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[2018] ZAFSHC 40
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Rune and Others v S (1537/2018) [2018] ZAFSHC 40 (5 April 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Review
No. : 48/2018
Not
reportable
Not
of interest to other judges
Revised.
In
the review between:-
THE
STATE
and
ABDUL
I ISSA
CORAM:
DAFFUE, J
et
LOUBSER,
J
JUDGMENT
BY:
DAFFUE,
J
DELIVERED
ON:
5
APRIL 2018
[1]
This review has been sent to the High Court as a special review in
accordance with the provisions of s 304(4) of the Criminal
Procedure
Act, 51 of 1977 (“the Act”).
[2]
The accused was charged with and convicted of the offence of
contravening s 59(4)(a) of the National Road Traffic Act, 93 of
1996
(“the Traffic Act”) in that he exceeded the speed limit
of 100 km/h by driving a vehicle on a public road at a
speed of 146
km/h. He was convicted on 28 February 2018 and sentenced to
payment of a fine of R3 000 or 6 months’
imprisonment,
half of which was suspended for a period of 3 years on condition that
he is not convicted of contravening s 59(1)
of the Traffic Act
committed during the period of suspension. His driver’s
licence was not suspended in terms of s
35 of the Traffic Act.
[3]
The presiding magistrate sent the matter to the High Court on special
review without indicating why she believed the proceedings
were not
in accordance with justice. In her letter she went so far to
inform this court that she had already informed the
accused of the
error. This appears to be premature and such action cannot be
countenanced. In any event, she failed
to explain the alleged
error to this court.
[4]
The charge sheet refers to s 59(4)(a) and s 5a of the Traffic Act,
but this Act does not contain a s 5a. Consequently
the charge
sheet is defective. The local prosecutor shall ensure that the
charge sheet read properly. A verdict that
the accused is
“
found guilty as
charged”
is
technically not in order for the reason mentioned, but the
misdirection is not so severe to set aside the conviction on this
ground.
[5]
Magistrates sending matters on special review must ensure that the
reviewing judges are not left in the dark in order for them
to
scrutinise proceedings that are not reviewable in the ordinary
course. It causes an unnecessary waste of time.
[6]
However and having said all this and after perusing the papers, it
appears that the presiding magistrate was appointed as magistrate
on
4 November 2013, the effect being that she did not hold the
substantive rank of magistrate for more than 7 years when she
presided
over the matter. Therefore, the matter shall be regarded as
a review in the ordinary course in accordance with s 302 of the Act.
A sentence of 6 months’ imprisonment – greater that the 3
months mentioned in s 302(1) of the Act - was imposed as
an
alternative to payment of a fine.
[7]
I am satisfied that – save for the aspect to be dealt with in
the next paragraph – the proceedings were conducted
in
accordance with justice. The accused can count him fortuitous
for receiving such a lenient sentence. Review
courts in
this Province often find proceedings in the Magistrate’s Courts
in accordance with justice where much heavier sentences
are imposed
for similar offences. A speed of 146 km/h on the particular
road borders on recklessness. The speed of
the accused was one
and a half times more than the speed limit on the particular road and
26 km/h in excess of the maximum speed
limit applicable to freeways
and other national roads.
[8]
The presiding magistrate erred in respect of the condition of
suspension. The reference to s 59(1) is wrong. That
subsection deals with the prescription of general speed limits and
not with offences. Section 59(1) should be deleted and
substituted with s 59(4). The order to be issued will cater for
this amendment.
[9]
The conviction and sentence are confirmed, save that section 59(1) in
the condition of suspension shall be deleted and substituted
with
section 59(4).
_____________
J.P.
DAFFUE, J
I
concur.
____________
P.
LOUBSER, J