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[2011] ZAFSHC 45
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S v Beukman (74/2011) [2011] ZAFSHC 45 (3 March 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 74/2011
In
the review between:
THE
STATE
versus
MADELEINE
BEUKMAN
_____________________________________________________
CORAM:
HANCKE, J
et
KRUGER, J
_____________________________________________________
JUDGMENT BY:
HANCKE, J
DELIVERED
ON:
3 MARCH 2011
_____________________________________________________
[1] The accused was
charged of contravening the provisions of section 65(1)(a) or (b)
read with sections 1, 33, 34, 35, 65(3), 65(4),
65(8), 65(9), 69(1),
73 and 89 of the National Road Traffic Act 93 of 1996 (driving under
the influence of liquor or drugs).
She was also charged with
a first alternative of contravening the provisions of section
65(2)(a) read with sections 1, 65(3), 65(4),
65(8), 65(9), 69(1), 73
and 89 of the National Road Traffic Act 93 of 1996 (excessive amount
of alcohol in blood).
[2] When the charge was
put to her the accused pleaded guilty to the first alternative and
her statement in terms of section 112(2)
of Act 51 of 1977 was handed
into court, justifying a conviction in respect of the first
alternative count. When the magistrate
enquired whether she was
pleading guilty to the main charge, the prosecutor indicated that she
was pleading guilty to the said
alternative charge.
[3] Despite the
aforegoing the magistrate erroneously convicted her on the main
charge whereafter he sentenced her to a fine R4
000,00 or 18
(eighteen) months imprisonment suspended for three years on certain
conditions.
[4] The magistrate now
sends the matter on special review with the request that the
conviction on contravening section 65(1) of
the said Act be set aside
and replaced with one of contravening section 65(2) of Act 93 of
1996. As regards sentence, he suggested
that it be left in the
discretion of the reviewing court.
[5] It is clear from the
record that the accused pleaded guilty to contravening section 65(2)
of the said Act and that she was erroneously
convicted of
contravening section 65(1) of the said Act. It is settled law that
contravention of this first alternative is not
as serious as a
contravention of the main charge and that the sentence must
accordingly be reduced.
[6] Accordingly the
following orders are issued:
The conviction and
sentence are set aside. The magistrate’s order is substituted
with the following:
“
The
accused is convicted of contravening section 65(2) of Act 93 of 1996
(excessive amount of alcohol in the blood).
The accused is fined R2
000,00 or 9 (nine) months imprisonment suspended for three years on
condition that the accused is not convicted
of section 65(1), (2)
and/or (5) of Act 93 of 1996, committed during the period of
suspension. In terms of section 35 of the said
Act the court orders
that the driving licence of the accused is not suspended.”
________________
S.P.B. HANCKE, J
I agree.
____________
A. KRUGER, J