Cape Town - A recent Western Cape High Court judgment has offered hope to hundreds of thousands of people with criminal records for petty crimes for which they paid admission of guilt fines, after the police were criticised for their failure to properly inform detainees of their rights.
The judgment was referred for review by Judges Robert Henney and Owen Rogers by the senior magistrate of Wynberg, in which he recommended that a conviction for possession of dagga be set aside.
Magistrate Clive Erasmus suggested police were fast-tracking cases by tricking detainees arrested for petty crimes into paying admission of guilt fines to secure their release.
People arrested for petty crimes should be released on a warning, before appearing in court. They should also be issued with a notice indicating that they can pay an admission of guilt fine before that court date, if they wish.
If they pay the fine, they get a criminal record, which stays with them for at least 10 years.
William Booth, chairman of the criminal committee of the Cape Law Society, cited shoplifting, the possession of a small quantity of drugs, common assault, crimen injuria and drunk driving as among the offences for which an accused gets the option of paying an admission of guilt fine. This excluded traffic fines, except where warrants of arrest were issued.
But Booth pointed out that these criminal records went unnoticed – until the person applied for a job, a travel visa, or asset finance. Lawyers and accountants who applied to be admitted would also have to disclose a criminal record, he said.
In most cases he had seen, the accused paid the fine without realising the consequences and while they were under the impression that the amount constituted bail, Booth said.
The recent judgment came in the case of Dane Houtzamer, who was 19 in June 2008 when police arrested him for possession of dagga. While in custody in the Grassy Park police station, he was handed a notice to appear in court. That notice indicated he could pay a R200 admission of guilt fine before July 17 that year.
A short while later, Houtzamer’s father arrived. He claims police told him he needed to pay the R200 to get his son released.
After he paid the fine, he realised what had happened and returned to the police station, only to be told that the matter had been finalised.
In August last year, they took the issue to the Wynberg Magistrate’s Court, arguing that the consequences of paying that R200 had not been explained.
Erasmus sent it to the High Court, with a recommendation that the conviction be set aside.
In correspondence with the judges, Erasmus wrote that in all the admission-of-guilt cases he had handled over the years, the accused had claimed they were ordered to sign the form without being warned of the consequences.
Last year, Erasmus said, he dealt with 1 413 admission-of-guilt fines issued by the police.
“There was not a single case where the admission of guilt fine was paid after the accused was released from custody.
“They were all paid on the same day and within hours after being arrested.”
It was “disturbing”, he wrote, that paying admission of guilt fines was being used to finalise matters.
In his judgment this month, Judge Rogers wrote:
“Although (Houtzamer) placed his signature beneath the acknowledgment of guilt, I would not regard as far-fetched the notion that he did so without reading the form or understanding its contents.”
Judge Rogers said Erasmus’s suggestion that fines be paid at court warranted careful consideration by the lawmaker. A possible alternative was to stipulate that a fine could not be paid until a period of time had lapsed.
He ordered Houtzamer’s conviction be expunged from the criminal record book, and that the R200 be refunded.
Judge Henney agreed.
Weekend Argus