2
driving his red Alfa Romeo motor vehicle after repairs, travelling at 124 km/h in
an 80 km/h zone.
[2] The Acting-Magistrate sentenced the accused to a R1000 fine, did a Section 103
(2) Act 60 of 2000 (The Firearms Control Act) enquiry, making “no order”.
[3] The Acting-Magistrate submitted this special review explaining that she had
realised after passing sentence she failed to “conduct an enquiry” in terms of
Section 35 NRTA.
[4] This entails, failing her statutory imposed duty, resting on any presiding officer
convicting a person of a Section 35 (1) (a -c) NRTA offence, to explain to the
accused, before sentence, the consequences of the ex lege automatic
suspension of his driver’s licence or permit , or disqualification from obtaining
same1 for a determined period 2, and then affording the accused the opportunity
to present evidence on oath, relevant to the offence, to determine if the ex lege
suspension or disqualification is sustained, that the suspension or disqualification
shall not take effect, or shall be for such shorter period as the court may consider
fit3.
[5] This Special Review is in terms of Section 304(4) of the Criminal Procedure Act,
Act 51 of 1977 (CPA). This section acts as a special safety net for review . It
grants a Judge of the High Court the power to intervene and correct proceedings
from a Magistrate's Court that is not automatically reviewable under section 302,
CPA. This correcting intervention is done on information brought to the High
Court's attention suggesting the proceedings in the lower court were not in
accordance with justice. The Judge of the High Court may then exercise the same
review powers as in cases brought, through the ordinary review process.4
[6] Before dealing with the specific facts of this special review, the following:
1 Section 35 (4) NRTA - A court convicting any person of an offence referred to in subsection (1) shall,
before imposing sentence, bring the provisions of subsection (1) or (2), as the case may be, and of
subsection (3) to the notice of such person
2 Section 35 (1) (i-iii) NRTA
3 Section 35 (3) NRTA
4 Section 302 Act 51 of 1977
3
Our National Road Traffic Act 93 of 1996 is a crucial piece of legislation whose
proper application and efficient enforcement can bring about real, tangible
change on our roads, directly countering the prevalent lawlessness and daily
carnage reported in the media . The failure to enforce the NRTA effectively
contributes directly to an immense volume of Road Accident Fund (RAF) claims,
which, in turn, results in the constant inundation of the High and lower Courts with
civil litigation and the lower courts with mostly criminal litigation.
[7] This Legislative effort to improve enforcement is supported by the Constitutional
Court's conf irmation of the validity of the Administrative Adjudication of Road
Traffic Offences Act, Act 46 of 1998 (AARTO Act). In the Organisation Undoing
Tax Abuse (OUTA) v Minister of Transport and Others 5 judgment. In it , Chief
Justice Zondo confirmed that the AARTO Act's core objective is to promote road
traffic safety and affirmed the State's comprehensive national strategy to enforce
road traffic laws, encourage compliance, and impose penalties through the
demerit points system.
[8] It is therefore incumbent upon all courts to definitively and effectively deal with
the offenders that do end up before them in criminal matters under the NRTA .
Courts must use the penalties and sanctions available in the legislation not only
to effectively punish offenders , but also send strong messages of deterrence to
would be offenders. The message must be clear, be a responsible, courteous
and law -abiding road user , or suffer the sanction the legislator intends, the
possible complete loss of your privilege as a driver to use our country’s roads
[9] There are a few points to be raised by this special review that need s to be
pronounced upon and or affirmed from case law.
The first, the failure by the Acting-Magistrate to comply with Section 35
of Act 93 of 1996
The second, the Acting-Magistrate’s request that the “sentence” be
of Act 93 of 1996
The second, the Acting-Magistrate’s request that the “sentence” be
reviewed and set aside and referred back to her to “hand down the
correct sentence”.
5 Organisation Undoing Tax Abuse v Minister of Transport and Others 2024 (1) SA 21 (CC)
4
The third, the applicability of Section 103(2) Act 60 of 2000 in a speeding
case under the NRTA.
The fourth, various things noticed by this court in the record of
proceedings that requires future compliance and or correction.
[10] This court agrees with two Free State High Court decision s, that first of S v
Swartz6 delivered by Lekale, J, dealing specifically with the fact that a presiding
officer has a mandatory duty to conduct an enquiry under Section 35(3) of the
National Road Traffic Act (NRTA) when confirming a conviction for a serious
speeding offence, even if that conviction arose from an admission of guilt fine.
