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2019
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[2019] ZAFSHC 160
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S v Motlibeli (R88/2018) [2019] ZAFSHC 160 (19 September 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: R88/2018
In
the matter between:
THE
STATE
State
and
MASNEI
MOTLIBELI
Accused
CORAM:
MHLAMBI
J,
et
MOLITSOANE,J
DELIVERED
ON:
19 SEPTEMBER 2019
REVIEW JUDGMENT
MHLAMBI,
J
[1]
This matter came before us on automatic review in terms of section
302 of the Criminal Procedure Act 51 of 1997 (CPA). The state
alleged
that the accused drove a motor vehicle on a public road at a speed of
170 km per hour in excess of the general speed limit
of 100 km per
hour which was applicable to that road.
[2]
The accused pleaded guilty and was convicted of the contravention of
section 59
of the
National Road Traffic Act, 93 of 1996
, in that he
exceeded the general speed limit of 100 km per hour which was
applicable to that road by driving a motor vehicle at
170 km per
hour.
[3]
The accused was sentence to a fine of R 4 000.00 or 12 months’
imprisonment, half of which was suspended for five
years on condition
that the accused was not convicted of the contravention of
section
59(4)
of Act 93 of 1996, committed during the period of suspension.
It was further ordered that section 35(3) of Act 93 of 1996
should not take effect.
[4]
On 04 June 2019 I caused a letter to be addressed to the magistrate
with the following queries:
“
1 Was it
established during questioning in terms of section 112 of the
Criminal Procedure Act to which “cards” and “cameras”
the accused referred to?
2. In the light of the
accused’s statement contained in lines 10-23 of the prescribed
record, was the presiding officer satisfied
that the requisite
admissions of the particular crime were made by the accused as
required in
Sv Phuzi
(R254/20180 [2018] ZAFHC 213 (28 December 2018). Was the Judicial
officer satisfied that the accused admitted all the allegations
contained in the charge?”
[5]
The magistrate responded as per letter dated 16 August 2019 which
reads as follows:
“
I concede that
it was not established which cards and cameras the accused referred
to and the requisite admissions made by the accused
were not made by
the accused as required in State vs. Phuzi.
I erred in finding
that the accused admitted all the allegations contained in the
charge, the conviction and sentence may be set
aside.
I further apologise
for the late response to this review, there was a delay in bringing
the queries of the Judge to my attention.”
[6]
In State
vs. Phuzi
supra,
the full bench
of this Division dealt extensively with the elements of this
particular offence. The elements to be proven in this
type of
offence, in order to secure a conviction, were summed up as follows:
“
(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 record 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.”
[7]
It is evident from the above that the proceedings were not in
accordance with justice. The conviction and sentence stand to
be set
aside. The Director of Public Prosecutions is at liberty to institute
fresh charges against the accused, should he/she so
decide. It
follows therefore, that the funds paid by the accused are to be
repaid.
[8]
The following order is made:
Order:
1.
The conviction and sentence are set aside;
2.
The order made in terms of
section 35(3)
of the
National Road Traffic Act 96 of 1996
is set aside
____________
MHLAMBI,
J
I
concur,
______________
MOLITSOANE,
J