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[2014] ZAFSHC 125
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S v Raseu (134/2014(B)) [2014] ZAFSHC 125 (21 August 2014)
FREE
STATE
HIGH COURT,
BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Review
Number: 134/2014(B)
In
the review of:-
THE
STATE
and
LEFU
ISAAC RASEU
CORAM:
MOLEMELA, J
et
MBHELE, AJ
DELIVERED
ON:
21 AUGUST 2014
MOLEMELA,
J
[1]
This is a special review as contemplated in section 304(4) of the
Criminal Procedure Act, Act 51 of 1977.
[2]
The accused was charged in the Magistrate’s Court in Hoopstad
with contravention of section 63(1) of the National Road
Traffic Act,
93 of 1996 (Reckless or Negligent Driving). He was convicted
and sentenced as follows:
“
Fine
of R1 500,00 or two months imprisonment which is wholly
suspended for a period of five years on condition accused is not
convicted of contravention of Act 63 of 1966 committed during the
period of suspension.”
[3]
The senior magistrate referred the matter to the High Court on
special review with the request that the sentence be set aside.
The magistrate stated as follows:
“
From
the transcription it transpired that the prosecutor put both charges
of reckless and negligent driving in contravention of
section 63(1)
of Act 93/1996 to the accused. He was then asked what he
pleads. Accused pleaded guilty and was summarily
convicted.
It was not established from the undefended accused whether he
understood the charge and whether he pleads guilty
to reckless or
negligent driving. No question were put to the accused in
adhering to section 112(1)(b) of the Criminal Procedure
Act, nor was
there any request from the prosecutor to dispose of the plea in terms
of section 112(1)(a) of the last mentioned Act.
It is still
unclear on what charge the accused was convicted. Section 34/35
of Act 93 of 1996 was also not applied.
The wording of the
condition itself is vague, wide and ambiguous.”
[4]
Having perused the record, I agree with the senior magistrate on the
aspects alluded to in the preceding paragraph. In addition
to what
the senior magistrate has alluded to, I noticed that the charge that
was put to the accused was negligent driving, but
its
particularisation made reference to “reckless or negligent
driving”. It would seem that the presiding magistrate
was
oblivious to this vagueness and in convicting the accused simply
pronounced that he found the accused “guilty as charged”.
[5]
I am of the view that both the conviction, too, cannot stand. This is
because of the summary manner in which the accused was
convicted
pursuant to his plea of guilty. The presiding magistrate did not even
ask the accused whether his plea of guilty was
voluntary. It is also
evident from the record that the presiding magistrate at no stage,
prior to conviction, satisfied himself
that the offence was one that
could summarily be disposed of without questioning as contemplated in
section 112(1)(a).
[6]
The authors of the work
Hiemstra’s
Criminal Procedure
submit as follows at
p 17-2 – 3: “For a court to convict without evidence, it
must be obvious that the sentence will
be less than a certain level
and that a conviction can take place without the need for an address
on sentence….Whether a
sentence can be a fine of more than
R5000.00 must not be decided lightly. There has to be information
before the court which information
makes a judicial discretion
possible. The presiding officer must have regard to (i) the nature of
the offence; (ii) any prescribed
maximum punishment; and (iii) the
particulars in the charge.” The authors also submit that where
there is doubt about the
seriousness of the transgression,
questioning in terms of section 112(1)(b) ought to take place.
I agree with all these submissions.
In this matter, the record shows
that the presiding magistrate did not embark on this exercise at all.
[7]
The irony is that after the accused’s conviction, the
prosecutor, in his address described the offence as “very,
very
serious”. In response to the court’s question, he placed
on record that the accused’s arrest and prosecution
arose from
the fact that he caused an accident by “bumping” two
persons. The prosecutor then went on to submit
that the
appropriate sentence would be direct imprisonment, but wholly
suspended.
[8]
It is also regrettable that even though the prosecutor had withdrawn
the charge of driving under the influence of liquor or
drugs, the
presiding magistrate, in the process of sentencing the accused,
insinuated that the accused had been driving while under
the
influence of liquor. Such remarks were completely unwarranted.
[9]
I am of the view that the presiding magistrate committed several
misdirections that warrant the setting aside of both the conviction
and sentence. The misdirections are of such a nature calling
for the remittal of the matter to the magistrate’s court
for a
hearing
de novo
before
another magistrate.
[10]
I would therefore make the following order:
1.
The accused’s conviction and the
sentence imposed on him by the court
a
quo
are set aside.
2.
The matter is remitted back to the
magistrate’s court for a hearing
de
novo
before another magistrate.
_________________
M.B.
MOLEMELA, J
I
agree.
_______________
N.M.
MBHELE, AJ