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[2015] ZAECBHC 8
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S v Funani (4/2015) [2015] ZAECBHC 8 (17 April 2015)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, BHISHO
CASE
NO: 4/2015
NOT
REPORTABLE
In
the matter between
THE
STATE
versus
MCEBISI
SOMELEZE FUNANI
REVIEW
JUDGMENT
HARTLE
J
1.
The accused, who was not assisted by an attorney in the
proceedings under review, was convicted in the magistrate’s
court in Zwelitsha on a charge of contravening
section 65(1)(a)
of
the
National Road Traffic Act, No. 93 of 1996
, it being alleged that
he drove a motor vehicle on a public road while he was under the
influence of intoxicating liquor.
As a result, so the charge
sheet alleged, he bumped a motor vehicle with registration letters
and numbers FAH […] from behind.
2.
His conviction followed pursuant to his plea of guilty. He
was sentenced to a fine of R3 000.00 or in default to undergo
twelve
months’ imprisonment. No order was made in terms of
section 35
of the
National Road Traffic Act.
3.
The
matter came before me on automatic review to determine if the
proceedings were in accordance with justice.
4.
Section 112(1)(b)
of the
Criminal Procedure Act, No. 51 of 1977
,
which was applicable in this instance, provides as follows with
regard to the magistrate’s duty to question the accused
following his plea of guilty to the offence charged:
“
112. Plea
of guilty.
—(1) Where an accused at a summary
trial in any court pleads guilty to the offence charged, or to an
offence of
which he may be convicted on the charge and the prosecutor
accepts that plea—
(a)
…
(
b
)
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 without the option of a
fine or of a fine exceeding the
amount determined by the Minister
from time to time by 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.
In S v
Naidoo
[1]
Botha JA remarked as
follows with reference to the objective of this provision and the
peculiar duty of the magistrate to punctiliously
question the accused
upon his plea of guilty:
“
[I]t is well
settled that the section was designed to protect an accused from the
consequences of an unjustified plea of guilty,
and that in conformity
with the object of the Legislature our courts have correctly applied
the section with care and circumspection,
and on the basis that where
an accused’s responses to the questioning suggest a possible
defence or leave room for a reasonable
explanation other than the
accused’s guilt, a plea of not guilty should be entered and the
matter clarified by evidence.”
6.
The
questioning therefore entails two aspects about which the presiding
officer must be convinced, namely, firstly, that the accused
admits
all the allegations in the charge and, secondly, that he is guilty of
the offence.
[2]
7.
A plea
of guilty to a charge of driving a motor vehicle while under the
influence of liquor must incorporate an admission that the
accused’s
driving ability was impaired as a result of the consumption of
intoxicating liquor. This is necessary on
account of the
relevant substantive law requirement that “the skill and
judgment normally required of a driver in the manipulation
of a
vehicle (must be) diminished or impaired as a result of the
consumption of intoxicating liquor”.
[3]
8.
In S v
Mzimba
[4]
the court noted as
follows with regard to this essential requirement:
“
This element of
the crime requires an impairment, not only of an accused's state of
mind, ie that the alcohol induced him to a state
that he was prepared
to take risks, but that his driving ability was impaired. It
is therefore necessary that an accused charged
with an offence
of drunken driving should admit that he/she lacked the necessary
skill and judgment normally required in the manipulation
of a motor
vehicle and that such skill or judgment has been diminished or
impaired as a result of the consumption of alcohol or
drugs.”
9.
It appears from the transcript that there was no admission made by
the accused before he was convicted that his driving ability
was
impaired as a result of his admitted consumption of vast amounts of
alcohol imbibed at a traditional ceremony throughout the
night
before.
10.
He admitted only during questioning by the magistrate that he had
collided with the abovementioned motor vehicle on Independence
Avenue
in the district of Zwelitsha around 13h00 or 14h00 on 14 October
2012, following the night of his binging. He was
travelling “in
a high speed,” but seemingly he meant at the permissible speed
for the faster lane of the two.
The offending motor vehicle
suddenly changed to the lane in front of him. He had to brake,
but was unable to stop his motor
vehicle in time to avoid colliding
with it.
