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[2018] ZAFSHC 156
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S v Mtyhole (R255/2018) [2018] ZAFSHC 156 (18 October 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Review
number:
R255/2018
In
the matter between:
THE
STATE
and
THANDO
PETER MTYHOLE
CORAM:
JORDAAN, J
et
DAFFUE, J
JUDGMENT
BY:
DAFFUE, J
DELIVERED
ON:
18 OCTOBER 2018
AUTOMATIC
REVIEW
I
INTRODUCTION
[1]
This is an automatic review in accordance with the provisions of s
302 of the Criminal Procedure Act, 51 of 1977 (“the
CPA”).
[2]
On 5 July 2018 the accused, unrepresented at the trial, pleaded
guilty to a charge of speeding on the N1 near Bloemfontein on
22 May
2018. He drove a friend’s Volvo motor vehicle at a speed
in excess of the 120 km/h speed limit, to wit 171 km/h.
After
questioning by the trial magistrate in terms of s 112(1)(b) of the
CPA, he was convicted and sentenced as follows: payment
of a fine of
R2 500.00, failing which he should serve 12 months’
imprisonment. Section 35 of the
National Road Traffic Act, 93
of 1996
was not invoked.
II
QUESTIONING BY THE
TRIAL MAGISTRATE IN TERMS OF SECTION 112(1)(b) OF ACT 51 OF 1977 (THE
CPA).
[3]
The accused, a 30 year old pharmacist of Mthatha with a B Com degree
(according to the record which is doubtful bearing in mind
accused’s
occupation), earning R35 000.00 per month, was informed upon his
guilty plea that he would be questioned and
should the court not be
satisfied that all the elements of the offence are admitted a plea of
not guilty would be entered in terms
of s 113 of the CPA.
[4]
The following questions and answers appear from the record:
“
Okay N1 between
Glen and Witfontein are within the district of Bloemfontein?... Yes
your Worship.
You were driving a Volvo
is that so?... Yes your Worship.
Registration number? ...
I can’t remember what the registration is it was my friend’s
car.
Is it the same vehicle
you were caught driving?.....Yes
Are you aware of the
speed limit in the area where you were caught for exceeding speed
limit?..... Yes your worship.
What is it? ... It’s
120.
At what speed were you
driving? … I was driving at 171 your Worship.
Were you the driver of
your friend’s car? … Yes your Worship.
Were you aware that you
exceeded the general speed limit? … Yes your Worship.
Were you aware that such
a contravention is not allowed? … Yes your Worship.
Were you also aware that
such excessive speed that you were driving at is punishable by law? …
Yes your Worship.”
[5]
The prosecutor confirmed that the information tendered corresponded
with the contents of the docket whereupon the accused was
convicted.
[6]
The accused tendered information from the bar and even suggested that
he would be prepared to pay a fine of R2 500.00.
Surprisingly, the trial magistrate imposed a lenient sentence, to wit
a fine of R2 500.00, alternatively 12 months’
imprisonment. The fine is much less than often imposed for
similar offences. The following crucial information was
obtained during the sentencing process and upon the very last
question put to the accused by the trial magistrate as to whether
there was anything that he wished to bring to the court’s
attention:
“
No
there is nothing your Worship I just want to apologise because
that night I was driving from North West because I attended
an exam
on that day my wife was in labour because she gave birth on the 24
th
so I had to rush to Umtata to rescue her to the nearest doctor
there. So am sorry about that.”
(
verbatim
quote). Instead of following up questions, the trial court left
it there. This is an important aspect that will be
dealt with
in detail
infra.
[7]
Although the transcribed record does not indicate that an inquiry in
terms of
s 35
of the
National Road Traffic Act was
held, the trial
magistrate confirmed that it was done. The section, requiring
suspension of the accused’s driver’s
licence for six
months, was not invoked.
III
THE
REFERRAL FOR REVIEW
[8]
On 28 September 2018 the acting senior magistrate of Bloemfontein
sent the record of proceedings and the trial magistrate’s
accompanying letter to the High Court which documents were received
on 10 October 2018. When the letter which is quoted
infra
is read, it will immediately become clear to the reader that the
particular magistrates did not consider the crucial answer given
by
the accused when he proffered information in mitigation.
