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South Africa: Free State High Court, Bloemfontein
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[2015] ZAFSHC 135
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S v Motsoahe (32/2015) [2015] ZAFSHC 135 (4 June 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
Policy
THE
HIGH
COURT
OF
THE
FREE
STATE:
BLOEMFONTEIN
Review
No. 32/2015
In
the review between:
THE STATE
versus
JUSTICE M MOTSOAHE
CORAM:
Boonzaaier AJ
JUDGMENT
B
Y: Boonzaaier AJ
DELIVERED ON:
4
June 2015
[1] The matter came
before me on special review in terms of section 304(4) of the
Criminal Procedure Act, 51 of 1977, (" the
CPA''). The accused
appeared in the Kroonstad Traffic Court on the 12th of January 2015
on a charge of exceeding the general speed
limit on the 11th day of
Januaiy2015 on the Heuningspruit/ Kroonstad N1 public road in the
district Kroonstad. He drove a limit
on the 11th day of January 2015
on the Heuningspruit/ Kroonstad N1 public road in the district
Kroonstad. He drove a Mercedes Benz
with the registration number
[……..] at a speed in excess of the general speed
limit of 120 km/h which applied
to that road, at a speed of 190 km/h.
The aforesaid contravening section 59(1) (b), 59(1) (c), 59(4)(a)
read with sections 69(1),73(1)
,75 ,89(1) and 89(3) of the National
Road
Traffic Act, Act 93 of 1996 and also read with Section 35(1);(2);
(3); (4); (5) ; 57(9); 58(1); 58(2) 59 (2 ); (3) (4) and
Regulations
291, 292, 293,294, 295 of the National Road Traffic Regulations,
2000. The first alternative to the above charge being
Reckless
driving and the second alternative being Inconsiderate driving.
2]
The accused pleaded guilty to the main charge, the first alternative
and the second alternative charges. The court found accused
guilty on
all the counts to which he pleaded guilty.
3]
This happened after the accused was questioned in terms of section
112(1 )(b) Act 51 of 1977. He was convicted as
charged on all three
charges.
4]
The sentence was a fine of R2500 (Two thousand five hunderd rand) or
2 (two) years imprisonment wholly suspended for a
period of 5 (five)
years on condition that accused is not convicted of contravention of
section 59(4); 63(1), 64 of Act 93/96 committed
during the period of
suspension .
5] During a routine
checking of completed work the senior magistrate in Kroonstad became
concerned that the convictions and sentence
in this instance could
possibly not be in accordance with justice. His concern is based on
the following:
5.1
] That the questioning of the accused by the court was not fair.
Leading questions were
directed to the accused and he simply agreed
to what the court read to him. The court is obliged to ensure that
accused admits
all the element of the offence, freely, consciously
and reliably. The record does not suggest that the .court proceeded
in the
spirit as alluded above. It does not show the traditional
question and answers in narrative form.
5.2
] That the record shows that the accused answers suggests a possible
defense
which leaves room for a reasonable explanation in which case
a plea of not guilty should have been entered by the court; 5.3] The
court convicted the accused on all 3 counts but passed and noted only
one sentence.
6] The Senior Magistrate
is of the opinion that the proceedings herein were not in accordance
with justice .the matter was discussed
with the Magistrate concerned
and she did not give any reason or explanation for the oversight.
7]
It is clear from the record, including the Senior Magistrates
concerns that the convictions and sentence be set aside and the
matter be remitted to court to start
de
nova
before
another magistrate.
8] In the circumstances I
make the following order: Order:
8.1] The convictions and
sentence of the accused are set aside. 8.2]The matter is remitted to
court to start
de
nova
before another Magistrate
in compliance with section 112(1) (b) of the CPA.
________________
AS BOONZAAIER AJ