11.
After the magistrate convicted him and during sentence proceedings
the accused explained in mitigation that he thought that
the sleep he
had had in between drinking and driving, from 05h00 to 11h00 that
morning, would have sobered him up. He had
also since consumed
water and had had something to eat. He assumed therefore that
he would “not be drunk”.
However he volunteered,
quite co-incidentally, that:
“…
if I had
not taken liquor, Your Worship, I think I would be able – I was
going to be able to apply brakes immediately, Your
Worship, or to
control the vehicle, Your Worship, not to bump another vehicle”.
12.
The conviction of the accused, deficient of the necessary
admission made purposefully
before conviction
that he was
incapable of exercising proper control of the motor vehicle, or that
his ability to drive had been impaired due to
the consumption of
liquor, would appear to me to constitute a fundamental irregularity
in the proceedings. Leaving aside
the question whether the
accused’s statement in this regard would have been sufficient
in all the circumstances to conclude
that he was affected by the
alcohol to the extent that he could not control his motor vehicle
(for the reasons I refer to below),
the situation is not
alleviated at all by the fact that the accused after his conviction
co-incidentally happened to make the admission
which the magistrate
ought in the first place to have elicited during his questioning of
the accused in terms of
section 112(1)(b)
of the
Criminal Procedure
Act.
13.
The
correct course of conduct in such an instance is to correct
the plea of guilty to one of not guilty for it is trite that when an
accused does not admit all the elements of an offence charged with,
the court cannot be satisfied with his guilt.
14.
There is a further reason why the court
a quo
should not
have been so eager to accept the accused’s guilt without
thoroughly interrogating the matter. What the accused
did say,
regardless of whether this was before or after his conviction,
suggests a possible defence or leaves open to doubt whether
his
driving skills were in fact impaired at the time of the collision as
a result of the liquor consumed. It appears
from the
information furnished by him during questioning that the driver of
the other motor vehicle may have been responsible for
the collision
in exercising a sudden and dangerous manoeuvre in front of him and
that he was unable to avoid colliding with this
vehicle not
necessarily because he was taking a risk by driving faster in the
second lane, but because the vehicle had slowed down
considerably to
mount a speed bump at the time. The mere fact of a collision
cannot in itself be regarded as proof that the
accused was under the
influence of liquor. It seems too that the police drew blood from
both drivers which may have been another
reason to tread carefully
around the issue of the collision constituting proof in itself of the
supposed state of drunkenness of
the accused and being unable to
control his motor vehicle so as to prevent it from colliding with the
other vehicle.
15.
Some time had passed by the time of the collision since the
accused’s last drink before 05h00. He had slept,
eaten
and consumed water to counteract the affect of the alcohol imbibed.
He picked up two hitch hikers who were with him
in the motor
vehicle. After the collision he had also himself suggested that
he and the other driver go to the police station
and in fact drove
himself there. This functionality suggests the opposite of
being so drunk that his skills or judgment were
significantly
impaired by alcohol consumed during the night before.
16.
In either respect the magistrate should not have been satisfied as
to the guilt of the accused and the conviction accordingly
falls to
be set aside.
17.
I issue the following order:
1. The conviction and
sentence are set aside.
2. The matter is
remitted to the magistrate’s court on the premise that a plea
of not guilty be entered in terms of
section 113
of the
Criminal
Procedure Act, No. 51 of 1977
, so that the doubtful matters be
clarified by evidence.
B
HARTLE
JUDGE
OF THE HIGH COURT
I
AGREE
D
A VAN ZYL
JUDGE
OF THE HIGH COURT
DATE
OF JUDGMENT: 17 APRIL 2015
[1]
1989(2) SA 114(A) at 121 F.
[2]
S v Nagel
1998 (1) SACR 218
(O) at 219 e – g.
[3]
Hoctor Cooper’s Motor Law – Criminal Liability,
Administrative Adjudication and Medico-Legal Aspects 2 ed (2008)
at
B11 – 45.
[4]
2012 (2) SACR 233
(KZP) at par [6].