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[2012] ZAKZPHC 30
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S v Mzimba (16/2012) [2012] ZAKZPHC 30; 2012 (2) SACR 233 (KZP) (7 June 2012)
REPORTABLE
IN
THE KWA-ZULU NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC
OF SOUTH AFRICA
High Court Ref No: R278/12 Magistrates Serial No:
A53/12
Case
No: 16/2012
THE STATE
versus
SIYABONGA VINCENT
MZIMBA
REVIEW JUDGMENT
Delivered
on: 7 June 2012
STEYN, J
[1] The accused in the
present matter was convicted in the Magistrates’ Court Kokstad,
in the district of Mount Currie on
contravening section 65(1)(a) of
the National Road Traffic Act,
1
No. 93 of 1996, in that he drove a motor vehicle while under the
influence of intoxicating liquor. The conviction follows on the
accused’s plea of guilty and the subsequent questions asked to
him and his admissions in terms of section 112(1)(b) of the
Criminal
Procedure Act, No. 51 of 1977 (‘the Act’). The accused
was sentenced on the same day to a fine of R3000.00
(three thousand
rand) or to undergo twenty-four (24) months’ imprisonment. No
order was made in terms of section 35 of the
NRTA.
[2] The matter was
automatically reviewable under section 302 of the Act and the record
was placed before a reviewing judge of this
division to determine
whether the proceedings were in accordance with justice.
[3] On 16 March 2012,
Booyens AJ asked the Magistrate for reasons and to explain the
following:
“
The Magistrate is requested
to indicate why she convicted the accused of drunken driving on his
section 112 statement. The accused
did not admit all the elements of
the offence driving under the influence of liquor. He did admit that
he did drink some liquor
but he does not admit that his driving was
affected by that, nor is the reading of the breathalyser or the blood
alcohol sample
attached to the judgment.
The Magistrate is requested to
supply her reasons for convicting the accused in this matter.”
[4] The learned
Magistrate proffered the following explanation, which was received by
the Registrar of this Court on 29 May 2012:
“I
kindly acknowledge the Honourable Mr Acting Justice Booyens (Acting)
requests.
I admit that I have made a mistake
by not asking the question about whether accused mental facilities
were impaired by driving
under the influence of liquor which is one
of the elements of driving under the influence of liquor.
I humbly request Honourable Mr
Justice Booyens (Acting) to confirm the sentence imposed has (sic) an
option of a reasonable fine
on traffic offences of this nature.”
[5] I shall now turn to
the reasons of the learned Magistrate which in my view fail to deal
with the misdirection of the accused
being convicted without
questioning him on the effect that the alcohol had on his ability to
drive the motor vehicle or him acknowledging
that he lacked the
necessary skill to drive the motor vehicle. In
S
v Engelbrecht
2
Knoll J, after considering a host of relevant cases pertaining to the
offence of driving under the influence of alcohol, refers
to the
essential elements of the crime as follows:
“
That
the accused (i) drove; (ii) a vehicle; (iii) on a public road; (iv)
while under the influence of liquor or drugs; (v)
mens
rea.”
3
[6] It is evident from
the query raised by the reviewing judge that he was not convinced
that the accused admitted that he was driving
his motor vehicle while
‘under the influence.’
This element of the
crime requires an impairment, not only of an accused’s mental
state of mind, i.e. 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.
4
[7] The learned
Magistrate in this instant case, in my view, erroneously holds the
view that the accused should have been questioned
on his mental
ability which is not sufficient for a conviction on a count of
drunken driving. Secondly, the learned Magistrate
had lost sight of
the fact that the conviction must be overturned since the accused
failed to admit that the alcohol had an influence
on his driving
ability. It is trite that when an accused does not admit all the
elements of an offence charged with, that a court
cannot be satisfied
with his guilt and that a plea of not guilty should be entered. The
learned Magistrate’s request to
confirm the sentence cannot be
adhered to because no court would be competent to confirm a sentence
in the absence of a conviction.
