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[2012] ZAKZPHC 39
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S v Hogg (R440/2012) [2012] ZAKZPHC 39 (26 June 2012)
IN
THE HIGH COURT OF SOUTH AFRICA, PIETERMARITZBURG
REPUBLIC
OF SOUTH AFRICA
R440/2012
Magistrate’s
Case No. 54/2011
In
the matter between:
THE
STATE
v
ROLAND
HOGG
REVIEW
JUDGEMENT
Date of Judgment:
D.
PILLAY J
[1]
In this review, the accused was charged in terms of s 65(1)(a) and
(b) read with various other sections of the National Road
Traffic
Act, 93 of 1996 (NRTA). His charge sheet alleged that he was driving
under the influence of liquor or drugs. He pleaded
guilty to that
charge. He explained that he was drinking at a party until about 7pm.
After the party he slept. Later he agreed
to drive a member of his
staff home. He thought that because he had slept after consuming a
little alcohol he would be able to
drive. Unluckily for him the
police stopped him. He admitted that blood taken from him was
properly tested. He realised that it
was unlawful to drive a motor
vehicle on a public road whilst his mental faculties were impaired by
alcohol. The trial court imposed
a fine of R3 000.00 or one year and
six months’ imprisonment.
[2]
Notwithstanding the prosecutor querying whether the accused accepted
firstly, that he drove his vehicle when his mental faculties
were
impaired
and
secondly, that he was not in a position to take
proper decisions as a sober person, the learned magistrate
ascertained only the
first and not both admissions from the accused.
[3]
The magistrate also failed to ascertain the extent of the accused’s
intoxication and the amount by which he exceeded the
permissible
limit. This omission is particularly astounding because ascertaining
the extent of consumption in a driving under the
influence case is
routine if not reflexive. Notwithstanding his admission that he had
consumed two beers and two tots of whisky
between 6 and 7pm the court
had to ascertain what the readings were on the machine that tested
his blood when he was arrested.
This is relevant not only for the
conviction but also for the sentence.
[4]
As regards the suspension of the accused’s licence in terms of
s 35 of the NRTA the accused testified that he did not
have a
driver’s licence and was due to be retested following an injury
to one arm. He was unable to use both arms to drive.
Not only did the
accused drive after consuming alcohol which might have impaired his
faculties, he drove without a licence and
without the inability to
use both arms. The trial court elected to give the accused ‘a
second chance’ because he was
‘an old person, who had
pleaded guilty and was not a professional driver’. In addition,
the trial court noted that
he was not charged for driving a motor
vehicle without a driver’s licence.
[5]
Subsection 35 (4) provides:
‘
A
court convicting any person of an offence referred to in subsection 1
or 2 as the case may be and of subsection 3 to the notice
of such
person.’
Subsection
1 provides:
‘
Subject
to subsection 3, every driving licence or every licence and permit of
any person convicted of an offence referred to in:
. . .
…
(c)
section 65(1), (2) or (5).
where
such person is the holder of a driving licence or a licence and
permit, shall be suspended…’
[6]
The provisions of s 35 (4) are peremptory. Giving the accused a
chance because he is an old man is not merely a formal irregularity.
It trivialises the accused’s transgressions. Not only are the
three transgressions serious on their own, cumulatively, the
accused
is a risk to the public if he was ever allowed to drive with one
hand.
[7]
The omissions of the trial court are so fundamental to the proper
administration of justice that the proceedings cannot be held
to be
in accordance with justice. Accordingly, the judgement of the trial
court falls to be reviewed and set aside in terms of
s 304(2) of the
Criminal Procedure Act 51 of 1977 (CPA). However, as the irregularity
can be cured by further evidence I may remit
the matter to the
magistrates’ court to be heard by a magistrate other than the
one whose judgment is under review. I give
this direction because the
competence of the magistrate under review should be reassessed by the
Magistrates Commission as soon
as possible for the reasons that
follow.
[8]
Another judgment of the magistrate under review has been before me
earlier this session. In the matter of
S v Zakhele Mathew Mtolo
R327/2012 I reviewed and set aside her judgment giving the following
reasons:
‘
In
this review the accused was convicted on a charged with driving under
the influence of liquor. He admitted drinking traditional
beer. He
acknowledged that his breath was tested within two hours by a person
who was qualified to operate the testing instrument.
However, there
is no evidence in the record as to how much alcohol the accused had
consumed. Nor is there any evidence as to whether
the accused’s
faculties were impaired as a result of his consumption of alcohol.
In
the circumstances, the conviction and sentence are not in accordance
with justice and are accordingly set aside.’
[9]
In
S
v Siyabonga Vincent Mzimba
,
1
Steyn
J with Jappie AJP concurring, records that on 16 March 2012 Booyens
AJ asked the learned magistrate to explain why she convicted
the
accused of drunken driving on his s 112 statement when the accused
had not admitted all the elements of the offences of driving
under
the influence of liquor. More specifically, although he admitted that
he had drunk some liquor, he did not admit that his
driving was
affected. He did not admit the reading of the breathalyzer or blood
sample. Admitting that she made a mistake the learned
magistrate
requested that the sentence be confirmed.
[10]
In considering this response Steyn J helpfully points out that the
learned magistrate had a duty to enquire, not only about
the
influence of alcohol on the accused’s mental ability but also
on his driving ability.
2
Steyn
J also pointed out that the learned magistrate had failed to conduct
an enquiry in terms of s 35 of the NRTA.
[11]
Accordingly
Mzimba
was
set aside and remitted for the magistrates’ court to proceed on
a plea of not guilty in terms of section 113 of the CPA.
[12]
In this case, Murugasen J who was initially seized with the review
enquired on 14 May 2012 as follows:
“
1.
Why were the results of the breathalyzer and blood tests not produced
in court?
2.
On what basis was the accused convicted when the results of the tests
were not put to him?
3.
Please explain comprehensively whether the State discharged its onus
in the absence of evidentiary proof of the charge against
the
accused.”
[13]
In a fashion similar to her responses in
Mtolo
and
Mzimba
the learned magistrate admitted her omissions but requested that the
sentence be confirmed. The appropriate response would have
been to
concede that her omissions amounted to reviewable irregularities and
to persuade the reviewing judges that she was competent
to rehear the
matter if it was remitted to her.
[14]
I am reliably informed that other judges of this division have
similar reviews emanating from this magistrate. I have serious
reservations about this magistrate’s ability to perform her
functions.
[15]
In the circumstances I join Steyn J and Jappie AJP in requesting the
Magistrates’ Commission to scrutinise the work of
the
magistrate under review.
[16]
The order I propose is the following:
The
judgment is reviewed and set aside.
The
matter is remitted to the magistrates’ court for rehearing by
a magistrate other than the magistrate under review in
terms of s
304 (2) (c) (v) of the CPA.
___________
D.
PILLAY J
__________________
NKOSI
J I agree.
It
is so ordered
1
High
Court Ref No: R278/12; Magistrates Serial No: A53/12 Case No:16/2012
2
S
v Nzimba
R278/12 Case no. 16/2012 dated 07
June 2012 unreported