Durban - Motorists paying admission-of-guilt fines will soon incur criminal records as a provision in a 37-year-old apartheid-era law is quietly enforced.
Some may even already have criminal records because a clause in the Criminal Procedure Act of 1977 says paying a fine is the same as being convicted in court.
The provision has always been there, but is only now being implemented by some authorities.
Durban metro police have confirmed they will enforce it.
Pinetown motorist Andy Gardner was made aware of this when he went to pay a fine for speeding.
He was fined R150 for driving at 96km/h in an 80km/h zone, but did not receive the fine. However, on receiving a summons, he opted to pay the admission-of-guilt fine.
He said: “When I went to pay it, the cashier handed me a form which stated that, on payment, I would get a criminal record. I refused to sign this and decided I would rather appear in court and fight the charge.”
The form Gardner was told to sign said he acknowledged being informed that, by paying the fine, he was deemed to have been “convicted and sentenced by the court”.
It read: “On payment of the above-mentioned Admission of Guilt fine, such conviction will appear on your criminal record.”
After investigation, Gardner’s attorney told him this was in accordance with the law.
He wrote: “Unfortunately, as speeding is a criminal offence and you were issued with a criminal summons, you will get convicted if you pay the fine and this will show up on your record.
“In the past members of the public were not informed that, if they pay their fine, they will receive a record.”
Metro police spokesman Eugene Msomi confirmed the department had been told by the director of public prosecutions that it intended to “activate this provision in the law book”.
The police were told to “modify” their stationery to “conform with this change”.
“We have not yet effected it,” he said. “However, our new stationary shall reflect this change as per the director’s DPP’s request.
“We once again urge motorists owing traffic fines to take advantage of this period and pay their fines at the discounted incentive which is still under way.”
Asked why Gardner had already been asked to sign the notice, Msomi said his fine was issued by the provincial traffic authority.
The department of transport did not respond to numerous queries by The Mercury.
However, in 2011, the Pietermaritzburg High Court found that notices such as the one Gardner was asked to sign were “fatally defective”.
In a special review case in which a Baron Fynn paid a R100 admission-of-guilt fine in respect of a common assault charge, subsequently incurring a criminal record, the judge said the notice informing him of the criminal record had to conform to the Criminal Procedure Act and state the charges against him, the time and place of the offence, as well as the person against whom the offence was committed.
As Fynn’s notice did not state this, the conviction and the fine were set aside.
The police confirmed that someone convicted of a criminal offence had to have their fingerprints taken before it reflected on their criminal record.
Justice Project of South Africa chairman Howard Dembovsky wrote an advisory on section 57 of the act after finding out that the Ekurhuleni (East Rand) metro police were implementing it.
He explained that, as per the act, the criminal record must be registered against one’s name and ID number, despite not having a criminal docket registered by police and fingerprints not being taken.
“The first time you become aware of this may be when you apply for a job or a travel visa…”
This provision, in the “apartheid-era” act, was “draconian” and “highly prejudicial”, Dembovsky said. “Without trivialising the seriousness of road traffic offences, one has to ask if legislators in our constitutional democracy would seek to criminalise everyone who commits a road traffic offence; then it won’t be long before almost every South African driving licence holder has a criminal record.”
Although traffic departments might see this as a deterrent to would-be offenders, “simply waking up one day 37 years after the fact and suddenly imposing criminal records on people is somewhat ominous”.
The department of justice and the Kwazulu-Natal National Prosecuting Authority were both asked for comment on Sunday night but failed to respond.