[9]
The High Court received the referral more than three months after the
finalisation of the proceedings in the lower court.
As we have
become used to by now, there was again a delay in transcribing the
record.
Section 303
of the CPA is peremptory, but systemic
delay causes transgression of the section in almost all review
matters. Sher AJ, with
whom Henney J concurred, referred to
this as a
“
perennial
problem”
in
S v
Jacobs and six similar matters
2017
(2) SACR 546
(WCC) at para [39]. Sensible proposals were made
which included the introduction of an outstanding automatic review
list.
See paras [45] – [48]. Hopefully that
judgment was brought to the attention of relevant decision-makers who
are seriously
considering systemic delays of this nature which are
not in the interest of justice.
[10]
The transcribed record – not even a full seven pages - would
have been meaningless, was it not for the hand-written corrections
made by the trial magistrate.
[11]
The relevant part of the trial magistrate’s letter reads as
follows:
“
1…
2…
3…
4. I received the
transcribed record on the 24
th
September 2018.
5. The conviction
followed accused’s guilty plea on the 5
th
July 2018.
6. It is my respectful
submission that the conviction be set aside as the questioning on
(sic) the accused by the trial magistrate
fell short of the criteria
used in S v Mohlolo Khambule (FS), Review number: R177/2018.
7. 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.
8. It is my respectful
submission that the 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.
9. It is my respectful
submission that the transcribed record does not show that after the
conviction a
S35
inquiry was conducted, however, the handwritten
notes of the trial magistrate indicate that an inquiry was
conducted.”
IV
THE
PURPOSE OF REVIEWS
[12]
Review procedure in terms of
s 302
of the CPA is aimed at ensuring
the validity and fairness of the convictions and sentences in certain
categories of our lower courts,
for example
in
casu,
the
sentence imposed by the trial magistrate who has held the rank of
magistrate for a few months only, and thus less than seven
years,
brought the proceedings within the ambit of automatic review in terms
of
s 302(1)(a)(i).
[13]
The review court
“
has
only to certify that the proceedings were in accordance with justice,
and not necessarily in accordance with law.”
See
Du Toit
et
al, Commentary on the
Criminal Procedure Act,
service
60 at 30-9 with reference to
S
v Cedars
2010
(1) SACR 75
(GNP) at 77 and authorities relied upon. The
question to be answered in each case is whether there was real and
substantial
justice, not necessarily in accordance with strict law
and even if a rule of criminal procedure may not have been observed.
See also:
S
v Nteleki
2009 (2) SACR 323
(OPD) at para [7].
V
QUESTIONING
IN TERMS OF SECTION 112(1)(b) OF ACT 51/1977
[14]
Section 112(1)(b) of the CPA reads as follows:
“
(T)he
presiding... magistrate shall... question the accused with reference
to the alleged facts of the case in order to
ascertain
whether he admits the allegations in the charge
to which he has pleaded guilty, and may,
if
satisfied that the accused is guilty of the offence to which he has
pleaded guilty
,
convict the accused on his plea of guilty of that offence and impose
any competent sentence....”
(emphasis
added)
[15]
In
S v
Naidoo
1989
(2) SA 114
(AD) at 121F the correct approach to questioning in terms
of s 112(1)(b) was recorded as follows:
“
I
would merely observe that it is well settled that the section was
designed
to protect an accused from
the consequences of an
unjustified
plea of guilty
,
and that in conformity with the object of the Legislature our courts
have correctly applied the section with care and circumspection,
and
on the basis that where an accused's responses to the questioning
suggest
a possible defence
or leave room for a
reasonable
explanation
other
than
the accused's guilt
,
a plea of not guilty should be entered and the matter clarified by
evidence.”
(emphasis
added)
[16]
Du Toit
et
al, Commentary on the
Criminal Procedure Act,
service
60 at 17-9 also confirm that the subsection was designed to
protect accused persons - uneducated and undefended accused in
particular
–
“
from
the consequences of an ill-considered plea of guilty.”
Therefore,
as the authors state at
17-15, the
“
ambit
of the questioning is at all times determined by the fact that
s
112(1)(b)
provides the necessary machinery to test a plea of
guilty.”
