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2016
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[2016] ZAFSHC 209
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S v Reditsebe (R180/2016) [2016] ZAFSHC 209 (15 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: R180/2016
Reportable:
No
Of
interest to other judges: No
Circulate
to magistrates: No
In
the matter between:
THE
STATE
and
MAJORO JOHN REDITSEBE
CORAM:
NAIDOO, J et TSATSI, AJ
JUDGMENT BY:
TSATSI, AJ
DELIVERED ON:
15 DECEMBER 2016
REVIEW IN TERMS
OF
SECTION 302
OF THE
CRIMINAL
PROCEDURE ACT 51 OF 1977
TSATSI,
AJ
[1]
This matter came before us as a review, to
section 302
of the
Criminal Procedure Act  
;("the Act") against the
decision of the Magistrate in Ladybrand. The accused
conducted his own defence.
He pleaded guilty. Initially the reviewing
Judge Hinxa AJ, addressed a query to the magistrate as follows:
"1. If the
accused took over because the driver fell sick on the way, was the
accused not impliedly raising
a
defence of
emergency/neccesity?
2.
Why was the it not
specifically enquired if the accused driving ability was not impaired
as
a
result of the consumption of liquor?
3. Even on the
questioning on his mental ability (which was at any rate not enough
because he was supposed to be questioned on the
impairment of his
driving ability) accused stated that he could still drive safely .Any
comments?"
[2]
Hinxa AJ, brought to the attention of the learned magistrate the case
of
S v Mzimba
2012 (2) SACR 233. The magistrate
responded as follows:
"In response to
the first question raised by the Honourable Reviewing Judge, my
understanding and conclusion was that accused
has been all along
aware of the health status of his father since he (the father) had
just been discharged from certain hospital
in Bloemfontein on the
date of the incident but accused nevertheless decided to imbibe
alcohol and allow his sickly father drive
them back to Lesotho. I
subjectively concluded that accused foresaw possibility of his father
not being able to reach their destination
since he had just been
discharged from hospital but accused reconciled himself with such
a
possibility and acted outside the scope of
a
'reasonable
person' under cirucmstances that had warranted an exercise of caution
.... In response to the second and third query
raised by the
Honourabe Revieweing Judge, accused was questioned whether the beer
he took had any narcortic effect on him but in
light of the decision
of Mzimba supra I should have sufficiently questioned accused on the
degree of impairment and /or diminished
status of his driving
abilities."
[3]
The accused was charged with contravening the provisions of
Section
65
(1) (a)/ (b) read with
Section 1
,
65
(3),
65
(4),
65
(8),
65
(9),
73
and
89
of the
National Road Traffic Act 93 of 1996
. Driving under
the influence of liquor or drugs. The allegation is that upon or
about 3 January 2016 and on N8 a public road in
the District of
Ladybrand the accused did wrongfully: (1) drive a vehicle, to wit
Black Toyota, with Registration Number MC 802
FS, or (b) sit in the
driver seat of a motor vehicle, to wit Black Toyota with registration
number MC802 FS, the engine of which
was running whilst he was under
he influence of intoxicating liquor or a drug having a narcotic
effect.
[4]
Section 112(1)(b) of the Criminal Procedure Act 51 of 1977 ("the
Act") provides that 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
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.
[5]
It does not appear from the record that the Magistrate questioned the
accused sufficiently about his ability to drive or the
impairment
thereof. The Magistrate should have questioned the accused on the
effect of alcohol on the accused's driving ability.
The conviction
must be overturned since the accused failed to admit that the alcohol
had an influence on his driving ability. It
is trite that when an
accused does not admit all the elements of an offence charged with,
that a court cannot be satisfied with
his guilt and that a plea of
not guilty should be entered. In my view the learned Magistrate was
obliged to inform the accused,
who was unrepresented, of the
provisions of section 35(1) and (2) of the Act, before imposing
sentence. The Court did not hold
an enquiry to determine whether it
should suspend his driver's licence.
[6]
As a result of an oversight my view is that the conviction and
sentence imposed fall to be set aside.
[7]
Accordingly the following order is made:
7.1 The conviction and
sentence are hereby set aside.
7.2 The matter is
remitted to the District for trial before another Magistrate.
_____________
E.K
TSATSI. AJ
I
concur.
_____________
S.
NAIDOO J