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[2008] ZAWCHC 53
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Spammer v S (A 31/08) [2008] ZAWCHC 53 (12 September 2008)
REPORTABLE
IN
THE CAPE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOODHOPE PROVINCIAL DIVISION)
Case
No: A 31/08
In
the matter between
KATRIENA
SPAMMER Appellant
And
THE
STATE Respondent
Advocates for Appellant : Adv F van Zyl SC with Adv P A Botha
Instructed by : Spamer Triebel Incorporated
P O Box 5149
TYGER VALLEY 7536
Tel: (021) 913-7392
Advocate Respondent : Mr ADR Stephen
Instructed by : The Director of Public Prosecution
Tel: (021) 487-7000
Dates of hearing : 5 September 2008
Date of judgment : 12 September 2008
REPORTABLE
IN
THE CAPE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOODHOPE PROVINCIAL DIVISION)
Case
No: A 31/08
In
the matter between
KATRIENA
SPAMMER Appellant
And
THE
STATE Respondent
JUDGEMENT:
12 SEPTEMBER 2008
________________________________________________________________
NDITA,
J
INTRODUCTION
[1] The appellant was charged in the
Magistrate’s court, Montagu with two offences. The first
offence was that she had with
contravened Section 38 (1) (b) of the
Occupational Health and Safety Act 85 of 1983 but she was discharged
in terms of
Section 174
of the
Criminal Procedure Act 51 of 1977
. The
second charge against the appellant was that she had contravened
Regulation 11(6) (a) of the Electrical Machinery Regulations
in that
she had caused to be installed in her premises an electric fence in a
manner that persons could inadvertently come into
contact with it.
She was convicted and sentenced to thirty days imprisonment which was
wholly suspended on certain conditions.
She now appeals against both
conviction and sentence.
[2] The applicable Regulation reads as
follows:
“
1 Electric Fence….
(6) When an electric fence is
installed along a public road or in an urban area the user shall-
(a) as far as practicable mount the
electrified wires or articles in such positions that persons cannot
inadvertently come into
contact therewith…”
The charge reads as follows:
“
Dat die beskuldigde is aan
die misdryf van [sic – ‘die oortreding van die Bepalings
Van Regulasie 11(6) (a)] van die
elecktriese masjinerieregulasie
deurdat sy gedurende 2005 toegelaat het dat ‘n elektriese
heining op haar perseel opgerig
is wat die moonlik gemaak het dat
persone abuis daarmee in aanraking kom.”
[3] The first ground of appeal is that
the charge does not contain essential averments in particular with
regard to the mens rea
and as such does not disclose an offence.
Secondly, even if it did, on the evidence presented, no offence has
been proved.
Before considering
each of these submissions, it is necessary to set out the factual
background.
[4] As earlier stated, the appellant
was charged with erecting an electric fence in her premises during
2005. At the commencement
of the trial, Mr. Spammer who represented
the appellant
indicated that he
wanted to address the court on the charge which, in his opinion, was
unclear. It does not appear that he fully
addressed the court on this
issue but he did place on record the fact that the charges were not
clear. The magistrate ruled that
sufficient information had been
provided in the charge sheet.
[5] The evidence tendered in support
of the allegation was that before the appellant installed the
electric fence, she approached
Mr. Vorster in order to establish the
requirements, should she install it. Mr. Vorster’s response to
the query was that although
he did not have any experience in matters
of this nature, he did not believe that she would encounter any
problems but she should
ensure that installation complied with the
South African Bureau of Standards (“SABS”). After the
appellant had consulted
him, certain complaints regarding the fence
were lodged whereupon he decided to visit the premises. On his
arrival he found a certain
Mr. Elstadt who was busy erecting the
fence. Although Mr. Vorster did not have any experience in such
matters, he took the measurements
and found some of the places
whereon the fence was installed to be a little above one meter. In
his opinion, because of this reason
the fence was not safe. However,
Mr. Elstadt informed him that the fence was being erected in
accordance with SABS standards. Further
complaints were received and
that culminated in the visit by Mr. Boegervennig and Mr. Cupido who
issued notice in terms of section
30(1) (b) of the Act directing the
appellant not activate or energise the portion that was less than 1,
8 meters. It is common
cause that it was only the portion of the
fence that was in the region of 1.1 metres that was the basis of the
charge. Furthermore,
it appears from the photographs that the
property lay on a slope and a vibacrete wall had been raised up. In
addition, the electric
fence followed the decreasing gradient. None
of the witnesses testified in relation to the terrain on the lower
parts of the electric
fence. However, the photographs depict that
there are plants, shrubs and trees on the lower area.