The
court’s questioning has as its aim to obtain a factual basis by
the accused supporting the plea of guilty,
i.e.
to show that all the elements of the offence have been admitted.
Kruger A,
Hiemstra’s
Criminal Procedure
,
issue 9 at 17-3 puts it as follows:
“
The
purpose of the questioning is twofold: first, to determine whether
the accused admits the allegations in the charge sheet upon
which
there was a guilty plea
(and
one may add as the author states further on, the admissions must be
made freely, consciously and reliably)
:
and, secondly, to enable the court to conclude for itself whether the
accused is, in fact, guilty.”
A
mere regurgitation of the allegations in the charge is insufficient.
[17]
It is not the court’s function to eliminate all possible
conceivable defences or as the full bench in
S
v Phundula
1978
(4) SA855 (TPD) put it:
“
Dit
word stellig nie van die landdros verwag om alle denkbare verwere te
ondersoek en uit te skakel nie.” (
It
is not expected of the magistrate to investigate and exclude all
conceivable defences. (my translation)) In one of the
three
appeals before it, the court found that the magistrate should have
asked further questions in terms of
s 11
2(1)(b) to establish whether
the appellant had the necessary intent to steal. It appeared
from the summary provided by the
prosecutor that the accused made a
collision with a vehicle allegedly stolen by him, that the vehicle
overturned causing the accused
to be hospitalised and that he
informed the police after handing him over that he did not want to
live any longer. The full
bench held that further questioning
might have resulted in the appellant not admitting intent to steal.
His aim appeared
to be to commit suicide. In
S
v Tshumi
and others
1978 (1) SA 128
(NPD) the accused, who was convicted upon
his guilty plea to a charge of culpable homicide, responded to a
question by the trial
court that the deceased had been the original
aggressor. Although this raised the question whether he acted
in self-defence,
the matter was not taken any further by the trial
court. It is not surprising that the review court set aside the
conviction
and sentence. In
S
v W
1994 (2) SACR 777
(N) the accused pleaded guilty on a charge of theft
of a motor vehicle. According to their answers during
questioning they
took the complainant’s vehicle, but abandoned
it next to a highway. In the absence of further questioning to
establish
their intent to deprive the owner permanently of the
benefits of his vehicle, the review court found that they had not
admitted
all the elements of theft. I provided the three
examples in order to show that if responses by an accused during
questioning
suggest a possible defence or a reasonable explanation
other than his/her guilt, a plea of not guilty in terms of
s 113
must
be entered.
[18]
It is important to emphasise that the court must be satisfied that
the allegations in the charge are admitted,
in casu
that on 22
May 2018 the accused unlawfully and intentionally drove the
particular motor vehicle on a public road at a speed of 171
km/h
which is in excess of the speed limit of 120 km/h applicable to the
particular road. In acting as such the trial magistrate
should
have obtained the factual basis on which the accused pleaded guilty
to test the correctness thereof. It is not for
the trial court
to extract information or to search for possible defences indicating
that the accused mistakenly pleaded guilty,
for example that the
driver fled for his life as he was chased by robbers or that he is a
German citizen who thought that no speed
limit applied to our
national roads as is the case on the German Autobahn. However,
if it appears from the questioning that
the accused may have a valid
defence, no conviction should follow and a not guilty plea should be
entered. This would be
the case where the accused indicates
during questioning, to give just two examples, that he exceeded the
speed limit whilst fleeing
from robbers, or he, being a medical
doctor, was transporting a patient who suffered from a
life-threatening injury to the nearest
hospital for emergency
treatment in order to save his/her life.
VI
S
v MOHLOLO KHAMBULE
– THE JUDGMENT RELIED UPON
[19]
On 16 August 2018, after finalisation of the proceedings in the lower
court in this matter, the Free State High Court judgment,
S
v Mohlolo Khambule
,
review number R177/2018, was delivered. It is as yet
unreported, and not even published on the Saflii website. I
shall deal fully with the judgment as it has particular consequences
for trial magistrates. In that case a medical doctor
pleaded
guilty for speeding. According to the charge sheet he was
travelling at a speed of 153 km/h in a 100 km/h zone on
the N8 near
Bloemfontein.
