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[2018] ZAECBHC 7
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S v Mantakana (13/2018) [2018] ZAECBHC 7 (12 July 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, BHISHO)
Case
No. 13/2018
THE
STATE
and
LUNGA
MANTAKANA
Accused
REVIEW
JUDGMENT
HARTLE
J
[1]
This matter came before me by way of automatic review.
[2]
The accused was convicted on 19 February 2018 by the Zwelitsha
Magistrate’s
Court of the offence of contravening section 65
(1) (a) of the National Road Traffic Act Act 93 of 1996 (“NRTA”),
colloquially
referred to as “drunk driving,” pursuant to
his plea of guilty to the “main count” and sentenced to
pay
a fine of R4 000.00 or in default of payment to undergo twelve
months’ imprisonment of which R1 000.00 or two months’
imprisonment was suspended for three years on condition that he is
not convicted of driving a motor vehicle under the influence
of
intoxicating liquor or drug having a narcotic effect, committed
during the period of suspension.
[3]
What is
customarily put to an accused person as an alternative to a main
charge of drunk driving, namely a contravention of section
65 (2) (a)
of the NRTA (driving with an excessive concentration of alcohol in
any specimen of blood taken from his body), was deleted
on the charge
sheet and deliberately not put to the accused to plead to.
Since he was unrepresented when he pleaded guilty
to the only charge,
the court put certain questions to him to determine his guilt in this
respect.
[1]
[4]
The nature
of the questioning which ensued however gives the impression that the
magistrate believed the accused’s plea to
be a guilty one to
the alternative charge despite asking how he wished to plead to the
“main count.” He was probed
for example, concerning
how long after he was arrested at a roadblock near the Bhisho High
Court he was taken to a medical doctor
to have his blood drawn.
(It appears that when he was stopped at the roadblock a breathalyzer
test was undertaken which indicated
immediately, according to his own
admission, that the limit of alcohol in his blood was above the legal
limit.) He agreed
that a blood specimen had been extracted
within two hours of his arrest. He also agreed, on the
assumption that a certificate
exists to this effect, that the
concentration of alcohol in his blood was not less than 0.05 grams
per 100ml, namely 0.20 grams
per 100 ml.
[2]
Asked if he knew that it was unlawful to drive a motor vehicle well
knowing that he had “partaken in liquor,”
he answered
affirmatively.
[3]
He
clarified that he had consumed five “dumpies” of 750ml
Heineken beers.
[5]
The state
was thereupon asked to indicate if the facts were “in line”,
pursuant to which the conviction was recorded.
[4]
Sentence proceedings then ensued.
[6]
It is self-evident that not one iota of evidence was recorded to
indicate that the accused’s driving ability was impaired by the
consumption of alcohol, even by any of his admissions elicited
during
the questioning. No collision had taken place and it was
further not evident that the manner in which he had driven
endangered
anyone else.
[7]
The magistrate simply failed to elicit the proper admissions which
were required to sustain the conviction on the “main count”
if it could be sustained at all given that the only indication
was
that the accused was arrested at a roadblock and failed a
breathalyzer test.
[8]
The fact
that the accused’s blood test co-incidentally revealed an
alcohol concentration of 0.20 grams per 100 ml does not
per
se
warrant
an inference that he was incapable of exercising proper control over
his motor vehicle, even if the result is on its own
a high one.
There must be some self-standing indication that his driving ability
was impaired by the consumption of alcohol.
[5]
Indeed the magistrate ought by her questioning to have established
the element of “under the influence of intoxicating
liquor”
referred to in section 65 (1) (a) of the NRTA.
[6]
[9]
Absent
effective questioning to determine whether the accused admits all the
allegations in respect of the “main count”
the conviction
(and consequentially the sentence imposed) falls to be set aside and
remitted to the magistrate to be dealt with
on the basis provided for
by
section 312
of the
Criminal Procedure Act, no 51 of 1977
.
[7]
[10]
In the result the following order issues:
(a) The conviction
and sentence are set aside;
(b) The matter is
remitted to the magistrate for proper questioning in terms of
section
112
(1) (b) of the
Criminal Procedure Act, no 51 of 1977
.
B
HARTLE
JUDGE
OF THE HIGH COURT
I
AGREE
I
STRETCH
JUDGE
OF THE HIGH COURT
DATE
OF JUDGMENT: 12 July 2018
[1]
The
questioning was conducted pursuant to the provisions of section 112
(1) (b) of the Criminal Code, which provides that:
“
112. Plea
of guilty.
—
(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—
(
a
)
……
(
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]
He
was asked if he manage(d) to get the results pursuant to the
extraction of blood which he conceded had been “done within
two hours”. He answered in the negative. There is no
further discussion about the forensic analysis result, neither
does
it form part of the record. Her next question was whether he
disputed that the concentration of alcohol in the specimen
was not
less than 0,05 grams per 100 ml. He answered that he could
not. It is a trite principle that the certificate
ought to be
entered into evidence, well at least assuming the questioning
concerns a likely conviction to the alternative charge.
[3]
It
is obvious that this answer could never establish the element of
unlawfulness on either the main or the alternative charge.
[4]
This
question would only be necessary to determine if he was pleading
to
an offence of which he may be convicted on the charge. See S v
Dyantiyi
[2012] JOL 28943
(ECG) at par [10]. Since the alternative
charge was deleted, it is not sure why the question was asked, but
the fact that it
was suggests that the magistrate was focused on
convicting him on the alternative charge. She yet went on to
convict him
on the main count however on the basis that she was
satisfied that he had admitted to all the elements of such offence.
She was
either confused or failed to appreciate the distinction
between the two offences which each have their own separate
elements.
[5]
S v Masumpa
2005 (2) SACR 512
(Ck); S v Smith 1993 (1) SACR 208 (C).
[6]
S
v Fasi
2010 JOL 2594
(ECG) at para [2] and [3].
[7]
The
section provides as follows:
“
312. Review
or appeal and failure to comply with subsection (1)
(
b
) or (2) of section
112.
—
(1) Where
a conviction and sentence under section 112 are set aside
on review or appeal on the ground that
any provision of subsection
(1) (
b
)
or subsection (2) of that section was not complied with,
or on the ground that the provisions of section 113 should
have been applied, the court in question shall remit the case to the
court by which the sentence was imposed and direct that
court to
comply with the provision in question or to act in terms of section
113, as the case may be.
(2) When
the provision referred to in
subsection
(1)
is complied with and the judicial officer is after such
compliance not satisfied as is required by section 112 (1)
(
b
) or 112
(2), he shall enter a plea of not guilty whereupon the provisions
of section 113 shall apply with
reference to the matter.”