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[2009] ZAGPPHC 236
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S v Machimana (A541/09) [2009] ZAGPPHC 236 (22 June 2009)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
Magistrate:
Lenyenye
High
Court ref np.: 60
Magistrate
Serial Number: 18/2008
Case
no. A445/08
CASE
NO:A541/09
DATE:22/06/2009
STATE
vs STUBBS MACHIMANA
REVIEW
JUDGMENT
When
this matter was initially laid before me, I raised certain queries
with the magistrate regarding conviction.
The
accused appeared in the magistrate court for the district of Lenyenye
on a charge of driving a motor vehicle whilst under the
influence of
liquor.
In
the alternative he was charged with driving a motor vehicle whilst
the concentration of alcohol in any specimen of breath exhaled
by him
was not. less than 0.24 milligrams per 1000 millilitres to wit 0.7S
per 1000 millilitres.
He
pleaded guilty to the charge and supposedly to the main charge.
Questioning
in terms of section 112(l](b) elicited the followings:
that
along the road he was stopped by the traffic officers,
that
the traffic officers were in possession of a machine or an equipment
called breathalyzer,
that
the traffic officers tested alcohol in his breath by using a
breathalyser anti that he was told it exceeded the limit,
that
he did consume liquor on the date in question and that he drank six
and half Hunters Dry.
The
trial court then enquired from the accused if he knew that It was not
allowed to drive while under the influence of liquor and
the accused
answered in the affirmative. The accused was then convicted based on
the answers indicated above which were elicited
during questioning.
I
enquired from the magistrate if the accused had admitted all the
elements justifying a conviction on driving a motor vehicle whilst
under influence of liquor.
The
magistrate as I understood her, held the view that conviction was in
accordance with justice, that is, the accused admitted
the elements
of the offence.
The
matter was referred to the Office of the Director of Public
Prosecutions for comment. In their view, the accused did not admit
all the elements of the main count, nor the alternative charge. I
share this view and I do not find it necessary to elaborate.
I
would therefore make an order as follows:
1.
Conviction and sentence are set aside,
2.
The matter is referred to the trial court to proceed as follows:
2.1.
further question the in terms of section 112( l)(b) of the Criminal
Procedure Act to establish if the accused admits all the
elements of
the offence either on the main charge or alternative charge,
2.2.
should the court, find that the accused admits all the elements of
the offence and finds the accused guilty, the court should
impose
such sentence as it may find appropriate, or
2.3.
should the court find that the accused does not admit all the
elements of the offence it being either on the main charge or
alternative charge, the court should change the plea to that of not
guilty in terms of
section 113
of the
Criminal Procedure Act 51 of
1977
.
M
F LEGODI
JUDGE
OF THE HIGH COURT
It
is so ordered
W.
L. SERITI
JUDGE
OF THE HIGH COURT