Recent Case: Criminal procedure

• Jurisdiction: South Africa
• Date: 24 May 2019
• Citation: (2007) 20 SACJ 92
• Author: Michael Cowling
• Pages: 92-110
• Published date: 24 May 2019

Criminal Procedure

MICHAEL COWLING

University of KwaZulu-Natal

Admission of guilt — payment of fine

In S v Makolane 2006 (1) SACR 589 (T) the accused was charged with

the theft of two bags of cement. As a means of securing his attendance

at court he was issued with a notice in terms of s 57A(1) of the Criminal

Procedure Act 51 of 1977 which gave him the opportunity to admit his

guilt and pay a fine in the sum of R300. The accused was prepared to

admit guilt and duly paid the R300 stipulated fine. This was subsequently

confirmed by a magistrate.

The senior magistrate objected to this approach on the grounds that

an inquiry had not been conducted post-conviction but prior to sentence

in order to determine whether the accused person was unfit to possess a

firearm. An obligation to make this determination arose from s 103(1)(g)

of the Firearms Control Act 60 of 2000 which stipulates that, unless the

court determines otherwise, a person becomes unfit to possess a firearm

if convicted of any offence involving violence, sexual abuse or dishon-

esty, for which the accused is sentenced to a period of imprisonment

without the option of a fine. However, s 103(2) further stipulates that a

court which convicts a person of an offence referred to in Schedule 2

(and which is not an offence contemplated in 103(1)) must enquire and

determine whether that person is unfit to possess a firearm. Paragraph

7(c) of Schedule 2 lists any offence involving violence, sex abuse or dis-

honesty in respect of which an accused was not sentenced to a period

of imprisonment without the option of a fine. On the other hand,

s 57A(1) of the Criminal Procedure Act 51 of 1977 enables a public pro-

secutor to allow an accused who, prior to the trial, is willing to admit

guilt to pay a stipulated fine, provided that the prosecutor believes on

reasonable grounds that a magistrates’ court, on convicting the accused

of that offence, will not impose a fine exceeding the amount determined

by the Minister from time to time by notice in the Gazette. The current

92 SACJ *(2007) 1

(2007) 20 SACJ 92

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amount determined by the Minister is R5000 (by notice in the Govern-

ment Gazette 24393 of 14 February 2003).

Thus, notwithstanding that a prosecutor had determined that a fine of

R300 would be an appropriate sanction for the offence, and hence

s 103(1)(g) of Act 60 of 2000 would not be applicable (since this requires

that an accused must be sentenced to a period of imprisonment without

the option of a fine), it was contended by the senior magistrate that an

inquiry should have been held in terms of s 103(2) of Act 60 of 2000 in

order to determine whether the accused was unfit to possess a firearm.

This means that the accused should not have been permitted to plead

guilty and pay the R300 fine.

But the court determined that the main difference (and distinction)

between s 103(1)(g) and s 103(2) of Act 60 of 2000 is that the former (in

a situation where an accused commits an offence involving violence,

sexual abuse or dishonesty and is sentenced to a period of imprisonment

without the option of a fine) renders an accused automatically unfit to

possess a firearm — unless the court determines otherwise. However, as

regards s 103(2) it is necessary for the court to hold an inquiry to deter-

mine whether the accused is unfit to posses a firearm. Without linking

this to s 57A of Act 51 of 1977 the court determined that the additional

magistrate was correct in confirming the conviction and payment of the

fine.

The essential difference between ss 103(1) and (2) of Act 60 of 2000 is

that in the former the onus rests on the accused to show that he or she

is fit to possess a firearm. Thus, there are no ‘automatic’ consequences

of unfitness to possess a firearm flowing from this provision. A court is

empowered to ‘determine otherwise’ in the sense that such accused is

still fit to possess a firearm. This determination would have to be pre-

ceded by some form of enquiry but, because of the seriousness of the

offence, the onus would be on the accused to show fitness.

Section 103(2) of Act 60 of 2000 deals with less serious offences and

hence in regard to any determination of unfitness, the onus would rest

on the prosecution. However, this does not mean to say that this provi-

sion trumps the admission-of-guilt procedure set out in s 57A of Act 51

of 1977. As pointed out by the court, the purpose of s 57A of Act 51 of

1977 ‘is to dispose of matters in the magistrates’ court as speedily as pos-

sible, particularly if the offence was not of a very serious nature’ (at

592c). If conviction of any offence in Schedule 2 of the Act 60 of 2000

needed to be preceded by an enquiry into the fitness of the accused to

possess a firearm it is submitted that this important purpose of s 57A of

Act 51 of 1977 would be essentially negated.

Recent cases 93

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