[20]
The accused was represented by a legal representative who prepared a
written statement for the accused in terms of
s 112(2)
of the CPA.
The statement was signed by the accused and read into the record.
[21]
Dr Khambule stated
inter alia
the following:
“
I accept that I
drove fast and exceeded the prescribed speed limit in a 100kmph zone,
and plead guilty thereto. I admit that
I was travelling at a
speed of approximately 153 kmph, after being shown the reading as was
displayed on the speed measuring equipment
operated by the traffic
official. I have perused all the documentation in relation to
the aforementioned equipment and confirm
that it was in working
order. I am remorseful of my actions, and I humbly ask the
honourable Court to take into consideration
that I am remorseful,
when passing down a sentence.”
[22]
Clearly, Dr Khambule is familiar with the specific road. It is
a road that he had been travelling every day of his working
life
whilst resident in Mandela View, situated next to the N8 to the east
of Bloemfontein, a fact of which judicial cognisance
can be taken.
He works at the Universitas hospital in Bloemfontein and the specific
day he was on his way to Pelonomi hospital.
It is uncertain who
his legal representative was, but it appears
ex facie
the
statement that Dr Khambule must have been represented by an
experienced criminal law lawyer conversant in English. The
detailed statement is proof that the doctor wanted to plead guilty,
that he indeed pleaded guilty and that he admitted all the
elements
of the offence put to him. There cannot be any doubt that he knew it
was against the laws of this country to drive a motor
vehicle at a
speed in excess of the speed limit on a particular public road.
Although he stated that he had to attend a meeting
of doctors to
discuss the improvement of health care at the Pelenomi hospital to
avoid future deaths, there was no intention to
rely on the defence of
necessity and thus absence of unlawfulness. The position would
have been different if the information
was tendered by an
unrepresented accused during questioning in terms of
s 112(1)(b).
In such a case the trial magistrate would be under a duty to make
further enquiries before deciding upon the guilt of the
accused.
[23]
The acting senior magistrate of Bloemfontein sent the matter to the
High Court as a special review in terms of
s 304(4)
of the CPA.
The review court set aside the conviction and sentence and remitted
the matter to be heard by the same magistrate.
In so doing a
professional person who obviously wanted to get rid of pending
proceedings against him, employed another professional,
a qualified
lawyer, to represent him, certainly at some cost, in the hope of
quickly finalising the case, failed in his attempt
to obtain
finality. Now, the case is back at square one. I would be
surprised if the doctor pleads not guilty this
time around.
Whatever he does, it will cost him time and money.
[24]
The review court in
Khambule
relied
on three reasons why the conviction should be set aside.
Firstly, Dr Khambule’s use of the word
“
approximately”
as if the
speed capturing device would show a reading of
“
approximately
153 km/h”.
The
doctor stated that he drove fast and admitted that he exceeded the
100 km/h speed limit, before referring to
“
approximately”.
I do not
believe that this word could be regarded as any indication of a lack
of
mens
rea,
especially
bearing in mind the statement as a whole and the circumstances under
which it was prepared. Fact of the matter
is that Dr Khambule
was driving one and a half times the prevailing speed limit and it
could never be submitted that he was unaware
of speeding.
[25]
The second and third problems detected by the review court were about
facts not alleged and thus not admitted in the statement,
whilst
according to the review court should have been part of the
statement. The second alleged defect was the failure to
admit
“
that
the operator, the traffic officer concerned, was duly authorised or
competent to operate the speed capture device.”
In
my view this is not one of the essential elements of the offence of
speeding. Sometimes speeding offenders try their luck
in our
courts by eliciting evidence in cross-examination that the traffic
officer did not have the required knowledge to operate
the particular
device and/or that there are other deficiencies in the state’s
case. Clearly, the doctor did not want
to embark on such a
process and merely wanted to accept responsibility for his offence.
[26]
Finally, the review
court found that the doctor failed to admit
“
that
he knew that it was unlawful for him to travel at the alleged
excessive speed or that he knew that travelling at such a speed
was a
traffic transgression punishable by law.”
