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[2018] ZAFSHC 213
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S v Phuzi (R254/2018) [2018] ZAFSHC 213; 2019 (2) SACR 648 (FB) (28 December 2018)
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: R254/2018
In
the review between:-
THE
STATE
and
ENOC
PHUZI
CORAM:
MUSI, AJP
et
NAIDOO, J
et
REINDERS, J
HEARD
ON:
3 DECEMBER 2018
JUDGMENT
BY:
MUSI, AJP
DELIVERED
ON:
28 DECEMBER 2018
Summary
;
Section 59(4)
of the
National Road Traffic Act, 93 of 1996
does
not create strict liability. Mens rea in the form of dolus or culpa
is an element of the offence.
[1]
This matter was sent on automatic review by the magistrate,
Bloemfontein. She convicted the accused of contravening section
59(4)(a) of the National Road Traffic Act 93 of 1996 (NRTA)
(exceeding the general speed limit) and sentenced him as follows:
R1500 or 12 months’ imprisonment. The magistrate, however,
requested that the conviction and sentence be set aside because
her
questioning of the accused, in terms of
section 112(1)(b)
of the
Criminal Procedure Act, 51 of 1977
,
[1]
did not comply with the guidelines set out in
S
v Mohlolo Khambule (Khambule)
.
[2]
[2]
After
Khambule
,
S v
Thando Peter Mtyhole (Mtyhole)
[3]
was delivered wherein some of the holdings and findings in
Khambule
were criticised and rejected. In both matters the accused was charged
with exceeding the general speed limit. The different views
espoused
in the judgments led to confusion and uncertainty. Many magistrates
sent matters on special review because they did not
know which
judgment to follow. The problems and confusion thus became a
veiled opportunity for us to reconsider the nature
of the offence of
exceeding the general speed limit.
[3]
We requested the Free State Society of Advocates to nominate one its
members to act as an
amicus curiae
. They nominated Mr Pieterse
and the State was represented by Mr Strauss. They both argued that
Mtyhole
is correct and that
Khambule
is wrong. We thank
them for their efforts.
[4]
The major difference in the two matters revolves around what
questions an accused should be asked in terms of
section 112(1)(b)
or
what admissions should be contained in a
section 112(2)
statement. In
Khambule
the learned judge said the following:
“
In the statement
the accused did not admit that the operator, in other words, the
traffic officer concerned, was duly authorised
or competent to
operate the speed capture device. That was the second defect. Above
all of these the accused did not admit in his
statement that he knew
that it was unlawful for him to travel at the alleged excessive speed
or that he knew that traveling at
such a speed was a traffic
transgression punishable by law. This was the third defect in his
written statement.
As regards the merits or
rather conviction, it follows from the above that that requisite
criminal intent was not established. This
is so because the accused
did not admit that he was aware, before he was pulled over by traffic
officer, that he was traveling
at an excessive speed and that he knew
doing so rendered him liable to prosecution. Apart from this lack of
subjective knowledge,
the accused averred that the approximate speed
at which he was traveling was shown to him. By itself, that tended to
suggest that,
before then, he did not know that he was exceeding the
speed limit of 100 kmph. As a matter of fact, he did not admit that
he knew
such general speed limit applied to the particular zone of
the public road. Such prior knowledge was relevant to criminal intent
more so because he was traveling on a highway or a road where the
maximum is generally 120 kmph.
In the absence of clear
and explicit admissions by the accused that he knew the speed limit
applicable to the particular zone of
the freeway; that he knew that
he was driving at a speed in excess of the speed limit and that he
knew that by exceeding the speed
limit was committing a traffic
offence punishable by law, the elements of criminal intent and
unlawfulness were amiss to sustain
the conviction.”
[5]
In
Mtyhole
, the court analysed the statement in
Khambule
found that the conclusion that ‘’criminal
intent and unlawfulness were amiss to sustain a conviction” is
clearly
wrong. It found that the traffic officer’s competence
to operate the speed measuring device “is not one of the
essential
elements of the offense of speeding”. It came to the
following conclusion:
“
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.
