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[2013] ZAFSHC 3
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S v Mnisi (175/2012) [2013] ZAFSHC 3 (31 January 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 175/2012
In
the review between:-
THE
STATE
versus
BONGANI
STEFAN MSIBI
______________________________________________________
CORAM:
JORDAAN, J
et
MHLAMBI, AJ
______________________________________________________
JUDGMENT BY:
JORDAAN, J
______________________________________________________
DELIVERED ON:
31 JANUARY 2013
______________________________________________________
[1] This is a review
matter. The accused stood trial on two counts namely:
1. Driving under the
influence of liquor or drugs; and
2. Contravention of
section 12(a)
of the
National Road Traffic Act 93 of 1996
.
[2] He was found guilty
on both counts and sentenced to R3 000,00 or 6 (six) months
imprisonment with a further 6 (six) months suspended
for a period of
five years on certain conditions as far as count 1 is concerned. On
count 2 he was fined R500,00 or 50 (fifty)
days imprisonment.
[3] Reasons were
requested from the trial court as to the conviction on count 2. It
appears from the record that the magistrate
that heard the matter has
since left the Department and is not available to respond to the
required reasons so that the court is
requested to deal with the
review without such comments.
[4]
Section 12
of the
aforesaid Act reads as follows:
“
12
Driver of motor vehicle to be licensed-
No person shall drive a motor vehicle
on a public road-
(a)
except
under the authority and in accordance with the conditions of a
licence issued to him or her in terms of
this Chapter or of any
document deemed to be a licence for the purposes of this Chapter; and
(b)
unless he
or she keeps such licence or document or any other prescribed
authorisation with him or her in the vehicle.”
[5] The accused, who was
unrepresented, admitted driving the vehicle and not having a licence
in his possession, but intimated that
he was indeed in possession of
a learner’s licence and it is common cause that he was
accompanied by another adult while
driving. The evidence on behalf of
the State only went as far as to intimate that the accused was not in
possession of any licence,
either a full or learner’s licence
at the time when he was arrested. No evidence was led as to whether
the accused was indeed
issued with a learner’s licence or not.
Neither the prosecutor nor the court requested the accused to produce
the learner’s
licence and his version in that regard therefore
remained unquestioned.
[6] In view of the above,
the accused’s version that he was indeed in possession of a
learner’s licence has and had
to be accepted. At least there
was nothing in the evidence to show that that was not reasonably
possibly true. Since the accused
was only charged with contravention
of
section 12(a)
and not
section 12(b)
, it is clear that the
conviction cannot stand.
[7] On the evidence it is
clear that the conviction and sentence on count 1 is in order, but
the conviction and sentence on count
2 should be set aside.
[8] In the result the
following orders are made:
8.1. The conviction and
sentence on count 1 is confirmed.
8.2. The conviction and
sentence in regard to count 2 are set aside.
8.3. In the event that
the accused already paid the fine or part of it in respect of count
2, such amount has to be repaid to the
accused.
_______________
A.F. JORDAAN, J
I
concur.
________________
J.J. MHLAMBI, AJ
/spieterse