If
the doctor did not know this, he should never have qualified for a
motor vehicle licence in the first place. Surely, an
educated
person would never convince a court in this country that he is or was
unaware of the meaning and intent of traffic signs
and the
consequences of speeding and/or exceeding prevailing speed limits.
It must also be emphasised that the doctor, whilst
legally
represented, did not rely on the defence of necessity and the facts
presented by him do not support such a contention.
It might
have been a totally different situation if the accused was an
uneducated, illiterate and unlicensed foreigner who had
never before
driven a motor vehicle on a South African road.
[27]
In
Khambule
the
review court incorrectly found at para [11] that the doctor did not
state that he knew what speed limit (100 km/h) applied where
he was
caught and
“
that
he knew that by exceeding the speed limit he was committing a traffic
offence punishable by law.”
The
doctor expressly accepted that he
“
exceeded
the prescribed speed limit in a 100 kmph zone.”
He did not say that he
was unaware of the speed limit at the time; to the contrary he stated
that he exceeded the speed limit of
100 km/h. The only
necessary and logical conclusion to arrive at is that the doctor as
licensed motor vehicle driver also
knew that it was unlawful to
exceed the speed limit. The review court’s conclusion
that
“
criminal
intent and unlawfulness were amiss to sustain a conviction”
is
clearly wrong and we are at liberty to refrain from following it.
Khambule
is
clearly distinguishable from
S
v Samuels
2016 (2) SACR 298
(WCC) for two reasons. Firstly, Dr Khambule
was represented by a legal representative and secondly, the indigent
accused
in
Samuels,
a
single mother with four children, pleaded guilty to a charge of
contempt of court in that she transgressed a court order by not
evacuating certain premises, but made it clear that
“…
ek
het nêrens gehad om heen te gaan nie. Daarom het ek nie
gegaan nie.”
(I
had nowhere to go and therefore I did not go. (my translation))
Ms Samuels’ non-compliance with the court order was
not wilful
and
mala
fide
or
unreasonable and a plea of not guilty should have been entered.
The review court found as such and the conviction and
sentence were
set aside.
[28]
It follows from the comments made
supra
that I respectfully do
not agree with the reasoning of the court in
Khambule
and the
conclusion arrived at
.
Such a formalistic approach
should not be countenanced. It would place an unnecessary extra
burden on our lower courts to
request accused persons to place more
evidence before the court than necessary in order to convict.
Accused persons, admitting
that they travelled too fast and pleading
guilty as a result, accept that traffic officers are duly authorised
to act as such,
properly trained to execute their duties and that the
speed capturing devices were functioning properly. That is why
they
are prepared to plead guilty. However, it is highly likely
that upon questioning by the trial court in respect of matters
beyond
their knowledge, accused persons may not be prepared to make formal
admissions in this regard, causing pleas of not guilty
to be recorded
in terms of
s 113
and an unnecessary wasting of court time and
resources.
VII
EVALUATION
OF THE MATTER
IN
CASU
[29]
The accused is not uneducated. He is a pharmacist with the
required degree. He is an intelligent person.
He is
earning a salary of R35 000.00 per month. He was not represented
by a legal representative and therefore the matter
was sent to the
High Court as an automatic review in terms of
s 302.
The trial
magistrate was appointed to the rank of magistrate on 1 February 2018
only.
[30]
I quoted the questioning by the trial magistrate
supra
and it will not be repeated. The accused was aware of the 120
km/h speed limit on the N1. He admitted that he had exceeded
the speed limit by travelling at 171 km/h, that his contravention
“
is
not allowed”
and
that his driving at such an excessive speed is punishable by law.
He drove at nearly one and a half times the prevailing
speed limit
and of necessity must have known that he exceeded the general speed
limit. He went further than Dr Khambule by
admitting that he
committed a punishable offence.
[31]
The trial magistrate, supported by the acting senior magistrate,
submitted in paragraph 6 of the letter quoted
supra
that, based on
Khambule,
this
court should set aside the conviction and sentence for the reasons
mentioned in paragraphs 7 and 8 of the letter. I indicated
supra
that it
is not expected of a presiding officer to seek admissions from an
accused to the effect that the traffic officer was duly
authorised to
act and/or competent to operate the speed capturing device.
