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[2019] ZAFSHC 99
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S v Thakanyane (R29/2019, 882/18) [2019] ZAFSHC 99 (28 June 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Review No:
R29/2019
Magistrates Court Case
No: 882/18
In
the review between:
THE
STATE
versus
GOMOLEMO
THAKANYANE
CORAM:
NAIDOO ADJP
et
MOLITSOANE,
J
JUDGMENT:
NAIDOO, ADJP
DELIVERED
ON
:
28 JUNE 2019
REVIEW
JUDGMENT
[1]
This matter came before us on automatic review in terms of section
302 of the Criminal Procedure Act
51 of 1977 (CPA). The accused was
charged, in the Brandfort Magistrates Court, with contravening
section 59(4)(a)
of the
National Road Traffic Act 93 of 1996
, the
allegation being that he exceeded the general speed limit by
travelling at 141km per hour on a road where the speed limit
was 80
km per hour. The speed was recorded by a speed recording device,
operated by a traffic officer. The accused pleaded guilty
and after
the court questioned him in terms of
section 112(1)(b)
of the
CPA, he was found guilty and sentenced to a fine of Ten Thousand Rand
(R10 000) or Ten (10) months’ imprisonment,
which was
wholly suspended for three (3) years on certain conditions.
[2]
A query, in writing, was addressed to the magistrate enquiring if the
accused was asked about competence
and ability of the traffic officer
who operated the speed recording device, and whether the magistrate
satisfied himself that the
accused admitted the competence of the
traffic officer to operate such a device, in line with the Full Bench
decision of this Division
in S v Enoch Phuzi, Case number R254/2018.
In his response, the magistrate conceded that the accused was not
asked about
the competence of the traffic officer but that he rather
focused on the proper functioning of the device. The magistrate also
conceded
that the court did not satisfy itself that the accused
admitted the competence of the traffic officer to operate the device
in
question. The magistrate indicated that the guidelines set out in
Phuzi were not followed and requested that the conviction and
sentence be set aside.
[3]
On further perusal of the record, it is clear that the accused did
not admit that he knew it was unlawful
for him to travel at the speed
he did or that his transgression was punishable by law. The
magistrate embarked on a line of questioning
to extract information
that was completely irrelevant to the charge, for example, lengthy
questioning about the state of his mother’s
health after the
incident, and exactly which area in Mafikeng that he was coming from.
[4]
In Phuzi, the court held at paragraph 29 that
“
In
order to prove that the speed limit was exceeded the State would have
to prove that the speed measuring device was reliable for
the
purpose; that it determined and registered the speed accurately
and that it was properly set up in accordance with the
manufacturer’s
specifications. It is axiomatic that a properly trained person would
be able to set up the device in accordance
with the manufacturer’s
specifications.
It
was further held that a court cannot take judicial notice of the fact
that the person who operated the device is trained to do
so, and the
court ultimately found that
“
the
competence of the traffic officer to set up and operate the speed
measuring device must be admitted in order to prove that the
speed
was measured in accordance with the manufacturer’s
specifications”.
(paragraph
31)
[5]
In the light of the above, the court
a quo
, in my view, erred
in finding that all the elements of the offence were proven in order
to sustain a conviction. I am of the view
that both the conviction
and sentence cannot be sustained.
[6]
In the circumstances, the following order is made:
The conviction and
sentence in this matter are set aside
S.
NAIDOO, ADJP
I
agree.
P MOLITSOANE, J