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[2018] ZAFSHC 63
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S v Omar (R31/18) [2018] ZAFSHC 63 (6 April 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: R31/18
In
the matter between:
THE
STATE
and
GOLAM MOHAMMED SHAIK
OMAR
CORAM:
MBHELE, J
et
MOLITSOANE,
AJ
JUDGMENT
BY:
MOLITSOANE, AJ
DELIVERED
ON:
6
APRIL 2018
REVIEW
IN TERMS OF SECTION 304(2)
OF
THE CPA 51/1977
[1]
This matter came before us on review in the ordinary course in terms
of section 304(2) of the Criminal Procedure Act of 1977
(the CPA).
[2]
The accused herein was convicted and sentenced to R4000 or 12 months
imprisonment of which half thereof was suspended for a
period of four
months on certain conditions. The court also odered that the
suspension of the licence should not take effect.
[3]
Upon receipt of the review record I sent a query to the trial court
as follows:
·
Did the accused admit that he
drove his vehicle on a public road?
·
Did the accused admit the
applicable general speed limit on the said road?
·
Did the accused admit that the
speed measuring device herein used was in a proper working condition?
Is it not a requirement that
before he could be convicted on the
strength of the speed measuring device the accused must admit this
requirement.”
[4]
The Magistrate has since responded to the quiry raised above
as follows:
·
By implication the accused knew
that he was driving at 164 km/h and he knew it was unlawful see
page 5 line 15-20.
·
I would further refer you to
page 5 line 15-20 adresses your concerns in bullet 2.
·
In respect of bullet 3
calibration is not an issue the accused admitted wrongfulness hence
conviction followed.
[5]
It is apposite to repeat part of the proceedings in page 5
reffered to in the response of the presiding officer on
which
essentially the conviction was based:
“
ACCUSED:
It was almost sunset time and I was pulled over by
5
Police. There was half an hour left for prayer when I was
pulled over.
COURT: Why did they
pull you over?
ACCUSED; Sorry Madam?
COURT: Why did they pull
you over?
10
ACCUSED: Because of the speed I was doing Madam,at 164
COURT: You confirm you
were driving a Fortuna?
ACCUSED: Yes Madam
COURT: With
registration number [ND……..]?
ACCUSED: Yes Madam
15
COURT: Do you confirm that what you did, in
fact that the speed that you were driving
on the day in question it
was unlawful and you intentionally drove the vehicle knowing
that-with 164 knowing that it was wrong?
ACCUSED: Yes , your
worship.
20
COURT: And that you confirm that you
exceeded the general speed limit?
ACCUSED:Yes your
worship
COURT: Yes Sir?
Thank you Your
Worship the state accepts the plea Your Worship.”
[6]
The purpose of questioning in terms of
s112(1)(b)
of the
Criminal
Procedure Act 51 of 1977
was explained as follows in
Negodeni
v State
(00093/15)
[2015] ZASCA 132
at par
[10]
:
“
As
was stated in
Nyanga
‘
section 112(1)(b)
questioning has a twofold purpose. To
establish the factual basis for the plea of guilty and secondly to
establish the legal basis
for such plea. In the first phase of the
enquiry, the admissions made may not be added to by other means such
as a process of inferential
reasoning…The second phase of the
enquiry amounts essentially to aconclusion of law based on the
admissions. From the admissions
the court must conclude whether the
legal requirements for the commission of the offence have been met.
They are the questions
of unlawfulness,actus reus and mens rea. These
are conclusions of law. If the court is satisfied that the admissions
adequately
cover all these elements of the offence,the court is
entitled to convict the accused on the charge to which he pleaded
guilty.”
[7]
It is the duty of the presiding officer to satisfy him/herself that
the accused admits all the elements of the offence.Questioning
of the
accused acts as a measure against unjustified convictions. See
S
v Naidoo
1989(2) SA (A) at 121 E.
[8]
In order to return a verdict of guilty on a charge of contravention
of
s59(4)
of the
National Road Traffic Act 93 of 1996
( the Act), the
court must be satisfied that:
·
The
accused;
·
Drove the
vehicle;
·
On a public
road;
·
At a speed
in excess of (1) the general speed limit applicable to that road,
or(2) the speed limit as regulated by an appropriate
road traffic
sign in respect of the particular road, or(3) the speed limit as
prescribed by the Minister of Transport in respect
of the class of
the vehicle concerned.
[9]
In this case the accused did not admit that he drove on a public
road. Admittedly the charge sheet indicates that the
accused
drove on the N1 National Road.Allegations in the charge sheet must be
admitted or proven.It is my considered view that
the court in this
case cannot take judicial notice that the N1 National Road is a
public road and thus absolve the state from proving
that the accused
drove on a public road. It has to be borne in mind that the accused
did not admit that he drove on the N1.
For the court to take
judicial notice that N1 is a public road the accused should
have at least admitted that he drove on
the N1 road.This element was
consequently not admitted.
[10]
A contravention of s59(4) of the Act must be read together with
regulations 292-295 of the Act. Regulation 292 regulates the
general
speed limit on the roads. A speed limit does not have to be displayed
by a road traffic sign. The applicable speed limit
depends on the
type of the road,with the highest maximum speed limit on a freeway
being 120 km/h.A general speed limit is applicable
on all roads not
displaying a specific speed limit.
[11]
In this case it is true that the accused admitted that he drove at an
excessive speed of 164km/h, way above all the general
speed
limits referred to in regulation 292.The presiding officer in this
case on the question whether the speed measuring device
used was in a
proper working condition submits that “calibration” is
not an issue as the accused admitted wrongfulness.
This court, in the
unreported case of
The
State v Carsterns
(143/2011)
delivered on 25 August 2011 , dealing with a similar issue of a
speed measuring device, said in par [9]:
“
A
radar is a measuring instrument. It is, to state the obvious a
machine and machines malfunction if not properly maintained. The
precision of the radar is, like most measuring instruments,dependant
on how regularly it is calibrated. If it is not calibrated
regularly
, as per the instructions of its manufacturer, it will malfunction.
It is therefore important for the judicial officer
to enquire from an
unrepresented accused whether s/he admits that the device was
functioning properly at the relevant time and
whether the calibration
certificate was shown to him/her.If it was not shown to him/her,s/he
must be asked whether s/he admits
that it was calibrated as
required.”
[12]
Clearly, questioning on the calibration of the speed measuring device
is intended to satisfy the court of the integrity of
the reading
sought to be admitted. Mere admission of the speed of 164 km/h by an
accused will thus fall short of satisfying the
court that the speed
measuring device was properly calibrated and was indeed in a proper
working condition.
[13]
The court should also be satisfied that the speed measuring device
was at the material time operated by a properly trained
person. This,
the court also failed to establish.
[14]
Upon conviction the court also failed to hold an enquiry into
the cancellation or suspension of the drivers licence.It
would seem
that the court just
mero
motu
ordered that the suspension of the licence shall not take effect. No
evidence relating to the commission of the offence was led
to satisfy
the court that the suspension or cancellation of the drivers licence
should not take effect. In view of the order I
propose, I find
it unnecessary to deal with this aspect any further.
[15]
I am of the considered view that this conviction cannot stand and I
accordingly propose the following order:
ORDER
1.
The
conviction and sentence are set aside.
___________________
P.E.
MOLITSOANE, AJ
I
concur and it is so ordered.
_____________
N.M
MBHELE, J