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[2011] ZAFSHC 57
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S v Mokoena (98/2011) [2011] ZAFSHC 57 (17 March 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 98/2011
In
the review between:-
THE
STATE
versus
TEBOHO
MOKOENA
_____________________________________________________
CORAM:
JORDAAN, J
et
FISCHER, AJ
_____________________________________________________
JUDGMENT BY:
FISCHER, AJ
_____________________________________________________
DELIVERED ON:
17 MARCH 2011
_____________________________________________________
[1] The matter was placed
before me by way of a special review in terms of
section 304A
of the
Criminal Procedure Act, No. 51 of 1977
. The accused was convicted of
contravening
section 59(1)
,
59
(4) and
section 89
of the
National Road
Traffic Act, No. 93 of 1996
and also read with Regulations 1 and
292(b) of the National Road Traffic Regulations of 1996 in that he
exceeded the prevailing
100 km/h speedlimit in travelling at a speed
of 189 km/h. The accused pleaded guilty to the aforesaid charge as
envisaged in terms
of
section 112(1)(a)
of the
Criminal Procedure
Act, No. 51 of 1977
whereupon he was convicted by the presiding
magistrate.
[2] The presiding
magistrate, prior to sentencing, realised that she had erred in
dealing with the accused in terms of
section 112(1)(a)
aforementioned
as she was at all material times of the opinion that the offence
merited punishment of a fine exceeding the amount
determined by the
Minister from time to time in the Gazette, namely R1 500,00 and that
in the circumstances the presiding magistrate
should have dealt with
the accused as envisaged in terms of
section 112(1)(b)
of the
Criminal Procedure Act, No. 51 of 1977
.
[3]
Section 304A
reads as
follows:
“
(a)
If
a magistrate or regional magistrate
after
conviction but before sentence
is of the opinion that the proceedings in respect of which he brought
in a conviction are not in accordance with justice, or that
doubt
exists whether the proceedings are in accordance with justice, he
shall, without sentencing the accused, record the reasons
for his
opinion and transmit them, together with the record of the
proceedings, to the registrar of the provincial division having
jurisdiction, and such registrar shall, as soon as is practicable,
lay the same for review in chambers before a judge, who shall
have
the same powers in respect of such proceedings as if the record
thereof had been laid before him in terms of
section 303.
(b)
When a magistrate or a
regional magistrate acts in terms of paragraph
(a)
, he shall
inform the accused accordingly and postpone the case to some future
date pending the outcome of the review proceedings
and, if the
accused is in custody, the magistrate or regional magistrate may make
such order with regard to the detention or release
of the accused as
he may deem fit.”
[4] The presiding
magistrate recorded the reasons for her opinion and transmitted them,
together with the record of the proceedings
to the registrar of this
court. The record of the proceedings clearly shows that the accused
was unrepresented, had pleaded guilty
to travelling at a speed of 189
km/h on a road as envisaged in
section 59
of the
National Road
Traffic Act, No. 93 of 1996
, where the prescribed general speedlimit
was 100 km/h.
[5] I am of the opinion
that the presiding magistrate was correct in dealing with the matter
in the manner in which she did, especially
if regard be had to the
gravity with which such contraventions and convictions are viewed and
dealt with by the courts. See in
this regard
S v ORTON EN 'N
ANDER
2001 (1) SACR 433
(OPA) and
S v ISAACS
2002 (1) SACR 176
(CPD).
[6] I according make the
following order:
6.1 The conviction is set
aside.
6.2 The plea of guilty as
originally tendered by the accused stands.
6.3 The case is remitted
to the district court.
6.4 The district
magistrate concerned is directed to proceed further in terms of
section 112(1)(b)
of the
Criminal Procedure Act, No. 51 of 1977
.
_______________
P.U. FISCHER, AJ
I concur.
_______________
A.F. JORDAAN, J
/sp