About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Makhanda
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Makhanda
>>
2023
>>
[2023] ZAECMKHC 104
|
|
S v Mbalekwa - Review Judgment (CA&R 142/2023) [2023] ZAECMKHC 104 (5 September 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION,
MAKHANDA
CASE NO: CA & R:
142/2023
Delivered on 5
September 2023
In the matter between:
THE STATE
and
ATHI
MBALEKWA
REVIEW JUDGMENT
Bloem J
1.
The presiding magistrate sent the record of
proceedings before him on review with the request that the accused’s
conviction
and sentence be set aside since the accused was convicted
under a statutory provision when the facts admitted by him and on
which
he was convicted, did not support the conviction.
2.
The accused
was
charged with having contravened section 65(2)(a) of the National Road
Traffic Act 93 of 1996 (the Act), which provides that
no person shall
drive a vehicle on a public road while
the
concentration of alcohol in any specimen of blood taken from any part
of his or her body is not less than 0,05 gram per
100
millilitres, or in the case of a professional driver referred to in
section 32, not less than 0,02 gram per 100 millilitres.
3.
The accused’s legal representative
handed a written statement by the accused into court, in which the
accused set out the
facts which he admitted and on which he pleaded
guilty. The written statement was on a roneo form. Therein the
accused admitted
that on the day in question he drove a vehicle on a
public road. A traffic officer stopped him. He
furthermore admitted
that a specimen of his exhaled breath was
correctly taken and that “
the
specimen of my breath taken from my body was correctly analysed and
the concentration of alcohol in my breath at the time that
I drove
the said motor vehicle was 0.07 milligrams per 100 milliliters of
breath
.” The
magistrate was “
satisfied that the
accused is guilty and he is accordingly convicted as charged
”.
The accused was sentenced to pay a fine of R1 000 or undergo four (4)
months’ imprisonment of which R500 or
two (2) months’
imprisonment was suspended for three (3) years on condition that the
accused not be convicted of “
excessive
amounts of alcohol in blood in contravention of section 65(2)(a) of
Act 93 of 1996, committed during the period of suspension
”.
4.
I had a difficulty with the conviction in
that the admitted facts contained in the accused’s statement
under section 112(2)
of the Criminal Procedure Act 51 of 1997 did not
support a conviction under section 65(2)(a) of the Act. It
appears that
the intention was for the accused to be convicted under
section 65(5)(a) of the Act. He was not charged under section
65(5)(a),
which reads as follows:
“
No
person shall on a public road-
(a)
drive a
vehicle; or
(b)
occupy the
driver's seat of a motor vehicle the engine of which is running,
while the concentration of alcohol in any specimen of
breath exhaled
by such person is not less than 0,24 milligrams per 1 000
millilitres, or in the case of a professional driver referred
to in
section 32, not less than 0,10 milligrams per 1000 millilitres.”
5.
I requested the Director of Public
Prosecutions in Makhanda to express an opinion on the magistrate’s
request, particularly
whether the charge sheet could, at this stage,
be amended, since section 86 of the Criminal Procedure Act allows for
the amendment
of a charge “at any time before judgment”.
I also sought her opinion as to what should happen to the conviction
and
sentence if the charge could not be amended at this stage.
6.
The Director of Public Prosecutions
provided this court with an opinion prepared by Mr Maarman of that
office. I expressed
my gratitude to Mr Maarman for his helpful
opinion. He agreed that, on the facts which the accused
admitted and on which
he pleaded guilty, he could not have tendered a
plea of guilty under section 65(5)(a) of the Act. The
reason therefor
is that, for a person to be convicted under section
65(5)(a), the concentration of alcohol in any specimen of breath
exhaled by
such a person should not be 0.24 milligrams per
1 000 milliliters or more. The accused said that the
concentration
of alcohol in his breath when he drove the said motor
vehicle “
was 0.07 milligrams per
100 milliliters of breath
.”
The magistrate could not have satisfied himself that the accused was
guilty of an offence under section 65(5)(a)
because it was unclear,
on the accused’s plea, what the concentration of alcohol was in
his breath when he drove the vehicle.
7.
The opinion continued as follows:
“
4.
The fault lies not with the charge sheet but with the shoddy
draftsmanship of the plea. It is unknown
what was read into the
record by the accused’s legal representative as it was not
recorded.
5.
In the circumstances, based exclusively on the written plea, the
magistrate could not have been
satisfied of the accused’s guilt
on a charge of contravening section 65(2)(a) of the Act, even though
an attempt was made
by the accused’s legal representative to
adapt the form to reflect that the accused was pleading guilty to a
contravention
of section 65(2)(a) rather than section 65(5)(a) of the
Act.
6.
It is submitted that the conviction and sentence should be set aside
and the matter remitted to
the trial magistrate to clarify with the
accused’s legal representative to which section of the Act the
accused intended
to plead guilty. If the intention was always
to plead guilty to a contravention of section 65(2)(a) of the Act, as
seems
to be the case, the plea must be amended to reflect that a
specimen of blood, and not breath, was drawn from the accused
.”
8.
I agree with Mr Maarman that the conviction
and sentence should be set aside. However, I do not agree that
the matter be remitted
to the trial magistrate the Director of Public
Prosecutions should decide whether or not the accused should be
recharged and, if
so, under which section of the Act. If he is
recharged, he must appear before a magistrate other than the
magistrate who
convicted and sentenced him. If convicted, the
period of imprisonment that the accused might have served, should be
taken
into account when he is sentenced.
9.
In the result, it is ordered that the
accused’s conviction and sentence be and are hereby set aside.
GH BLOEM
Judge of the High
Court
I agree.
NG BESHE
Judge of the High
Court