S v Van Wyk (C3151/04) [2006] ZANCHC 1; 2006 (2) SACR 22 (NC); (10 March 2006)

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[2006] ZANCHC 1
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S v Van Wyk (C3151/04) [2006] ZANCHC 1; 2006 (2) SACR 22 (NC); (10 March 2006)

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to Magistrates: YES/NO
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case
no:
C3151/04
High
Court Ref:
227/05
Date
Delivered:
10/03/2006
In
the matter between
:
THE
STATE
and
GERHARDUS
VAN WYK
Coram: Kgomo JP
et
Tlaletsi J
JUDGMENT ON REVIEW
TLALETSI J
This matter came to us
by way of automatic review. The accused was convicted on 27
September 2005 in the Magistrate’s Court,
Upington, on a charge
of contravention of Section 63(1) of the National Road Traffic Act
93 of 1996 (Negligent driving). He
was sentenced to a fine of R
1000-00 or 6 months imprisonment which was wholly suspended for 5
years on condition that the accused
is not found guilty of
contravening Section 63 of Act 93 of 1996. His drivers’ license
was suspended for a period of 12 months
with immediate effect. He
was not legally represented as his application to the Legal Aid
Board was unsuccessful.
Having read the record
of the proceedings, I had some doubts that the proceedings were in
accordance with justice, or that the
accused had been correctly
convicted. I requested full reasons for conviction from the
magistrate. Upon receipt of the reasons,
I caused the record as
well as the reasons to be forwarded to the Director of Public
Prosecutions, Northern Cape, for his opinion.
I have to express
that my appreciation for the valuable memorandum supplied by the
office. of the Director of Public Prosecutions.
The essential averments
in the charge were that the accused unlawfully drove a motor
vehicle recklessly, alternatively negligently.
The accused pleaded
not guilty and in his verbal plea-explanation raised a defence that
appears to be sudden emergency caused
by mechanical defect.
The state tendered the
evidence of Martha Steenkamp and Magriet Julies. Both these
witnesses were passengers in the microbus
taxi that was driven by
the accused. In brief they both testified that they were picked up
by the accused along the way and
they sat on different seats in the
middle and rear of the microbus respectively. The accused drove at
high speed and did not
stop behind another taxi that had stopped at
a T-junction intersection. The accused overtook the stationary
taxi and only stopped
thereafter. The accused’s version which
does not differ much from the state’s case, is that when he
approached the intersection
his brakes failed and the only option
available to him was to overtake the stationary taxi. He once
again pumped the brakes
without success and he chose to drive over
the road until the motor vehicle was stopped by the bull bars that
stuck onto the
ground.
What I found
incongruous is what the magistrate did after she was addressed by
the prosecutor and the accused at the close of
the defence case.
She summarily convicted the accused, who could hardly put up an
argument on the merits as he confessed not
to understand the
procedures in court, without giving any reasons for her decision.
What follows is a full judgment as recorded:
“
PRESIDING
OFFICER
: Thank you sir. Mr. van Wyk, ok, this Court has
listened to both your version (sic), and the witness versions (sic).
This Court
will also find you guilty, under the following
circumstances. You drove negligently, you intended to endanger the
lives of the people
who were your passengers.
STATE:
As the
Court pleases. Your Worship. The State hasn’t (sic) proof of any
previous convictions. ”
6) In
my view it is improper for a court to merely find an accused, in
particular an unrepresented accused guilty, without furnishing
reasons. An accused person has a right to know during the trial
facts upon which the conviction is based. This will enable him/her
to be in a position to reconsider his/her position regarding legal
representation and further to decide which facts or factors should
be
placed before court in mitigation of sentence. For a trial to
proceed further without the accused being aware of the basis for
a
conviction may, in my view, result in violation of the accused’s
right to a fair trial. The magistrate did not even advise the
accused that he has a right to request reasons for conviction, before
she proceeded to the sentencing stage of the trial. In
Kiewiet
Batlaping and two Others v The State
:
case no: CA&R 151/98 delivered on 13/09/1999 (Northern Cape Full
Bench) unreported,
Kgomo
J
, as he then was, with
Kriek JP
and
Van der Walt J
concurring, expressed himself as follows at page 3 thereof:
“
There
cannot be any justification for this conveyerbelt – type
administration of justice. It does not matter whether the court
rolls are clogged and heavy or that the Magistrate acted as he did
because of the effluxion of the court hours. The Magistrate ought
to
have reserved judgment to be delivered at an appropriate occasion.
