IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO: A111/2024
In the matter between:
CHAD MICHAEL Appellant
v
THE STATE Respondent
Coram: Thulare J et Parker AJ
Matter heard on – 02 August 2024
Judgment delivered electronically on – 06 August 2024
JUDGMENT
______________________________________________________________________
PARKER, AJ
Introduction
[1] The appellant appeals his conviction following a charge in the District Court for
the District of Wynberg, held at Athlone on count one, namely the contravention of the
provisions of s 65(1) (a) read with Sections 1, 65(3), 65(4), 65(8), 65(9), 69(1), 73, and
89 of the National Road Traffic Act 93 of 1996 - Driving Under the Influence of Liquor.
Issues for determination
[2] Respondent opposes the appeal on all grounds, however, given the narrowing of
the grounds of the Appeal, men's rea is not an issue, consequ ently, the only issue in
dispute is whether the appellant was under the influence of alcohol at the time of driving
his motor vehicle.
Background
[3] At the commencement of the trial the appellant made formal admissions in terms
of s115 and s220 of the Cr iminal Procedure Act 51 of 1977 (“CPA“). The State called
four witnesses, the first, being traffic officer Mr. Bernard Plaatjies (“Mr Plaatjies”) who
gave evidence regarding the driving of the motor vehicle. A further three witnesses
testified with regard to the chain of events from the police station to when the blood
sampling took place and back to the police station. After the State closed its case, the
appellant initially considered an application in terms of section 174 of the CPA, for a
discharge. H owever, it was abandoned and instead elected to close it ’s case without
calling the appellant to testify.
The State’s case
The driving
[4] The respondent called only one witness namely Mr Plaatjies’ to give evidence
regarding the driving of the motor vehicle who saw the appellant driving and was
present at the time when the appellant was arrested. Mr. Plaatjies, testified that he was
on duty seated as a passenger in a motor vehicle driven by Officer Louw whilst Officer
Wentzel was seated in the rear seat of their vehicle. These two witnesses were not
called to testify. Mr Plaatjies described how he observed the appellant’s vehicle coming
from Gugulethu in the oncoming direction. He observed it slowing down and swerving
from left to right, and lef t again. This prompted Mr Plaatjies’ to instruct Officer Louw to
stop the appellant’s vehicle.
[5] They executed a U-turn and activated the siren, whereupon the appellant brought
his vehicle to a standstill. Mr. Plaatjies approached him from the driver’s side of the
vehicle and enquired from him whether “everything was ok”, he replied that he was lost
and searching for his girlfriend’s house. Based on his observations coupled with the
smell of alcohol in the vehicle and the bloodshot eyes of appellant, Mr Plaatjies
enquired from the appellant whether he had anything to drink, to which he replied that
he had consumed four tequilas the night before.
[6] When the appellant could not differentiate between Saturday and Sunday, Mr.
Plaatjies concluded that he was under the influence of alcohol and unable to operate his
vehicle. On his orders appellant handed over the keys and the vehicle to him. The
appellant co-operated and together with Officers Louw and Wentzel, they proceeded to
SAPS Manenberg. Thereafter Mr Plaatjies accompanied appellant to the Athlone
Shadow Centre for a blood test.
[7] During cross -examination, it was put to Mr. Plaatjies that the appellant denied
being intoxicated or incapable of driving his vehicle to which he conceded that
“sometimes a person is intoxicated, he can still drive his vehicle safely on the road ”. He
could not determine whether the appellant fell into this category, but believed the
swerve was dangerous and suspicious,
The Blood sample
[8] The three witnesses who were called testified regarding the sequence of events
that transpired after the blood sample was returned to Manenberg SAPS for
safekeeping and until it was delivered to the laboratory for analyses , were not present
on the scene wh en the arrest took place. The chain of evidence for the blood sampling
exhibits was discarded by the Learned Magistrate, leading to no further developments
regarding this evidence.
Evaluation
[9] On an examination of the evidence led at the hearing the State called only one
witness, Mr. Plaatjies who was present at the time when the appellant was arrested
whilst the State had two other witnesses who were present at the time of the arrest
which it could have called to corroborate Mr Plaatjies version. In this regard the Learned
Magistrate did take into account that the cautionary rule applies to Mr Plaatjies and as a
single witness , relied on R v Mokoena 1, and accordingly found Mr Plaatjies to be a
credible witness:
“A court should not base its findings on unreliable evidence or evidence that is
not trustworthy. If the evidence is suspect, the court should ensure that it is
supported or confirmed in some way to ensure it can safely rely on the evidence.
This is what is known as the cautionary rul e. The rule is not a mechanical test
and should not replace the exercise of common sense”.2
[10] What is glaringly absent in the evidence on behalf of the State is a description of
the physical features of the road. No evidence was led regarding the road layout. The
Learned Magistrate mentioned familiarity with the location, whilst the legal practitioner
for the respondent had not been familiar with the area. This does not help a higher court
on Appeal as it is important to understand the nature and detai ls of the transgression in
the context of the physical landscape and layout of the road.
