South Africa: High Courts - Gauteng

         This matter has been sent for special review by the clerk of the magistrate's court of Namakgale, accompanied by written representations by the accused. These representations are dated 17 August 2005 and are made under oath.

         From the affidavit by the accused the following facts are apparent, even if only in outline:

(a)      he was charged with one count of assault with intent to do grievous bodily harm;
(b)      it was apparently alleged that he had abused a minor;

(c)      the accused attaches a copy of the charge-sheet prepared against him on 15 January 2003. In it, it is alleged that he assaulted one Precious Tembe with a stick, thereby inflicting upon her certain wounds and injuries with the intent to cause grievous bodily harm.
(d)      The accused appeared on 22 January 2003 in Namakgale, accompanied by his attorney.
(e)      Bail was granted, and the case against him was remanded to 10 March 2003.
(f)      0n that morning, the control public prosecutor informed the accused that the complainant had communicated to the authorities that she intended to withdraw the matter, but that the prosecutor was not prepared to do so.
(g)      He offered an alternative of an admission of guilt fine of R300,00 to the accused, which the accused accepted and paid.
(h)      The matter was then withdrawn from the formal court roll.
(i)      In January 2005, the accused was apparently involved in a labour dispute. He appeared before the CCMA.
(j)      He was then informed that the admission of guilt fine was regarded as a previous conviction.
(k)      The accused contends that he has not had a fair trial, as he was misled by the public prosecutor (if I understand his affidavit correctly).
(l)      He now contends that he could have been acquitted and that he had a proper defence at all times.
(m)      He suggests that the conviction and sentence ought to be set aside.

         When the matter was referred to the office of the Director of Public Prosecutions, a somewhat ambivalent approach was adopted. Senior State Advocate V L N Davhanna suggests that the complaint be dismissed, and that the admission of guilt and the payment of the fine ought to be confirmed, while the Deputy Director of Public Prosecutions, Ms E Leonard SC, appears to incline to the view that a proper review application ought to be brought.

         The present matter does not qualify as a special review. There is no obvious irregularity which was committed either by the presiding officer or the prosecutor, and no reviewable sentence was imposed, so that the automatic review process in terms of section 302 of Act 51 of 1977 is also not available.

         If the accused is indeed of the view that he was misled, that he incorrectly indicated that he was guilty of an offence which he did not commit and that he wants to eradicate this blemish on his character, he must launch a proper review application in terms of rule 53 of the rules of the High Court. In such application, he must obviously provide a full and complete background to the occurrences that led to his appearance in the magistrate's court. He must set out his defence, and must also join not only the state, but the complainant and the presiding officer as respondents.

         He must provide a full explanation why he paid an admission of guilt fine in respect of a very serious allegation, if in fact he was as innocent as he claims he is.

         He must then make out a case that he was bona fide of the view that payment of the admission of guilt would not constitute an acceptance of the correctness of the allegations against him. Furthermore he must explain why he was under the impression that the admission of guilt fine paid by him would not, once accepted by the state, be recorded as a previous conviction. He must then indicate why the interests of justice would demand that the admission of guilt be set aside and, presumably, the matter should be referred to the trial court for trial.

         Unless and until the accused takes these steps, the conviction as constituted by the admission of guilt fine must stand. Neither the trial court nor this court has, at present, any jurisdiction to interfere with it.

         A copy of this judgment is to be served upon the accused by the police.

                                                               E BERTELSMANN
                                                               JUDGE OF THE HIGH COURT

                                             I agree


                                                               R D CLAASSEN
                                                               JUDGE OF THE HIGH COURT
68-2003

IN THE ORDINARY COURSE OF EVENTS