S v Ndondo (971/2006) [2006] ZAFSHC 158 (19 October 2006)

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
>>
2006
>>
[2006] ZAFSHC 158
|

|

S v Ndondo (971/2006) [2006] ZAFSHC 158 (19 October 2006)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review No. : 971/2006
In the review between:-
THE STATE
and
JAMES SIPHIWE
NDONDO
_____________________________________________________
CORAM:
RAMPAI
J
et
KRUGER
J
_____________________________________________________
JUDGMENT
BY:
RAMPAI
J
_____________________________________________________
DELIVERED
ON:
19
OCTOBER 2006
_____________________________________________________
[1] The accused was
charged for driving a motor vehicle while he was under the influence
of alcohol in contravention of section 65(1)
Act No. 93/1996. It was
alleged that he committed the offence in Greyling Street at
Bothaville on 17 April 2006.
[2] On
25 July 2006 he was found guilty on his plea. On the same day he was
sentenced to R2 000,00 or 10 (ten) months imprisonment
of which half
was conditionally suspended for 3 (three) years.
[3] After
the accused plea of guilty the magistrate questioned him in terms of
section 112(1)(b) Act No. 51/1977. Among others the
magistrate asked
him the following important elementary question:
Q : Did the liquor
impair your driving?
A : I
did not feel like it disturbed me.
At
the end of it all the magistrate was satisfied that the accused
admitted all the allegations in the charge sheet. He accordingly
convicted the accused as charged.
[4] In
response to my query on review the learned magistrate stated his
reasons for the conviction as follows at paragraph 4 on page
2 of his
memorandum dated 1 October 2006:
“
The
answer that the accused gave was that ‘I did not feel like it
disturbed me’. To my understanding of the accused was that
he was
not sure of his condition. He did not give a definite answer and
say: ‘It did not impair
my
driving”. He admitted having taken liquor before he drove the
vehicle, he also said the police told him he smelled of liquor,
which
is a fact that cannot be disputed or needs to be proved. My overall
understanding of the accused was that he admitted having
driven the
said vehicle while under the influence of liquor. The only concern
is whether that liquor impaired his driving capacity.”
[5] In
my view the aforesaid answer was very unsatisfactory. The magistrate
correctly says that the accused “was not sure of his
condition”.
The magistrate also correctly remarks that the accused “did not
give a definite answer”. The mere intake of alcohol
and the mere
smell of alcohol do not individually or collectively, necessarily and
conclusively, indicate, without more, that a motorist
was in fact
driving a motor vehicle under the influence of alcohol. The point is
this: such alcohol intake plus such alcohol smell
do not always equal
impaired driving under the influence of alcohol.
[6] The alcohol intake or
the alcohol smell may in certain circumstances stem from an
inexcessive alcohol concentration which is below
the prescribed
maximum limit or from an excessive alcohol concentration which is
above the prescribed maximum limit or from an alcohol
concentration
with such strong intoxicating effect that it adversely impairs the
driver’s ability to manoeuvre a motor vehicle
with proper, careful
and skilful manner. These are the three different ways in which an
alcohol intake can affect a motorist. It
is also how the consumption
of alcohol is viewed in our law. The law does not criminalise the
first category of drivers.
[7] The
magistrate reckons that the above answer was unsatisfactory. To use
his exact words the answer “..... seems to be not satisfactory
“.
He and I are therefore
ad
idem
.
However, we do not share the same view as to the implications of
such an unsatisfactory answer. The answer was unsatisfactory
in the
sense that the accused did not admit that his driving faculties were
impaired. It follows therefore that he did not admit
an essential
element of the charge.
[8] The magistrate says
that the accused was not sure about his condition. This simply means
that the magistrate did appreciate that
the accused was uncertain as
to whether his abilities to drive a motor vehicle properly, carefully
and skilfully were impaired by
the alcohol he had consumed or not.
Now, if the accused himself was doubtful about the adverse effects or
