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[2009] ZAKZPHC 17
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S v Zerky (R421/09) [2009] ZAKZPHC 17; 2010 (1) SACR 460 (KZP) (29 April 2009)
REPORTABLE
IN THE HIGH COURT OF SOUTH
AFRICA
IN THE KWAZULU-NATAL HIGH COURT
PIETERMARITZBURG
R421/09
In the matter
between :
THE STATE
versus
CHRIS ZERKY
REVIEW JUDGMENT
28 April 2009
WALLIS J.
[1] On 25
October 2008 Mr Chris Zerky, who hails originally from Ghana, was
involved
in a motor collision on Allen Street, Newcastle. He
was at the time driving a BMW saloon car. Apparently the
collision
occurred when another vehicle collided with the rear of his
motor vehicle. For reasons that do not emerge from the record
Mr Zerky’s blood alcohol was tested and the concentration was
found to be 0.07 grams per 100 milliliters. That resulted
in
the criminal proceedings that give rise to this judgment being
brought against him.
[2] On
20 February 2009 in the Magistrates’ Court, Newcastle, Mr Zerky
pleaded guilty
to a charge formulated in the following terms:
“
BLOOD ALCOHOL
CONCENTRATION NOT LESS THAN 0,
05 OR 0.02
PER 100 ML.
That the accused is guilty of
contravening Section 65(2) read with
Sections 1
,
65
(3),
65
(4),
69
,
73
,
74
and
89
of the
National Road Traffic Act 93 of 1996
.
In that on or about
25
October 2008
the said accused did
unlawfully drive or occupy the driver seat of a motor vehicle, the
engine of which is running, to wit
BMW
ND 556056
, upon a public road to
wit
Allen Street
within the District of Newcastle while the concentration of alcohol
in a specimen of blood taken from his/her body was not less
than 0.05
gram per 100 milliliters, or in the case of a professional driver,
not less than 0.02 gram per 100 milliliters, to wit
0,07
gram per 100 milliliters.”
After
Mr Zerky entered his plea of guilty the magistrate questioned him in
terms of
section 112(1)(b)
of the
Criminal Procedure Act, 51 of 1977
,
as amended, in accordance with a standard list of questions that is
used in this type of case. Three of these questions
and answers
are relevant. They read as follows:
“
Q.
What type of vehicle did you drive?
A.
A BMW vehicle, private vehicle.
Q.
Are you a professional driver?
A.
Yes.
…
Q. Do you admit that
the concentration of alcohol in your blood was in excess
of the prescribed limit of 0,02/
0,05
to wit 0,07
grams per 100 ml?
A
Yes”
In
regard to this last question there is nothing in the record to
indicate when the deletion was effected or that the magistrate
told
Mr Zerky of the deletion and its potential significance. It is
probable that he merely intended to admit that his blood
alcohol
level had been correctly measured not that the prescribed limit was
the lower one applicable to professional drivers.
[3] The
magistrate recorded that she was satisfied that the accused admitted
all of the
elements of the charge against him. She then
recorded on the J.15 that he was found guilty of contravening section
65(2)
of the Road Traffic Act 93 of 1996 and added the note:
“Convicted as a professional driver”. There is,
however,
nothing in the record to indicate whether this was conveyed
to Mr Zerky. Be that as it may, Mr Zerky then addressed the
court
in mitigation of sentence and explained that he was a teacher
working for the Department of Education. He added the
following:
“
I lost my driver’s
licence. I do have a professional driving permit.”
A little later he said that he wanted
the court to note that he does have a licence and that a copy of it
can be obtained.
At the end of this the magistrate imposed a
sentence of a fine of R6000.00 or 6 months’ imprisonment, of
which R2000.00 or
2 months’ imprisonment was suspended for
three years on certain conditions. The fine was not paid, which
is hardly
surprising as Mr Zerky had indicated that he had no money
with him, and he was not released.
[4]
When the matter came on review the Reviewing Judge queried the basis
upon which Mr
Zerky had been convicted as a professional driver and
also queried the sentence suggesting that had he been convicted as an
ordinary
driver, a far lower sentence would have been imposed.
He also asked why the deferred fine was not granted in order to avoid
Mr Zerky being detained in prison.
[5]
The magistrate’s response reads as follows:
“
(a)
Indeed he was convicted as a professional driver on the basis that he
was the holder of a Professional
driving permit as he stated.
