Abstract
Admission of guilt fines in the light of procedural justice and crime control
Admission of guilt fines under section 57 (read with sections 54 and 56) of the Criminal Procedure Act 51 of 1977 (“the CPA”) provide a swift and effective measure to adjudicate a criminal matter. This is true particularly since the State is no longer required to present evidence to prove their case beyond a reasonable doubt. As there is no longer a formal trial, time and cost are both saved for the State as well as the accused. The accused additionally benefits from not being detained pending the outcome of a criminal trial.
Police officials are the primary agents tasked with administering admission of guilt fines. Prosecutors have limited or no involvement in the process but there is judicial oversight under section 57(7) as a judicial officer must examine the prescribed forms and documents before an accused is formally convicted. The forms and documents mostly relate to informing the accused of their constitutional rights under section 35 of the Constitution, including the right to a legal practitioner (and to consult that practitioner); to challenge their arrest in a court of law; their right to silence; their right against coerced admissions and confessions; and the right to be released if the interests of justice permit. Accused persons, axiomatically, also waive their right to a formal trial and therefore to adduce and challenge evidence. The accused, importantly, is required to sign the forms detailing their rights and waived rights. The police are further obliged to explain the accused’s constitutional rights as enumerated in the prescribed form and to ensure that the accused actually understands these rights. As mentioned, only once the judicial officer has examined the relevant documents and found that the process is in fact in accordance with justice, will the accused be duly convicted. Such a conviction, even though it was not obtained through a formal trial, will still constitute a previous conviction in terms of chapter 27 of the CPA. The judicial officer will then be functus officio and the matter will end there unless the matter is reviewed under either section 302 or 304 of the CPA.
Unfortunately, many accused persons do not fully understand the nature, scope and consequences of the payment of an admission of guilt fine. This is often due to the fact that they did not read the prescribed forms properly (or at all) or that the police did not, as they are obliged to do, properly explain the nature, scope and consequences of the payment of the fine to the accused. This is necessary particularly in a country such as South Africa, as a large proportion of the country is not literate. This situation is exacerbated by the fact that there is an inherent power imbalance between the accused and the State; and that the psychological and emotional turmoil of being in conflict with the law further deteriorates a person’s ability to properly explain oneself (which may reveal a possible defence) or understand the process that you are subjected to. Many people also misunderstand the nature of admission of guilt fines as some believe that they are paying bail and others believe that they are not actually convicted of the crime and thus the offence will not constitute a previous conviction. In some cases, this fact was only revealed upon applying for a job or housing.
These issues were highlighted in two recent cases, namely S v Elgin 2022 1 SACR 325 (WCC) and Hoosen v S (412/22) [2023] ZAWCHC 47. In both cases, the accused parties had signed the relevant forms and therefore formally admitted guilt. On review, it was alleged (in both cases) that the accused were not properly informed of the nature, scope and consequences of signing the prescribed forms. The accused in Hoosen alleged that he was under the impression that he had paid bail and only discovered that he had a previous conviction upon applying for a job. The accused in Elgin alleged that she did not properly understand what was occurring as she was on anti-psychotic medication and, due to her anxiety, wanted to be released from custody, and was not presented with any alternatives.
As accused persons are waiving their right to a trial, it must be ascertained that they are fully aware of the nature, scope and consequences of paying an admission of guilt fine. That is the only manner in which they may exercise “strong autonomy”. Admission of guilt fines further pose the risk of not properly balancing crime control and due process. As the former favours effectiveness and the finalisation of matters, proper attention to due process (the constitutional rights of the accused) may be neglected. Police officials should therefore apply the necessary degree of care when communicating with accused persons to ensure that their due process rights are protected – therefore avoiding convictions being overturned on review.
Some recent developments will however change the nature of some admission of guilt fines. The Judicial Matters Amendment Act 15 of 2023 (“the Amendment Act”) and the Cannabis for Private Purposes Bill B 19B-2020 (“the Cannabis Bill”) respectively allow for the payment of admission of guilt fines in certain instances but without such fines constituting a previous conviction. The Amendment Act amends the CPA and creates a framework which permits the Minister of Justice, in consultation with the National Director of Public Prosecutions, to declare certain offences which do not constitute previous convictions upon the payment of an admission of guilt fine. Several factors must be considered under section 57B of the CPA before this is done, including that the offence may not contain an element of violence; may not involve an offence relating to damage to property; and may not involve an offence relating to the physical, psychological or mental well-being of another. The Cannabis Bill, on the other hand, inter alia aims to criminalise certain acts associated with the unlawful use of cannabis. Certain offences, such as using cannabis in public or consuming cannabis in a motor vehicle on a public road, carry only a fine as a possible penalty. Such offences will also not constitute previous convictions. This is a welcome development that also removes the risk of an accused facing consequences that they were not aware of when they paid the admission of guilt fine.
Keywords: admission of guilt fines; crime control; Criminal Procedure Act 51 of 1977; due process
- This article’s featured image was created by Hasan Almasi and obtained from Unsplash.
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