S v Taole (1388/06) [2007] ZAFSHC 81 (19 April 2007)

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[2007] ZAFSHC 81
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S v Taole (1388/06) [2007] ZAFSHC 81 (19 April 2007)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review No. : 1388/06
In
the review between:-
THE
STATE
versus
MBALAKELWA
ANCHES TAOLE
JUDGMENT
BY:
CILLIé
J
_____________________________________________________
DELIVERED
ON:
19
APRIL 2007
_____________________________________________________
[1] The
accused pleaded guilty on a charge of contravening section 63(1) of
Act 93 of 1996 in that he drove a motor vehicle negligently.
In
order to establish whether he was in fact guilty the magistrate
directed the following questions to the accused as required by
section 112(1) of Act 51 of 1977:
“Q. Do
you plead guilty voluntarily?
Yes
On the 16-10-2006 were you at the
district of Ficksburg?
Yes
It is alleged that on the 16-11-2006
you were arrested?
Yes for driving recklessly and
negligently a motor vehicle.
What kind of motor vehicle were you
driving?
A Ford truck with registration no ZLW
639 FS.
What kind of road were you driving
this car?
Public road
How did you drive this car?
I was driving in a proper manner,
with care
Any damages occurred as a result of
your driving?
Yes – two children were injured and
they are 10 years old
How were they injured?
A. I met with these children in the
district of Ficksburg hitching a hike. They told me that they will
alight next to the Sandstone.
When they arrived to the Sandstone
they just alighted.
Q. At which part were they conveyed?
A. At
the back (trailer) of the truck.
Q. Why
did you not stop at the place they mentioned?
A. I
thought they refer to another Sandstone I know, not the one they
mentioned.
Q. Did
you see them alighting from the truck?
A. No
– I did not have a proper look at all times
Q. How
did you know about the incident?
A. I
was informed by the police about this incident when I was approaching
Fouriesburg and at that time they were not inside the truck
– at
the back. I was also informed by the police that they both alighted
while the truck was moving next to the Sandstone that
is in
Ficksburg.
Q. What
speed were you travelling with?
A. ±
75 km/h”
[2] The prosecutor
accepted the plea on that basis. Thereupon the magistrate recorded
that
“
The
court is satisfied that accused admits all the elements of
negligent
driving and is convinced that he is guilty of negligent driving.”
[3] Having considered the
submitted mitigation the accused was then sentenced to a fine of R3
000,00 or 6 (six) months imprisonment
wholly suspended for 4 (four)
years on condition that he is not convicted of negligent driving
committed during the period of suspension.
[4] When the matter was
submitted for review the reviewing Judge requested reasons for the
conviction and an indication by the magistrate
in what respects he
found the accused to have driven the vehicle negligently.
[5] The
Clerk of the Court now reports that the magistrate was only
temporarily at that office and that her present whereabouts are
unknown. This matter therefore regrettably has to be considered
without the advantage of the magistrate’s reasons for convicting
the accused. Fortunately the circumstances are such that it is
hardly possible to think of anything that the magistrate could report
that could have a bearing on the outcome of this review.
[6] Section
63(1) of Act 93 of 1996 reads as follows:
“
No person shall
drive a vehicle on a public road recklessly or negligently.”
What
is clear from section 63 is that the negligence must relate to the
actual operating of the motor vehicle by the accused. In
the present
case there was nothing shortcoming in the manner in which the accused
operated his vehicle. As a matter of fact the
accused confirmed
during his questioning by the magistrate as is evident from what is
quoted,
supra
,
that he drove in a proper manner and with care. The fact that the
accused did not see the children alighting from his vehicle is
understandable. Apparently the vehicle was a truck with a trailer
and in all probability the children would alight right at the
extreme
back of the trailer. In these circumstances the accused would in any
event at best only observe the children after they
alighted. In the
absence of any evidence of the nature and precise shape of the
vehicle, it is unjustified to infer that the accused
was negligent in
not observing the children alighting from this vehicle.
[7] The fact that the
accused misunderstood the exact location where the children wanted to
alight from the vehicle, does not relate
to his driving of the
vehicle. If that was not so, it would have disastrous consequences.
For instance, the courier who delivers
his parcels at the wrong
address would be prosecutable on a charge of contravening the
aforementioned section. Also so, the bus
driver who forget the exact
location of the busstops where he is supposed to stop.
[8] The question now is
whether the matter should be remitted to the magistrate to enter a
plea of not guilty as envisaged in section
312 of Act 51 of 1977.
The position, however, is that the State accepted the facts as
alluded to by the accused. This means that
there is no dispute
between the accused and the State about what actually occurred. As
set out above these facts does not constitute
the offence set out in
the charge sheet. It would therefore be an exercise in futility to
remit the matter to the magistrate to
act in accordance with section
113 of Act 51 of 1977 as it is clear that the State cannot produce
evidence that would prove the accused’s
guilt.
[9] For
these reasons the conviction and sentence are set aside.
____________
C.B. CILLIé, J
/sp