[6] In the light of the above, the
crisp question is whether the trial court misdirected itself in
finding that the appellant was
negligent in installing an electric
fence without ensuring ‘as far as was practicable’ that
no persons could inadvertently
come into contact with live wires.
[7] In considering the above, it seems
prudent to first consider the prior question: whether the court a quo
erred in coming to
the conclusion that the charge sheet disclosed an
offence.
[8] The essential elements of the
crime created by Regulation 11(6) (a) are the following:
1. The installation of an electric
fence next to a public road or in an urban area;
2. An omission to monitor the electric
wires as far as is practicable to ensure that persons will not
inadvertently come into contact
with it.
It is clear from the above that guilt
is in the form of culpa.
[9] The purpose of a charge sheet is
to inform an accused person of the charges he or she is facing and
should clearly set out all
the elements of that particular offence to
enable an accused person to conduct a proper defence. This is a
fundamental principle
of the right to a fair trial. In the present
matter the charge sheet only shows that the offence against the
appellant is that
she allowed that an electric fence be erected in
her premises during 2005 that made it possible that persons can come
in contact
by mistake. It is always possible that wherever any
electric fence is installed people will come in contact with it by
mistake.
What creates an offence is the failure, as far practicable
to ensure that persons do not inadvertently come into contact with
live
electric fence. In the present matter, the charge sheet clearly
does not include the words the failure to ensure ‘as far as
practicable’ that people do not inadvertently come into contact
with it. In my view, the charge sheet is deficient to the
extent that
it does not disclose what forms the basis of the appellant’s
culpability. The deficiency in the charge sheet
operated to the
prejudice of the appellant who sought to understand the basis for
liability.
[10] The charge as it stands does
not even allege a recognizable offence. (See
S
v Dhudhla
1968 (1) SA 459
at 462). Furthermore, this defect cannot be salvaged by the
provisions
Section 88
of the
Criminal Procedure Act 51 of 1977
which
provides that, where a charge is defective for the want of an
averment which is an essential ingredient of the relevant offence,
the defect shall, unless brought to the notice of the court before
judgment, be cured by evidence at the trial proving the offence.
It
is clear from the record that the appellant’s legal
representative in the court a quo at least attempted to bring to
the
attention of the magistrate that the charge sheet lacked an essential
ingredient. The magistrate ignored the objection and
merely retorted
that the charge sheet contained sufficient information to enable the
appellant to plead. This is a misdirection.
Malherbe AJ in
S
v Gaba
1981(3) SA 746 at
746 H reaffirmed the principle that:
“
Where the existence of a
legal duty is not averred in a charge sheet, and the charge sheet is
not amended, notwithstanding the fact
that the defect was brought to
the attention court at the commencement of the trial and such legal
duty is “an essential
ingredient of the relevant offence”,
such defect cannot be cured by evidence, in terms
s 88
of the
Criminal Procedure Act 51 of 1977
, at the trial proving the matter
which should have been averred”.
On this ground alone, in my view, the
appeal should succeed.
[11] For the sake of completeness, I
turn to consider whether the evidence falls significantly short of
the measure required to
sustain a conviction
.
On Mr Vorster’s version,
the appellant made enquiries regarding problems she was likely to
encounter if she erected an electric
fence. He told her that if she
complied with SABS standards she should not encounter any problems.
Mr Vorster was present when
Mr Elstadt erected the fence. It is
further common cause that the officials had adopted the SABS code of
practice as guideline
but these have no foundation in law. Various
Safety Standards were incorporated into the Machinery and
Occupational Safety Act
in terms of GN R1594 dated 5 August 2008.
However, no safety standards were incorporated with regard to
Regulation 11 under which
the appellant has been charged. No
inspection in loco was conducted in the course of the trial and for
that reason it becomes difficult
to understand on what basis the
magistrate came to the conclusion that the appellant failed to mount
the electrified wires in such
positions that persons could
inadvertently come into contact therewith. on the one side, direct
access to the electrified wires
was blocked by a wall, on the other
side by extensive foliage. In my view, on the evidence presented the
trial court misdirected
itself by returning a verdict of guilt
against the appellant and for that reason the appeal should be
upheld.
[12] In the circumstances, the appeal
succeeds and the order of the court a quo is set aside and replaced
as follows: The accused
is acquitted.
__________________________
NDITA, J
I agree.
__________________________
DAVIS, J