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[2015] ZAFSHC 232
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S v Mhlophe (245/2015) [2015] ZAFSHC 232 (10 December 2015)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Review
No: 245/2015
In
the review of:
THE
STATE
and
DEAMANE
GOLLET MHLOPHE
CORAM:
MOLEMELA
JP
et
KRUGER,
J
JUDGMENT
BY:
KRUGER,
J
DELIVERED
ON
:
10 DECEMBER 2015
[1]
This matter was sent on special review in terms of section 304(4) of
Act 51 of 1977. The accused was charged with a contravention
of
section 63(1)
of the
National Road Traffic Act 93 of 1996
, reckless
or negligent driving, alternatively of a contravention of
section 64
of Act 93 of 1996, inconsiderate driving.
Section 83
of the
Criminal Procedure Act 51 of 1977
provides:
“
Charge
where it is doubtful what offence committed
If
by reason of any uncertainty as to the facts which can be proved or
if for any other reason it is doubtful which of several offences
is
constituted by the facts which can be proved, the accused may be
charged with the commission of all or any of such offences,
and any
number of such charges may be tried at once, or the accused may
be
charged in the alternative
with the commission of any number of such offences.
”
(My
underlining)
When
the prosecution is in doubt as to the facts the state can prove or as
to the legal position, charges are put in the alternative,
as
permitted in
section 83.
The court then convicts on the charge
that in its view suits the proven facts best.
[2]
The accused was defended and pleaded not guilty to both the main and
alternative charge. According to the magistrate’s
judgment the evidence showed that the accused drove through a stop
street and collided with the complaint’s vehicle which
was
driven by police officers. The magistrate found that the
accused should have stopped and allowed the intersection to
clear
before he moved forward. At the end of the judgment the
magistrate says:
“
You
are hereby found guilty on both count 1 and 2, on both count 1 and
the alternative count.
”
[3]
In passing sentence the magistrate said:
“
Also
looking at the fact the offences for which I have found you guilty
they arise out of the same facts, the same cause of action,
in
imposing sentence count one and the alternative count will be taken
together for purposes of sentencing.
”
He
was sentenced to a fine of R4 000.00 or six months imprisonment,
half of which was suspended for three years. The
court decided
not to suspend the accused’s driver’s licence.
[4]
The Senior Magistrate Welkom says the accused cannot be convicted on
both the main and alternative counts on the same set of
facts, with
reference to
S
v Grobler en ‘n Ander
1966 (1) SA 507
(A) at 522E-F, and asks that the conviction and
sentence be set aside. If an accused’s act brings him
within the ambit
of two penal statutory provisions he is not to be
punished twice for the same act (
Grobler
at 522B-C)
[5]
When one refers to
alternative
in relation to two things, they are mutually exclusive (
Concise
Oxford Dictionary
).
The theologian Dietrich Bonhoeffer said “The weak always have
to decide between alternatives that are not their own”.
The diplomat Abba Eban said, “History teaches us that men and
nations behave wisely once they have exhausted all other
alternatives”.
An alternative is a substitute or a
replacement (
Oxford
Thesaurus of English
).
An alternative is the choice between two mutually exclusive
possibilities (
American
Heritage Dictionary of the English Language
).
It is one or the other, not both. The traditional view is that
the choice is between two because “alter”
means “the
other (of two)”. The acceptance of one involves the
rejection of the other (
Fowler’s
Modern English Usage
3
rd
Ed. (2004)).
[6]
An alternative count is exactly what it is called, alternative.
An accused can be convicted either on the main count or
on the
alternative count, not on both as the magistrate did here. The
conviction and sentence were irregular.
[7]
It has not been possible to reconstruct the record of the evidence
led. Thus it is not possible to assess whether the
guilt of the
accused on one charge was established.
ORDER
The
conviction and sentence are set aside..
____________
A.
KRUGER, J
I
agree.
__________________
M.B.
MOLEMELA, JP
/wm