Fourie v Minister of Justice and Correctional Services and Others (4607/2020) [2021] ZAFSHC 363 (28 October 2021)

IN THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Case number: 4607/2020

In the matter between: WILLEM CORNELIUS FOURIE Applicant And THE MINISTER OF JUSTICE AND CORRECTIONAL SERVICES 1st Respondent NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS 2nd Respondent FREE STATE DIRECTOR OF PUBLIC PROSECUTIONS 3rd Respondent MINISTER OF POLICE 4th Respondent

CORAM: DANISO, J et MZANA, AJ

HEARD ON: 12 AUGUST 2021

JUDGMENT BY: MZANA, AJ

DELIVERED ON: 28 OCTOBER 2021

[1] In this matter the applicant seeks an order for the review and setting aside of a conviction and sentence imposed upon him on 03 July 2013, in respect of a charge of defeating the ends of justice. He further seeks the expungement of his criminal record profile.

[2] Advocate K. Pretorius appeared on behalf of the applicant whilst Advocate M.B Mojake appeared for the respondents.

[3] It is not in dispute that,

► The applicant paid an admission of guilt (AOG) fine after being so advised by the Senior Public Prosecutor (SPP).

► His criminal record profile now reflects a conviction of defeating the ends of Justice, a crime in respect of which he was both charged and convicted with. The applicant instead was charged with contravening the provisions of Section 71(2) of the South African Police Service Act 68 of 1995 being unauthorised access of a computer or modification of a computer.

CONDONATION FOR LATE FILING OF THIS APPLICATION

[4] The respondents oppose the application and contend that the applicant's application for condonation was way past the prescribed time limits as it had been lodged after seven (7) years and not 180 days stipulated in PAJA.

[5] It was the applicant's case that he was unaware of his criminal record and only became aware during 2016 when he was re applying for employment at SAPS and acted immediately in order.to have his criminal record expunged.

[6] The applicant however, conceded during arguments that he initially incorrectly lodged his application for condonation in terms of the Institution of Legal Proceedings Act against certain organ of the state Act 40 of 2002 which provides for the recovery of debt against organs of state. It does not provide for the setting aside or review of an administrative action by an organ of the state, which is instead provided for in the Promotion of Administrative Justice Act 3 of 2000 (PAJA).

[7] Section 7(1) of the PAJA states that review proceedings must be brought without unreasonable delay and not later than 180 days after becoming aware of the impugned decision. However, Section 9 of PAJA provides that, "the period of 180 days referred to in section 7 may be extended for a fixed period by agreement between the parties or failing such agreement by the court or tribunal on application by a person or administrator concerned". The following principles and guidelines must be taken into account:

• Whether there are considerations of equity and fair de ling which compel the court to intervene in order to prevent a probable failure of justice.

• The applicant must show good cause that he mistakenly or erroneously admitted guilt.

• The applicant must show that he would have a probable or arguable defence, should the matter go to trial.

[8] I am satisfied that. the applicant has a reasonable explanation for the late filing of this application. Therefore, the application for condonation for late filling is hereby upheld.

[9] I now turn to the issue under review. It appears that the applicant was initially summoned to appear in court as per (J175) in terms of section 54 of the Criminal Procedure Act 51 of 1977 as amended (the Act) for contravening the provisions of section 71(2) of the South African Police Services Act,68 of 1995.

[10] On the 3rd of July 2013 and in accordance with section 57 of the Act, he paid an admission of guilty fine in the amount of one thousand rand (R1000.00) as directed by the Senior Public Prosecutor.

[11] According to the normal procedure the said fine was paid to the clerk of the court for processing after which the relevant documents were placed before the Presiding Officer in terms of section 57(7) of the Act. The presiding officer examined the documents and confirmed the conviction and the fine. The said documents were later handed in to the South African Police Services (SAPS) officer.