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
s113
and an unnecessary wasting
of court time and resources.”
[6]
In my view the differences in the two judgments are partially caused
by the fact that the nature of the offence and its elements
were not
properly considered by my learned colleagues.
[7]
Section 59(4)(a)
of the NRTA reads as follows:
“
No person shall
drive a vehicle on a public road at a speed in excess of –
(a)
the general speed limit which in terms of subsection (1) applies in
respect of that road;…”
[8]
Subsection 1 of
section 59
provides as follows:
“
(1) The general
speed limit in respect of –
(a)
every public road or section thereof, other than a freeway, situated
within an urban area;
[4]
(b)
every public road or section thereof, other than a freeway, situated
outside an urban area;
[5]
and
(c)
every freeway,
[6]
shall be as prescribed.”
[9]
Section 59(4)(a)
does not expressly contain or exclude fault as a
requirement for the offence. The mere act of driving a motor vehicle
on a public
road in excess of speed limit seems to be an offence. The
general principle of our law is that a conviction cannot be sustained
if fault has not been proven. In
S
v Coetzee
[7]
it was said that:
“…
The
general principle of our common law is that criminal liability arises
only where there has been unlawful conduct and blameworthiness
or
fault (the
actus
reus
and
mens
rea
).
This principle is ordinarily expressed in the Latin maxims
actus
non facit reum nisi mens sit rea
and
nulla
poena sine culpa
.
At common law, the fault requirement is generally met by proof of
intent (dolus) in one of its recognised forms, and, in rare
circumstances, and the objective requirement of negligence (culpa)…As
Kentridge AJ has mentioned in para [94] of his judgment,
the
requirement of fault or culpability is an important part of criminal
liability in our law. This requirement is not an incidental
aspect of
our law related to crime and punishment, it lies at its heart. The
state’s right to punish criminal conduct rests
on the notion
that culpable criminal conduct is blameworthy and merits
punishment...”
[8]
[10]
Furthermore O’Regan J comprehensively surveyed the legal
position in most common law countries and concluded that:
“
The
striking degree of correspondence between different legal systems in
relation to an element of fault in order to establish criminal
liability reflects a fundamental principle of democratic societies:
as a general rule people who are not at fault should
not be
deprived of their freedom by the State. This rule is the
corollary of another rule which the same comparative exercise
illustrates: when a person has committed an unlawful act
intentionally or negligently, the State may punish them. Deprivation
of liberty, without established culpability, is a breach of this
established rule. Where culpability is established, and the conduct
is legitimately deemed unlawful, then no such breach arises.”
[9]
[11]
In
Democratic
Alliance v African National Congress
[10]
(DA v ANC)
Cameron
J said the following:
“…
Strict
criminal liability is therefore not easily countenanced. There is
thus an interpretive presumption that a penal prohibition
includes a
requirement of fault. It will be read to do so unless there are
‘clear and convincing indications to the contrary’.”
[11]
[12]
In
Scagell
and Others v Attorney-General, Western Cape, and Others
[12]
the principle was stated thus:
“…
It has
long been recognized by our courts that, unless there are clear and
convincing indications to the contrary in a statute,
the prosecution
will be required to prove the necessary
mens
rea
on
the part of the accused person.”
[13]
[13]
There is no indication in
section 59(4)
that faultless, strict or
absolute criminal liability would be sufficient to sustain a criminal
conviction. Hence the provision
must be read to require fault. What
form of fault?
[14]
Offence creating provisions which require fault in the form of
dolus
,
in any of its manifestations, normally contain words such as
wilfully, intentionally, knowingly or with intent. Provisions that
require fault in the form of negligence will normally contain words
such as negligently and without reasonable care.
Section 57(12)
of
the NRTA contains words which clearly indicate that fault in the form
of
dolus
or
culpa
is a requirement for the offence. It,
inter alia,
states that no person shall wilfully or
negligently damage any road traffic sign.
