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[2015] ZAFSHC 31
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S v Mxhaka (191/2014) [2015] ZAFSHC 31 (9 February 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION:
BLOEMFONTEIN
Review No: 191/2014
DATE: 09 FEBRUARY 2015
In the matter between:
THE STATE
And
PHELLO MXHAKA
CORAM: MOCUMIE J et MOENG, AJ
JUDGMENT: MOENG, AJ
DELIVERED ON: 9 FEBRUARY 2015
[1] This is an automatic review in
terms of section 302 of the Criminal Procedure Act, 51 of 1977 (the
CPA). The accused was convicted
in the Magistrates' Court,
Botshabelo, on contravening section 65(1)(a) of the National Road
Traffic Act 93 of 1996 (the
National Road Traffic Act): driving
a
motor vehicle whilst under the influence of intoxicating liquor. The
conviction follows on his plea of guilty and his admissions
in terms
of
section 112(1)(b)
of the CPA. He was sentenced to a fine of R8000,
00 or 12 months imprisonment half of which was suspended
conditionally.
[2] The record was placed before me to
determine whether the proceedings were in accordance with justice. I
thereafter directed
the following query to the magistrate:
“1. Were the questions in terms
of
section 112(1)
(b), more importantly the question relating to the
impairment of the accused's driving skill, not leading in nature and
therefore
irregular ? – See S v Gwenya
1995 (2) SACR 522
(E).
2. Did the accused give any factual
basis for the court to have concluded that his skill and judgment or
ability to drive the vehicle
had been impaired or affected? Should
the accused not have been invited to explain what happened, so as to
determine the way that
he was driving?
3. Was a proper investigation conducted
to determine whether the accused will be able to pay the fine in
instalments, more so that
he indicated under cross examination that
he will be employed until December and that his contract may be
extended? Is a permanent
job a pre requisite for the granting of a
deferred fine? - See S v Lekgwabe 1992(2) SACR 219 (T).”
[3] The magistrate responded as
follows:
“1. Die wyse van ondervraging
volg ek al vir die afgelope 36 jaar wat ek op die regbank is en het
dit die goedkeuring van
die Oos-Kaapse Afdeling, Noord-Kaapse
afdeling en die afgelope 22 jaar, die Vrystaatse Afdeling van die
Hooggeregshof weggedra.
Indien ‘n hof nie ‘n beskuldigde
mag vra of hy erken dat die drank sy bestuursvermoë aangetas het
nie, hoe sal
jy dit weet. Ek het al gevalle gehad wat hy op die vraag
“nee” geantwoord het. Selfs al bestuur die bestuurder
normaal
kan sy vaardigheid wel aangetas wees, deurdat hy nie instaat
is om ‘n noodsituasie soos ‘n nugter persoon te hanteer
nie. Die wyse van bestuur is dus nie deurslaggewend nie –
Collinton 1970 (4) sa 325”(sic)
2. Insoverre die betaling van die boete
betref, die beskuldigde het dieselfde dag ‘n hofboete betaal
soos aangedui op die
handgeskrewe notule en is die feit dat hy
vrygelaat is, op die J4 aangedui.”
[4] In terms of
section 112(1)
(b) of
the CPA the magistrate posed the following questions which are of
relevance to the query I posed:
“HOF: Is u deur die polisie
gestop of was jy in ‘n ongeluk?
BESKULDIGDE: Deur die polisiebeamptes
gestop Edelagbare.
HOF: Het die polisie vir u gesê
waarom stop hulle u?
BESKULDIGDE: Nee
HOF: Het hulle nie vir u gesê
hulle vermoed u is onder die invloed van drank nie?
BESKULDIGDE: Ja hulle het my later
gesê.”
[5] In the course of the questioning,
the accused admitted to having consumed 4 x 750 ml bottles of beer.
The following questions
were thereafter posed:
“HOF: Erken u dat u ten tye van
die bestuur onder die invloed van drank was?
BESKULDIGDE: Ja ek erken.
HOF: Tot hoe ‘n mate sou u sê
was u onder die invloed van drank?
BESKULDIGDE: Matig
HOF: Erken u ook dat die drank u
bestuursvermoë tot ‘n mate aangetas het?
BESKULDIGDE: Dit is so Edelagbare.”