otherwise of the alcohol,
how then could the court itself have been
satisfied at the end of the inquiry that the accused was beyond
reasonable doubt guilty
of the crime?
[9] It
is so that before the accused gave the aforesaid dubious answer, he
on two occasions admitted that he drove a motor vehicle
under the
influence of alcohol. But the dubious answer he subsequently gave
towards the end of the inquiry clearly showed that he
had no idea of
what driving under the influence of liquor entailed. The court below
did not explore the matter further by asking
the accused appropriate
questions to make doubly sure he understood what driving under the
influence really meant. Apparently the
accused reckoned that because
he had consumed alcohol, that because he drove a motor vehicle and
that because he smelled alcohol,
he was therefore guilty as charged.
Clearly that is a misconception of the law.
[10] The
magistrate writes: “He did not give a definite answer and say: “It
(alcohol) did not impair my driving”. From this
passage the
reasoning of the magistrate becomes quite obvious. Had the accused
given such a negative answer the magistrate would
not have convicted
the accused. With respect to the magistrate, such reasoning is
defective.
[11] The purpose of
section 112(1)(b) is to ensure that an accused person indeed admits
all the elements of the charge. Since the
section concerns an
accused who has pleaded guilty, the emphasis is on the affirmative
and not on the negative dimension of the enquiry.
The driver’s
impairment as a result of alcohol must be clearly admitted before
conviction for the contravention of section 65(1)
Act No. 93/1996 can
follow. It was never unequivocally admitted in the instant case. It
is incorrect to reason that because the
accused did not pertinently
deny it; he thereby admitted it. There is no room allowed for
inferential reasoning during the inquiry
process in terms of section
112(1)(b).
[12] In
S
v LOMBARD
1967 (4) SA 538
(AD) at 549 A – B Milne AJA, as he then was, said
the following about impaired driving faculties.
“
It seems to be
quite clear from R v Spicer that even a slight degree of impairment
or diminution of faculties due to the consumption
of liquor will
suffice for a conviction under the relative legislation.”
At 549 C he added:
“
..... that, no
doubt, is why he will be guilty of contravening the section, even
though he drives with great care.”
Milne
AJA was clearly referring to a case where there was evidence that a
driver’s proper, careful and skilful driving faculties
were
slightly impaired. In the instant case there is virtually no such
evidence against the accused. It follows therefore that
the second
passage above on which the magistrate placed reliance for his
conviction of the accused, does not support his view. The
misdirection cannot be allowed to stand. The admissions cannot
sustain the conviction.
[13] For
the reasons advanced above, I am inclined to set the conviction and
the sentence aside and to remit the case to the court
below. I do
this in terms of section 312 Act No. 51/1977. I hold the firm view
that this is the case where the magistrate ought
to have doubted
whether the accused was indeed guilty of the offence of driving a
motor vehicle in contravention of section 65(1).
It seems to me that
a deeper or further probe in terms of section 112(1)(b) in respect of
the aforesaid element of the offence may
well yield an affirmative
response. The case of
S
v LOMBARD
,
supra
provides good example of some useful questions relative to driver’s
impaired faculties. If that fails, then the magistrate would
have to
proceed in terms of section 113. See
DU
TOIT
et
alii
:
Commentary
on the Criminal Procedure Act
and the authorities there cited. In principle the sentence imposed
on the accused is one which I would not consider to be wrong.
Should
the conviction follow, the same sentence may, in my view, be
re-imposed.
[14] Accordingly
I make the following order:
The conviction and the
sentence are set aside.
The matter is remitted
to the district magistrate court to question the accused further in
terms of section 112(1)(b).
The magistrate is
directed to proceed in terms of section 113 should the further
questioning in terms of section 112(1)(b) fail
to elicit the
necessary admission.
______________
M.H.
RAMPAI, J
I
concur.
____________
A. KRUGER, J
/sp