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1989
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[1989] ZASCA 154
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S v Wells (152/89) [1989] ZASCA 154; [1990] 2 All SA 1 (A) (27 November 1989)
IN THE SUPREME COURT OF SOUTH AFRICA
APPELLATE DIVISION
In the matter between:
THE STATE
Appellant
and
IVOR H WELLS
Respondent
Coram
: JOUBERT, HEFER, MILNE, STEYN JJA
et
FRIEDMAN AJA.
Hearing
: 17 November 1989
Delivered
: 27 November 1989
JUDGMENT JOUBERT
JA:
/On
2
On Tuesday afternoon, 26 January 1988, the Respondent ("
Mr
Wells
") drove his motor car on the N1 Freeway, a public road, in the
Randburg district. Appropriate road traffic signs
en route
indicated that
the general speed limit of 120 km per hour was applicable to the road and that
speed law was enforceable by camera.
He unwittingly drove through a speed trap
on the road without being apprised thereof by a traffic officer. He was
subsequently charged
in the Randburg Magistrate's Court with the contravention
of sec 102 of the Road Traffic Ordinance No 21 of 1966 (T) in that he had
exceeded the general speed limit on the road by having driven his motor car at a
speed of at least 137 km per hour. He pleaded not
guilty but he was convicted as
charged and sentenced to a fine of R60 or 30 days imprisonment.
Mr
Wells
, a practising attorney, conducted his own defence during the trial.
Apart from the formal
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3
admission that the road in question was a public road, he also
admitted "that the apparatus which was used in regard to the matter
is a
measuring instrument for purposes of Section 212(10)(a) and that it mechanically
speaking was functioning correctly" (Record
vol 1 p 11). His reference to sec
212 (10)(a) of the Criminal Procedure Act No 51 of 1977, (hereinafter referred
to as "the Act")
as well as his address to the Magistrate on the merits of his
defence, indicates that he erroneously believed the State's case was
based on
it, thereby placing an onus on him to refute the correctness of the recorded
speed of 137 km per hour. Sec 212(10)(a) was,
however, inapplicable since the
Ministerial conditions and requirements prescribed in terms of it in regard to
velocity measuring
instruments had been withdrawn by Government Notice R 1611
published in Gazette No 7688 on 31 July 1981. The prosecution quite correctly
placed no reliance on sec 212(10)(a).
/4
4
Accordingly the onus was on the State to prove the
criminal
charge against
Mr Wells
beyond a reasonable doubt. S
v
Sinkankanka & Another
, 1963(2) SA 531(A) at p 541 A,
S v
Fouche
, 1974(1) SA 96 (A) at p 101 G.
Mr Wells
pointedly informed
the Magistrate that the basis of his defence was that the speed measuring
apparatus had not been correctly set
up at the scene of the speed trap.
Hence
it followed that it was the duty of the State to prove beyond a reasonable doubt
by means of
expert evidence that the speed measuring apparatus had been
set up correctly in such a manner as to record a correct
measurement of the speed travelled by
Mr Wells
.
Mr Van Heerden, a traffic officer,
testified on behalf of the State. As
operator of the Truvelo
speed measuring instrument, as well as the camera used in
/5
5
conjunction with it to photograph simultaneously vehicles from
their rear, he alone was in control of the said speed trap on 26 January
1988.
He described in detail how he had set up the entire speed measuring apparatus
and how he checked it every hour to satisfy himself
as to its proper
functioning. The position of the sensor cables of the speed measuring apparatus
on the road surface was checked
and measured by him half-hourly. To illustrate
how he set about positioning the sensor cables across the two lanes of the road
surface
he handed in Exhibit "C" (Record vol
1 p 39-40)./ (I may add in
parenthesis that Exhibit "C"
was a portion of the withdrawn Ministerial conditions and
requirements referred to
supra
). He also handed in an
operator's
certificate issued to him by Truvelo Manufacturer
as proof of his expertise
in the theory and operation of Truvelo
speed measuring instruments (Exhibit "G". Record Vol 1
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6
p 44). In cross-examination Van Heerden admitted not having
stopped
Mr Wells
after passing through the speed trap.
His
explanation why he did not do so was as follows:
"Edelagbare, omdat dit te gevaarlik is op 'n snelweg om 'n voertuig te stop.
Dit is hoekom die kamera net op snelweë gebruik
word om voertuie af te
neem." (Record Vol 1 p 20).