[11] The second that of S v Phuzi7 delivered by Musi AJP (as he then was) on behalf
of a full bench dealing with the essential legal elements of the offence of
exceeding the general speed limit (Section 59(4) of the NRTA) and the mandatory
scope of judi cial questioning when an accused pleads guilty under Section
112(1)(b) of the Criminal Procedure Act.
[12] Section 35 of the National Road Traffic Act 93 of 1996 dictates that upon a
conviction for certain specified driving offences (mentioned hereunder) , the
driver's licence or permit SHALL be suspended, (or an unlicensed or unpermitted
person is disqualified from obtaining a licence or permit8) for a mandatory period.
[13] These suspension periods, calculated from the date of sentence, are six months
for a first offence, five years for a second offence and ten years for a third or
subsequent offence.
[14] This suspension is ex lege 9 the moment a person is convicted , unless a court
receiving evidence relevant to the offence, under oath, uses its discretion that the
suspension, shall not take effect or order a shorter period of suspension.
[15] The specific offences applicable to this ex lege MANDATORY sanction upon
conviction is;
6 S v Swartz6 (86/2023) [2013] ZAFSHC 93 (13 June 2013)
7 S v Phuzi 2019 (2) SACR 648 (FB)
8 Section 35 (2) NRTA 93 of 1996
7 S v Phuzi 2019 (2) SACR 648 (FB)
8 Section 35 (2) NRTA 93 of 1996
9 As a matter of law or a legal consequence
5
(a) section 61(1)(a) - Stop and report the accident, (b) - Ascertain the
nature and extent of injuries (c) – Render capable assistance,
in the case of the death of or serious injury to a person;
(aA) section 59(4), in the case of a conviction for an offence, where—
(i) a speed in excess of 30 kilometres per hour over the
prescribed general speed limit in an urban area was
recorded; or
(ii) a speed in excess of 40 kilometres per hour over the
prescribed general speed limit outside an urban area or on
a freeway was recorded;
(b) section 63(1), if the court finds that the offence was committed by
driving recklessly;
(c) section 65(1)10, (2)11 or (5)12 NRTA
[16] An offence therefore falling under Section 35 (1) (aA) NRTA – the so-called NAG
(No Admission of Guilt) matters, where the speed l imit was exceeded by more
than 30 km/h in an urban area and 40 km/h outside an urban area or on a
highway must have a consequence for the driver as legislate d in this provision.
The State is not permitted to circumvent or ignore legislation by allowing an
admission of guilt fine to be paid with no further legislated sanction for the driver.
The only exception being if the admission of guilt fine is paid and the offender in
writing confirms knowing not only that it is a conviction, but also that his/her
licence is suspended for the period applicable in the section, waiving all rights to
present evidence under oath for consideration by a court.
[17] In the present case we are not dealing with an admission of guilt. Mr. Pelzer was
convicted of excessive speeding. He exceeded the urban speed limit by over 30
km/h under Section 35( 1) (aA)(i) of the NRTA, which automatically triggered a
10 Driving under the influence of intoxicating liquor or drugs
11 Driving with a higher than allowed concentration of alcohol in blood – [Section 65(2) awaiting substitution
upon proclamation of section 7 of the Cannabis for private purposes Act, Act 7 of 2024]
upon proclamation of section 7 of the Cannabis for private purposes Act, Act 7 of 2024]
12 Driving with a higher than allowed concentration of alcohol in any specimen of breath exhaled
6
mandatory six -month license suspension for a first offender . He is however
unaware of this , because the Magistrate failed to comply with her statutory
imposed duty in Section 35(4) to explain the automatic suspension , before
sentence to the accused , and then afford him the opportunity, to present
evidence on oath, detailing circumstances relating to the offence that might justify
the court judicially exercising its discretion to order that the suspension should
not take effect or be imposed for a shorter period.
[18] The core principle and purpose of suspension guiding a court's decision
regarding mandatory licens e suspension (under Section 35(1) and (2)) is that
only persuasive facts presented through evidence under oath relating to the
offence may influence the court to set aside or shorten the prescribed
suspension period. 13 The requirement for sworn evidence was specifically
introduced by legislation.14 Such evidence must be related to the offence and this
have been pronounced upon in South African Courts already, seemingly
unnoticed.