The Magistrate also failed to
conduct an enquiry as is required by the NRTA or issue and order in
terms of section 35 of the NRTA.
In my view the learned Magistrate
was obliged to inform the accused, who was unrepresented, of the
provisions of section 35(1)
and (2) of the Act, before imposing
sentence.
5
It is important to state that the record is silent on the issue
whether the accused is the holder of a driver’s licence.
[8] Importantly it is the
duty of each and every presiding officer to duly inform an accused of
his/her rights and not to delegate
that duty to others.
Ex facie
the record the Magistrate clearly entrusted another officer with this
duty. The record reads as follows:
“
COURT: Can you please
advice the accused person of his right to review as well as the
appeal rights. [Pause]
INTERPRETER: The review and appeal
rights have been fully explained to the accused person. He declines
to lodge an appeal.”
6
The system of automatic
review
7
is valued as a form of protecting fundamental rights
8
of an unrepresented accused and it should not be compromised by
presiding officers who fail to inform accused persons of their
rights
to forward written submissions to the clerk of the Court within three
(3) days of the imposition of sentence, so that such
submission may
be considered by a judge in chambers.
9
[9] In the light of the
aforesaid I cannot confirm that the proceedings were in accordance
with justice. The irregularities relate
to a failure to comply with
section 112(1)(b) of the Act and therefore the matter should be
remitted to the court
a
quo
in
terms of section 312 of the Act. I am mindful of the Supreme Court
of Appeal’s interpretation of the said provision and
that the
course of the provision should not be followed if compliance with the
section would be unfair.
10
In my view justice would be served if the matter is remitted to the
trial court. I find the dictum of
S
v Mshengu
apposite, especially para 8 that reads:
“The
course prescribed by the section must, however, be followed unless
the court on review or appeal is of the view that
it would lead to an
injustice or would be a futile exercise. The court retains the
discretion not to order a remittal if the circumstances
of the case
are such that the remittal will be inappropriate.”
11
[10] Magistrates have an
essential role to fulfil and dispense justice. Unrepresented accused
persons are extremely vulnerable and
it is the duty of a presiding
officer to assist an unrepresented accused and inform him of his
rights. In the present matter the
learned Magistrate has failed to
inform the accused of his rights to a review, she also failed to
inform him of his right to make
submissions in regard of section 35
of the NRTA. This case might be an isolated case, but I am of the
view that it requires scrutiny
of the Magistrates’ Commission
to offer assistance to the Magistrate, should it be appropriate or
necessary.
[11] Accordingly the
following order is made:
The accused’s
conviction and sentence are set aside.
The case is remitted to
the court
a quo
on the ground that a plea of not guilty be
entered in terms of section 113 of the Act, and that the prosecution
be given an opportunity
to proceed with prosecution.
The Registrar is
directed to send a copy of this judgment to the Chair of the
Magistrates’ Commission.
_____________
Steyn J
Jappie J: I agree
_____________
Jappie J
1
The ‘NRTA’.
2
2001
(2) SACR 38
(C).
3
Ibid
at 46i-j.
4
See
S
v Henning
1972 (2) SA 546
(N);
S
v Engelbrecht supra and Milton and
Cowling
South African Criminal Law and Procedure vol
III,
Statutory Offences at 45 et seq.
5
See section 35(4) reads as follows:
“
(4)
A court convicting any person of an offence referred to in
subsection (1) shall, before imposing sentence, bring the provisions
of subsection (1) or (2), as the case may be, and of subsection (3)
to the notice of such person.”
6
See page 5 of the record.
7
See s 302 of the CPA.
8
See section 35(3)(o) of the Constitution of the Republic of South
Africa,
1996.
9
See section 303 of the Act.
10
2009
(2) SACR 316
(SCA).
11
Ibid
at 322e-f.