[15]
The text of
section 59(4)
is equivocal. In
DA v ANC
the
factors to consider in determining whether strict liability was
contemplated is set out as follows:
“
Where the text is
equivocal, the provision’s scope and object, the extent of the
punishment it imposes, and the ease with
which the provision may be
evaded if culpability were, or were not, required become particularly
prominent.”
[14]
[16]
In some jurisdictions exceeding the speed limit is deemed to be a
regulatory offence that attracts absolute criminal liability.
In
Aron
v Grant
[15]
the Supreme Court of Victoria Appeal Division reasoned as follows
about the offence of exceeding the speed limit:
“
Speeding motor
cars have become dreadful engines of destruction. The cost to the
community in terms of death and injury and economic
loss has been
enormous. I would expect a provision of this kind to require drivers
to keep within the applicable speed limit at
their peril. If the
defence of honest and reasonable belief were applicable, then
mistakes could be of two kinds. There could be
a mistake of fact, the
fact bearing on whether one was in a speed zone, and there could be a
mistake of fact as to the speed at
which the vehicle was travelling.
I think that the intention here is that motorists shall at their
peril be aware of the applicable
speed limit, and shall then at their
peril so govern their speed as to keep within it. I do not think that
they can be heard to
say, except in mitigation, that a badly parked
pantechnicon obscured a speed restriction sign from their view, or
that a power
failure at night led them to believe that there was no
provision for street lighting along the road, or that they believed
their
faulty speedometer to be working properly, as in Heam v McCann
(1982) 29 SASR 448
, or that for any other reason they believed they
were not breaking the speed limit. Human ingenuity and human nature
being what
they are, I should not expect the law to recognise mistake
as a defence to a charge of this kind. That defence was rejected by
Zelling J. in the speeding case to which Mr Monteith very properly
referred us, Hearn v McCann.
A conviction for speeding
carries no stigma; perhaps it should, but it does not. This summary
offence carries a maximum penalty
of only $500. Licence cancellation
and suspension are dealt with by s28 of the Road Safety Act 1986. A
licence cancellation or
suspension may bear heavily on the defendant,
but in the overall scheme of things, a licence cancellation or
suspension, irksome
though it may be, may be regarded as towards the
bottom end of the scale of criminal punishment.”
[17]
This conclusion could easily have been reached if one considers the
factors mentioned in
DA v ANC
, which may, in turn, lead
one to conclude that fault is not a requirement for a contravention
of section 59. Speeding of motor
vehicles on public roads contribute
to the maiming and killing of many people. It is a major contributor
to negligent and reckless
driving of motor vehicles. The sentiments
expressed in
Aron v Grant
about the effects of the
offence are also applicable to motorists of this country. If one was
not aware of the fact that, that
matter was decided in New Zealand
one would be forgiven for thinking that the case refers to the South
African situation.
[18]
The State therefore has an interest and a duty to ensure that
speedsters are arrested and prosecuted and that the prosecution
should not be delayed or undermined by all sorts of fanciful and
disingenuous defences. The bottom line, however, is that faultless
criminal liability cannot be countenanced for exceeding the speed
limit because of the risk of imprisonment.
[19]
The punishment for exceeding the speed limit may on one hand be a
spot fine and on the other hand imprisonment for three years.
In
terms of section 89(3), any person convicted of contravening section
59(4) shall be liable to a fine or to imprisonment for
a period not
exceeding three years. In some instances, the offender is arrested,
appears in court and may be sentenced to imprisonment.
This typically
happens when the offender has been convicted of driving in excess of
30 km/h over the prescribed general speed limit
in an urban area or
in excess of 40 km/h over the prescribed general speed limit outside
an urban area or on a freeway.
[16]
Imprisonment always attracts stigma and humiliation. A criminal
record ensues in cases where the accused is convicted which may
have
a bearing on the offender’s employment or obtaining a visa to
visit some countries.