[19] On the matter of sworn evidence Tshiki J in S v Botha15 held that the provisions
of Section 35(1) and (3) of the National Road Traffic Act are peremptory, meaning
a court can only deviate from the mandatory licence suspension by strictly
following the procedure set out in Section 35(3). Specifically, the court held that
a presiding officer is legally prohibited from ordering that the mandatory
suspension of a driving licence shall not take effect unless the accused
has presented evidence under oath 16 (or the State has presented such
evidence) that satisfies the court that circumstances relating to the offence exist
which do not justify the suspension. Consequently, if an accused, having been
warned of the provisions, elects not to testify under oath, the court has no
discretion to avoid the sus pension and must impose the minimum period of
suspension prescribed by Section 35(1)(i-iii).
suspension prescribed by Section 35(1)(i-iii).
[20] She further held that while an accused retains their constitutional right to silence
and cannot be compelled to testify, the court's discretion to avoid or shorten this
13 S v Swartz13 (86/2023) [2013] ZAFSHC 93 (13 June 2013) Paragraph 8
14 Section 12(b) Act 64 of 2008
15 S v Botha 2013 (1) SACR 353 (ECP)
16 S v Botha 2013 (1) SACR 353 (ECP) Paragraph 9 & 12
7
suspension is strictly conditional upon compliance with Section 35(3). Therefore,
if the accused, having been duly warned of the legal consequences, elects not
to present evidence under oath to satisfy the court that circumstances relating to
the offence justify deviating from the suspension, the court has no discretion to
avoid the suspension and is legally bound to impose the minimum period
prescribed by Section 35(1) (i-iii).17 I agree.
[21] What does “evidence under oath” entail. Can it be just an affidavit or should it be
presented viva voce?
In the case of S v Botha supra, it was held in paragraph 7
“In my view, the wording of section 35(3) of the Act envisages a hearing in
compliance with the constitutional provisions, before the convicted person’s
right to keep or obtain his or her licence can b e taken away by operation of
law.”
In the matter of S v Ngqabuko18 Roberson J held in paragraph 6
“… It is logical that such an order may only be made after the presentation of
evidence under oath (or affirmation), which is by its nature supposed to be
credible, and which may also be tested.”
To my mind , keeping in mind the right to remain silent, the fact that a hearing
needs to be conducted and the credibility of evidence tested, it would require viva
voce evidence to be presented as it is the best type of evidence to present and
will carry the most weight.19 Affidavits cannot be cross-examined and will not be
sustained, if it is in conflict with viva voce presented evidence which the State is
encouraged to present, especially in instances where the circumstances related
to the offence needs to be determined by the court in order to rule on the licence
suspension.
[22] In the reported matter of Greeff v S20 Rogers J (Saldanha J concurring) held that,
the phrase "circumstances relating to the offence" is a deliberate and narrow
17 S v Botha 2013 (1) SACR 353 (ECP) Paragraph 10 & 11
18 S v Ngqabuko [2012] JOL 28816 [ECG]
17 S v Botha 2013 (1) SACR 353 (ECP) Paragraph 10 & 11
18 S v Ngqabuko [2012] JOL 28816 [ECG]
19 S v Pienaar 1992 (1) SACR 178 (W)
20 Greeff v S 2014 (1) SACR 74 (WCC)
8
limitation intended by the legislature, which excludes consideration of all
personal circumstances of the accused, such as the need for the licence for work
or family commitments, or the fact that the accused is a first offender . The court
further established that to justify deviating from the mandatory licence
suspension, the presiding officer must rely solely on sworn evidence concerning
the objective circumstances of the offence itself.21 I agree.
[23] Fundamentally, the suspension or cancellation of a driver's license is not a mere
administrative action. It is a significant part of the sentence which falls within the
discretion of the Judicial Officer and its prime objective is to protect the public
good by removing dangerous drivers from the roads for a period of time. E ven
though it is punitive in nature the design seems to be reformative and courts
considering whether to impose the full mandatory suspension, must take as point
of departure that the license should be suspended for the prescribed period, and
should be reluctant to order non-suspension.22
[24] This court affirms the reasoning in S v Lourens23 and Muller v S24 where it was
held that a decision to cancel or suspend a driving licence is integral to the
determination of an appropriate sentence, as it constitutes a significant part of
the punishment imposed. Accordingly, the Section 35 enquiry is not a " post-
sentence procedure" but an integral component that must be dealt with by the
presiding officer before sentence is passed.
