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[2001] ZANCHC 19
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S v Jeko (89/2001) [2001] ZANCHC 19 (7 September 2001)
VERSLAGWAARDIG:JA/NEE
SIRKULEER
ONDER LANDDROSTE:JA/NEE
SIRKULEER
ONDER REGTERS:JA/NEE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE
DIVISION)
KIMBERLEY
CASE
NO.:89/2001
DATE:07-09-2001
In the review matter
between:
THE
STATE
and
NGIPISO
JOHANNES JEKO Accused
CORAM:
BUYS
J et MAJIEDT J
R
E V I E W J U D G M E N T
MAJIEDT J:
This
matter came on review before me and I queried various aspects
thereof, only two of which remain relevant. The original record
has
been lost and the Magistrate has, with the assistance of the
prosecutor, reconstructed the record now before us.
2. The accused was
charged with a contravention of the provisions contained in section
65(2) of Act 93 of 1996 (driving a motor vehicle
while his blood
alcohol level exceeded the legal limit).
He pleaded
guilty and, while being questioned in terms of section 112(1)(b) of
Act 51 of 1977, the following transpired: -
â
Q: Are
you entitled to drive a vehicle on a public road with a concentration
of alcohol exceeding 0.05g per 100ml?
A: I am not entitled.â
The above extract is the
only reference in the record to the question of unlawfulness as well
as to the aspect relating to whether
the accused admitted that he was
driving on a public road.
3. The Magistrate in his
response conceded that the aspect of unlawfulness was not adequately
dealt with in the questioning of the
accused and requests that the
matter be remitted.
He, however,
makes no such concession in respect of the aspect relating to the
public road (
supra)
.
In my view this matter has also not been addressed properly. The
accused should make an unequivocal admission that he had been
driving
on a public road at the relevant time.
I have
queried the sentence as well. It is my
prima
facie
view that the sentence is excessive to the extent that it can be
said to be shockingly inappropriate.
I attach
hereto a copy of the judgment of Van den Heever AJ, with which Buys
AJP had concurred, in the matter of
State
v Phillip Harris
,
Review Case no.1152/00, delivered on 12 December 2000. I believe
that this judgment may provide some guidance to the Magistrate
when
he considers sentence afresh. I point out, however, that the said
judgment dealt with a contravention of section 122(1)(a)
of Act 29 of
1989 (Drunken driving) which is, of course, a more serious offence
than the one in the present matter.
I
would accordingly set aside the conviction and sentence of the
accused and remit the matter in terms of section 312 of Act 51 of
1977 for the proper compliance with the provisions of section
112(1(b) of the said Act.
______________________
S.A.
MAJIEDT
JUDGE
I concur
and it is so ordered.
_______________________
A.J. Du P. BUYS
JUDGE