[20]
Exceeding the speed limit is not a minor regulatory offence. It
attracts heavy sentences. In
S
v Pelser
[17]
it was correctly said, with reference to exceeding the general speed
limit, that:
“
Dit
gaan hier om ‘n strafregtelike misdaad wat swaar vonnisse trek
en moet as sodanig in ‘n ernstige lig beskou word.
Die erns van
die misdaad verg dan dat die strafregtelike prosesvereistes streng
nagekom moet word.”
[18]
[21]
The successful prosecution of this offence will be seriously
undermined if fault in the form of intent only is required. It
will
render section 59(4) ineffective. It might even encourage speedsters
to deliberately contravene the section because escaping
liability
will be very easy. Public confidence in law enforcement will also be
undermined because the perception might inadvertently
be created that
there is a law that is very difficult to successfully prosecute.
[22]
I say this because an accused person may for example say that he or
she did not check the motor vehicle’s speedometer
because his
mind was elsewhere or that he or she was talking to a passenger and
had not realised that he or she was exceeding the
speed limit.
Knowledge, as the proposed questioning in
Khambule
suggests, requires conscious attention to the fact that the driver
knew that he or she was exceeding the speed limit. It will be
nigh
impossible for the prosecution to prove such knowledge, because as
the adage goes, his or her knowledge like the state of
his or her
digestion would be patent only to himself or herself. This will
generate countless number of trials in the Lower Courts
and appeals
in the High Courts because most accused would plead not guilty secure
in the knowledge that the State would have great
difficulty in
securing a conviction.
[23]
In my view, fault in the form of negligence might address the
problems that intent as the only requirement will create. The
test
for negligence was enunciated as follows in
Kruger
v Coetzee
:
[19]
“
For the purposes
of liability
culpa
arises if-
(a) a
diligens
paterfamilias
in the position of the defendant-
(i)
would foresee the reasonable possibility of his conduct injuring
another in his person or property and causing him patrimonial
loss;
and
(ii)
would take reasonable steps to guard against such occurrence; and
(b)
the
defendant failed to take such steps.”
[20]
[24]
The State would have to prove that the accused exceeded the speed
limit as a result of his or her negligence. This would entail
proving
that a
diligens
paterfamilias
in the position of the driver would foresee the reasonable
possibility that driving a motor vehicle might lead to him or her
exceeding
the speed limit. This may require consideration of the
particular driver’s experience, knowledge and capacities.
[21]
When that is established, the State would further have to prove that
a reasonable person in the position of the driver would have
guarded
against exceeding the speed limit and that the accused failed to do
so, which resulted in him or her exceeding the speed
limit. All these
elements of the test must be proved beyond a reasonable doubt.
[25]
When it comes to intention, the State will have to prove that
exceeding the speed limit is what the driver desired or that
he or
she actually foresaw the risk of exceeding the speed limit but
recklessly reconciled himself or herself with the risk materialising.
Obvious examples of drivers who would be convicted of intentionally
exceeding the speed limit are for example: two drivers who
agree to
race against each other on a public road and exceeding the speed
limit while doing so, or a driver who had acquired a
new car
exceeding the speed limit because he or she wanted to test whether it
can reach 200km/h.
[26]
The State would be able to secure more convictions based on
negligence or intent. The deterrent effect of the offence would
be
maintained and it would not be easy for offenders to escape the reach
of section 59(4). The net must be cast as wide as possible.
The
lowest form of blameworthiness is therefore required to ensure that
most speedsters are successfully prosecuted and sentenced.
If
negligence or intent is required, the offence would straddle the
entire fault spectrum from negligence to direct intent.
[27]
In
S
v Skele
[22]
the elements of exceeding the speed limit were set out as follows:
“
Die
pleging van die betrokke misdryf sou slegs bewys wees as die
getuienis bewys dat:
(a)
op 'n pad;
(b)
met 'n brandstof aangedrewe voertuig;
(c)
die voorgeskrewe spoedgrens oorskry is.
