘In a world where instant gratification is the norm, the relatively simple act of paying an admission of guilt fine when presented as an alternative to an appearance in court, is often understandably perceived as a quick and easy way to extricate oneself from trouble with the law’ (Jerome Levitz ‘Be aware of the consequences of paying an admission of guilt fine’ (www.fluxmans.com, accessed 31-10-2022)).
It is common that you may find yourself in a scenario where you are accused of allegedly committing a criminal offence and are given the option of paying a fine for admitting guilt. Before you consider paying the fine, you must first comprehend what it entails and what the ramifications will be if you do so.
‘The South African criminal law is based on the constitutional right that every accused person … is presumed to be innocent until his/her guilt has been proven’ (Legal Wise ‘The consequences of paying an admission of guilt fine’ (www.legalwise.co.za, accessed 31-10-2022)). A court can find an accused guilty after a fair trial (s 35(3)), or an accused can acknowledge that they committed the alleged criminal act and that they are guilty via payment of admission of guilt.
‘57. Admission of guilt and payment of fine without appearance in court –
(1) Where –
(a) a summons is issued against an accused under section 54 (in this section referred to as the summons) and the public prosecutor or the clerk of the court concerned on reasonable grounds believes that a magistrate’s court, on convicting the accused of the offence in question, will not impose a fine exceeding the amount determined by the Minister from time to time by notice in the Gazette, and such public prosecutor or clerk of the court endorses the summons to the effect that the accused may admit his guilt in respect of the offence in question and that he may pay a fine stipulated on the summons in respect of such offence without appearing in court; or
(b) a written notice under section 56 (in this section referred to as the written notice) is handed to the accused and the endorsement in terms of paragraph (c) of subsection (1) of that section purports to have been made by a peace officer,
the accused may, without appearing in court, admit his guilt in respect of the offence in question by paying the fine stipulated (in this section referred to as the admission of guilt fine) either to the clerk of the magistrate’s court which has jurisdiction or at any police station within the area of jurisdiction of that court or, if the summons or written notice in question is endorsed to the effect that the fine may be paid at a specified local authority, at such local authority.’
‘57A. Admission of guilt and payment of fine after appearing in court –
(1) If an accused who is alleged to have committed an offence has appeared in court and is –
(a) in custody awaiting trial on that charge and not on another more serious charge;
(b) released on bail under section 59 or 60; or
(c) released on warning under section 72,
the public prosecutor may, before the accused has entered a plea and if he or she on reasonable grounds believes that a magistrate’s court, on convicting such accused of that offence, will not impose a fine exceeding the amount determined by the Minister from time to time by notice in the Gazette, hand to the accused a written notice, or cause such notice to be delivered to the accused by a peace officer, containing an endorsement in terms of section 57 that the accused may admit his or her guilt in respect of the offence in question and that he or she may pay a stipulated fine in respect thereof without appearing in court again.’
Considering the above, an admission of guilt fine allows an accused person to accept their guilt and pay the appropriate fine either without or after appearing in court. This implies that the criminal procedure is expedited and that a long trial is not required.
It is unfortunate that some people may pay the admission of guilt fine without committing the alleged criminal offence, only to discover the repercussions later. ‘The main consequence is that the accused admits that [he or she] did in fact commit the alleged criminal offence and that [he or she] is guilty. The Criminal Procedure Act clearly states that the payment of an admission of guilt fine will be the same as being convicted and sentenced in court.
This means that an accused will have a criminal record as it will be captured by the clerk of the magistrate’s court in the criminal record for admission of guilt fines. If the fine was paid at a police station, the relevant information and documents must be forwarded to the clerk of the magistrate’s court’ (Legal Wise (op cit)).
It is illegal to coerce an accused to pay a fee in exchange for an admission of guilt, or to give the impression that if the fine is not paid, the accused would be refused or denied bail. It should be noted that members of the South African Police Services often encourage accused persons to pay a fine.
