Month: January 2018

First-time offenders and serious criminal road traffic offences

A recent question posted on the Facebook group, Legal Talk SA has again highlighted the fact that few people understand the practical implications of being convicted of a crime – more especially when that crime relates to a road traffic offence. For some bizarre reason, it appears that a great many people do not regard road traffic offences as constituting a crime, but the fact of the matter is that nothing could be further from the truth.

It’s very easy to give other people advice when the consequences which will befall the person asking for advice don’t have any effect on you. As a result, one often finds advice being dished out on social media, and whilst much of this advice may be well-intended,  some of it can have an adverse effect on the person who places their reliance in that advice.

Below is some competent practical advice which will put anyone who stands accused of a road traffic crime in a better position to understand how they should go about dealing with the matter. It must also be noted that as much as this advice applies to road traffic crimes, it also applies to most other crimes for which the offender is arrested and fingerprinted, particularly where those crimes are regarded as being “minor crimes”, like disturbing the peace, for example.

The question posed in the Facebook group was as follows:

“Need an urgent help, I know I messed up, I got arrested for driving 143km/h in 100km/h zone, was released on bail same day, problem is that I was arrested in Ngodwana however I stay in Johannesburg, have been given a court date to attend in Nelspruit which is very far from Johannesburg, what I’m interested in is that what will be the judge Vedict be, how much fine, should I bring the fine the same day or I can pay in installments?”

No-one can accurately predict what the verdict of a Court will be, nor can they accurately predict what penalty will be imposed by a judicial officer if the accused person is convicted. The sentence handed down by a judicial officer in Court and which could be a fine or imprisonment is only part of the story and part of the consequences which will befall you and therefore, one should not be too hasty in making a decision on how to approach such a matter.

The first thing that everyone needs to understand is that when you are arrested for a road traffic offence, regardless of what offence it may be, that offence constitutes a crime, and if and when you are convicted of it or pay an admission of guilt fine in relation to it, you will incur a criminal record which will reflect on the South African Police Service (SAPS) Criminal Records Centre (CRC) database. This will in turn adversely affect your employment prospects and could also result in the refusal of a travel visa.

It is a current policy requirement of the SAPS CRC that a docket number and the fingerprints of a convicted person must be submitted to it in order for such criminal record to be registered, and therefore, if you are arrested and your fingerprints have been taken, and you are then convicted or pay an admission of guilt fine for any crime, no matter how serious or minor that crime may be regarded to be, you will incur a criminal record. Such a criminal record will endure forever, unless you apply to have it expunged after ten years or successfully appeal the conviction at some time prior to that.

Obviously, the best way to avoid incurring a criminal record is to simply always obey the law, however if you do happen to break the law then you must be fully aware of the consequences which will befall you before you make any decision on how to handle the matter.

You should never forget though that it is the duty of the State to prove its allegations, not of the accused to prove his or her innocence and this principle is adequately articulated and catered for in Section 35(3) of the Constitution of the Republic of South Africa, 1996. Furthermore, the provisions of the Criminal Procedure Act, 1977 (Act 51 of 1977) apply.

Whilst judicial officers (Magistrates and Judges) do have the discretion to allow a convicted person to pay the monetary penalty (fine) by means of a deferred fine, meaning that the fine can be paid off in installments, whether the fine is paid immediately or in installments will have no effect on the fact that a criminal record will be registered and will prevail against your name.

There is an old adage that goes “a lawyer who represents himself has a fool for a client” and it must follow that if you are not a lawyer but still choose to represent yourself in a criminal matter, you are placing yourself at a severe disadvantage. As alluded to earlier, it is for the State to prove your guilt in a criminal trial and not for you to prove your innocence.

Not that long ago, both, Julius Malema and Zwelinzima Vavi proved that just because they were arrested for allegedly excessively high speeds, does not mean that the State could prove that they were guilty. It’s all well and good that some people have suggested that this arose out of the political nature of these individuals and/or out of legal technicalities”, but one must remember that the measurement of speed is a highly technical matter and therefore is subject to technical rules and issues.

Admittedly, not everyone has the money to splash out on expensive lawyers, but the decision of whether or not you wish to engage the services of a lawyer to represent you in a criminal matter cannot be made solely on your current ability to afford to engage a lawyer, but must also consider the financial impact which incurring a criminal record will have on you, if you are convicted.

But what if you know that you are guilty and want to minimise the time you need to appear in court?

Well, you may plead guilty immediately when you are asked to plead, and in so doing, save the prosecution the time and effort which would be spent on  proving its case, and in turn the Court’s time in hearing the matter. But as much as a judicial officer may appreciate you not wasting the Court’s time by attempting to “defend the indefensible”, and as a result, may reflect this appreciation by imposing a more lenient sentence, the fact still remains that a criminal conviction will have an adverse impact on your life, going forward.

If you are a first-time offender and are genuinely remorseful, the prosecution may well be willing to enter into a diversion programme agreement with you prior to the matter going to trial and in so doing, keep the matter outside of the Court. Although the National Prosecuting Authority (NPA) in the Free State is reluctant to enter into diversion agreements with persons accused of road traffic offences, the NPA in most of the other provinces is generally not averse to this concept in deserving cases.

A good diversion programme will contain a mix of community service, as well as remedial education, designed to correct the behavior of the offender, rather than punish him or her. Any accused person may approach the public prosecutor to enquire about his or her eligibility to be entered into a diversion agreement, but once again, it is advisable to have a lawyer make such an approach, to ensure that you don’t end up inadvertently admitting guilt and being prosecuted anyway, or have a diversion agreement go awry by being improperly handled.

Once you have entered into a diversion agreement, you will have to appear in court where the criminal charges against you will be provisionally withdrawn. Once all of the conditions of the diversion agreement have been met, the matter will be permanently withdrawn. For more information regarding diversion, please speak to NICRO.

JPSA strongly supports the concept of diversion programmes for first-time offenders, not because it is soft on crime or in any way believes that anyone should be allowed to act as they wish, but because it realises and acknowledges the severe impact that incurring a criminal record has on a person who may not necessarily have intended to embark on a career of criminality. The trouble with imposing a criminal record straight off the bat is that, in its practical implementation, it actively precludes people from employment and people who are precluded from employment will invariably have to either become self employed, sponge off relatives or become a career criminal in order to survive. This, in turn, is not in the interests of justice or society as a whole.

On the score of criminal record checks, it is JPSA’s view that employment agencies and others who, instead of going to the expense and effort of lawfully acquiring the criminal records of individuals through registered Automated Fingerprint Identification System (AFIS) service providers, choose to acquire this information through those who unlawfully check the ID number of the applicant against the SAPS Crime Administration System (CAS) should be shut down and prosecuted. The only legal way to check a criminal record is to do so based on the fingerprints of that person and all other methods are strictly unlawful and generally involve corruption of police officials.