Om
element (c) te bewys moet daar getuienis wees wat die hof
bo enige redelike twyfel tevrede stel dat die apparaat wat
gebruik
was om die spoed te bepaal betroubaar is, en die spoed korrek bepaal
en geregistreer het. Sien S. v Lucas,
1968
(2) SA 592 (OK)
te
bl. 594E - F (re gatsometer); S. v Motaung,
1972
(4) SA 687
(O)
te
bl. 688E - G (re velomat); S. v Currin,
1961
(4) SA 393
(O)
(repatrolmaster); S.
v Du Plessis,
1966
(1) SA 607 (K)
te
bl. 609A - D (re gatsometer); S. v Dawson,
1966
(1) SA 259
(N)
te
bl. 267A - C (re gatsometer); S. v Wiesner,
1971
(2) SA 445 (O)
te
bl. 446D - G (radarapparaat).
En
om hieraan te voldoen sou die getuienis tenminste moet aantoon dat
die betrokke apparaat:
(i)
betroubaar vir
daardie doel is;
(ii)
korrek
opgestel was;
(iii)
voor
en na die spoedlokval getoets was en behoorlik en korrek funksioneer
het; S. v Margolis,
1964
(4) SA 579
(T)
;
(iv)
die
geregistreerde spoedlesing die van die betrokke motorvoertuig was en
die voorgeskrewe spoedgrens oorskry is.”
[23]
[28]
The definition in
Skele
does not contain fault as an
element of the offence.
Skele
was decided before our
constitutional democracy. In light of what I said above, fault is a
requirement of the offence. The elements
of the offence created by
section 59(4) are therefore that the accused unlawfully and
intentionally or negligently drove a motor
vehicle on a public road
in excess of the prescribed general speed limit.
[29]
In order to prove that the speed limit was exceeded the State would
have to prove that the speed measuring device was reliable
for the
purpose; that it determined and registered the speed accurately and
that it was properly set up in accordance with the
manufacturer’s
specifications. It is axiomatic that a properly trained person would
be able to set up the device in accordance
with the manufacturer’s
specifications.
[30]
The court cannot take judicial notice of the fact that the person who
operated the device is trained to do so. The court can
also not take
judicial notice of the fact that all traffic officers are trained to
set up speed measuring devices. Likewise, it
cannot take judicial
notice of the fact the speed measuring device functioned properly. In
S v
Hengst
[24]
it was said:
“
I
think I have dealt fully - perhaps too fully - with the principles
relating to judicial notice as determined in the cases but
the
significance of such survey is to satisfy me beyond doubt that no
South African court, in the absence of legislative authority,
is
entitled to take judicial notice of proper and adequate functioning
of a speed-testing device such as a gatsometer or a speed
guard.
There must be admissible and sufficient evidence of the actual
commission of the offence - in this instance that the appellant
exceeded the statutory speed limit of 60 km/h, which, in turn,
requires sufficient evidence to show that the apparatus, whereby
the
speed of the vehicle involved was established, was effective and
in proper working order at the relevant time.”
[25]
[31]
I now return to
Khambule
and
Mtyhole
. The
Court in
Khambule
was correct in holding that fault was
an element of the offence. Though, in my view, it unduly limited the
scope and reach of the
offence by requiring fault in the form of
dolus
only. The questioning proposed in
Khambule
is as a direct result of its holding that intent must be proved by
the State. My holding that
culpa
is sufficient, means that I
must part ways with the extensive requirements set out in
Khambule
.
I agree with
Khambule
that the competence of the
traffic officer to set up and operate the speed measuring device must
be admitted in order to prove
that the speed was measured in
accordance with the manufacturer’s specifications.
[32]
In
Mtyhole
it was said that the competence of the traffic officer to operate the
speed measuring device “is not one of the essential
elements of
the offence of speeding”. I disagree. It has always been an
integral part of the elements of the offence. In
order to prove the
reliability of the speed reading, there must be proof that the device
was properly set up and operated.