As soon as a suspect’s fingerprints have been taken and a formal police docket has been opened, a person will get a criminal record should they pay the admission of guilt fine. However, it is crucial to note this excludes fines or penalties paid under the Administrative Adjudication of Road Traffic Offences Act 46 of 1998 (for example, should a person pay a regular speed fine, they will also have a criminal record).
‘If a criminal record arises from paying an admission of guilt fine, the criminal record will be valid for 10 years, which naturally has serious implications. If the admission of guilt appears on a person’s SAP69 (criminal record), that person may have trouble getting a visa to travel overseas, struggle to successfully apply for a firearm licence, struggle to get a job, etc.
If a person is, however, unaware that he got a criminal record by paying an admission of guilt fine, [the] High Court can be approached with an application to clear the person’s name. But such an application has obvious cost implications’ (VDT ‘What are the consequences of paying an admission of guilt fine?’ (www.vdt.co.za, accessed 31-10-2022)).
Similarly, as in the case of Mong v Director of Public Prosecutions and Another [2019] 4 All SA 447 (WCC), the applicant admitted to having paid an admission of guilt fine after being arrested for being in possession of dagga, however, he had no knowledge that after paying such fine he would acquire a criminal record. It was further not explained to him that he had an option to be released on warning or that bail could be paid. Henney J stated:
‘It would be prudent once again to have a look at the legal framework under which [admission of guilt] fines are paid in our law. In this regard, the provisions of section 57 of the CPA, in particular subsections (5), (6) and (7) should be noted:
“(5)(a) An admission of guilt fine stipulated in respect of a summons or a written notice shall be in accordance with a determination, which the magistrate of the district or area in question may from time to time make in respect of any offence or, if the magistrate has not made such a determination, in accordance with an amount determined in respect of any particular summons or any particular written notice by either a public prosecutor attached to the court of such magistrate or a police official of or above the rank of non-commissioned officer attached to a police station within the magisterial district or area in question or, in the absence of such a police official at any such police station, by the senior police official then in charge at such police station.
(b) An admission of guilt fine determined under paragraph (a) shall not exceed the maximum of the fine prescribed in respect of the offence in question or the amount determined by the Minister from time to time by notice in the Gazette, whichever is the lesser.
(6) An admission of guilt fine 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 magistrate’s court which has jurisdiction, and such clerk of the court shall thereafter, as soon as is expedient, enter the essential particulars of such summons or, as the case may be, such written notice and of any summons or written notice 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 examine 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: Provided that where the admission 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 admission of guilt fine exceeds the said determination be refunded to the accused concerned.”’
It was decided at para 84 that ‘the deemed conviction and sentence, after it had been entered into the criminal record book by the clerk of the court, was never placed before the judicial officer of the court for the district of Malmesbury’ as required in terms of s 57(7) above, resulting in the appellant not being properly convicted and sentenced. As a result, thereof, ‘the entry of the conviction and sentence onto the criminal record book and into the register of criminal convictions of the South African Police Services, [was] set aside’ (para 84).
Given the foregoing, the choice to pay an admission of guilt fine is one that should not be taken lightly. Especially if the accused person was not the one who committed the purported crime. The Mong case establishes a solid precedent and shows that the payment of an admission of guilt fine can be reviewed and set aside in certain circumstances, such as if it was paid without fully comprehending the ramifications. However, before deciding whether to set it aside, the courts will consider all relevant facts (Legal Wise (op cit)).
‘Although the payment of a fine may seem innocuous, there could be serious repercussions which may not be realised by the person who pays the admission of guilt fine’ (Levitz (op cit)). Thus, it is always advisable to seek professional legal advice first before making any admissions of guilt.
Dineo Caroline Machedi BCom Law LLB LLM (Medical Law) (UFS) is a legal practitioner at Thebe Attorneys and part-time law lecturer at the Central University of Technology Free State in Bloemfontein.
This article was first published in De Rebus in 2022 (Dec) DR 17.
