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[2019] ZAFSHC 123
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S v Bam (R52/2019) [2019] ZAFSHC 123; 2019 (2) SACR 662 (FB) (22 July 2019)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Review
case number: R 52/2019
In
the matter between:
THE
STATE
and
CORNELIUS BAM
CORAM:
MHLAMBI, J
et
MOLITSOANE, J
JUDGMENT
BY:
MOLITSOANE , J
DELIVERED
ON:
22 JULY
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(the CPA).The
state
alleged that he drove a motor vehicle on a public road at a speed of
196km per hour in excess of the general speed limit
of 100 km per
hour which was applicable on that road.The accused pleaded guilty and
was convicted of contravention of section 59(4)(a)
of the National
Road Traffic Act 93 of 1996-exceeding the general speed limit. He was
sentenced to a fine of R20 000 or 6
months imprisonment half of
which was suspended for five years on certain conditions.The
trial court ordered that the suspension
of his licence should not
take effect.
[2]
I enquired from the learned Magistrate on what basis the court was
satisfied that the traffic officer who operated the speed
measuring
device was competent to operate the speed measuring device.
[3]
In his response the learned Magistrate refers to the excerpt of the
record and further says the following: “
In essence when I
was asking the accused whether he was admitting that the
traffic officers operated the machine lawfully
and without
irregularities, I meant that or was implying that they are qualified
and competent to do so
.”
[4]
It is apposite at this stage to refer to the parts of the record
referred above pertaining to the questioning of the accused
in terms
of s112(1)(b) of the CPA:
“
COURT: Do you
have any lawful defence or grants[grounds] of justification for
committing this particular offence?
ACCUSED: No your
Honour.
COURT: Is there
anything that you want maybe in your own words what transpired after
the traffic officer stopped you?
ACCUSED:They stopped
me they showed me the reading on the machine, they showed me the
calibration certificates, and took me to the
police station where I
filled in some documentation.
COURT:So in essence
all the procedures that was followed by the traffic officers from the
moment they stopped you from the time
they took you to the police
station you are satisfied with everything that happened that your
rights were properly explained to
you?
ACCUSED: Yes your
Honour.”
[5]
A full bench decision of this division in
The
State v Enoch Phuzi
[1]
dealt extensively with the elements of this offence.The court summed
up the elements to be proven in this type of offence as follows
in
order to secure a conviction:
“
[39] (a) Fault in
the form of intention or negligence is an element of the offence of
exceeding the speed limit;
(b) 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 operator to set up and operate the speed measuring
device.”
[6]
Upon perusal of the record it is evident that no questioning was
directed at the competence of the relevant traffic officer
to set up
and operate the speed measuring device.Section 112(1)(b) of the CPA
provides that the court may:
“…
.question
the accused with reference to the alleged facts of the case in order
to ascertain whether he or she admits the allegations
in the charge
to which he or she has pleaded guilty,and may, if satisfied that the
accused is guilty of the offence to which he
has pleaded guilty
convict the accused on his or her plea of guilty of that offence and
impose any competent sentence.”
It
is clear that the questioning in terms of this section is aimed at
questioning the accused on the facts of the case in order
to
determine if he admits the allegations in the charge. The questioning
in terms of section 112(1)(b) is not aimed at conclusions
of the law
without reference to the facts.To ask whether an accused as contended
by the magistrate ‘was admitting that the
traffic officers
operated the machine lawfully and without irregularities’
appear to me to go to the heart of conclusions
of law. The following
remarks in
State
v Mshengu,
[2]
although the court dealt with the provisions of s112(2), are aptly
relevant and applicable during questioning in terms of
s112(1)(b):
“
[7] Section
112(2) requires that the statement must set out the facts which
he admits and in which he has pleaded guilty.
Legal conclusions will
not surfice. The presiding officer can only convict if he or she is
satisfied that the accused is indeed
guilty of the offence to which
a guilty plea has been entered. If not, the provisions of s113 must
be invoked”.
[7]
Only ones the facts have been established can the court make an
informed decision whether the act complained of is unlawful
or
irregular.To ask a general question of whether the accused was
satisfied with ‘
all
procedures that was followed
…’
cannot suffice to satisfy the court that the accused admits all the
elements of the offence including the competency
of the traffic
officer.Such a requirement must be admitted or proven. This was not
done in this case.In
Phuzi
(
supra)
the
court held that judicial notice cannot be taken of the
fact that the person who operated the speed measuring
device
was trained to do so, and the court 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
”
.
[3]
In this case, as indicated above this did not happen.
[8]
In line with
Phuzi
I have to find that the proceedings were
not in accordance with justice and leave it up to the Director of
Public Prosecutions to
decide whether to recharge the accused. It
follows that the fine paid by the accused is to be repaid.
[9]
The following order will issue:
1. The conviction and
sentence are set aside.
2. The order made in
terms of
section 35(3)
of the
National Road Traffic Act 93 of
1996
is set aside.
__________________
P.E.MOLITSOANE,
J
I
concur.
___________
JJ MHLAMBI, J
[1]
(R254/2018)[2018[ ZAFSH213(28 December 2018)
[2]
2009(2) SACR (SCA) 316 at 319
[3]
Phuzi(supra) at par [31]