This set of circumstances required
clarity as to whether such a conviction as a professional driver
could follow on these facts
alone. In the past I have convicted
such drivers as ‘ordinary drivers’ even though they did
have a professional
driving permit because the facts indicated that
when they were stopped they had been driving in a private capacity,
however I have
had some reservations in this regard since the holder
of a professional driving permit should be subject to the more
stringent
provisions of the said Act – it appeared to subvert
the clear wording of the Act to hold that such drivers should be
convicted
as ‘ordinary drivers’ although they were
professional drivers on account of being holders of a professional
driving
permit.
I accordingly sought some guidance in
this regard from the automatic Review process and leave the matter to
your Honour to decide
upon.
If your Honour maintains the view
that he should only have been convicted as an ordinary driver then I
must agree that the fine
as it stands is high and should be
reconsidered. I would then suggest a suspension of half of the
total fine imposed as fair.
(b)
The accused was advised of his right to
apply for a deferred fine as indicated
on the record, however
he did not bring such
an application, same would have been favourably considered had he
made such
an application.”
[6]
When the case came before me on review I made enquiries and directed
that should Mr Zerky still
be in prison he should be released
immediately. I was subsequently informed by the Clerk of the
Court, Newcastle, that he
was released on a warrant of liberation on
20 April 2009 at approximately 15h30. The position is therefore
that he spent
two months in prison in consequence of his conviction
by the magistrate. Even if it had been correct to convict him
as a
professional driver, in the circumstances of this case where Mr
Zerky was plainly involved in domestic pursuits unrelated to any
professional driving responsibilities that he may have and where his
blood alcohol level was only marginally higher than the permissible
limit for a conventional motorist driving a conventional saloon car
as he was, it is plainly wrong that he should have been sentenced
on
a basis that resulted in him being imprisoned for two months.
The sentence was manifestly excessive and, bearing in mind
that he
had clearly told the magistrate that he had no money with him on the
day of his trial, the magistrate should of her own
volition have
deferred the payment of the fine in order to ensure that he was not
detained in prison where that was unnecessary
[1]
.
The magistrate had evidence that Mr Zerky was employed in the
important job of a teacher and was in receipt of a salary
of R9000.00
per month. There can be no real doubt that if he had been
afforded the opportunity of paying a deferred fine
he would not have
had to undergo imprisonment and the magistrate’s failure to
ensure that he was given every opportunity
to avoid imprisonment is
to be deprecated. The fact that it is possible that such imprisonment
might result in his losing his employment
appears not to have been
taken into account at all by the magistrate.
[7]
The approach by the magistrate is even more disturbing in view of the
fact that she records
in her response to the query by the Reviewing
Judge that this case involved a departure from the view that she had
previously taken
that where a person was found driving a private
motor vehicle in a private capacity whilst his or her blood alcohol
level exceeded
0,05 grams per 100 ml, they should be treated as an
ordinary motorist notwithstanding the fact that they were the holder
of a professional
driving permit. She did not deliver a
reasoned judgment or give any explanation that would have alerted Mr
Zerky to the fact
that he had become a guinea pig for her musings on
the implications and purpose of the legislation. Her response to the
reviewing
judge is unreasoned and unhelpful. As will become
apparent the answer to the question she raised depends on a careful
consideration
of the provisions of the statute in the light of the
principles governing the interpretation of statutes. Instead there is
no indication
why the magistrate initially took one view and later
revised that view or of her reasons for doing so. This is a wholly
unacceptable
basis upon which to subject people to imprisonment.
[8]
There is no indication that the magistrate was in the slightest bit
concerned about
the implications of her decision. In view of the
potentially serious adverse consequences for the accused arising from
the change
in her view of the relevant legislation, it would have
been more appropriate for her, after convicting Mr Zerky as a
professional
driver, to have sent the matter on review before
sentence in terms of the provisions of
section 304A(a)
of the
Criminal Procedure Act. This
she was entitled to do on the basis
that, as appears from her response to the reviewing judge, she was
clearly in doubt whether
convicting Mr Zerky as a professional driver
was correct and accordingly whether it would be in accordance with
justice.
By adopting that approach I have little doubt that the
incarceration of Mr Zerky would have been avoided. In part, at
least,
that would have been the result of the conviction as a
professional driver being set aside, which, for the reasons that
follow,
it should be.
[9]
Section 65(2) of the National Road Traffic Act 93 of 1996 (“the
RTA”)
provides that:
“
No person
shall on a public road:
(a)
drive a vehicle; or
(b)
occupy the driver’s seat of a motor vehicle the engine of which
is running,
while the
concentration of alcohol in any specimen of blood taken from any
part of his or her body is not less than 0,05 grams
per 100 ml,
or in the case of a professional driver referred to in section 32,
not less than 0,02 grams per 100 ml.”