[25] The judicial enquiry under Section 35(3) mandates that courts guide their
discretion by primarily focusing on the "circumstances relating to the offence," as
established by evidence under oath. These critical factors , which are not a
21 Greeff v S 2014 (1) SACR 74 (WCC) Paragraph 8-14
22 S v Wilson 2001 (1) SACR 253 (T) at 259 f – g; S v Tokhwe [2017] ZAWCHC 26 (22 March 2017)
22 S v Wilson 2001 (1) SACR 253 (T) at 259 f – g; S v Tokhwe [2017] ZAWCHC 26 (22 March 2017)
paragraph 14 “My own opinion is that in the circumstances of the present case the automatic s uspension
should not have been uplifted, even if the magistrate had the power to do so. Automatic suspension in terms
of s 35(1) is intended as a deterrent. It will often be a more effective deterrent than a conventional criminal
sentence. In the present case, the accused’s lack of financial means coupled with the inappropriateness of
direct imprisonment made suspension of his licence for six months (or disqualification from applying for a
new licence for six months) entirely apposite.”
23 S v Lourens 2016 (2) SACR 624 (WCC) Paragraph 7 – footnote 1
24 Muller v S 2019 (1) SACR 242 (WCC) Paragraph 14 and 15
9
numerus clausus , include the accused's specific conduct, the level of danger
posed to the public, the traffic and road conditions at the time, details of any
accident and the accused's role therein, and the accused's overall driving record.
While the court must be made aware of the accused's personal circumstances,
such as needing the licence for employment, the legislation requires that the
decisive weight for setting aside or shortening the suspension must be attributed
to the factors intrinsic to the offence itself.
[26] The suspension of a driving licence is considered an integral part of the sentence,
and the legislation strongly places the severity of t he offence (Section 35(1)
offences) at the core of the enquiry, with the manifest purpose of protecting the
public from dangerous road users. Consequently, personal hardship factors —
such as the accused needing their licence for work purposes —are viewed as
minor considerations and are typically insufficient by themselves to satisfy the
court that the circumstances relating to the offence do not justify the suspension,
as this would defeat the legislature's intent to impose an automatic and serious
sanction.
[27] In summary the National Road Traffic Act, establishes that the mandatory licence
suspension for serious offences can only be avoided or shortened by sworn
evidence pertaining exclusively to "circumstances relating to the offence," which
the legislature int ended as a narrow, objective limitation. This ratio definitively
excludes all subjective personal factors of the accused, such as the need for the
licence for work, family commitments, or being a first offender, as these are
insufficient by themselves to justify non-suspension and would defeat the NRTA’s
purpose of protecting the public. Courts must therefore rely solely on the
unchallenged, sworn evidence of the circumstances of the offence and cannot
rely on external, non-adduced information to justify the suspension.
rely on external, non-adduced information to justify the suspension.
[28] Presiding officers must also consider Section 34 of the NRTA, which grants the
court discretionary power “may” (in contrast to the peremptory nature of Section
35's "shall") when a person is convicted of, any driving offence under the NRTA
or common law . This discretion allows the court, in addition to imposing a
sentence, to suspend the offender's existing driving licence for a period it deems
fit, or to cancel the licence entirely. Furthermore, if the convicted person is not
10
currently a lice nce holder, Section 34 empowers the court to declare them
disqualified from obtaining a licence for an indefinite or specified period.
[29] These Section 34 orders are recorded by the court clerk, either by endorsing an
identity document containing the license or by retaining and dealing with a
separate card license in the prescribed manner.
[30] Presiding officers must note Section 33 NRTA which indicates that any person
facing a charge under the NRTA related to driving a motor vehicle or failing to
stop after or report an accident, is legally required to produce every valid license
and permit they hold, or an official duplicate if the original is unavailable, to the
court at the time the charge is heard , and they must not, without reasonable
excuse, refuse or fail to produce these documents upon request.
[31] The Magistrates failure in this matter to follow this prescriptive legal procedure at
conviction, before sentence , in Section 35 related to the offence(s) 25 the
explanation of licence suspension before sentence 26 and affording the
opportunity for the accused to present evidence on oath27 is considered a failure
of justice and requires this court’s intervention, as it has a negative consequence
for the accused he was never made aware of.
[32] The second point needing attention is the request that the “sentence” be
reviewed and set aside and referred back to the Acting Magistrate to “hand down
the correct sentence”.