The accused had an inherent right to know why they were convicted.”
In
the
Kiewiet Batlaping
case the magistrate only told the five unrepresented accused’s that
he is not providing reasons for his judgment and will only
be
provided upon request, and convicted them of stock theft and
proceeded to sentence then.
See
also
Rex v Majerero and Others
1948(3) SA 1032 (A) at 1033;
R v Van der Walt
1952(4) SA 382(A) at 382H-383A.
Botes and Another v
Nedbank Ltd
1983(3) SA 27
(A) at 27H-28A. These principles are applicable to both civil and
criminal cases.
The
practice of not giving reasons for the decision, be it to convict
or to acquit, after evidence has been presented should
in my view,
be discontinued. A verdict is not an interlocutory decision, and
should at all times be preceded by an indication
of
considerations, findings and conclusions, of both law and fact
deliberated by the court to substantiate its final judgment.
In
casu
the accused
was kept in the dark without knowing what conduct he was being
punished for.
In the reasons for the
decision in response to my enquiry, the Magistrate relied on the
fact that both state witnesses testified
that the accused drove the
motor vehicle at a high speed and were corroborated by the fact that
the two witnesses were injured.
She further remarked that the
accused admitted that he intentionally drove a vehicle with
mechanical fault which caused the brakes
to fail, and his failure to
maintain or drive a motor vehicle with mechanical faults, she
continued, amount to negligence on his
part.
The Magistrate’s
conclusion that the accused was driving at a high speed which is in
excess of 60km/h is not well founded. Both
witnesses for the state
were not able to state the speed at which the motor vehicle was
driven, at the time when it failed to stop
at the intersection.
This should be expected in view of their sitting positions in the
microbus at the time. The accused’s
version that he drove at a
speed of between 30 - 40 km/h which is why it was possible for him
to turn the motor vehicle until it
stopped was not challenged. The
fact that the witnesses sustained injuries is not in itself, under
circumstances, proof that the
motor vehicle was driven at a high
speed. Ms Steenkamp testified that the only injury she sustained
was a scratch on the knee
and Ms Julies sustained a broken patella
which was removed. These injuries were sustained as a result of the
motor vehicle coming
to an abrupt stop as a result of the bull bars
hitting the ground is not surprising. No reference to the record is
made where
the accused admitted that he intentionally drove a
vehicle with a mechanical fault. This is the opposite of what he
said in his
evidence.
None of the state
witnesses could dispute the fact that the brakes suddenly failed.
No evidence was presented to suggest that the
motor vehicle had a
mechanical defect or faulty brakes, which the accused knew or ought
to have known about before driving the
motor vehicle. The
uncontested evidence is that the brakes had been in a working
condition and only failed at the moment when
the accused was behind
the stationary taxi, and that the motor vehicle only came to a stand
still as a result of the bull bars
and not by its brakes. It is
clear from what the magistrate is saying that she accepted that the
accused experienced brake failure,
but blames him for not having
detected the failure before embarking on the trip. This is a trap
that the magistrate set for herself
by not allowing herself time to
consider the evidence and legal principles applicable, resulting in
no room for afterthought or
changing her mind in accordance with the
dictates of the evidence.
In my view the state
failed to rebut the defence raised by the accused. It cannot be
said, considering the totality of the evidence,
that the state
proved the guilt of the accused beyond a reasonable doubt, and that
his explanation is reasonably possibly not true.
By overtaking the
stationary taxi and driving across the road to avoid further
collisions to his left or right are in my view,
reasonable steps
under the circumstances to avoid the imminent danger. On the facts
of the case alone, I am unable to find that
the proceedings were in
accordance with justice. The conviction and sentence must be
reviewed and set aside.
In the result the
following order is made
.
The conviction and
sentence are set aside.
_______________________
L P TLALETSI
JUDGE
(Northern Cape Division)
I concur
_______________________
F D KGOMO
JUDGE PRESIDENT
(Northern Cape Division)