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2003
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[2003] ZANCHC 56
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S v Kgosiemang (46/02) [2003] ZANCHC 56 (20 February 2003)
CA NO :
46/02
IN THE
HIGH COURT OF SOUTH AFRICA
(BOPHUTHATSWANA
PROVINCIAL DIVISION)
In
the matter between:
NGAKANTSI
MICHAEL KGOSIEMANG APPELLANT
and
THE
STATE RESPONDENT
MMABATHO
NKABINDE
J & LEEUW J
JUDGMENT
FOR THE
APPELLANT: M M LITHEKO
FOR
THE RESPONDENT : M D MOEKETSI
DATE OF
HEARING: 7 FEBRUARY 2003
DATE
OF JUDGMENT : 20 FEBRUARY 2003
JUDGMENT
LEEUW
J:
The
Appellant was arraigned, convicted and sentenced in the Magistrate
Court Thaba Nchu of contravening section 66 (1) of National
Road
Traffic Act, No 93 of 1996 (Road Traffic Act). It is alleged that
on the 15
th
November 2001, he wrongfully and unlawfully used motor vehicle BRW
647 FS (Motor vehicle) without the consent of Samuel Moroka,
the
Transport Control Officer of the Barolong Tribal Authority. The
appeal is against conviction only.
The
motor vehicle is owned by the Barolong Tribal Authority. Samuel
Moroka gave the Appellant permission or authority to drive
the
motor vehicle on official business to Zone 2 in the Thaba Nchu
area.
The
Appellant failed to return by 16h00 of the same day as arranged.
On the evening of the same day, Mr Moroka was called to
a scene at
Sanaspos where the motor vehicle was involved in an accident and
was damaged. The Appellant was not present at the
scene but
reported to the office three (3) days after 15
th
November 2001. He did not report the accident to Samuel Moroka.
The
Appellant, represented by Mr Litheko, did not testify under oath
but called a witness, Robert Senoge. His version is to the
effect
that the car was stolen from him and that he was not present when
it was involved in an accident. Mr Robert Senoge testified
that he
saw a certain Mr Zungu driving the vehicle when it was involved in
an accident; that the said Zungu ran away from the
scene after it
had occurred. He further testified that he met the Appellant at an
hotel, and informed him that the car was stolen
from him in
Bloemfontein. Samuel Moroka testified that he neither gave
Appellant authority to drive to Bloemfontein nor Sanaspos,
which
places are outside Thaba Nchu.
It
is not in dispute that the Appellantâs authority was to use the
motor vehicle to travel to Zone 2, in Thaba Nchu which is
approximately 10 kilometres from the office. The version of the
Appellant, through his witness, is that the vehicle was stolen
from
him in Bloemfontein, which trip was not authorized by Samuel
Moroka.
The conduct of the Appellant, of not reporting the Theft
immediately to the Tribal Authority and his failure to report the
theft to Samuel Moroka, is indicative of dishonesty and lack of
credibility on his part. The Appellant decided not to testify
under oath despite the fact that the State had proved a
prima
facie
case against him. This is a factor correctly taken against him by
the Learned Magistrate. Compare
Zulu
& Another
SACR 1998 (1) 7 (SCA) at 14 d.
I
am satisfied that the State has discharged its onus and find that
the Appellant, by using the motor vehicle beyond the authorized
journey, did contravene the abovementioned statute, and was
correctly convicted.
Mr
Litheko, raised the point that the Appellant was wrongly charged
with contravention of section 66 (1) of the Road Traffic Act.
Mr
Moeketsi, conceded, and rightly so, that the correct section
applicable is section 66 (2) of the Road Traffic Act. The section
provides that:
â
No
person shall ride in or drive a vehicle without the consent of the
owner, operator or person in lawful charge thereof.â
The
appropriate amendment ought to have been effected in terms of
section 86 of the Criminal Procedure Act No 51 of 1977 (Criminal
Procedure Act) by the Court
a
quo
.
But in terms of section 304 (2)(c) (iv) read with
section 309
(3)
of the
Criminal Procedure Act, this
Court has the power to effect
such an amendment. The Appellant will not suffer any prejudice as
a result of such amendment.
I
accordingly dismiss the appeal. The conviction is confirmed, but
amended to read as follows:
â
Guilty of contravention of
section 66
(2) of the
National Road Traffic Act (Act
93 of 1996).
M M LEEUW
JUDGE OF THE HIGH COURT
I agree.
B E NKABINDE
JUDGE OF THE HIGH COURT