Criminal Law in South Africa is based on the constitutional right that every accused person is presumed to be innocent until they are proven to be guilty. Any court can, after a fair trial, find that the accused person is guilty, alternatively, the accused person can admit to being guilty of committing the alleged criminal offence.
An admission of guilt fine, in terms of section 57 of the Criminal Procedure Act, 51 of 1977, allows an accused person to admit their guilt and pay the required fine. This effectively means that there is no need for a lengthy trial and spending a lot of money as the criminal procedure is cut short.
South Africa went into lockdown amid the Coronavirus pandemic on the evening of Thursday, 26 March 2020, after the country was declared to be in a National State of Disaster on 15 March 2020. The Disaster Management Act, 57 of 2002, allowed for and introduced new Regulations to the country to govern and combat the peculiar situation it found itself in together with the rest of the world.
A contravention of these new laws and Regulations meant that you could be arrested and detained, as they could easily be broken. These contraventions mean that you could incur substantial penalties. An accused person would then probably be offered to pay an admission of guilt fine.
Paying an admission of guilt fine means that you admit to being guilty of the alleged offence and could land you with a criminal record. It is not like paying a parking ticket. It is in essence the same as being convicted and sentenced in court. Criminal records come with lifelong negative consequences.
During lockdown, many South Africans were arrested for contravening lockdown Regulations and opted to pay the admission of guilt fine. This meant that they would have a criminal record for a trivial offence in some circumstances.
Many South Africans were arrested for illegally visiting premises or places closed to the public; illegally selling of alcohol and tabaco products (when it was still prohibited); going to work without a permit (when it was still necessary) and illegally leaving your premises outside of the curfew; to name a few.
This left many South Africans with criminal records. This means that ordinary South Africans will be unable to secure good jobs and earn a decent living in the future,amid all the retrenchments and people losing jobs across the country. Increasing unemployment will put more strain on the government and the economy of the country seeing the country dive deeper into debt in the future.
Not only this, but it also leads to overcrowding of jails and backlog on administration in the Criminal Justice Department. There are many stories of inhumane treatment of ordinary citizens during arrest and could also lead to the infringement of many constitutional rights of detained people. One could say that paying admission of guilt fines is paying away all your constitutional rights.
In terms of the Companies Act, 71 of 2008 (“Companies Act”)a director of a company may be disqualified from being a director of that company, and the court can prevent him/her from becoming a director of another company if they have a criminal record. Whether the Companies Act needs to be amended in this regard is another question of law. However, this could cause, along with the struggling economy at the moment, many companies to close down or at least lose more revenue as one or more directors paid an admission of guilt fine during lockdown causing them to obtain a criminal record and disqualified from being directors.
It is baffling that South Africa has not yet opted for administrative fines for contravening lockdown regulations rather than admission of guilt fines.
An administrative fine is a civil penalty imposed by a regulator (such as the government) for a contravention of an Act, Regulation, or by-law. It is issued upon discovery of an unlawful act/event and does not impose a criminal record on the contravening person.
The Netherlands and United Kingdom (the roots of South Africa’s civil and common law systems, respectively) are evaluated to identify the best practices for administrative penalties.
The introduction of administrative fines in South Africa and during the lockdown Regulations can avoid all the subsequent harm that admission of guilt fines are causing during this time.
It could alleviate many problems and injustices that lockdown has caused. A criminal record is lifelong, whereas an administrative does not have to be.
However, you can get rid of a criminal record, but it is not easy. You can apply for the “expungement” of a criminal record when:
- a period of 10 years has passed after the date of the conviction for that offence;
- you have not been convicted and sentenced to a period of imprisonment without the option of a fine during those 10 years;
- the sentence was corporal punishment;
- the sentence was postponed, or you were cautioned and discharged;
- the sentence was a fine not exceeding R20 000;
- the sentence was imprisonment with the option to pay a fine (not more than R20 000) instead of serving the period of imprisonment;
- the sentence of imprisonment was suspended wholly;
- the sentence was correctional supervision in terms of section 276(1)(h) of the Criminal Procedure Act;
- the sentence was imprisonment in terms of section 276(1)(i) of the Criminal Procedure Act;
- the sentence was periodical imprisonment in term of section 276(1)(c) of the Criminal Procedure Act; or
- proof is provided that your name has been removed from the National Register of Sex Offenders or the National Child Protection Register, if relevant.
It is arguable that an administrative fine will not be effective as people will not see the urgency in paying it. However, one could still enforce being arrested after a prescribed time of not paying the administrative fine and be detained, until it is paid, and this will create urgency. One could also impose a criminal record after numerous occasions of failure to pay the administrative fine which will create more urgency and see the fines being paid before criminal records are issued.
South Africans need to be made more aware of paying admission of guilt fines and the subsequent criminal records they impose. Criminal sanctions could be saved for the offenders found guilty of the most serious violations and/or repeat offenders.
An administrative fine aims to achieve voluntary compliance, rather than punish non-compliance, which is more in line with the government’s objectives during lockdown.
Please see the following article by one of our Directors, Sonja Tifloen, dealing with the expungement of a criminal record in South Africa for further reading: https://www.blcattorneys.co.za/articles/expungement-of-a-criminal-record/?fbclid=IwAR1vDaPHKRydzQkZbc47PKrVz9ADxR0i6dHBasxLuM1mdtQRsXOohNgLNqc
Author: Caldwyn Lewis