[6]
Section 112(1)(b)
of the CPA
requires of a judicial officer to 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. The duties of a judicial officer under the
section are therefore dual: (a) He has to question
the accused with
reference to the alleged facts of the case in order to ascertain
whether he admits the allegations in the charge
and (b) to satisfy
himself that the accused is guilty of the offence to which he has
pleaded guilty to. In S v Mshengu
2009 (2) SACR 316
(SCA) at 318 E,
Jafta JA (as he then was), stated that the primary purpose of the
written statement in terms of
s 112(2)
of the CPA (in casu
section
112(1)(b)
of the CPA) is to set out the admissions of the accused and
the factual basis supporting his or her guilty plea.
[7] It has been repeatedly stated by
our courts that the questioning of an accused is intended as a
cautionary measure to reduce
the risk of an erroneous conviction on a
plea of guilty. (Compare S v Kholoane
2012 (1) SACR 8
(FB) at para
[5]). In S v Mshengu supra, Jafta JA, referred with approval to S v M
1982 (1) SA 240
(N) at 242D-E, where it was put thus by Didcott J:
'Accused persons sometimes plead guilty
to charges, experience shows, without understanding fully what these
encompass. The danger
of doing so is obvious in a society like ours,
which sees many who are illiterate and unsophisticated coming before
the courts
with no legal assistance…’
[8] From the record, it is clear that
the proceedings in casu were dominated by the magistrate’s
questioning. The accused
was not given an opportunity to tell his
story. When probed whether the police told him why they stopped him,
the accused responded
in the negative. This response prompted a
direct leading question from the magistrate: “Het hulle nie vir
u gese hulle vermoed
u is onder die invloed van drank nie?” To
this, the accused answered in the affirmative. This question
suggested an answer
and was not aimed at discovering what ensued. The
question created the impression that because the accused pleaded
guilty, he simply
had to confirm that the police suspected that he
was under the influence of alcohol. The construction of this question
suggests
that the magistrate was eager to have the accused admit that
he was under the influence of liquor
[9] It is in this context important to
reiterate that leading questions are not per se irregular. Such
questions may be posed as
a form of introduction guiding the accused
to the occurrence that led to his arrest. Such questions may also be
posed to confirm
aspects that were already placed on record by the
accused or left out by him when telling his story but should be
supplemented
by questions inducing factual responses to prove or
disprove the element raised by the question. It is however improper
on material
issues, to put leading questions to the accused without
further ado.
[10] The easiest method of applying
section 112(1)
(b) of the CPA is for the accused to be invited to
explain what happened, for the presiding officer to ascertain whether
a factual
basis for the admissions in his plea of guilty exists. The
accused should therefore be questioned with reference to the alleged
facts of the case. In my view the requirement that the presiding
officer had to be satisfied that the accused is guilty envisages
that
he be satisfied that there is sufficient factual support for the
admissions in the plea in regard to all the allegations.
These facts
have to be placed on record by the accused and should later be
confirmed by the prosecutor if they are in accordance
with the facts
in the police docket. An accused should in a nutshell simply be
encouraged to tell his story.
[11] As I understand the import of
s
112(1)(b)
, the magistrate was not only expected to ignore the fact
that the accused pleaded guilty, but he was also required to employ a
fact finding mission to ascertain whether the facts supported the
admissions and the plea of guilty. The posing of leading questions,
the answers to which are either yes or no, did not elicit the truth
since the answer was suggested in the question. The simplest
question
under these circumstances would have been to ask the accused why the
police stopped him and what led to his arrest.
[12] It is common cause that the
accused admitted to having consumed four 750ml bottles of beer. He
was resultantly questioned whether
he admitted having been under the
influence of liquor while driving the vehicle and whether the liquor
affected his driving abilities.
He responded in the affirmative. The
magistrate was required to pose further questions to explore the
factual basis upon which
these admissions were made. Apart from the
fact that these questions were leading, the magistrate similarly
failed to discover
whether these admissions expressed the version of
the accused truthfully.
[13] Whether the accused was driving
while under the influence of alcohol within the meaning of
section
65(1)(a)
is a conclusion of law to be derived from the facts placed
before the magistrate. Questions put to an accused under
s 112(1)(b)
are questions about the factual elements of a criminal offence, not
questions about conclusions of law. This was accurately put
by Wallis
J in S v Zerky
2010 (1) SACR 460
(KZP) at 469d–e that
questions put to an accused under
s 112(1)
(b) are questions about
the factual elements of a criminal offence, not questions about
conclusions of law to be drawn from facts.
