S v Zim (394/2007) [2007] ZAFSHC 95 (13 September 2007)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2007
>>
[2007] ZAFSHC 95
|

|

S v Zim (394/2007) [2007] ZAFSHC 95 (13 September 2007)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Review No.: 394/2007
In the case between:
THE STATE
and
BEN THATO ZIM
CORAM:
RAMPAI, J
et
MOLEMELA,
AJ
_____________________________________________________
JUDGEMENT
BY:
RAMPAIM
J
_____________________________________________________
DELIVERED ON:
13 SEPTEMBER 2007
_____________________________________________________
[1] The matter came to
court by way of a special review in terms of section 304(4) of the
Criminal Procedure Act, No. 51 of 1977.
The accused was charged for
contravening section 65(1)(a) of Act No. 93 of 1996 – driving a
motor vehicle under the influence
of liquor or drugs. This was the
main charge. The alternative charge was driving a motor vehicle
while the alcohol concentration
in his blood was not less than the
permissible limit of 0,05 grams per 100ml in contravention of section
65(1(b) of Act No. 93 of
1996.
[2] The
matter was assigned to me to review. The record reveals that the
accused intended pleading guilty to the alternative charge
of driving
with an excessive alcohol concentration in his blood. He was not
really required to plea. His intention was merely conveyed
to the
court by the prosecutor.
[3] As
is the custom, the defence lawyer then stood up and confirmed that
the accused had indeed instructed him to plead guilty on
the
alternative.
[4] The attorney then
proceeded to read a written statement in terms of section 112(2) of
Act, No. 51 of 1977. The statement reads:
“
I, the undersigned
BEN THATO ZIM
do hereby make the statement as
follows:
1.
I am the accused in this matter and
make this statement freely, voluntarily and in my sober senses
without undue influence.
2.
I plead guilty to the offence of
contravention of section 65(1)(b) read with section 65(2)(b), 89(1) +
2 (sic) of Act 93 of 1996 driving
a motor vehicle with excessive
percentage of alcohol in blood.
2.1
In that on the 19
th
November 2005 and on Riverside and Boiketlo road a public road in the
district of Witsieshoek I wrongfully sat in the driver’s
seat of a
motor vehicle to wit a Nissan Van with registration No. CNG244FS
while the engine was running, or driving the said vehicle
whilst the
concentration of alcohol in a monster of blood drawn from any part of
my body was not less that 0,05 gram per 100ml but
was 0,20 gram per
100ml.
3.
I admit that on the said day I had
embibed (sic) intoxicating liquor to wit four (4) quarts of Castle
Beer.
4.
I further admit that the process
followed from my arrest to the drawing of blood sample from my body
as well as the analysis of the
blood was in order.
5.
I admit that the blood sample was
extracted from my body within the prescribed time limit of two (2)
hours.
6.
I admit that I have seen the forensic
certificate and admit the correctness thereof.
SIGNED on this 17
th
day of October 2006.
Accused
signature:
(SIGNATURE)
Witness:
(SIGNATURE)”
[5] The
accused was then asked to confirm the above written plea. He
apparently did although his answer was indistinct. The state
accepted the plea as tendered by the defence. The accused was,
without more, convicted on the strength of his written plea on 17
October 2006.
[6] The magistrate then
sentenced the accused on 8 December 2006 to a fine of R3 000,00 or 6
months imprisonment conditionally and
wholly suspended for 24 months.
[7] On
review I found the accused’s written statement in terms of section
112(2) to be somewhat vague. He simply repeated the wording
of
section 65(1)(b). The section envisages two practical scenarios.
The first is where a person with an excessive alcohol concentration
in his blood sits on the driver’s seat of a stationary motor
vehicle whose engine is still running. The second is where a person
with an excessive alcohol concentration in his blood manipulates a
motor vehicle which is in motion. This distinction was not made
by
the accused in his written plea of guilty – vide paragraph 2
thereof.
[8] The
result is that the statement in terms of section 112(2) failed to
state pertinently in what way the accused contravened section
65(1)(b) read with related provisions of the relevant legislation.
It appears to me that neither the prosecutor nor the magistrate
appreciated the aforesaid distinction in the section and the defect
in the written plea.
[9] On 17 October 2006
the magistrate noted on form j15 where he was required to state the
judgment:
“
Guilty as pleaded as charged.”
Vide page 4 of the
paginated court record.
As we have seen there
was the main charge and there was the alternative charge in the
instant case – section 65(1)(a) and section
65(1)(b) respectively.
To describe the verdict in the circumstances by noting, as the
magistrate did, is unhelpful and undesirable.
Where the accused had
faced one charge only, it is not wrong to say guilty as charged. But
even in such a situation it is unconventional
to say “guilty as
pleaded as charged.” Perhaps one may say: “Guilty as charged in
accordance with the plea”.
[10] In
the instance case the verdict should have been noted as follows:
“Guilty
contravention of section 65(1)(b) Act No. 63/96)”
It was unnecessary to
say:
“Guilty as
pleaded…”
since it has, as a matter of fact, already been noted in the
appropriate block or paragraph that the accused had pleaded guilty.
[11] The sentence imposed
on the accused was suspended on condition that the accused is not
convicted of the same offence “
he
is charged with
.”
The emphasis is mine. The condition is, with respect to the court
below, poorly worded. It should have been phrased as follows:
¡°¡¦
on
condition that the accused is not again found guilty of contravention
of section 65(1)(b) committed during the period of the suspension.”
The emphasis at the
sentencing stage shifts completely away from the offence an accused
was charged with to the offence of which
he has finally been
convicted
.
Sometimes the two may be poles apart, for instance, where the
accused is found guilty of a competent verdict.
[12] In his response to
all the queries I raised, the trial magistrate conceded that the
queries had substance. He wrote in paragraph
4 of his memo dated 17
July 2007 which the registrar received on 21 August 2007:
“
4. The oversight on the part of the
magistrate is too much and is quite regrettable, there are of cause
no reasons to advance as to
why the conviction and sentence should
stand and not be set aside and the matter remitted for fresh
consideration.”
[13] In the light of the
aforegoing I am unable to certify that the proceedings in this case
were in accordance with justice. The
magistrate suggestion appears
to me to be the correct course of action. Both the conviction and
the sentence cannot be allowed to
stand.
[14] Accordingly
I make the following order:
14.1 The conviction and
sentence are set aside.
14.2 The matter is
remitted to the court below for consideration
de
novo
.
14.3 The
accused must be informed of this order, and the decision of the
National Prosecuting Authority, should the matter, for any
reason, be
abandoned.
______________
M.H. RAMPAI, J
I
concur.
__________________
M.B.
MOLEMELA, AJ
/em