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[2007] ZAFSHC 57
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S v Ekermans (498/2007) [2007] ZAFSHC 57 (5 July 2007)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review No. : 498/2007
In
the review between:-
THE
STATE
versus
NICOLAS
FRANCISCUS EKERMANS
_____________________________________________________
JUDGMENT
BY:
WRIGHT J
_____________________________________________________
DELIVERED
ON:
5 JULY 2007
_____________________________________________________
[1] The accused was
convicted of contravening section 65(1)(a) of Act 93 of 1996 i.e.
driving while under the influence of intoxicating
liquor. He was
fined the sum of R2 500,00 or 6 (six) months imprisonment. According
to the J4 form the fine was paid.
[2] The accused pleaded
guilty and only admitted that he drove a Toyota Quantum panel van on
24 February 2007 in Mandela Drive. According
to him he was not
involved in an accident. He further mentioned that he could not
recall what had happened. He reiterated that
there was no visible
damage to his vehicle. The magistrate asked him if it could be that
he was so drunk that his faculties were
impaired and hence that he
does not remember to which he replied that it is possible. He does
not know how much liquor he took but
it was a lot and that he drank
at Stones Night Club.
[3] The
mere fact that he said it is possible that his faculties were
impaired and that he could not remember what happened as a result
thereof, does not mean that he admits that it was indeed the case.
He did not specifically admit that he drove the vehicle in question
at the time of his arrest nor that he acted while his skills were
impaired as a result of alcohol. There is no definitive explanation
as to why he could not remember what occurred on 24 February 2007.
[4] In the light of the
abovementioned aspects of the plea explanation it is clear that the
provisions of section 112(1)(b) were not
properly dealt with as it
does not appear from the questioning whether the accused admits all
the elements of the offence. The provisions
of
section 312
of the
Criminal Procedure Act, No. 51 of 1977
, are therefore applicable.
[5] In
result the following orders are made:
1. The
conviction and sentence are set aside.
2. The matter is
remitted to the Court
a quo
.
3. The court is directed
to properly comply with the provisions of
section 112(1)(b)
of Act
No. 51 of 1977 and if necessary to comply with section 113 of the
Act.
4. If
the accused is found not guilty the fine of R2 500,00 must be repaid
to the accused.
______________
G.F. WRIGHT, J
/
sp