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South Africa: Free State High Court, Bloemfontein
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2015
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[2015] ZAFSHC 113
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S v Mwale (23/2015) [2015] ZAFSHC 113 (25 June 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Review Number : 23/2015
In the
review of:
THE
STATE
and
HENRY
MWALE
CORAM:
NAIDOO, J et WILLIAMS, AJ
JUDGMENT
BY:
WILLIAMS, AJ
DELIVERED
ON:
25 JUNE 2015
[1] This
is a special review under section 304(4) of Act 51 of 1977.
[2] The
accused appeared before an acting magistrate in the Bloemfontein
magistrate’s court on a charge of contravening section
59(4)(a)
of Act 93 of 1996: Exceeding of General Speed Limit. After his rights
to legal representation had been explained the accused
elected to
conduct his own defence.
[3] He
pleaded guilty to the charge and the magistrate invoked section
112(1)(b) of Act 51 of 1977. For reason that the accused
testified
that he did not intentionally exceed the speed limit, the learned
magistrate found the accused to be negligent and convicted
him of the
charge of Negligent Driving. Such a conviction is not an
alternative charge or competent verdict of the said charge.
[4] To
compound the error further, the accused was sentenced to a fine of R4
000,00 or 24 months’ imprisonment, of which half
was suspended
for a period of five years, on condition that the accused not be
convicted of contravention of section 65(1) (driving
under the
influence of intoxicating liquor) or 65(2) (driving while alcohol
concentration exceeds the prescribed limit if 0,05g
per 100ml) read
with
section 89(1)
of the
National Road Traffic Act, 93 of 1996
,
committed during the period of suspension. The rights to appeal were
not explained to the accused.
[5] It
is clear that the conviction and conditions pertaining to the
sentence cannot stand. In view of these gross irregularities
the
control magistrate of Bloemfontein requested this court to set the
proceedings aside and order that the case start de novo.
[6] I do
not think that this is necessary. It will cause undue hardship to the
accused should he have to return to Bloemfontein
for a second trial,
in which the same fine will probably be imposed. It is clear that the
accused correctly pleaded guilty to having
contravened
section 59
of
the
National Road Traffic Act, in
that he exceeded the general speed
limit on the N1 Highway, and should have been convicted accordingly.
I am satisfied with the
sanction as it stands and exercises my
inherent power in amending a patently incorrect order.
[7] I
propose that the following orders be made:
1.
The conviction and
sentence imposed by the magistrate are set aside and replaced with
the following:
The
accused is convicted of contravening
section 59(4)(a)
of Act 93 of
1996; exceeding the general speed limit.
2.
The accused is
sentenced to a fine of R4 000,00 or 24 months’ imprisonment of
which half is suspended for a period of 5 years
on condition that the
accused is not convicted of contravention of section 59(4) of Act 93
of 1996 committed during the period
of suspension.
_____________________________
A.
WILLIAMS, AJ
It is so
ordered
______________________________
S.
NAIDOO, J