[26]
[33]
The finding in
Mtyhole
that “accused persons, admitting that they travelled too fast
and pleading guilty as a result, accept that traffic officers
are
duly authorized to act as such, properly trained to execute their
duties and that the speed capturing devices were functioning
properly” is unfortunate. The court in
Mtyhole
does not tell us on what basis the assumption should be made. On what
basis can a court assume or presume, without inquiry, that
an accused
accepts or has knowledge of the training of the traffic officer and
the functioning of the speed measuring device?
[27]
[34]
In
Carstens
[28]
I said:
“
A
radar is a measuring instrument. lt is, to state the obvious, a
machine and machines malfunction if not properly maintained. The
precision of the radar is, like most measuring instruments, dependent
on how regularly it is calibrated. lf it is not calibrated
regularly,
as per the instructions of its manufacturer, it will malfunction. lt
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. lf it was not shown to himlher,
s/he must be asked whether s/he admits
that it was calibrated as
required.
An
accused should also be asked whether s/he admits that the officer who
operated the device had been properly trained to do so.
lt was not
done in this matter.”
[29]
[35]
The assumption proposed in
Mtyhole
will defeat the
purpose of section 112(1)(b) which is to ascertain first, whether the
accused admits all the allegations in the
charge and second for the
presiding officer to satisfy himself or herself that the accused is
guilty of the offense to which he
or she has pleaded guilty. The
presiding officer can therefore only be satisfied after proper
questioning of the accused based
on the elements of the crime. An
assumption or acceptance in the head of the presiding officer does
not meet the requirement of
section 112(1)(b). It seems to me
to be too presumptuous to make such an assumption.
[36]
I do not share the apprehension or anxiety of the court in
Mtyhole
that “it is highly likely that upon questioning by the trial
court in respect of matters beyond the 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 section 113
and an
unnecessary waste of court time and resources”. Unrepresented
accused persons admit facts beyond their knowledge,
every day, in
various crimes in our lower courts. It is not unusual for
unrepresented accused persons to admit that a tablet found
in their
possession was properly packaged, marked, sent and analysed by
scientists and found to contain methaqualone or that a
blood sample
taken from their body was properly preserved, marked, sent and
analysed and that the blood alcohol content of the
blood sample is
correct.
[37]
Skele,
and the cases cited therein, and the holding in
Carstens
show that the court in
Mtyhole
finds itself in splendid isolation in as far as its assertion that
there is no need to ask an accused about the reliability of
the speed
measuring device or the competence of the traffic officer is
concerned.
[38]
It is incumbent on the magistrate to ensure that all admissions are
properly and reliably made and recorded. The questioning
of the
accused must cover all the elements of the offence. It may serve
magistrates well to bear in mind what was said in
S
v Naidoo
[30]
:
“
The purpose of the
questioning is to ascertain from the accused what facts concerning
the commission of the offence he admits so
as to enable the court to
decide whether the facts so admitted constitute proof of all the
elements of the offence sufficient to
establish the accused's guilt.
But before it can convict the accused, the court has to be satisfied,
on the facts stated by the
accused, that the accused is indeed
guilty. The court therefore not only has to ascertain whether the
admitted facts, if accepted
as correct, would establish all the
elements of the offence but it also has to pass judgment on the
reliability of the admissions.
Only if the court is satisfied as to
the reliability of the admissions of fact and that they are
sufficient to establish all the
elements of the offence may the court
convict the accused. Where an accused admits facts which are
within his personal knowledge,
no difficulty ordinarily arises. In
such a case the presumption of fact that what an accused admits
against himself may be accepted
as the truth would operate and,
provided the accused makes the admission with full knowledge of its
implications, there would be
no reason why the court should not be
satisfied about its correctness and reliability. Where, however,
the accused admits
facts of which he has no personal knowledge
further considerations arise. In such a case the considerations which
have been mentioned
earlier on in this judgment such as the
sufficiency of the accused's source of knowledge may become of
decisive importance.”
