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2016
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[2016] ZAFSHC 14
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S v Ramakatsa (6/2016) [2016] ZAFSHC 14 (4 February 2016)
IN THE HIGH COURT
OF SOUTH AFRICA
(FREE
STATE DIVISION, BLOEMFONTEIN)
Review No.: 6/2016
In
the review between:
THE
STATE
and
NYAMEKO
SIMON RAMAKATSA
CORAM:
VAN
ZYL, ADJP
et
EBRAHIM,
J
JUDGMENT
:
EBRAHIM,
J
DELIVERED
ON
:
4
FEBRUARY 2016
[1]
The accused was charged with the crime of driving whilst the
concentration of alcohol in his bloodastream was excessive
(Section
65(2)(a)
of The
National Road Traffic Act 93 of 1996
.) He was
convicted on his plea of guilty in terms of
section 112(1)(a)
and
sentenced to pay a fine of R1 500,00 or undergo 3 months
imprisonment which was wholly suspended on certain conditions.
[2]
The control magistrate detected the following irregularities in the
matter upon performing a supervisory check and has requested
a
special review in terms of
section 304(4)
of the
Criminal Procedure
Act, 51 of 1977
.
“
4.1
In view of the seriousness of the offence of contravention
section
65(2)
of Act 93 of 1996 it is submitted questioning in terms of
section 112(1)(b) of Act 51 of 1977 should have been applied.
4.2 The Magistrate
should not have convicted the accused in view of the fact the
annexure to the charge sheet
does not indicate the concentration of
alcohol that was found in a sample of blood taken from any part of
the body of the accused.
4.3 With regard to
the section 35 of Act No. 93 of 1996 enquiry the Honourable Reviewing
Judge is respectfully
referred to page 2 line 10 of the transcribed
record where the presiding officer already expressed the opinion that
she was not
going to suspend the driver’s licence of the
accused before inviting any evidence or address in this regard.
4.4
Section 35(3) of Act 93 of 1996 is to the effect that suspension of
licence or disqualification can only be
dispensed with after
presentation of evidence under oath. (See S v Swartz
(86/2013)(2013) ZAFSHC 93). No such evidence
had been adduced.”
[3] The control
magistrate’s reservations with regard to the conviction and
sentence of the accused are well founded.
The proceedings were
not conducted in accordance with justice for the reasons stipulated
by him in his letter. The conviction
and sentence is
accordingly set aside and any monies paid by the accused in
satisfaction of the sentence are to be repaid to him
immediately.
_____________
S. EBRAHIM, J
I
concur.
________________
C.
VAN ZYL, ADJP
/eb