[12] Applicant avers that, he was never informed of the import of section 57 of the Act. It is his evidence that, the senior public prosecutor who assisted him on the day in question failed to, or never explained to him the consequences that would flow from his payment of the AOG fine, save to state that should he pay such fine, it would not be necessary for him to appear in court and that he would not be formally charged. In addition, he stated that this exercise would result in the recording of a previous conviction against his name. He also averred that had this been fully explained to him, he would not have paid the AOG fine because at all times he did not consider himself guilty of contravention of any offence, in that at all times he had been given the necessary consent to use the computer. Moreover, he had on previous occasions accessed the computer with permission, and that even on the day in question, he had been authorised to use the computer.

[13] Mr Mojake, on behalf of the respondents, conceded that the offence of defeating the ends of Justice was erroneously captured and recorded in the criminal record system (SAP69). He added that, the state had tried on numerous occasions to locate the applicant's charge sheet, and AOG documents to no avail. However, he argued that as a former employee of SAPS, the knowledge of the consequences of paying an AOG fine could be imputed to him and that he ought to have known same. He confirmed that even though the crucial evidence in this matter could not be placed before court, he was of the view that this court should accept that everything was explained to the applicant and that all had been done in accordance with justice.

LEGISLATIVE FRAMEWORK

[14] Section 57 of the Act, deal with admission of guilty and payment of fine without appearance in court.

The procedural rights and the admission of guilty states that, "by electing to pay an admission of guilty fine an accused waives several important procedural rights which he would have enjoyed at trial- most notable his rights to be sentenced only upon proof beyond reasonable doubt, that he did commit the offence in question".

[15] It is the duty of peace officer to inform accused of rights :and consequences. In this regard, see S v Parsons 2013 (1) SACR 38 (WCC) at [5] & [6]. Henny J concluded as follows in S v Tong 2013 (1) SACR 346 (WCC) at [25] (emphasis) "A peace officer must warn the accused of the consequences of paying an admission of guilty fine. As such, the accused must be informed that he/she will be deemed to have and convicted by the court with jurisdiction in respect of the offence in question. It must be furthermore explained to an accused that, if it is indeed the case, such conviction will appear on the accused's criminal record.

[16] It should be noted that payment of an AOG fine was not designed to trap the ignorant. It was designed to ensure that, certain trivial charges, in respect of which an accused person admits his guilt, may be disposed of speedily in order to lessen the burden of our already overloaded criminal justice system. This process should be a transparent one and should be in accordance with constitutional prescripts. In other words, it must be clear and documented that, after the rights the accused was apprised of his/her rights; he/she voluntarily opted to pay AOG fine. More often than not, the accused will pay AOG fine to avoid sitting in the dock and being subjected to full criminal court proceedings. It is trite that, the Magistrate should also be satisfied that the whole exercise and resultant payment of the AOG fine by the accused person were in accordance with justice.

[17] In this matter the state took an easy way to dispose of t e matter but failed to keep all the relevant record and documents regarding the matter. In the result, the court could not be furnished with convincing and full evidence that proves proper procedural compliance and whether all the requirements. were met where the applicant was advised to pay the AOG fine. To further exacerbate the issue, an incorrect offence was recorded in the applicant's criminal record profile.

[18] In the result, in the absence of any proof to the contrary by the respondents, the court is unable to find and does not find that the proper procedure as alluded to above was followed, resulting in gross irregularity.

[19] It is trite that the accused constitutional rights are paramount, and as such, a duty rests upon the state that there is no infringement of such rights that would include a right to a fair trial. Therefore, the state in this matter having failed to ensure proper application of section 57 of the Act, or having failed·to provide conclusive proof of compliance with that provision, cannot escape liability or backslash. Thus, the court is left with no option other than to conclude that the state in its eagerness to obtain speedy finalisation of the case, it grossly failed the applicant.

[20] Based on the above I make the following orders:

1. The conviction and sentence dated the 03 July 2013, is set aside.

3

The applicant's criminal record is expunged.

4

The respondents are ordered to pay the costs of this application jointly and severally.

L. MZANA AJ

I CONCUR

N.S DANISO J

On behalf of the Applicant Advocate K Pretorius Instructed by Kriek & Cloete Attorneys Bloemfontein On behalf of the Respondents Advocate M. B Mojake C/O State Attorney Bloemfontein