[31]
[39]
To sum up:
(a)
fault in the form of intention or negligence is an element of the
offence of exceeding the speed limit;
(b)
when an accused is questioned in terms of section 112(1)(b) the
magistrate must ascertain whether the accused admits:
(i)
the recorded speed;
(ii)
the proper functioning of the speed measuring device; and
(iii)
the competence of the traffic officer to
set up and operate the speed measuring device.
[40]
I now turn to the facts of this particular case. The accused
pleaded guilty and was questioned in terms of section 112(1)(6).
The question and answers were recorded as follows:
“
COURT
:
On the 24
th
of May 2018 you were within the district of
Bloemfontein?
ACCUSED
:
Correct.
COURT
:
(Indistinct)
ACCUSED
:
Correct your Honour.
COURT
:
Were you driving at N1?
ACCUSED
:
Correct your Honour.
COURT
:
What kind of vehicle were you driving?
ACCUSED
:
It was a Hyundai vehicle.
COURT
:
With registration number?
ACCUSED
:
[…]
COURT
:
Were you the driver of that vehicle?
ACCUSED
:
I was the driver of it.
COURT
:
Were you aware of the speed limit?
ACCUSED
:
I was aware.
COURT
:
What was it?
ACCUSED
:
120
COURT
:
What speed were you driving at?
ACCUSED
:
I was driving at 166 your Worship.
COURT
:
Is that speed allowed?
ACCUSED
:
No your Honour.
COURT
:
So do you agree that your intention was to (indistinct)
exceeding the
general speed limit?
ACCUSED
:
Correct your Honour.
COURT
:
Were you aware that your conduct was unlawful?
ACCUSED
:
Correct your Honour.
COURT
:
(indistinct) Where you aware that you were contravening
the
National
Road Traffic Act?
ACCUSED
:
Yes your worship.
COURT
:
Were you aware?
ACCUSED
:
Yes your worship.
COURT
:
State do you accept the plea?
PROSECUTOR
:
I accept the plea your Worship.
COURT
:
Okay sir now that you admitted all the elements of
the offence the
court is
FINDING YOU GUILTY OF EXCEEDING THE GENERAL SPEED
LIMIT.
…”
[41]
The magistrate did not ask the accused why he said that he was
driving at 166; presumably 166 km/h. It is not clear whether
this was the speedometer reading of his motor vehicle or the reading
of a speed measuring device. Nothing was asked about
the speed
measuring device or whether a traffic officer, if he was arrested by
a traffic officer, informed him about the speed
at which he was
travelling.
[42]
The magistrate could under these circumstances not have been
satisfied that the accused properly admitted all the allegations
in
the charge because there was no proper basis for the admission that
he drove at 166 km/h. This might seem to be over pedantic,
but as was
said in
Pelser
[32]
the seriousness of the offence demands that the procedural
requirements be strictly adhered to.
[43]
The proceedings were not in accordance with justice. The conviction
and sentence ought to be set aside. I leave it up to the
Director of
Public Prosecutions to decide whether to re-charge the accused.
[44]
I accordingly make the following order:
The
conviction and sentence are set aside.
________________
C.
J. MUSI, AJP
I
concur.
________________
S.
NAIDOO, J
I
concur.
________________
C.
REINDERS, J
Appearances:
For
the applicants: Adv Pieterse
Amicus
Curiae
For
the respondents: Adv Strauss
Instructed
by: Director Public Prosecutions
Bloemfontein
[1]
Section 112(1)(b)
reads as follows:
“
(1)
Where an accused at a summary trial in any court pleads guilty to
the offence charged, or to an offence of which he may be
convicted
on the charge and the prosecutor accepts that plea-
…
(b)
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.”