It is plain that it is the driving of
the motor vehicle or the occupancy of the driver’s seat whilst
the engine is running
and hence when it can be inferred that it has
either been driven or is about to be driven, that constitutes the
offence, not the
status of the driver or the type of licence
possessed by that driver. The law demands a certain level of
sobriety from all
drivers. In the case of a professional driver
a greater level is demanded. The obvious reason for this is
that when
a professional driver is about his or her business the
nature of their work poses greater perils to life, limb and property
than
is the case with the driving of a conventional motor vehicle. It
is not obvious that when they are about their ordinary day to day
lives they should be treated any different from any other driver.
[10]
A professional driver is defined in section 1 of the RTA as meaning
the driver of a motor vehicle
referred to in section 32. Again the
emphasis is on the fact of driving not on the type of licence or
permit possessed by the person
concerned. In terms of section
32(1) it is provided that:
“
no person shall drive a motor
vehicle of a prescribed class on a public road except in accordance
with the conditions of a professional
driving permit issued to
him or her in accordance with this Chapter and unless he or she keeps
such permit with him or her
in the vehicle: …”
As with section 65(2) it is the
driving of a vehicle of the prescribed class that constitutes a
contravention of this section. Section
32(2) provides that the class
of vehicle the driving of which requires possession of a professional
driving permit and the categories
of professional driving permits are
to be as prescribed. Accordingly in order to identify both the
category of professional
driving permit and the nature of the motor
vehicle to which it applies one must have resort to the regulations
promulgated under
the RTA.
[11]
The regulations in question are the Road Traffic Regulations 2000
published in GNR.225 of 17
March 2000. Regulation 99(4)(a) sets
out different categories of driving licences. They are referred
to as A1, A, B,
C1, C, EB, EC1 and EC. Categories A1 and A
relate to the driving of motor cycles and category B to motor
vehicles the tare
of which does not exceed 3500 kg or a minibus, bus
or goods vehicle, the gross vehicle mass of which does not exceed
3500 kg.
A licence in category B is the conventional driver’s
licence held by ordinary motorists. It was the only driver’s
licence Mr Zerky required in order to drive a BMW saloon.
The other categories of licence relate to various larger
motor
vehicles, but possession of a licence in those categories authorises
the holder to drive any motor vehicle for which a code
B driving
licence is required.
[12]
The requirement that a person hold a professional driving permit
relates to the driver of a goods vehicle,
the gross vehicle mass of
which exceeds 3500 kg; a breakdown vehicle; a bus; a minibus the
gross vehicle mass of which exceeds
3500 kg or which is designed or
adapted for the conveyance of 12 or more persons including the
driver; a motor vehicle used for
the conveyance of persons for reward
or operated in terms of an operating licence issued for that purpose;
a motor vehicle the
gross vehicle mass of which exceeds 3500 kg to
which certain other regulations apply and a motor vehicle conveying
12 or more persons
including the driver.
[2]
Regulation 116 then describes
three categories of professional driving permit, namely categories G,
P and D each of which relates
back to one or other of the categories
of motor vehicle referred to in regulation 115(1). Lastly under
regulation 117(a)
a person cannot obtain a professional driving
permit unless they are in possession of a valid driving licence for a
motor vehicle
in respect of which the permit is applied for.
Other possibly than a licence in respect of conventional saloon cars
operated
as taxis, those are all licences other than type A1, A or B
motor vehicle driving licences.
[13]
When section 65(2) of the RTA mentions a professional driver as
referred to in section 32 it is referring
to a person who by virtue
of the nature of the vehicle that they are driving at any particular
time is required to be in possession
of a professional driving permit
of one or other type set out in the regulations. It is the driving of
the vehicle that attracts
the obligation to possess a professional
driving permit. That is evidenced by the fact that the permit must be
in the driver’s
possession on the vehicle. They are not
required to have the permit when they are driving a conventional
saloon car. In my view
section 65(2) has nothing to do with the
occupation of the person and the fact that they may earn their living
as a professional
driver. They are identified as a professional
driver for the purposes of the section by the fact that they are
driving a
vehicle of the type specified in the regulations that
requires them to be in possession of a professional driving permit.
Accordingly it is the nature of the vehicle that they are driving and
the obligation to hold a professional driving permit that
imposes
stricter requirements in regard to a person’s blood alcohol
level and not their job description. The type of
driver’s
licence that they possess and the fact that they may have a
professional driving permit is irrelevant.
[14]
The notion that a person becomes a professional driver because of the
nature of the motor vehicle
that they are driving is reinforced by
the definition of “professional driver” that I have
already quoted. A
person is a professional driver under that
definition if they are driving a motor vehicle of a type specified in
the regulations
under section 32(1) of the RTA. Whether they in
fact have a professional driving permit is neither here nor there.
