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Does paying an admission of guilt fine leave you with a permanent criminal record? by Dr Max Loubser

In 2010 a dispute between two hawkers, involving slaps and pushing, resulted in one of them, Lloyd Madhinha, being arrested, having his fingerprints taken, and charged with assault. The police then gave him a written J534 notice with a note saying that he could admit guilt and pay a R500 fine without a court appearance. Madhinha paid the fine and was released. Did that leave him with a criminal record?

The details were at the time entered in the criminal record book kept for admissions of guilt. A few days after the admission was signed and the fine paid a magistrate examined the documents. The police afterwards entered Madhinha’s name into the criminal record system, detailing his sentence as “AOG R500”.

Years later, when Madhinha applied to join Uber as a driver, he needed a police clearance certificate. The police then told him that his 2010 admission of guilt was “by law a conviction and sentence” and he could not get a clearance certificate. That meant he could not get the Uber job.

Madhinha then took the matter to court. He applied for an order to have the conviction and sentence set aside. He was now willing to challenge the evidence against him, to have the conviction and sentence set aside. In S v Madhinha two judges of the Western Cape High Court on 7 December 2018 delivered judgment on the matter. The judgment is of interest to everyone who has ever paid an admission of guilt fine.

The salient aspects of this case were the following:

  • Madhinha had not been informed of his rights and was held in prison, believing that paying the fine was the only way to be released from custody.
  • The judges noted that the payment of admission of guilt fines is contemplated only for “trivial offences”.
  • Under section 57(1) of the Criminal Procedure Act, No. 51 of 1977. (“the Act”) an accused may, without appearing in court, admit guilt in respect of an offence by paying a stipulated fine, if the summons or written notice is endorsed to the effect that the fine may be paid.
  • Upon entry of the essential particulars of such summons or written notice by the clerk of the court, in the criminal record book for admissions of guilt, the accused shall be deemed under section 57(6) of the Act to have been convicted and sentenced by the court in respect of the offence in question.
  • An admission of guilt in terms of section 57 differs from an unequivocal admission of guilt made in terms of section 217 of the Act. The admission of guilt made in terms of section 57 does not set out the facts of the offence which the accused admits to; and it is not required that the admission be confirmed and reduced to writing in the presence of a magistrate or a peace officer under section 217 (1) (a) of the Act.
  • The conviction and sentence under section 57 (6), as in this case, was not a verdict and not even a pronouncement by the clerk of the court. It is an automatic consequence of an administrative act performed by the court’s support services.
  • In such a case no-one considers the facts or any denial by the accused. It is a mechanism to settle trivial disputes between the state and an accused, to avoid a long trial procedure. The strength of the case against the accused is never tested.
  • The admission of guilt register is destroyed after a year, unlike the criminal record book, which is never destroyed.
  • According to Madhinha’s application to the Court he denied having assaulted the other hawker.The Court decided that an admission of guilt register referred to in section 57(6) is different from a criminal record book, which is a register used for criminal matters which are ordinarily heard in the magistrates’ courts. The conviction referred to in section 57(6) of the Act is not a conviction which the Head of the Criminal Record Centre of the South African Police Service (SAPS) or his or her designate should enter as a criminal record.The judgment, written by Judge Thulare, concludes as follows:
  • The appropriate way to deal with Madhinha’s application was to set the proceedings aside and let the state prosecute if it wished to prove his guilt.

“For these reasons, I find that the conviction of the accused in terms of section 57(6) of the Criminal Procedure Act, 1977 was not a conviction as envisaged in section 271 of the Act. A conviction and sentence following an entry into the admission of guilt record book by the clerk of the criminal court in the magistrates’ court is not a conviction whose record is permanent. It was not a conviction and sentence to be entered in the Criminal Record System by the South African Police Services. I further find that if the facts alleged by the accused are proved at trial, they stand as a valid answer to the charge against him. It appears to me that the proceedings were not in accordance with justice.”

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