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2024
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[2024] ZAFSHC 126
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S v Ramantshane (R12/2024) [2024] ZAFSHC 126 (9 May 2024)
IN
THE
HIGH COURT OF SOUTH AFRICA
,
FREE
STATE DIVISION
,
BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Review
no: R 12/2024
Magistrate
court no: B 1358/22
In
the matter between:
THE
STATE
and
MOEKETSI
JOHANNES RAMANTSHANE
CORAM:
MHLAMBI, ADJP et,
MAJOSI, AJ
JUDGMENT
BY:
MAJOSI, AJ
DELIVERED
ON:
09 MAY2024
[1]
This matter
serves before us as a special review in terms of section 304(4) of
the Criminal Procedure Act 51 of 1977(CPA) as amended.
The accused
was charged with contravening the provisions of section 65(1)(a) read
with further provisions of sections 1,33,34,35,65,69(1)
of the
National Road Traffic Act 93 of 1996 (NRTA), driving under the
influence of liquor or drugs.
[2]
He was legally
represented and tendered a plea of guilty and was convicted as
charged on the strength of his statement in terms
of section 112(2)
of the Act and sentenced to three (3) months' imprisonment
which was
wholly suspended
for
a period of five (5) years on condition he not be convicted of the
same offence during the period of suspension. In terms of
section 3
of NRTA, his licence was suspended for 60 days from the date of
sentence, the 25th
of April 2023.
[3]
On the 30th of
January 2024, the Acting Senior Magistrate, Bloemfontein, received a
charge sheet from the clerk of Botshabelo Magistrate's
Court
requesting that the Acting Magistrate who convicted and sentenced the
accused, endorse the charge sheet to reflect that not
only was a plea
noted,
but
that a conviction and sentence followed after a written statement was
tendered in terms of section 112 (2) of the CPA.
[4]
Upon
further perusal of the charge sheet, she caused a letter to be sent
to the Acting Magistrate to enquire firstly, if plea proceedings
indeed
took place and if the accused was convicted and sentenced on the
charge and if the statement by the accused
_was
accepted
and marked as an exhibit.
[1]
Secondly, if the accused's statement admitted all the elements of
driving under the influence of liquor. Lastly, if the sentence
imposed was competent given the vague condition of suspension and
lastly, if the provisions of section 35 of NRTA were correctly
applied.
[5]
The
said magistrate, on a date unknown, indicated
[2]
that
plea proceedings did take place and were recorded that the accused
admitted all the essential elements of the offence (though
he
erroneously referred the offence to be that of contravention
of
61(1)(a) ) and made specific reference to page 4 , line 10 - 13 of
the transcribed record and that his order in terms of section
35 of
the NRTA was incorrectly recorded and should have referred to
application instead of licence and he deemed a period of sixty
days
appropriate for that purpose.
[6]
In
light of the response received, and the transcribed record, the
matter was sent
on
special
review
to
set
aside
the
conviction,
sentence
and
subsequent
order
in terms of section 35 of the NRTA. It was submitted that the
proceedings did not take place in accordance with justice
[3]
as
the accused's statement did not admit that the liquor he consumed had
a narcotic effect, the sentence imposed was vague and the
provisions
of section 35 were incorrectly applied. I must mention at this stage
that it is undesirable for a presiding officer,
being a court of
record, not to note an accused person's plea to the charge, the
verdict
and if a conviction followed, the sentence imposed and for that
matter,
not
mark exhibits which were received as evidence.
[7]
The provisions
of section 65(1)(a) of NRTA state that no person shall drive a
vehicle or occupy the driver's seat of a motor vehicle
where the
engine is
running while
under the influence of an intoxicating liquor or a drug having a
narcotic effect. This entails that should an accused
person plead
guilty to such a charge, one of the essential elements of the offence
is that he or she must admit that the intoxicating
liquor had a
narcotic effect. The accused's statement is silent on this aspect and
the magistrate
did not
exercise
his
discretion
as
allowed
in
section·112(2)
of the CPA and clarified whether this element of the offence was
admitted or not. In the absence of an admission
on such an essential
element of the offence, the proceedings
cannot be said
to be in accordance with justice.
[8]
After further
perusal of the transcribed record, I deem it necessary to delve into
the condition of the suspended sentence imposed
and how the
provisions of section 35 of the NRTA ought to have been applied. In
Rex v Cloete, Reynolds, J said the following:
"While
the words of sec. 360 (b) of Act 31 of 1917 are wide and the
discretion of the judicial officer should not be lightly
interfered
with, it does seem that two principles at least should be observed in
the imposition of the conditions. The first is
that the condition
imposed should bear at least some relationship to the circumstances
of the crime which is being punished by
the imposition of the
suspended sentence. It need not be closely related but should be
related to it in some degree at least, even
though slightly related,
and not divorced from it, or remote from it. The second is that the
condition be stated with such precision
that the convicted person may
understand the ambit of the condition."
[9]
It must be
remembered that once an accused person is convicted of a statutory
offence, there is always a penalty clause which prescribes
the
sanction or put differently, what sentence may be imposed upon
conviction.
In
casu,
this
can be found in section 89 (2) of NRTA which prescribes a fine or a
period of imprisonment not exceeding six (6) years imprisonment.
It
thus stands to reason that should any sentence be imposed, more
specifically a suspended sentence which has a prohibition, the
condition of suspension must reflect the exact statutory provision
which the accused must not contravene as it is improper to use
the
term "same offence". It thus follows that the sentence
imposed was not in accordance with justice either.
[10]
Section 35 of
the NRTA dictates that should a conviction follow in terms of section
65(1) and other listed offences, the court shall
suspend the accused
driver's licence for a certain period or if the person is not the
holder of a driver's licence or permit, disqualify
him or her for a
certain period from obtaining a driver's licence or permit or
alternatively, order that the suspension shall not
take effect or
shorten the period of suspension. Section 35(3) directs that this
enquiry can only be done by hearing evidence under
oath. The order
must also specify if the person is the holder
of a driver's
licence or permit or if he or she is prevented from obtaining one.
[11]
Upon
the accused person entering the witness box, his full name and
surname was not placed on record as he was just asked if he
has an
objection to taking the prescribed
oath,
he indicated that he does have an objection.
[4]
Ordinarily, if a witness objects to taking the prescribed oath, it is
the duty of the presiding officer to enquire what the objection
is
and to establish if he ought to proceed into section 163 of the CPA
and have the witness admonished
in
lieu
of
the oath. Alarmingly, this was not done and the result thereof can
only be construed as further irregularity in the proceedings
not to
mention that the "evidence" of the accused person revealed
that he was not the holder of a driver's licence or
learner's
licence.
This
solidifies
my
view
that
the
proceedings
were
not
in
accordance with justice.
[12]
Accordingly, the
following order is made:
1.
The conviction and
sentence are set aside.
O.R
MAJOSI, AJ
I
concur
J.J.
MHLAMBI, ADJP
[1]
Annexure
A, Acting Senior Magistrate letter dated 30 January 2024
[2]
Annexure
B, Comments of Acting Magistrate.
[3]
Annexure
A, paragraph 6
[4]
Transcribed
record, P 11, line 10.