Paying an admission of guilt fine may get your criminal record expunged

Paying an admission of guilt fine could get your criminal record expunged. Minister of Justice and Correctional Services Ronald Lamola explained the circumstances during a written reply to African Christian Democratic Party (ACDP) MP Steve Swart’s Parliamentary question. 

Swart essentially asked Lamola whether he intends to introduce legislation in Parliament to amend the Criminal Procedure Act, Act 51 of 1977, and any other relevant legislation, to ensure that those who pay an admission of guilt fine for trivial offences do not incur a criminal record. Swart also asked by what date he envisages legislation to be tabled. 

Lamola said the payment of admission of guilt fines is an important mechanism of the criminal justice system, as it affords an opportunity to admit guilt for less serious offences and relieves the burden on the overloaded criminal justice system.

WILL AN ADMISSION OF GUILT FINE ACCOMPANY A CRIMINAL RECORD? 

Lamola said the issue of whether or not an admission of guilt will attract a criminal record is a matter which the department has been wanting to address and which will form part of a Criminal Procedure Amendment Bill. 

The Amendment Bill, however, has unfortunately been delayed due to the COVID-19 pandemic.

Currently section 57 of the Criminal Procedure Act (CPA), 1977 (Act No. 51 of 1977), provides for the admission of guilt in respect of the offence and for the payment of a stipulated fine without an appearance in court. 

Section 57A of the CPA, on the other hand, provides for the admission of guilt and the payment of a fine, after appearing in a court but before the accused has entered a plea in terms of section 106 of the CPA. In terms of section 57(6) of the CPA, where a fine was paid, the money, together with the summons or written notice to appear must be forwarded to the clerk of the magistrate court which has jurisdiction, and the clerk must complete the criminal record book for admissions of guilt, whereupon the accused is deemed to have been convicted and sentenced by the court in respect of the offence.

“The immediate practical effect of paying an admission of guilt fine is that the accused is excused from a court appearance and upon completion of the formalities as prescribed in section 57(6) deemed to have been convicted and sentenced by the court in respect of the relevant charge,” said Lamola. 

Not all admission of guilt fines attracts a criminal record, however. For example, section 341 of the CPA provides for the compounding of certain minor offences and for the payment of a fine in respect of minor offences listed in Schedule 3 to the CPA (these offences relate to by-laws and minor traffic offences). The payment of a fine in terms of section 341 of the CPA does not attract a previous conviction.

“In short, the CPA allows magistrates to set an amount on the spot on the admission of guilt. It is also worth noting that, since this is a judicial function, our Department has had engagements with the chief magistrates to try to get uniformity on such fines. There appears to be uniformity within magisterial clusters, but not necessarily uniformity between clusters,” said Lamola. 

Deputy Justice Minister John Jeffery, in an interview with eNCA, said; 

“The issue of not just with the COVID cases but with admission of guilt subtracting a criminal record is something we have been wanting to address and is something that I think is going to be in a judicial matters bill or should have been brought if we had not had COVID or had the elections but the idea would be for most admission of guilt matters not to have them getting a criminal record because sometimes due process is not properly followed, people feel pressurised to pay the fine and don’t realise they going to get a record which is going to affect their rights.” 

DRAFT LEGISLATIVE PROPOSAL 

A draft legislative proposal, in the form of the Criminal Procedure Amendment Bill will revise the current admission of guilt fine hierarchy as provided for in the CPA.

The draft legislative proposal, amongst others, provides for:

• The payment of fines that do not give rise to a previous conviction;
• The payment of admission of guilt fines that do give rise to previous convictions;
• The expungement of certain criminal records that results from the admission of guilt fines, as contemplated in paragraph (b);
• The expungement of criminal records that result from the admission of guilt fines that have been paid in respect of trivial offences pre the enactment of the proposed law;
• A process to identify and prescribe the offences, subject to Parliamentary approval, that will be subject to the payment of fines that do not give rise to a previous conviction; and
• A bettered review process in respect of the payment of admission of guilt fines that do give rise to previous convictions.

According to Lamola, the legislative proposal is at an advanced stage of completion and it is envisaged that a Bill will be out for public consultation process in October 2020.