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South Africa: Free State High Court, Bloemfontein
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[2018] ZAFSHC 151
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S v Moela (R241/2018) [2018] ZAFSHC 151 (11 October 2018)
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IN THE HIGH COURT OF SOUTH
AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: R241/2018
In
the matter between:
THE
STATE
State
and
MAKGALE
MOELA
Defence
CORAM:
MBHELE J,
et
MHLAMBI,
J
JUDGMENT
BY:
MAHLAMBI,
J
DELIVERED
ON:
11
OCTOBER 2018
SPECIAL
REVIEW JUDGMENT
Mhlambi,
J
[1]
The matter served before us by way of special review in terms of
section 304
(4) of the
Criminal Procedure Act 51 of 1977
. The
accused, who was unrepresented, was convicted of the contravention of
section 59
(4) (b) read with
sections 1
,
33
,
34
,
59
(1) (b),
69
(1),
73
(1),
75
and
89
(3) of the
National Road Traffic Act, 93 of
1996
and also read with Regulations 1 and 292 (b) of the National
Traffic Regulations of 1996; in that on or about 03 July 2018 and on
the N1, between Werda and Glen, a public road in the magisterial
district of Bloemfontein, the accused did unlawfully and
intentionally
or negligently drive a vehicle, to wit a Volkswagen
with registration number BC […] GP at a speed of 163 km/h
which was
in excess of the general speed limit of 120 km/h which
applied to that road.
[2]
The accused pleaded guilty to the charge and the court, having asked
him certain questions, convicted and sentenced him to a
fine of R 1
500.00 or 12 months imprisonment.
[3]
A letter styled an application for review in terms of
section 304A
(a) of the
Criminal Procedure Act 51 of 1977
was addressed to the
review judge by the acting Senior Magistrate, Bloemfontein 1 and 2,
in which it was stated that the presiding
officer was supposed to
have sent the matter on review in terms of
section 302
(1) of Act 51
of 1977. The matter was discovered among the finalized matters and
discussed with the presiding magistrate who conceded
that the
conviction should be set aside on the basis that the provisions of
section 112(b) of Act 51 of 1997 were not explained
to the accused.
Similarly, his rights relating to mitigation of sentence were not
explained to him. The presiding officer also
failed to hold an
inquiry in terms of section 35 (3) of Act 93 of 1996.
[4] The presiding
magistrate had drafted a letter dated 14 September 2018 which was
attached to the Acting Magistrate’s letter
to the review judge,
the contents of which read as follows:
“
It is my
respectful submission that the conviction be set aside for the
following reason, viz:- See S v Mhlolo Khambule, Review
number:
R177/2018. It is my respectful submission that accused did not admit
that the operator/the traffic officer concerned was
duly authorized
to/competent to operate the speed capture device. It is my respectful
submission that accused did not admit that
he was aware before he was
pulled over by the traffic officer, that he was travelling at an
excessive speed. He became aware of
the speed he was travelling when
it was shown to him. The proceedings generally and the record of
proceedings are shabby.”
[5]
Upon perusal of the record, it appears that the trial court did not
appreciate the purpose of questioning in terms of
section 112
of the
Criminal Procedure Act. The
court skimmed over the issues and did not
interrogate or establish whether the accused admitted the elements of
the offence he
was charged with. The court was enjoined to inform the
accused of any of his legal rights in terms of the constitution and
any
failure to do so may lead to an unfair trial and injustice. The
several misdirections committed by the magistrate warrant the setting
aside of both the conviction and sentence.
[6]
I therefore make the following order:
1.
Both
the conviction and sentence set are aside.
_____________
MHLAMBI, J
I
concur
____________
MBHELE,
J
/SRadigomo