[33] This was a guilty plea in which the Magistrate indicated in her memorandum that
“the plea was accepted by the court after satisfying itself with all the elements of
the offence being admitted and the accused was accordingly found guilty as
charged”
[34] It is clear from the record of this matter that this plea is exactly what was referred
to, and the reason for the S v Puzi matter referred to above in paragraph 11. All
25 Section 35(1)
26 Section 35 (4)
27 Section 35 (2)
11
Magistrates will do well in reading this matter and understanding exactly why it
was delivered by a full court to be binding authority in the Free State.
[35] A succinct summary of the rat io in Puzi is that the offence of exceeding the
general speed limit (Section 59(4) of the NRTA) requires fault (mens rea) in the
form of either intention ( dolus) or negligence ( culpa) and does not create strict
liability. It establishes a mandatory, two-part procedural requirement for a valid
guilty plea under Section 112(1)(b) of the Criminal Procedure Act: the magistrate
must not only confirm the recorded speed in questioning, but must also explicitly
ascertain whether the accused admits both the proper functioning of the speed
measuring device and the competence of the traffic officer to set up and operate
it, because the court cannot take judicial notice of these essential facts necessary
for proving the actus reus of the offence. Failure to obtain these specific
admissions renders the conviction procedurally deficient and liable to be set
aside.
[36] Notable from the record of these proceedings is the accused’s attempt in plea to
divert the courts attention from his mens rea and one of the exact reasons Puzi
was decided. In his guilty plea he states: “I lost focus of the speed at which I was
driving as I was paying more attention to the suspension … I only realised that I
actually exceeded the speed limit when I was stopped by the traffic police …”
[37] Very noticeable from the guilty plea recorded is the failure of the accused to admit
both the proper functioning of the speed measuring device and the competence
of the traffic officer to set up and operate it . I agree with Puzi that this is a
requirement to be met either in State evidence, if disputed where a person plead
not guilty; or in admission by an accused tendering a guilty plea, on a speeding
offence.
[38] As a result, this court is not convinced that the conviction should be sustained as
[38] As a result, this court is not convinced that the conviction should be sustained as
it goes against reported and binding case law. All courts are bound by the
doctrine of stare decisis. See in this regard S v Chivabo28 specifically paragraphs
11 and 12 where Petersen ADJP (as he then was) gives a very accurate and
28 S v Chivabo (HC 14/2024) [2024] ZANWHC 156 (27 June 2024)
12
comprehensive summary of exactly what the doctrine entails , with which I fully
agree.
[39] The third point needing attention is the applicability of Section 103(2) Act 60 of
2000 (The Firearms Control Act) in a speeding case under the NRTA. Section
103 (2) reads –
(a) A court which convicts a person of a crime or offence referred to in Schedule
2 and which is not a crime or offence contemplated in subsection (1), must
enquire and determine whether that person is unfit to possess a firearm.
(b) If a court, acting in terms of paragraph (a), determines that a person is unfit
to possess a firearm, it must make a declaration to that effect.
[40] The Magistrate clearly did not familiarise herself with what is contained in
Schedule 2 of Act 60 of 2000. This schedule comprises a comprehensive list of
serious offences against the State and individuals, including High Treason and
Sedition; crimes involving death or damage such as Culpable homicide and
Malicious damage to property ; the dishonesty-related offence of Extortion; and
the preparatory crime of Entering any premises with the intent to commit an
offence under the common law or a statutory provision . It also incorporates
specific statutory offences where the accused was not sentenced to direct
imprisonment (meaning th ey received a lesser punishment such as a fine or a
wholly suspended sentence): these include any crime or offence in terms of the
Domestic Violence Act, 1998 ; crimes involving violence, sexual abuse or
dishonesty; and offences in terms of the Explosives A ct, 1956 . Finally, the
schedule lists a specific contravention: section 18(1)(a) of the Protection from
Harassment Act, 2011 . Clearly none of these are applicable to a speeding
offence and the application thereof by the Magistrate was misdirected.
[41] To compound this misdirection ancillary to the sentence, it is recorded “In terms
of section 103 (2) Act 60 of 2000 – no order is made” This goes exactly against
of section 103 (2) Act 60 of 2000 – no order is made” This goes exactly against
what section 103 (2) (a) and (b) states that a court must enquire and determine
and then make a declaration. If a Magistrate is enquiring to decide on the fitness
or not of a person to possess a firearm under sub -section (2) it cannot be that
“no order is made”, it should be a declaration like “The accused is declared fit or
13
unfit to possess a firearm” under sub -section (2) , depending on what
determination is made by the Magistrate.
