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
>>
2018
>>
[2018] ZAFSHC 212
|
|
S v Tsotetsi; S v Thinyane; S v Tladi (R272/2018; R352/2018; R353/2018) [2018] ZAFSHC 212 (28 December 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Review
No.: R272/2018
In
the review of:-
THE
STATE
And
MOFOTO
ALETTA TSOTETSI
Review
No.: R352/2018
In
the review of:-
THE
STATE
And
JABUTI
SHORTS THINYANE
Review
No.: R353/2018
In
the review of:-
THE
STATE
And
TSEKO
ABRAHAM TLADI
CORAM:
MUSI, AJP
JUDGMENT
BY:
MUSI, AJP
DELIVERED
ON:
28 DECEMBER 2018
[1]
These matters were sent on automatic review by the magistrate,
Clocolan.
[2]
The accused in the respective cases were convicted of contravening
section 59(4) of Act 93 of 1996 – exceeding the general
speed
limit. They all pleaded guilty.
[3]
The magistrate questioned them in terms of section 112(1)(b) of the
Criminal Procedure Act, 51/1977
[1]
.
All three accused were asked leading questions. In S v Tladi
the accused was asked as follows:
“
MR
TLADI
:
I understand Your Worship.
COURT
:
On the 30
th
of October 2018, were you on R26 in the district of Clocolan?
MR
TLADI
:
Yes.
COURT
:
Were you driving a vehicle to which a Ford Ranger
with registration
number […]?
MR
TLADI
:
Yes.
COURT
:
At what speed were you travelling at?
MR
TLADI
:
176.
COURT
:
And what was the speed limit on that zone?
MR
TLADI
:
100 kilometres per hour Your Worship.
COURT
:
Do you admit that your actions were unlawful and
intentional?
MR
TLADI
:
Yes Your Worship.
COURT
:
Does the state accept the plea?
PROSECUTOR
:
Your Worship the state accept the plea as the court pleases.”
In
S v Thinyane the questioning was as follows:
“
ACCUSED
:
Understand, Your Worship.
COURT
:
On the 23
rd
of May 2018, were you on R26 a public road in the district of
Clocolan?
ACCUSED
:
Yes, Your Worship.
COURT
:
Were you driving a vehicle, to wit a Toyota Camry
with registration
numbers […]?
ACCUSED
:
Yes, Your Worship. Yes Your Worship.
COURT
:
Can you tell the court what happened that led to
your arrest on the
day in question?
ACCUSED
:
Your Worship, a police officer stopped and the he told me that I was
driving on
high speed, Your Worship on that road and I was not
supposed to drive on that limit of that speed Your Worship.
COURT
:
Yes?
ACCUSED
:
And Your Worship, I admit that I was guilty, Your Worship at that
moment because
I was driving at that high speed and I am asking the
court for forgiveness, Your Worship.
COURT
:
At what speed were you travelling?
Are
you going to speak English or Sesotho?
Which
one?
ACCUSED
:
Sesotho.
COURT
:
Are you comfortable in Sesotho?
ACCUSED
:
Yes.
COURT
:
Okay, do not chop and change the languages, stick
to one language for
purposes of recording.
Do you
understand?
ACCUSED
:
Your Worship, I was not aware that I was driving on that high limit
speed, Your
Worship but when they stopped me and showed me the
readings that is when I saw I was (indistinct 00:09:58) at that high
limit of
speed, Your Worship.
COURT
:
What was that speed that you which you were travelling
at?
ACCUSED
:
It was 145km per hour, Your Worship.
COURT
:
Do you admit that you were travelling at that speed?
ACCUSED
:
Yes, Your Worship.
COURT
:
And what was the speed limit on that zone?
ACCUSED
:
It was 100km per hour, Your Worship.
COURT
:
Do you admit that your actions were unlawful and
intentional?
ACCUSED
:
Yes, Your Worship I do admit.
ACCUSED PLEADS
GUILTY
COURT
:
Does the state accept the plea?
PROSECUTOR
:
The state accepts the plea, Your Worship. As the court
pleases.”
In
S v Aletta Tsotetsi the questioning went as follows:
“
ACCUSED
:
Yes Madam.
COURT
:
On the 25
th
of August 2018 and at, were you on R26 a public road in the district
of Clocolan?
ACCUSED
:
Yes, Madam.
COURT
:
Were you driving a vehicle to wit a Toyota Corolla
with registration
numbers […]?
ACCUSED
:
Yes, Madam.
COURT
:
At what speed were you travelling
ACCUSED
:
142.
COURT
:
And what is the speed limit on that zone?
ACCUSED
:
100km per hour.
COURT
:
Do you admit that your actions were unlawful and
intentional?
ACCUSED
:
Yes, Madam.
COURT
:
Does the state accept the plea of the accused?
PROSECUTOR
:
The state accepts the plea of the accused, as the court pleases.”
[4]
In Tsotestsi and Tladi the accused were not asked why he or she
admits that he or she exceeded the speed limit. Neither
were
they asked who stopped them and under what circumstances they were
stopped. They were also not asked why they exceeded
the speed
limit.
[5]
In Thinyane, the accused was asked whether he admits that his actions
were unlawful and intentional. It could not have
been
intentional because he said “I was not aware that I was driving
on that high limit speed (sic)…”
[6]
An accused who pleads guilty should ideally not be asked leading
questions. The magistrate should allow the accused to
inform
him or her what happened and why it happened. The magistrate
should thereafter ask questions to ensure that all the
elements of
the offence are admitted.
[7]
The magistrate could not have been satisfied that the respective
accused admitted all the allegations in the charge and that
they were
guilty.
[8]
The magistrate will do well to read the recent judgment of this court
in
S v Phuzi
(R254/2018, Free State High Court: Bloemfontein delivered on 28
December 2018).
[9]
The convictions and sentences in all three matters ought to be set
aside.
[10] I accordingly make
the following order.
S v Mofoto Aletta
Tsotetsi:-
The
conviction and sentence are set aside.
S v Jabuti Shorts
Thinyane:-
The conviction and
sentence are set aside.
S v
Tseko Abraham Tladi:-
The conviction and
sentence are set aside.
____________
C.
J. MUSI, J
[1]
Section
112(1)(b) reads as follows:
“
the
presiding judge, regional magistrate or magistrate shall, if he or
she is of the opinion that the offence merits punishment
of
imprisonment or any other form of detention without the option of a
fine or of a fine exceeding the amount determined by the
Minister
from time to time by notice in the
Gazette
,
or if requested thereto by the prosecutor, question the accused with
reference to the alleged facts of the case in order to
ascertain
whether he or she admits the allegations in the charge to which he
or she has pleaded guilty, and may, if satisfied
that the accused is
guilty of the offence to which he or she has pleaded guilty, convict
the accused on his or her plea of guilty
of that offence and impose
any competent sentence.”