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[2010] ZAFSHC 48
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S v Rheeder [2010] ZAFSHC 48 (19 May 2010)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Review
Case No 213/2010
In
the case between:
THE
STATE
versus
WYNAND RHEEDER
CORAM
:
BOONZAAIER, AJ
et
CILLIé ,J
JUDGMENT BY
:
BOONZAAIER, AJ
DELIVERED ON
:
19 MAY 2010
[1] This matter was
brought before me in terms of section 304(4) of the Criminal
Procedure Act, 51 of 1977, (“the CPA”).
The accused
appeared in the Magistrate Court, Bloemfontein, on a charge of
contravening section 65(1) of Act 93/96 driving under
the influence
of intoxicating liquor having a narcotic effect. He was convicted and
fined R4000,00 or 4 months imprisonment of
which R2000,00 or 2 months
is suspended for a period of 5 years on condition that the accused is
not again convicted of contravening
section 65(3), (4) , 65 (8), 9
and section 69(1), 73 and 89 of Act 93/96 committed during the period
of suspension. In terms of
section 103(2) Act 60/2000 he was declared
not unfit to possess a fire-arm. In terms of section 35 of Act 93/96
the suspension
of accused driver `s license does not come into
operation.
[2] When perusing the
record the magistrate realized that he omitted to ask the accused as
to whether his driving skills were impaired
due to intake of alcohol
whilst driving a motor vehicle.
[3] The matter was also
supposed to have been sent immediately for review since the court has
passed a reviewable sentence. The
case was however mistakenly
endorsed not reviewable instead of reviewable.
[4] The accused pleaded
guilty in terms of section 112 (1) (b) of the CPA and the court set
out to establish from him whether if
he was admitting the allegations
in the charge sheet. To decide whether he was in law guilty of the
charge to which he pleaded
guilty.
[5] There upon all the
elements of the offence were admitted by the accused, except to admit
that his driving skills were impaired
due to the alcohol intake
whilst driving the motor vehicle.
[6] The presiding
officer correctly conceded that he omitted to ask the accused whether
he also admitted that his driving skills
were impaired due to intake
of alcohol whilst driving a motor vehicle.
[7] This omission is of
such a nature that it nullifies the conviction and justify that the
Court should intervene.
[8] In the circumstances
I make the following order:
ORDER
:
The conviction and
sentence of the accused are set aside
The matter is
remitted to the Magistrate for further questioning in compliance
with section 112(1) (b) of the CPA.
___________________
A.S.
BOONZAAIER, AJ
I
concur.
____________
C.B.
CILLIé, J