[11] Initially Mr. Plaatjies did not suspect that the appellant was under the influence of
alcohol, but he believed the swerve was hazardous or suspicious. He was und er the
1 R v Mokoena 1932 (OPD) 79 Record p 137
2 S v Snyman 1968 (2) SA 582 at 585
impression that something was wrong with the driver and wanted to check if everything
was okay. When he signalled, the appellant promptly stopped his vehicle, rolled down
his window, and spoke to Mr. Plaatjies. He understood what was expected of him then,
suggesting that his mental faculties were not impaired.
[12] The elements of driving under the influence were dealt with in S v Engelbrecht 3,
are that the accused: (i) drove; (ii) a vehicle; (iii) on a public road (iv); while under the
influence of alcohol or drugs; and (v) mens rea.
[13] It was argued that what the State must prove is that the skill and judgment
normally required of a driver in the manipulation of a vehicle were diminished or
impaired as a consequence of the consumption of intoxicating liquor to justify a
conviction. The driving skill rests on ph ysical abilities such as muscular control which
can be impaired by alcohol by diminishing driving skills whilst judgment, rests on mental
faculties. In R v Magula4 in connection with the driving skill impairment:
“A man will for the present purposes be un der the influence of liquor if, by reason
of the drink he has consumed, his muscular control has been impaired, and this
notwithstanding that his mental activities are in order and alert or even intensified
by the exhilaration resulting from drink. For if his muscular action is impaired,
powers of manipulating a motor car are then it is a reasonable inference that his
diminished.”
[14] In S v Binta 5, the court indicated that should the driver's muscle control and
power of judgment be affected, then he is “under the influence ". In S v Lombard 6, the
court distinguished instances where a driver consumed alcohol and whose faculties are
impaired, “the impairment of his skill and judgment is such that he will not be able to do
3 S v Engelbrecht 2001 (2) SACR 38 at 46i-j
4 R v Magula 1939 EDL 207
5 S v Binta 1993 (2) SACR 553 (C) 558
6 S v Lombard 1967 (4) SA 538 (A) 549
what is required of him as a driver as efficiently as if he were sober. It seems to be quite
clear from R v Spicer that even a slight degree of impairment or diminution of faculties
due to the consumption of liquor will suffice for a conviction under the relative
legislation”
[15] Against this, the court in Lombard also considered the scenario of a driver who
had consumed alcohol and driving cautiously by being alert. Whilst the converse is ,
even if he drives with care “There is always a danger, of course, that a person who has
consumed Iiquor will not take these precautions” even if he drives with great care. “But if
he does drive with great care, having specially warned himself of the need for such
care, i.e. he drives his vehicle so that, no negligence, as such, can be attributed to him,
his punishment, as l see it, cannot justly be of the same degree of severity as would be
requisite of his driving were negligent as a result of liquor he has consumed and his
negligence results in damage to persons or property.”
[16] The determination then is whether the appellant was “ affected” and to what
degree, when driving the vehicle. It is trite that the State bears the onus to prove its
case beyond reasonable doubt. The only ve rsion before the court was that of the Mr
Plaatjies. The court a quo drew an inference that the appellant’s consumption of alcohol
the night before proved that he was under the influence of alcohol while driving 7. How
the Learned Magistrate arrived at thi s conclusion is not supported by the evidence at
the court a quo, as it was deficient. Simply put, there was no evidence to indicate when,
in relation to the driving, appellant had consumed the four tequilas or if he had eaten
after consuming the alcohol. Mr Plaatjies initially got the smell of alcohol coming from
appellant’s vehicle. At no stage was there evidence to suggest that the appellant
smelled of alcohol when he was taken to the Athlone Shadow Centre or whilst the
charges were further processed at the police station.
7 Record p 140, l 14-19
[17] The appellant’s argument was that just because the appellant’s vehicle swerved
does not imply he had no control over it. He informed Mr. Plaatjies that he was lost and
did not live in the area and searched for the correct street to reach his girlfriend’s house.
Of importance is the argument tha t he, the appellant engaged with Mr. Plaatjies
honestly and in a co-operative manner. He provided Mr. Plaatjies with plausible reasons
for swerving his vehicle, which Mr. Plaatjies did not question. There was no sign of
impaired speech which would have in dicated that his muscle control was impaired.
Furthermore, the failure to differentiate whether it was Saturday and Sunday was not
too concerning as this occurred in the early hours of the morning on the Sunday.
[18] One cannot escape the evidence of Mr. Plaatjies who initially did not suspect that
the appellant was under the influence of alcohol, but he believed the swerve was
hazardous or suspicious and when signalled, the appellant promptly stopped his
vehicle, roll ed down his window, and spoke to Mr. Plaatjies. There was nothing
extraordinary in the behaviour of the appellant as nothing further was mentioned by Mr
Plaatjies who understood what was expected of him , from the time of the arrest to the
taking of the blood sampling, suggesting that his mental faculties were not impaired.