[2]
Unreported judgment review case number R177/2018
Free
State High Court: Bloemfontein delivered on 16 August 2018.
[3]
Unreported judgment review case number R255/2018 Free State High
Court: Bloemfontein delivered on 18 October 2018.
[4]
Prescribed
by
regulation 292(a)
as 60 km/h.
[5]
Prescribed
by
regulation 292(b)
as 100 km/h.
[6]
Prescribed
by
regulation 292(c)
as 120 km/h.
[7]
S
v Coetzee and Others
1997
(3) SA 527 (CC).
[8]
Ibid
para
[162].
[9]
Ibid para [176].
[10]
Democratic
Alliance v African National Congress and Another
2015 (2) SA 232 (CC).
[11]
Ibid para [154]. See also
Minister
of Justice and Constitutional Development and Another v Masingili
and Others
Case CCT 44/13
[2013] ZACC 41
;
2014 (1) BCLR 101
(CC);
2014 (1) SACR
437
(CC) paras [36] to [41].
[12]
Scagell
and Others v Attorney-General, Western Cape, and Others
1997
(2) SA 368 (CC).
[13]
Ibid para [33].
[14]
See footnote 10 para [156]
[15]
Aron v
Grant
[1991]
1 VR 321.
[16]
See
section 35(1)
of the NRTA.
[17]
S v
Pelser
1974 (4) SA 400 (T)
[18]
Ibid
at
402C; “This is a criminal offense that attracts heavy
sentences and must be regarded as serious. The seriousness of the
crime requires that the criminal procedural requirements be strictly
adhered to.” (My translation.)
[19]
Kruger
v Coetzee
1966
(2) SA 428 (A).
[20]
Ibid
at 430E.
[21]
See
Whiting
R: Negligence, Fault and Criminal Liability
1991 108 SALJ 431
for an
in-depth discussion of negligence. S v Humphreys
2013 (2) SACR 1
(SCA).
[22]
S
v Skele
1974
(4) SA 386 (T).
[23]
Ibid at 387A; “
The commission of the offense concerned would only be proved if the evidence proves that:
(a) on a road;
(b) with a fuel-propelled vehicle;
(c) the prescribed speed limit has been exceeded.
To prove element (c) there must be evidence that the court is satisfied without any reasonable doubt that the device used to determine
the speed is reliable and correctly determined and registered the speed…
And to comply with this, the evidence should at least indicate that the device concerned:
(i) is reliable for that purpose;
(ii) was correctly set up;
(iii) was tested before and after the emergency run and operated properly and correctly; S. v Margolis,
1964 (4) SA 579
(T);
(iv)
the recorded speed reading was that of the motor vehicle concerned
and the prescribed speed limit was exceeded.”
My
translation.
[24]
S v
Hengst
1975
(2) SA 91 (SWA).
[25]
Ibid
at 100D.
[26]
See
S v Snyman
2001 (1) SACR 354
(N) at 356 to 357 for the SABS
guidelines with regard to a speed measuring device. See also S v
Thysma Carstens unreported Free
State High Court review case no
143/2011 delivered on 25 August 2011.
[27]
Section
74
of the NRTA is also of no assistance. It provides that “In
any prosecution in terms of this Act, the fact that any person
purports to act or has purported to act as a traffic officer, an
inspector of licences, an examiner of vehicles or an examiner
for
driving licences, shall be
prima
facie
proof of his or her appointment and authority so to act: Provided
that this section shall not apply to a prosecution on a charge
of
impersonation.” The training of a traffic officer to operate a
particular speed measuring device is not covered by section
74.
[28]
Ibid. I said that with reference to the guidelines for prosecution
with regard to speed and traffic light prosecution prepared
by the
Technical Committee for Standards and Procedures for Traffic Control
and Traffic Control Equipment.
[29]
Ibid at [9] and [10].
[30]
S v
Naidoo
1985
(2) SA 32 (NPD).
[31]
Ibid at 37F-I.
[32]
Ibid at 402.