Mr Wells
testified that on the occasion
in question he travelled along the road in a stream of traffic
without
paying specific attention to his actual speed at all
times. He did not
concede that he exceeded the speed limit.
He was unaware of the fact that he
had travelled through a
speed trap. He saw no sensor cables across the
roadway.
Nor did he see the flash of a camera. The fact that he
had not
been stopped by the traffic officer in charge of the
speed trap deprived him
of the opportunity of inspecting the
/7
7
speed measuring apparatus and of checking the sensor cables.
This aspect became the cornerstone of his defence.
The Magistrate held that
the State had proved its case beyond a reasonable doubt that the speed of
Mr
Wells
was indeed 137 km per hour. I may add that the Magistrate in his
summary of the evidence of
Mr Wells
mentioned his deprivation of an
opportunity to inspect the speed measuring apparatus and to check the sensor
cables. The Magistrate,
however, did not comment on this evidence in the
ratio decidendi
of his judgment. He ignored it entirely.
The appeal of
Mr Wells
against his conviction and sentence to the Court of Appeal in
the Witwatersrand Local Division was heard on 20 March 1989 by SPOELSTRA
J and
BREGMAN AJ. The
ex tempore
judgment upholding the appeal and setting
aside the conviction and sentence was pronounced on the same day in open court
by BREGMAN
AJ (SPOELSTRA J concurring).
/8
8
On 5 April 1989 the Registrar of the said Court released a
written judgment endorsed by BREGMAN AJ as reportable in the Law Reports.
On 15
May 1989 the Court
a quo
granted the State, in terms of sec 311(1) of the
Act, leave to appeal to this Court on certain questions of law as set out in
Annexure
"A" (Record Vol 2 p 78-81).
Two documents were placed before this
Cpurt as copies of the judgment of the Court
a quo
. The one document is a
typed transcript of the tape recording of
the
ex tempore
judgment pronounced by BREGMAN A J in open
court on 20/March 1989. This copy was not revised by
BREGMAN A J. I shall hereinafter refer to it as the
"unrevised judgment", a copy of which was included as Annexure
"ZVZ1" in the Record (vol 2 p 103-107). The other document
is a copy of the judgment released on 5 April 1989 by the
Registrar of the Court
a quo
(Record vol 1 p 52-67). I
/9
9
shall hereinafter refer to it as the "revised judgment". Which
copy is in law the judgment of the Court
a quo
? Mr
Von Lieres und
Wilkau
, on behalf of the State, contended that the unrevised judgment was
the lawful one whereas Mr
Wells
, who appeared in person as the
Respondent, submitted that the revised judgment was the lawful one.
Our
common law authorities hold two diametrically opposed views on the matter.
According to the strict approach á judicial
official is
functus
officio
upon having pronounced his judgment which is a
sententia
stricti
juris
and as such incapable of alteration, correction, amendment
or addition by him in any manner at all. See D 42.1.55 (Ulpianus), D 42.1.62,
Gail (1526-1587)
Practicarum Observationum
lib 1 obs 116 nrs 1 et 3,
Huber
(1636-1694) H.R. 5.37.2
- 6, Van der Linden (1756-1835)
Judicieele
Practiicq
3.5.10. In the case of
In re Appeal
:
S v Stofile and
Others
,
/10
10
1989(2) SA 629 (CK GD) at p 630 I PICKARD C J would seem
to
prefer this strict approach. A variant of this strict
approach permits a
judicial officer to effect linguistic or
other minor corrections to his
pronounced judgment without
changing the substance thereof. See Damhouder,
Practycke
in Civile Saecken
cap 220 nr 1, Merula (1558-1607),
Manier
van Procederen
titel 90 capittel 1 nr 2, Wassenaar
(1589-
1664)
Practyk Judicieel
cap 21 nr 21.
The more enlightened approach, however,
permits a judicial officer to
change, amend or supplement
his pronounced judgment provided that the sense or substance
of his judgment is not affected thereby (
tenore substantiae
perseverante
). See D42.1.46, Donellus (1527-1591) ad
D42.1.45 nr 4, 1 Hollandsche Consultatien c 290 and especially
Voet
(1647-1713) 42.1.27. The relevant portion of Voet's
text reads as follows:
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11
& post pronunciationem ejus judex etiam supplere possit
eodem die reliqua omnia, quae ad consequentiam quidem jam statutorum pertinent,
sed sententiae adhuc desunt nec non explicare ea, quae in sententia obscure sunt
posita, & ita actorum verba emendare, tenore
sententiae perseverante.