[14] It is trite that the state need
not prove that the actual driving of the accused showed him to be
incapable of controlling
the vehicle. (S v Collington
1970 (4) SA 3
25
(R)). But what is important is what the court set out succinctly at
331 in para B-F, where it is stated:
“I do not want it to be
understood, however, that the manner in which the accused actually
drives is an irrelevant consideration
in determining his guilt under
the section. Far from it, the manner in which the accused actually
drives is most important evidence
proving his state of intoxication;
but the State can secure a conviction even though the accused drives
perfectly provided the
court is satisfied from other evidence that he
was so drunk that the only conclusion that can be drawn is that he
was not capable
of being in proper control of a car at the time. For
example, even though he was driving perfectly at the time it may be
inferred
from his state of intoxication that if he was faced with a
sudden emergency he would be incapable of exercising that degree of
skill which would be required of a normal driver, and to that extent
would be incapable of having proper control of the vehicle.
There may
be other cases, however, where the accused is not so obviously under
the influence of intoxicating liquor, where the
manner in which he
actually drives may well be decisive in determining whether or not he
is capable of exercising proper control.
In such cases if he drives
perfectly this may well justify the court in acquitting him, and the
instant case may be such a case.
In other cases, however, if the
accused drives in a most irregular fashion this in itself would prove
that the amount of alcohol
which he had consumed, though perhaps not
great, was sufficient to render him incapable of having proper
control of his vehicle.”
(My emphasis).
[15] The manner in which the accused
drove the vehicle is of importance in deciding whether he was under
the influence, particularly
where there are no visible displays of
intoxication on his part. There were no facts on record for the
magistrate to have concluded
that the manner of driving was not
decisive. Had there been such facts, except for the leading question
that prompted the accused
to admit that his driving ability was
impaired, this contention by the magistrate may have been sound.
[16] It therefore follows that, for a
conviction to follow, the magistrate should have been satisfied not
only that the accused
was under the influence of liquor, but also
that at the time his normal skill and judgment in controlling his
vehicle was diminished
as a result of his consuming alcohol. Mere
prove of consumption of intoxicating liquor is not per se sufficient,
his driver’s
skill, which involves an element of physical
ability, and his judgment, which involves an element of mental
ability, should likewise
have been affected. ( See S v Grobler
1972
(4) SA 559
(O), at 561)
[17] It was not enough to simply ask
the accused whether the liquor affected his driving abilities, but
there should in addition
have been prove of some or other
manifestation of intoxication noted from the facts placed on record
by the accused. This question
may have been posed provided a factual
basis was laid by the accused from which it may have been established
that he was driving
while under the influence of liquor. The accused
should have indicated how his driving skill had been impaired by the
consumption
of alcohol. The extent of the impairment of the accused's
faculties should therefore have been elicited by the magistrate
through
his questioning and reliance should not have been placed on
the say so of the accused which was provoked by a leading question.
[18] I am satisfied that the magistrate
failed to follow a course that would have assisted him to determine
the true facts of the
case and he resultantly failed to protect the
accused from the consequences of an unjustified plea of guilty.
[19] Generally, in order for the
magistrate to have been able to determine whether the accused should
be given the opportunity to
pay a deferred fine, the following
factors were sufficient: (i) the accused was employed earning around
R2000, 00 per month; (ii)
he had been so employed for two months and
his contract of employment was due to expire within 3 months. This
contract was however
renewable depending on the quality of his
workmanship. This is a reasonable approach regardless of whether the
accused had indicated
that he was not in a position to pay a fine
immediately, more so that such fine was far in excess of his
resources.
[20] At this stage too, a presiding
officer is still expected to play an active role, more so if the
prosecution is also in favour
of a deferred fine. The fact that the
fine could not be deferred because the accused was not permanently
employed is not correct.
To do so unduly disadvantages those who are
casually employed yet able to pay fines in instalments. It is
unimaginable that permanent
employment may be a pre-requisite for the
granting of a deferred fine.
[21] The magistrate’s failure to
conduct a proper enquiry placed the accused in jeopardy of
imprisonment. By imposing a fine,
the magistrate asserted his intent
of not sending the accused to prison. There was therefore no reason
why a proper enquiry could
not be conducted to ensure that the
accused is afforded the opportunity to pay the fine in instalments.
[22] I, accordingly, make the following
order:
1. The conviction and sentence are set
aside;
2. The case is remitted to the
magistrate and he is directed to comply with the provisions of
section 112
(1) (b) of Act 51 of 1977 as set out in this judgment.
L.B.J. MOENG, AJ
I concur.
B.C MOCUMIE, J