Obviously it would have been a totally different
matter if the
accused mentioned that the person who had pulled him off the road was
in private clothes, and/or intoxicated, and/or
the speed capturing
device indicated a speed of 171km/h, but he was travelling at a mere
130 km/h.
[32]
I do not agree that the accused did not admit that he was aware,
prior to being pulled off, that he was travelling at an excessive
speed as mentioned in paragraph 9 of the letter. He indicated
at page 2, line 15 of the record that he was aware that he
exceeded
the general speed limit. He did not say that he became aware of
the transgression only after being pulled off, or
that he believed
that he was driving within the speed limit at the time.
[33]
The accused intended to plead guilty, did in fact do so and admitted
all the allegations in the charge. There can be
no doubt about
this. However, the trial court failed to request the accused to
provide a factual basis for his plea of guilty,
for example under
what circumstances did he travel the particular day and why did he
travel at an excessive speed. If a factual
basis was requested,
the accused would probably have given the answer he gave in
mitigation of sentence,
i.e.
that he was on his way to Mthatha, having been informed that his wife
was in labour and that he needed to get her to a doctor urgently.
It is not disputed that the wife gave birth just over a day after
accused was caught speeding. In any event, when the trial
court
was informed accordingly, she either should have asked further
questions to establish whether there was really an absence
of
unlawfulness, or entered a plea of not guilty in terms of
s 113.
The conclusions arrived at in
S
v W, S v Tshumi, S v Samuels
and
S v
Phundula supra,
based on the facts of those cases, are appropriate
in
casu
as
well
.
[34]
The review court must ensure that justice is done, both to the
accused and the state and it is in the interests of justice
that
litigation should come to finality. See again para [7] of
Nteleki
supra.
In
para [8] of this judgment by Van Zyl J, with whom Van der Merwe J (as
he then was) concurred, the learned judge stated
“…
it is clear that
considerable time, effort, inconvenience and expense to both the
State and the accused would be involved in bringing
the accused
before court again.”
In
the circumstances of that case the review court decided to confirm
the conviction and sentence although an incompetent sentence
was
imposed. Notwithstanding the aforesaid considerations the
matter should be remitted to the Magistrate’s Court for
a
de
novo
hearing.
The accused will have to be served with a summons in Mthatha and he
will have to travel all the way to Bloemfontein
to appear in court
again.
VIII
CONCLUSIONS
[35]
Notwithstanding the accused’s intention to plead guilty and his
plea of guilty, probably in order to get finality, the
proceedings
were not in accordance with justice and the conviction and sentence
cannot stand. I come to this conclusion based
on the facts of
this matter although it should be made clear that the finding is not
based on the reasoning and conclusion in
Khambule
which I
already found to be incorrect.
[36]
The trial magistrate’s assurance that she conducted an inquiry
in terms of
s 35(3)
of the
National Road Traffic Act is
worrisome in
the absence of any record to that effect. I indicated
supra
that the record is poorly transcribed. It also appears as
if something was said by the trial magistrate before the court
adjourned
which was not recorded. Fact of the matter is that an
automatic suspension of the accused’s licence for a period of
six months had to take effect, unless evidence under oath was
presented by the accused to the satisfaction of the court why the
suspension shall not take effect. There is no proof of such an
inquiry although we were assured that the magistrate’s
handwritten notes, which do not form part of the record as should
have been the case, serve as proof that an inquiry was held.
The legislature intended presiding officers to be strict on offenders
travelling at excessive speeds as in this case. Therefore
an
automatic suspension follows upon a conviction, unless a case has
been made out for not invoking the suspension. The trial
magistrate must ensure in future that proper records are kept and if
the transcribed record is incomplete, she has to ensure that
it is
supplemented and/or edited in order to present a fair reflection of
the proceedings.
IX
ORDERS
[37]
1) The conviction and
sentence are set aside.
2) The matter is remitted
to the Magistrate’s Court for a
de novo
hearing before
the trial magistrate or any other available magistrate.
_______________
J
P DAFFUE, J
I
concur
________________
A
F JORDAAN , J