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Pinetown - In a precedent-setting move, a KwaZulu-Natal magistrate struck out a mandatory criminal record provision on an admission-of-guilt fine on Thursday after an advocate challenged him on the constitutionality of his speeding fine.
Criminal advocate JP van der Veen believed he had set a precedent for other motorists who had been made to sign admission-of-guilt fine annexures. These tell motorists they will receive a criminal record, as if they have been convicted and sentenced by a magistrate, when they pay the fine and sign the form.
Having a criminal record could affect people applying for jobs when a prospective employer screens them and could affect their chances of obtaining travel visas or emigrating, or being granted credit.
‘CONVICTED AND SENTENCED ‘
On Monday The Mercury revealed that the provision in the 37-year-old Criminal Procedure Act was already being used for courts to impose criminal records on motorists opting to pay such fines.
Pinetown motorist Andy Gardner told how he was fined R150 for travelling at 96km/h in an 80km/h zone, but on paying the discounted amount of R75 was told to sign a form stating he knew that by paying the fine he was deemed to have been “convicted and sentenced by the court”.
The annexure further read: “On payment of the above-mentioned Admission of Guilt fine, such conviction will appear on your criminal record.”
Gardner chose to fight his case in court.
Where the instruction came from for the Pinetown courts to start using the provision is unclear, but the director of public prosecutions has now ordered Durban’s metro police to change their stationery to advise motorists of the provision.
Another motorist, Freek Vermaak, said he had initially chosen to contest his R1000 fine, for crossing a solid barrier line, as he was not guilty. But he felt pressured into paying it.
He said a metro police officer at the court warned him that if he was found guilty in court, he would have his fingerprints taken and still get a criminal record.
“I was between a rock and a hard place”
“I was completely shocked at this revelation as I knew I was not guilty. I could not afford to waste another day off work to sit all day in court having to explain that I was not guilty of an alleged traffic violation, so I opted to pay the fine.”
Vermaak signed the form acknowledging the criminal record.
But yesterday, on being given the same annexure to sign, Van der Veen objected. His fine was R100 for travelling at 91km/h in an 80km/h zone.
“They told me that there was an annexure which basically amounted to me agreeing I would get a criminal record as if I had been convicted and sentenced. I refused and went to see chief magistrate Themba Sishi.
“I told him I was not prepared to sign it as it was unconstitutional.”
“He disagreed, so I told him I would bring an interdict in the high court to interdict him and his entire team as the courts draw a distinction between an admission-of-guilt fine and a conviction and sentence. So, by telling people that admitting guilt was the same as being found guilty in court, he was acting outside the powers of the court.”
After presenting him with the case law, Van der Veen said, Sishi agreed he could strike out the provisions relating to criminal records.
The form then stated that by paying an admission-of-guilt fine he lost the right to prove his innocence in court.
Sishi signed the amendment as well as the form and stamped it.
“If they did it for me they have to do it for everyone. I am effectively setting a precedent,” Van der Veen said.
He cited judgment in a previous case, Schierhout v Minister of Justice, which stated: “If the terms of an agreement are such as to deprive a party of his legal rights generally, or to prevent him from seeking redress at any time in the Courts of Justice for any future injury or wrong committed against him, there would be good ground for holding that such an undertaking is against the public law of the land.”
When approached for comment Sishi said the issue was confusing and that magistrates were now waiting to hear about the way forward.
NPA spokesman Natasha Ramkisson-Kara explained that admission-of-guilt fines were paid for small offences in an attempt to ease the court rolls.
Van der Veen advised that those who had already been given criminal records could try to stop the NPA enforcing them by approaching the court for an order setting aside the agreement on the basis that it was entered into under duress, and that it was an illegal agreement because it forced them to give up their rights in terms of the law
He warned, though, that it was difficult to get a criminal record cleared.