[42] Under sub-section (1) of section 103 the words “no order is made” is appropriate
as it will then imply the ex lege suspension continues unabated. This as Section
103 (1) of the Firearms Control Act is very much like section 35 (1) of the NRTA
as it states “ Unless the court determines otherwise, a person becomes unfit to
possess a firearm if convicted of …” (summarised)
(a) Unlawful possession of a firearm or ammunition.
(b) Any crime involving the unlawful use or handling of a firearm.
(c) Offence regarding the failure to store firearms or ammunition correctly.
(d) Offence involving the negligent handling or loss of a firearm.
(e) Offence involving the handling of a firearm while under the influence of an
intoxicating or narcotic substance.
(f) Any other crime in the commission of which a firearm was used.
(g) Any offence involving violence, sexual abuse, or dishonesty, sentenced to
imprisonment without the option of a fine.
(h) Any other offence under the Act sentenced to imprisonment without the option
of a fine.
(i) Any offence involving physical or sexual abuse in a domestic relationship.
(j) Any offence involving the abuse of alcohol or drugs.
(k) Any offence involving dealing in drugs.
(l) Any offence in terms of the Domestic Violence Act, sentenced to imprisonment
without the option of a fine.
(m) Any offence in terms of the Explosives Act, sentenced to imprisonment
without the option of a fine.
14
(n) Any offence involving sabotage, terrorism, public violence, arson,
intimidation, rape, kidnapping, or child stealing.
(o) Any conspiracy, incitement, or attempt to commit an offence referred to in (a)
to (n).
[43] There is a whole lot of conflicting authority on whether Section 103 (1) or 103 (2)
Act 60 of 2000 will find application under the NRTA section 35 (1) offences
especially those falling under Section 103 (1) (j) - “any offence involving the
abuse of alcohol or drugs”
[44] I find that neither Sections 103 (1) or (2) of Act 60 of 2000 will find any application
where speeding offence convictions under section 59 (4) NRTA are pronounced.
The Magistrate therefore conducting this enquiry was misdirecting herself.
[45] After having analysed various decisions it is clear that the application of the
Firearms Control Act 60 of 2000 (FCA) Section 103 to offences under the
National Road Traffic Act 93 of 1996 (NRTA) is a matter of legal intersection
governed by the nature of the criminal conduct rather than a direct statutory
listing.
[46] The core principle is that the FCA seeks to identify individuals demonstrating a
lack of responsibility or moral fibre, the opposite of a "fit and proper person,” and
it achieves this through two distinct mechanisms. The mandatory unfitness
provision in Section 103(1) applies when the crime is classified by its inherent
nature, compelling the court to declare the accused unfit to possess a firearm ex
lege, unless it expressly determines otherwise. In contrast, Section 103(2)
applies to other serious offences and merely compels the court to hold a
mandatory judicial enquiry to make a declared, determination on fitness or
unfitness.
[47] The most direct link between the NRT A and the mandatory unfitness provision
(103 (1)] is established under Section 103(1)(j), which addresses " any offence
involving the abuse of alcohol or drugs." A conviction for Drunken Driving - Section
involving the abuse of alcohol or drugs." A conviction for Drunken Driving - Section
65 (1) of the NRTA falls squarely into this category . The High Court in S v
15
Stemmet,29 confirmed that the behaviour inherent in a drunken driving offence
triggers the automatic unfitness provision of s 103(1)(j), rejecting any attempt to
narrow the definition of "abuse of alcohol." This finding was later rei terated in S
v Khumalo, 30 which stressed that magistrates must actively apply their minds to
the mandatory nature of this section. I agree, because using so much alcohol
that your driving capabilities are impaired, which is a requirement for a conviction
under section 65 (1) clearly demonstrates abuse and not just use of alcohol.
[48] I find that conduct reflecting extreme irresponsibility or moral turpitude, such as
dishonesty (e.g., in a serious hit -and-run where the driver flees, don’t report ,
ascertain injuries or render assistance and the person dies),31 can be classified
under Section 103(1)(g) if direct imprisonment is imposed, confirming that the
FCA's reach extends to serious breaches of public trust, always fact depending.