If they are driving a specified type of motor vehicle then they are a
professional driver.
[15]
Consideration of all three relevant provisions of the RTA accordingly
point uniformly to the
conclusion that a person is only a
professional driver for the purposes of the criminal offence set out
in section 65(2) of the
RTA if they are at the time driving a motor
vehicle of the type specified in the regulations as requiring the
driver to hold a
professional driver’s permit. The
definition states that a professional driver is a person driving such
a motor vehicle.
Section 32(1) prohibits a person from driving
a motor vehicle of the prescribed class on a public road except in
accordance with
a professional driving permit. The heading to this
section is significant. It reads:
“
Professional
driver to have permit.”
In other words a
person does not become a professional driver because they have a
professional driving permit. They are a
professional driver
because they drive a motor vehicle of the prescribed class and it is
because they are a professional driver
that they are required to have
a professional driving permit. Lastly, as pointed out, the
offence established by section
65(2) is the offence of driving a
motor vehicle or being in a position where the inference is that one
has just driven or is about
to drive a motor vehicle. The
obvious reason why different blood alcohol levels are specified as
between professional drivers
and ordinary drivers is the potentially
greater harm that can be occasioned by a professional driver when
driving a vehicle of
a specified class. This is not to discount
the harm that can be caused by driving a conventional motor vehicle
for private
purposes. However the harm caused by a large
commercial vehicle or the death and injury occasioned in the
operation of passenger
vehicles carrying more than 12 people is too
well known and documented for it not to be apparent why the drivers
of such vehicles
are to be held to a stricter standard in regard to
their blood alcohol levels.
[16]
There is also a perfectly good reason why the RTA formulates the
prohibitions in section 65(2)
in this fashion. It is that
otherwise a person who did not possess a professional driving permit
would, so far as their blood
alcohol level was concerned, be able to
drive a vehicle of the class requiring them to possess such a permit
with a higher blood
alcohol level than would be the case with a
person holding such a permit. If such a person were not a
professional driver for the
purposes of the RTA they could drive a
heavy vehicle with a blood alcohol level of 0.05 with impunity
provided they did not possess
a professional driving permit. That is
manifestly absurd and an untenable situation. Accordingly the
structure of the Act,
as I have demonstrated, is that a person
becomes a professional driver when they drive a vehicle of the
specified class irrespective
of whether they have complied with their
statutory obligation to obtain a professional driving permit.
[17]
Mr Zerky was not driving a vehicle that required him to possess a
professional driving permit.
He was driving a private motor
vehicle for private purposes. Accordingly his conviction on the
basis that he was a professional
driver was erroneous. That
means that his conviction and, as the magistrate concedes, his
sentence must be altered.
Before dealing with that, however, I
should say something about both the charge sheet and the questioning
of Mr Zerky in terms
of
section 112(1)(b)
of the
Criminal Procedure
Act.
[18
]
The form of the charge put to Mr Zerky suggests that
section 65(2)
of
the RTA embodies alternatives that can properly be contained in a
single charge. It does not. The section embodies
two very
separate offences. The one is an offence committed by a
professional driver, that is, as explained already, a person
driving
a vehicle of the type that in terms of
section 32(1)
of the RTA
requires the driver to be in possession of a professional driving
permit. The offence in respect of such a person
is driving
whilst the concentration of alcohol in a specimen of blood taken from
him or her is not less than 0, 02 grams per 100
ml. The
second offence relates to a person driving a vehicle the driving of
which does not require the driver to be
in possession of a
professional driving permit. That offence is committed where
the person concerned has a concentration
of alcohol in a specimen of
blood taken from his or her body of not less than 0,05 grams per 100
ml. I am aware, from other
reviews, that a charge in this form
is the one conventionally used, at least in this Province. In
my view, however, it is
not proper or appropriate for a charge to
embody two entirely separate offences only one of which could
possibly have been committed
by the accused. The prosecutor
should decide at the outset, on the basis of the contents of the
police docket, which will
reflect the type of motor vehicle being
driven at the time of the commission of the alleged offence, whether
or not the accused
is a professional driver and charge the accused
accordingly. In its present form the accused cannot know from
the charge
whether it is the intention of the State to allege that
they are a professional driver, a matter which, if disputed, would
have
to be proved by the State beyond a reasonable doubt. A
plea of guilty to a charge formulated in this fashion is meaningless
because it is not apparent to which of the two offences embodied in
the charge the accused is pleading guilty. The continued
use of
a charge in this form must cease and an accused charged under
section
65(2)
of the RTA must be informed in the charge sheet whether they
are being charged as a professional driver of driving when the
concentration
of alcohol in a specimen of blood is not less than 0,02
grams per 100 ml or as an ordinary driver on the basis that the
concentration
of alcohol in their blood specimen exceeded 0.05 grams
per 100 ml.
