About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2019
>>
[2019] ZAGPPHC 263
|
|
S v Mohlapi (86/2019) [2019] ZAGPPHC 263 (19 June 2019)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 86/2019
SR 2/2019/JC
19/6/2019
In
the matter between:
THE
STATE
APPELLANT
and
MBUSO
WILLIAM
MOHLAPI
RESPONDENT
JUDGMENT
KUBUSHI
J
[1]
This is a special review application in
terms of section 304A of of the Criminal Procedure Act 51 of 1977
("the
Criminal Procedure Act"
;), filed by the Additional
Magistrate R. M. Motsogi for the district of Ekurhuleni South East
held in Tsakane ("the magistrate").
[2]
The relief in the review application is
sought under the circumstances where the accused, Mbuso William
Mohlapi, a 39 year old male
person was erroneously convicted by the
magistrate of two counts, namely, culpable homicide, and the
contravention of section 63
(1) of the National Road Traffic Act, No
93 of 1996 (negligent driving).
[3]
The two purported offences were actually
one offence in that in the charge sheet the offences were pleaded in
the alternative, that
is, the accused was charged with culpable
homicide,
alliteratively,
the
contravention of section 63 (1) of the National Road Traffic Act
(negligent driving).
[4]
The magistrate realised after the case
was postponed for sentencing that there was an error in that the
accused was convicted on
the main count of culpable homicide and
alternative count. As a result thereof, the matter was sent on review
to this court, in
order to correct the conviction. The accused is
said to have been legally represented during the proceedings.
[5]
The matter was referred to me as the
reviewing judge for adjudication. I, in turn, referred the matter to
the office of the National
Director of Public Prosecutions ("NDPP")
for input and comment. In the response from the office of the NDPP,
it is recommended
that the conviction of the accused on the main
count of culpable homicide be confirmed. The conviction on the
alternative count
of contravening the provisions of section 63 (1) of
the Road Traffic Act (negligent driving) be set aside; and the matter
be referred
back to the magistrate for purpose of sentencing. I am in
agreement with the reasoning by the NDPP as to such recommendation
and
that an order in that regard should be granted.
[6]
Section 83
of the
Criminal Procedure Act
allows
for the accused to be charged in the alternative with the
commission of any number of offences. The accused in this matter was
charged with culpable homicide as the main count and contravening the
provisions of section 63 (1) of the National Traffic Act
(reckless/negligent driving) as the alternative charge. Naturally,
the intention of the State, where there is an· alternative
count, is to request a conviction on one of the counts, that is, the
main count or the alternative count, and not on both.
[7]
It is trite law, and accepted practice,
that a charge of contravening the provisions of section 63 (1) of the
National Traffic Act
is normally put as an alternative to the charge
of culpable homicide. If the accused is convicted on both counts, as
is the case
in casu,
can
it be said that such a conviction is a duplication of convictions?
[8]
Firstly, both convictions, in this
matter, arise from the same facts. Secondly, in the case of culpable
homicide the State must,
inter alia,
prove beyond reasonable doubt that
the accused drove negligently and that it is as a result of such
negligence that the death of
the deceased followed. In negligent
driving, the State must still,
inter
alia,
prove, beyond reasonable
doubt, that the accused drove the motor vehicle negligently under the
circumstances.
[9]
Thus, the application of the evidence
test to the circumstances pertaining in this matter establishes that
the elements of the two
offences do not differ. I am, therefore,
convinced that the conviction on the alternative count should be
squashed.
[10]
In the circumstances, I make the
following order:
1.
The
conviction of the accused on the main count of culpable homicide is
confirmed;
2.
The
conviction of the accused on the alternative count of contravening
section 63 (1) of the National Traffic Act No. 93 of 1996
(negligent
driving) is set aside; and
3.
The
matter is referred back to the magistrate for the district of
Ekurhuleni South East held at Tsakane for purposes of sentencing.
E.M. KUBUSHI
JUDGE OF THE HIGH COURT GAUTENG DIVISION,
PRETORIA
I
agree and it is so ordered.
N.M.
MAVUNDLA
JUDGE
OF THE HIGH COURT GAUTENG DIVISION, PRETORIA