[49] The other key application mechanism is found in Section 103(2)(a) , which is
engaged when the NRTA offence results in a crime listed in Schedule 2 of the
FCA. If a negligent driving incident leads to a fatal accident, the accused will be
convicted of Culpable Homicide , a Schedule 2 offence. The appeal case of
McGeer v S ,32 confirms that upon such a conviction, the court is compelled to
conduct a mandatory judicial enquiry to determine the person's fitness to possess
a firearm. Unlike s 103(1), unfitness is not automatic; rather, the court must weigh
the facts, including the degree of negligence or recklessness, to make a
considered finding. The McGeer decision therefore confirms that even common
law or Schedule 2 crimes arising from gross road traffic negligen ce are viewed
by the FCA as serious breaches of public safety that warrant a formal review of
the accused’s suitability to own a firearm.
[50] I conclude by holding expressly that the facts of the matter are everything
[50] I conclude by holding expressly that the facts of the matter are everything
because they determine the applicability o f Section 103 by classifying the
criminal behaviour into a specific category under either sub -section (1) or (2). A
conviction under the NRTA triggers the FCA not because the NRTA is named,
but because the underlying criminal conduct, such as alcohol abuse (s 103(1)(j))
29 S v Stemmet(A502/2008) [2009] ZAWCHC 118 (13 February 2009)
30 S v Khumalo (138/2011) [2011] ZAFSHC 80 (26 May 2011)
31 Falling under Section 35 (1) (a) which is a contravention of Section 61 (1) (a-c) NRTA
32 McGeer v S (A151/2018) [2019] ZAGPJHC 34 (21 February 2019)
16
or conduct leading to a Schedule 2 crime like Culpable Homicide (s 103(2)(a)),
demonstrates an unsuitability to possess a firearm, in the public interest.
[51] This comprehensive approach will ensure that the Firearms Control Act’s
purpose of en hancing public safety is achieved by targeting irresponsible and
dangerous behaviour, occurring on the road or elsewhere , thereby making the
fitness determination dependent on the specific criminal facts proven in a case.
As example a person therefore having two beers after work with colleagues and
is breathalysed in a roadblock on his way home under contravention of Section
65 (5) and is just over the legal limit, used alcohol , but clearly didn’t abuse it ;
Whilst a person who is stopped in a roadblock, having been drinking all night for
whatever reason, and blows three times the legal limit clearly shows that there
was an abuse of alcohol. The first example may lead a Magistrate to rule 103 (1)
(j) is not applicable (as there was use not abuse) , but in t he second that it is
applicable (as there was abuse). This will however require from presiding officers
to indicate on the proven facts of their matter how the facts link to the prohibited
provisions under subsection 1 or 2 explaining their finding of why the FCA is, or
is not, applicable.
[52] The fourth point raised is various things noticed by this court in the record of
proceedings that requires future compliance and or correction. The first is that
the J4 form used by the Boksburg Magistrates Office indicates the matter is sent
for review by the “WITWATERSRAND LOCAL DIVISION OF THE SUPREME
COURT OF SOUTH AFRICA” This is totally wrong and requires correction for
obvious reasons.
[53] The J4 form used in this matter is also not the prescribed form. Due to this, this
court does not know if the accused paid the fine of R1000 in this matter or not ,
apart from the legal representative giving such an indication when the Magistrate
apart from the legal representative giving such an indication when the Magistrate
ordered the accused in custody until the fine is paid.33
[54] On the issue of the imposed fine of R1000, I am of the opinion, especially on what
was held in paragraph 8 supra, that looking at the penalty clause for this offence
in Section 89 (3) NRTA which is “a fine or imprisonment for a period not exceeding
33 Record page 18 proceedings of 11 September 2025
17
3 years” that the imposed fine is extr emely lenient especially as the ex lege
sanction of licence suspension was not even applied. Magistrates must realise
that drinking and driving, as well as excessively speeding kills. That is why these
offences were “elevated” by the legislator to be covered by Section 35. This type
of excessive speeding mus t not be viewed as a “normal” speeding offence, but
one that requires appropriate sanction – of course within applicable sentencing
norms.
[55] In the result I make the following order:
The conviction, sentence and ancillary order made is set aside
The matter is referred back to the Boksburg Magistrates court for a trial
de novo before another Magistrate
___________________________
PJ DU PLESSIS
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
This judgment was handed down electronically by circulation to the parties’
representatives via e-mail, by being uploaded to CaseLines and by release to
SAFLII. The date and time for hand-down is deemed to be 10h00 on 15 December
2025
18