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 203
|
|
S v Bolae (R79/2018) [2019] ZAFSHC 203 (19 September 2019)
IN THE HIGH COURT OF SOUTH
AFRICA,
FREE STATE DIVISION,
BLOEMFONTEIN
Case number:
R79/2018
In
the matter between:
THE
STATE
State
and
MOSUPELI
BOLAE
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 151
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, read with
sections 1
,
33
,
34
,
35
,
59
(1),
59
(4),
69
(1),
73
(1),
75
and
89
(3) of the
National Road Traffic Act, 93 of 1996
. He
was sentenced to a fine of R 3 000.00 or six 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
ordered that section 35(3) Act 93 of 1996 should not take effect.
[3]
On
04 June 2019 I caused a lette
r
to be addressed to the presiding officer with the following queries:
"1.
The accused stated in his plea explanation
on
page
three
of
the
transcribed record, that he pleaded guilty
to
the
charge because he was made aware that he drove at an excessive speed
when he was not aware he did
so.
2.
In
the light of Phuzi (R254/2018) (2018) ZAFHS page 6 to 13 (28 December
2018), was the judicial officer satisfied that the accused
admitted
all the allegations contained in the charge?"
[4]
The
magistrate responded as follows on 16 August 2019:
"1.
Kindly be advised that this review was send (SIC) by the clerk of the
court to the reviewing Judge
at a later stage upon him realising that
it was supposed to have been sent in January 2019 already.
2.
I
concede that accused's admissions were not admitting all the
allegations in the charge as prescribed in State vs. Phuzi. Court
erred in finding that the accused admits all the a/legation in the
charge.
3.
Conviction
and sentence may be set aside."
[5]
In the
State
vs. Phuzi
[1]
the full bench of this Division summed up the elements to be proven
in this type of offence as follows in order to secure a conviction:
"(39)(a)
Fault in theform of intention or negligence is an element
of
the
offence o
f
exceeding
the speed limit
(b)
When
an accused is questioned in term
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."
[6]
A presiding officer
can only convict if he or she is satisfied that the accused is indeed
guilty of the offence of which a guilty
plea has been entered. If
not, the provisions of section 113 must be invoked.
[2]
[7]
In
the light of the above it is evident that the proceedings were not in
accordance with justice and the conviction and sentence
stand to be
set aside. The Director of Public Prosecutions is at liberty to
institute fresh charges against the accused, if he/she
so choses. 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
[1]
(R254/2018) (2018) (ZAFSH 213) (28 December 2018)
[2]
State vs. Mshengu 2009 (2) SACR (SCA) 316 at 319