[19] A court of appeal is usually hesitant to interfere with the findings of a court a
quo8, unless the findings are manifestly wrong. 9 A trial court's finding of fact is
presumed to be correct unless there is a demonstrable and material misdirection by the
trial court 10. However, the findings in the court a quo is such that the facts do not
support the findings the Learned Magistrate was misdirected at reaching the
conclusions.
[20] I am not convinced that the appellant may have been so drunk to have “lost”
control over his vehicle. There was no evidence to the contrary. He co -operated in all
respects and no mention was made by Mr Plaaitjies of his behaviour being questionable
8 S v Robinson 1968 (1) SA 666 (A) 675G–H
9 Siphoro v S (A399/2012) [2014] ZAGPJHC 168 14 August 2014
10 S v Hadebe and Others 1997 (2) SACR 641 (SCA) para 645e-f
after he alighted from the vehicle. Mr Plaaitjies reported that he smelled alcohol in the
car, then he saw the bloodshot eyes of the driver. Subsequently he determined that he
was incapable of driving the vehicle further. Swerving left to right and left again is not
unusual. It is consistent with someone who is not sure where he was driving and
therefore the version of appellant which was put to the witness under cross examination
that he was lost, is reasonably possibly true. The court a quo erred in not accepting the
appellant's version as put to Mr Plaaitjies. The failure to call (in the absence of any
explanation why) the two available witnesses who were with Mr Plaatjies whilst he was
driving, offers no external corroboration of Mr Plaatjies version11.
[21] The criminal standard of proof is absolute, in that the State must prove its case
beyond reasonable doubt, and whether this has been done is based on the strength of
the State’s case. If it is reasonably possible that the accused's version is reasonably
possibly true, he is entitled to be acquitted 12. For these reasons, the State failed to
prove it ’s case beyond a reasonable doubt, specifically it failed to show that the
appellant’s mental, physical or emotional capabilities were so diminished or impaired by
alcohol that he was incapable of driving his vehicle. The focus is on the reasonable
possibility that the appellant’s evidence may be true. In considering the evidence
holistically the appellant must be acquitted.
Conclusion
[22] Although the chain r egarding the blood sampling was not proven, I need merely
refer to it to the extent necessary. Let me explain. The failure to call the person (said to
be a nurse) who drew the blood from Mr Plaatjies to prove the chain of the blood
samples taken amongst ot her uncertainties, and contrary to the Learned Magistrate’s
own findings, the Learned Magistrate nevertheless relied on the specimen of blood
taken, by referring to it as an “ excessive amount of alcohol in the blood (0.21 grams per
11 Stevens v S [2005] 1 ALL SA 1 (SCA)
12 S v Van Der Meyden 1999(1) SACR 447 (W) para [8]
100 ml)”. Not only was the custody of the blood taken questionable, so was the safe
keeping thereof. The chain was found by the Learned Magistrate to be problematic
which did not assist the State in proving the alternative charge, hence the Learned
Magistrate correctly dismissed the alternative charge, yet he relied on the blood level to
draw an inference that it influenced the driving. The Learned Magistrate could not in the
circumstances have relied on the results of the first charge.
[23] What we have before us are two mutually destructive versions of a single witness
on each side, the one (Mr Plaatjies) ascribing the swerving to drunkenness, the other
(the appellant’s version as put to Mr Plaatjies), of being lost and searching for his
girlfriend’s house. Draw ing on the onus, the State has not discharged its onus beyond
reasonable doubt, in circumstances where the facts do not support the findings. The
Learned Magistrate was misdirected in drawing the inference that appellant was driving
his motor vehicle whils t under the influence of alcohol. The evidence viewed
cumulatively13 did not support the findings, and taken as a whole did not establish the
guilt of the appellant beyond reasonable doubt. The appeal succeeds. The appellant’s
conviction and sentence are set aside.
[24] In the result:
a) The appeal is upheld.
b) The conviction and sentence is set aside.
_________________________________________
ACTING JUSTICE PARKER
OF THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
13 Boonzaaier v S (A137/13) [2014] ZAWCH 72 (13 May 2014) para [19]
I agree, it is so ordered.
_________________________________________
JUSTICE THULARE
OF THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
This judgment was handed down electronically by circulation to the parties and/or
parties’ representatives by email. The date and time for delivery is deemed to be 06
August 2024 at 14h00.
Counsel for Appellant : Adv. S Webb
Instructed by : Coulter Van Der Walt Attorneys –
: Mr F Van Der Walt
Counsel for Respondent : Adv. VT Nosilola
Instructed by : Director of Public Prosecutions: Western Cape