About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2019
>>
[2019] ZAFSHC 122
|
|
S v Gama (R40/2019) [2019] ZAFSHC 122 (18 July 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Review
No: R40/2019
In
the matter between:
THE
STATE
and
NKOSINATHI
GAMA
CORAM:
MOLITSOANE,
J et MOROBANE, AJ
JUDGMENT
BY:
MOROBANE,
AJ
DELIVERED
ON:
18
JULY 2019
[1]
The
matter was sent on automatic review by the Magistrate, Kroonstad. She
convicted the accused of contravening section 59 of the
National Road
Traffic Act 93 of 1996 (“the Act”), exceeding the general
speed limit, and sentenced him as follows:
“R4 000.00 (four
thousand rand) fine or to undergo eight (8) months imprisonment, ½
(half) suspended for 3 years on
condition that Accused is not
convicted of contravening s 59 of Act 93 of 1996 committed during the
period of suspension.”
[2]
The
brief facts are that, the accused was driving on the N1, a public
road in the magisterial district of Kroonstad. He was caught
on a
speed trap driving at 130 km per hour. The traffic officer measured
the speed at 177 metres. He pleaded guilty to the charge
and was not
legally represented during the proceedings.
[3]
My
sister Opperman J caused a query to be sent to the Magistrate,
formulated as follows, among others:
“
1.1
The record is not proper. The typed version does not correlate with
the hand written version. Please ensure that
the record is in order
before it is re-send.
1.2
Is
conviction of the contravention of section 59 correct since section
59 has in the least four subsections, some of which are irrelevant
to
the offence. The charge sheet only refers to section 59, was the
charge sheet correct in the first place?
1.3
The
certificate of veracity indicates that some parts of the record were
not audible and others could not be understood by the transcriber.
What is the effect of thereof on the administration of justice?
1.4
The
presiding officer must supply reasons for the application of
section
112(2)
of the
Criminal Procedure Act 51 of 1977
. Were the proceedings
in accordance with the prescribed law? If not, what is the effect
thereof on the conviction?
[4]
The
Magistrate has responded to the query to which we are grateful. She
conceded that the typed record differs with the original
one and
regrets the oversight. We are satisfied that the insertion of
R4000.00 (ten thousand rand) in the J4 Form was an oversight.
[5]
In
regard to the charge, the Magistrate confirmed that the correct
charge should read ‘
section 59(1)
of Act 93 of 1996 read with
regulation 292 of the National Road Traffic Regulation, 2000.’
Other subsections, she accepted,
should have been clearly stated at
the time when the charge was put to the accused.
[6]
The
charge to which the accused pleaded guilty was not specific. He was
charged of contravention of s 59 of the Act which deals
with speed
limit and has four subsections. The charge was not clearly stated
when it was put to the accused. In her response to
the query, the
Magistrate stated that:
‘
The
charge should have expressly provided that the charge is in terms of
section 59(1) read with regulation 292 for the applicable
speed
limit. Other subsections like 59(4) and 89(1) that relate to the
prohibitive and the creation of an offence respectively
should have
been clearly stated when the charge was put to the accused.’
[7]
In
view of the above, section 54(1) reads:
‘
(1)
The general speed limit in respect of –
(a)
every
public road or section thereof, other than a freeway, situated within
an urban area;
(b)
every
public road or section thereof, other than a freeway, situated
outside an urban area; and
(c)
every
freeway, shall be prescribed.
[8]
If
the subsection is properly analysed, there can be no contravention on
the part of the accused. Surely the authorised bodies have
caused the
road signs to be displayed in a prescribed manner. The provisions of
subsection (4) is the most relevant in this case.
The manner in which
the charge was formulated and put to the accused casts doubt as to
whether or not he was correctly charged
in the first place. To what
exactly did he plead guilty. Did he contravene the whole section 59
of the Act or certain subsections
thereof? Such an ambiguity affects
the accused person’s right to a fair trial.
[9]
I
n
S
v Pelser
[1]
the court referred to the exceeding of a speed limit as a criminal
offence that attracts heavy sentences and should be regarded
as
serious. The seriousness of the offence required strict adherence to
the criminal procedural requirements. In casu, the latter
was indeed
lacking. It then follows that the accused person’s right to a
fair trial was infringed.
[10]
Again,
the unrepresented accused was questioned in terms of s 112(2) instead
of s 112(1)(b) of the Criminal Procedure Act (“the
CPA”).
In
DPP,
Gauteng, Pretoria v Hamisi
[2]
Dambuza JA pointed out that ‘s 112(2) regulates guilty pleas
made in writing, whereas s 112(1) governs the conviction and
sentence
of an accused on a verbal plea of guilty’. The Magistrate
confirmed in her response that the explanation of rights
was in
accordance with s 112(1)(b) which was wrongly recorded as s 112(2) in
the record. I accept her explanation.
[11]
In
The
State v Enoc Phuzi
,
[3]
Musi AJP summed up at para 39 as follows:
‘
When
an accused is questioned in terms of section 112(1)(b) the magistrate
must ascertain whether the accused admits:
(i)
the
recorded speed;
(ii)
the
proper functioning of the speed measuring device; and
(iii)
the
competence of the traffic officer to set up and operate the speed
measuring device.’
[12]
The
Magistrate did not ask whether or not the traffic officer was
competent to set up and operate the speed measuring device; and
whether or not he was satisfied that the device was functioning
properly. As a result, the Magistrate could not have been satisfied
that the accused properly admitted all the allegations in the charge.
There was no proper basis for her to accept that the accused
was
guilty of contravening section 59 of Act 93 of 1996.
[13]
The
proceedings were not in accordance with justice. The conviction and
the sentence stand to be set aside. It is upon the Director
of Public
Prosecutions to decide whether to charge the accused again or not.
[14]
I
propose the following order
1.
The conviction and sentence are set aside.
V.M.
MOROBANE, AJ
I
concur, and it is so ordered.
P.E.
MOLITSOANE, J
[1]
S
v Pelser
1974 (4) SA 400
(T) at 402C
[2]
Director of Public Prosecutions, Gauteng Division, Pretoria v Hamisi
2018 (2) SACR 230
(SCA) at para 7
[3]
(R254/2018)
[2018] ZAFSHC 213
(28 December 2018)