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[2009] ZAGPPHC 301
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S v Nkuna (B221/08) [2009] ZAGPPHC 301 (2 September 2009)
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LVS
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
DATE:
2 SEPTEMBER 2009
NOT
REPORTABLE
MAGISTRATE
MALAMULELE
Case
No: B221/08
Magistrate’s
serial no: 66/08
High
Court Ref No: 2208
THE
STATE VS LOYD NKUNA
REVIEW
JUDGMENT
EKSTEEN
AJ:
The
accused, a [……..], was convicted of charges of culpable
homicide and secondly contravening the provisions of Section
65(5)(a)
of the National Road Traffic Act 93 of 1996 (excessive amount of
alcohol in breath).
The
accused was sentenced on 30 July 2008 to pay a fine of ten thousand
rand (R10 000.00) of two (2) years imprisonment on count
1. On count
2 the accused was sentenced to pay a fine of twenty thousand rand
(R20 000.00) or three (3) years imprisonment. The
accused conducted
his own defence.
The
case was sent on review and the High Court after requested the
magistrate for reasons. The case was forwarded to the Director
of
Public Prosecutions for comment. It was submitted by the state
advocate that there was no evidence tendered by the prosecution
in
respect of the concentration of alcohol in any specimen of breath by
the accused
The
evidence tendered was in respect of driving with an excessive
concentration of alcohol in the blood, being 0.14 gram per 100
millilitres.
The
state submitted further “.... That the proceedings are clearly
in accordance with broad justice" In terms of section
88 of Act
51 of 1977 the defect in the charge will in any event be cured by
evidence at the trial providing the matter which should
have been
averred. The accused disputed the chain evidence in respect of the
sample, clearly conducted his defence with knowledge
that the state
was alleging that he drove the vehicle while the concentration of
alcohol in his blood exceeded the legal minimum
that for record
purposes the conviction on count 2 van safely be substituted with one
of contravention of section 65(2) of Act
93 of 1996.
In
S v Hugo 1976(4) SA 536 A the conviction was set aside on the basis
of prejudice because evidence had been admitted regarding
an
allegation which did not appear in the charge An amendment was
refused on the grounds of prejudice. In S v Maqelepo 1999(1)
SACR
382(0) it was held that, where the evidence adduced, on the one hand,
and the allegation contained in the charge sheet, on
the other, were
of such a nature that the evidence proved an offence other than the
alleged in the charge sheet, the difference
could not be remedied by
section 86
The
facts in casu
have
to be distinguished from the facts in S v Mhlango 2005(1) SACR
209(T).
To
comply with the state's submission will be severely prejudiced to an
undefended accused
In
the result the following order is made:
1.
The conviction and sentence on count 1
is confirmed.
2.
The conviction and sentence on count 2
is set aside.
C.J
EKSTEEN
ACTING
JUDGE OF THE HIGH COURT
I
agree
C
BOTHA
JUDGE
OF THE HIGH COURT