[19]
The result of the charge being formulated in this fashion is that the
questioning under
section 112(1)(b)
of the
Criminal Procedure Act is
not, as that section provides, directed at the court satisfying
itself that the accused understands the plea of guilty that they
have
entered and truly admits every element of the offence. Instead
the purpose of the questioning is in part to ascertain
what criminal
offence the accused has committed. That is the function of the
questions quoted at the outset of this judgment
concerning the nature
of the motor vehicle being driven and whether the person is a
professional driver. Such questioning
is not a permissible
purpose of questions posed under
section 112(1)(b)
of the
Criminal
Procedure Act. It
is accordingly improper and must be
discontinued. If a person is to be charged as a professional driver
and pleads guilty, appropriate
questions to establish that the
vehicle being driven at the time of the offence is of the class that
requires possession of a professional
driving permit must be put to
the accused in terms of
section 112(1)(b).
[20]
Apart from the impropriety of these questions the manner in which
they have been formulated is
thoroughly misleading. Questions
put to an accused under
section 112(1)(b)
are questions about the
factual elements of a criminal offence, not questions about
conclusions of law to be drawn from facts.
Whether a person is
a professional driver within the meaning of that expression under the
RTA is a conclusion of law to be derived
from certain facts. When it
is posed as a question of fact it is thoroughly misleading. No
doubt if Mr Lewis Hamilton or
Mr Felipe Massa or a humble truck
driver were stopped whilst driving a conventional saloon car on South
Africa’s roads and
asked if they were professional drivers,
they would answer in the affirmative. However that accurate and
innocent answer
would not mean that they were required to be in
possession of a professional driving permit in terms of
section 32(1)
of the RTA. Nor could it have any bearing on any other
provision of the RTA that draws a distinction between a professional
driver and other drivers.
[21]
In this case Mr Zerky informed the court that he was in possession of
a professional driving
permit. It is not clear whether he meant
that this is a professional driving permit issued under
section 32(1)
of the RTA, as there is nothing to indicate why he, as a teacher,
would have obtained such a permit. His attention was not
drawn
to the provisions of
section 32(1)
of the RTA, or the definition of a
professional driving permit in
section 1
or to the relevant
provisions of the regulations. In those circumstances the
question was thoroughly misleading and the answer
worthless.
Had the charge sheet been drafted on the basis that he was an
ordinary driver this question would not have arisen.
When it
arises in the context of a professional driver the questioning needs
to be far more detailed than is at present the case.
[22]
I have considered whether in the light of the form of the charge
sheet the conviction of Mr Zerky should
be set aside on the basis
that the entire proceedings were irregular. Bearing in
mind, however, that this form of charge
sheet has been in use for
some considerable time and has not hitherto occasioned problems or
injustice, or been queried by judges
including myself, I do not think
that it is necessary to go further than to say that charges should no
longer be laid in this form.
Justice will be done to Mr Zerky
in accordance with his plea if his conviction is altered by the
deletion of the reference to his
being a professional driver.
As regards sentence the proper sentence would have been a fine, with
imprisonment as an alternative,
and the fine should have been
deferred. However, too much water has flowed under the bridge
for that to be done at this stage.
He has served two months’
imprisonment, which I regard as a far more salutary punishment than
the payment of a fine of R4000.00.
The answer in my view is to
suspend two-thirds of the sentence imposed by the magistrate. On that
basis Mr Zerky was entitled to
his immediate release from prison as
ordered by me.
[22]
In the result Mr Zerky’s conviction is altered to one of
contravening
section 65(2)
of the
National Road Traffic Act 93 of
1996
as an ordinary driver and not as professional driver. The
sentence imposed by the magistrate is altered to read as follows
:
A fine of R6000.00 or six (6) months’
imprisonment of which
R4000.00 or four (4)
months’ imprisonment is suspended for
three
years on condition that he is not convicted of an offence of
contravening
section 65(1)
,
65
(2) or
65
(5) of Act 93 of 1996
committed during the period of suspension. In terms of section
35 of Act 93 of 1996 it is ordered that
the suspension of his driving
licence is not to take effect.
KOEN J.
[1]
S v Kika
1998
(2) SACR 428 (W).
[2]
Regulation 115(1)