According to Voet a judge may also, on the same day, after the pronouncement
of his judgment add (
supplere
) to it all remaining matters which relate
to the consequences of what
he has already decided but which are still
missing from his
judgment. He may also explain (
explicare
) what has been
obscurely stated in his judgment and thus correct (
emendare
)
the wording of the record provided that the tenor of the judgment
is preserved.
In my judgment Voet's approach should
/12
12
be accepted as a correct statement of our common law on this
matter. It moreover accords with South African practice. In criminal
matters it
should be read in conjunction with sec 176 of the Act if necessary. In the
present matter the provisions of sec 176 are
not applicable. In England the
Court of Appeal in
Bromley v Bromley
,
[1964] 3 All E R 226
(C A) adopted
an approach which essentially accords with Voet's approach.
A careful
comparison of the unrevised and revised judgments establishes that both of them
basically
dealt with the same
rationes decidendi
excepting that the
revised judgment did so in much greater elaboration but without changing or
violating the tenor of the unrevised judgment. In my judgment
the revised
judgment must therefore be held to be the judgment of the Court
a
quo
.
I now turn to consider the legal questions
/13
13
raised by the State as appellant. The first legal question is
whether or not
Mr Wells
should have been afforded an opportunity to
inspect or check the speed measuring apparatus and its set-up immediately after
having
passed through the speed trap. The Court
a quo
held that he was
entitled to have been afforded such an opportunity by the traffic officer Van
Heerden.
Mr Well
s in support of his contention that he was entitled to
have been afforded such an opportunity relied on the following sentence in
Hiemstra,
Suid-Afrikaanse
Strafprosesreg
, 4th ed. at p 468:
"Die beweerde oortreder word op die toneel
geleentheid gegee om
die lesings te
inspekteer."
The learned author does not refer to any legal authority
in
support of his proposition. He, however, deals with the
situation where a speed measuring apparatus is used without
a camera. In such a situation it is necessary for the
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traffic officer to stop the alleged offender in order to
obtain from him particulars of his name and address. There is perhaps no
reason
why the practice suggested by the learned author should not be applied in such a
case. This Court is, however, not called
upon in the present case to decide upon
the correctness or not of such practice. But what the learned author suggests
cannot be applied
to the situation which we have in this case viz. where a speed
measuring apparatus was used in conjunction with a camera on a freeway
where
it
would be dangerous to stop the alleged offender. Neither
Mr Wells
nor
Mr Von Lieres und Wilkau
could refer this
Court
to a legal rule or principle in support of the contention
of
Mr Wells
. Contrary to what was held by the Court
a quo
there is in my judgment no rule or principle of law which
entitled
Mr Wells
to be afforded an opportunity to inspect
or check the speed measuring apparatus
in situ
. The first
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legal question is therefore decided in favour of the State. As
I indicated
supra
the reliance by
Mr Wells
on such an opportunity
as a right of a motorist was really the cornerstone of his defence in the
Magistrate's Court. It was also
his main contention in the Court
a
quo
.
The second question of law was whether or not it was correctly held
by the Court
a guo
that expert evidence should have been placed before
the Magistrate's Court by the State as regards the manufacturer's specifications
of the speed measuring apparatus. It became quite clear
during argument before this Court that the Court
a quo
had
erred in having held that such expert evidence should in the
circumstances of this case have been adduced by the State.
Mr Wells
correctly conceded that such expert evidence was
unnecessary.
In the light of the aforegoing it follows
/16
16
that the appeal must succeed and that this Court should in
terms of sec 311(1)(a) of the Act re-instate the conviction and sentence
of the
Respondent.
Mr Von Lieres und Wilkau
informed this Court that in the
event of the appeal being upheld the State would not seek an order for costs
against the Respondent
in terms of sec 311(2) of the Act.
In the result the following orders are granted:
1.
The appeal
succeeds.
2.
The following order is
substituted for the order of
the Court
a quo
viz.
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"(a) The appeal is dismissed. (b) The conviction and sentence
of the Respondent
are confirmed."
C. P. JOUBERT J A.
HEFER JA)
MILNE JA) Concur.
STEYN JA)
FRIEDMAN AJA)