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Majeng v S (47/2023) [2023] ZAWCHC 41 (28 February 2023)

80 Reportability
Criminal Procedure
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Brief Summary

Criminal Procedure — Review — Conviction for reckless driving — Accused charged with reckless or negligent driving under the National Road Traffic Act — Plea explanation ambiguous and insufficient to sustain conviction for reckless driving — Distinction between reckless and negligent driving not properly considered by the court — Conviction reviewed and set aside, with the accused found guilty of negligent driving instead — Appropriate sentence of R3500 fine imposed based on degree of negligence.

Comprehensive Summary

Summary of Judgment


1. Introduction


This matter concerned a special review conducted by the High Court in terms of section 304(4) of the Criminal Procedure Act 51 of 1977. The proceedings originated in the Laingsburg Magistrate’s Court, where the accused was convicted and sentenced following a guilty plea.


The parties were Sechaba Majeng (cited as the applicant in the review proceedings and referred to in the judgment as the accused) and the State (respondent). The review was triggered administratively: a Judicial Quality Assurance Officer identified an apparent irregularity in how the conviction was recorded, and the Senior Magistrate, Worcester caused the matter to be placed on review on the basis that the proceedings were not “in accordance with justice”.


The general subject-matter was a prosecution under the National Road Traffic Act 93 of 1996 for reckless or negligent driving. The central concern on review was whether the magistrate could lawfully convict the accused “guilty as charged” where the charge encompassed two distinct offences, and whether the admitted facts (in a written plea explanation) were sufficient to sustain a conviction for reckless driving as opposed to negligent driving.


2. Material Facts


It was common cause that the accused was charged in the magistrates’ court with contravening section 63(1) of the National Road Traffic Act 93 of 1996, with the charge formulation and documentation reflecting “reckless or negligent driving”. The initial written notice to appear in court similarly indicated that he was summoned to face charges of “reckless and negligence (sic) [driving]”.


It was also not in dispute that the accused was legally represented and tendered a plea through a written plea explanation submitted in terms of section 112 of the Criminal Procedure Act 51 of 1977. In that written explanation, the accused admitted (in substance) that, while driving, he overtook other vehicles when it was not safe to do so, and that oncoming traffic had to slow down for the vehicle he was driving.


The High Court treated as material the fact that the plea explanation was ambiguous on the level of culpability. The accused stated that he voluntarily pleaded guilty to “reckless or negligent driving” and indicated that his conduct could be regarded as, or classified as, reckless driving, but did not unequivocally admit facts establishing recklessness as opposed to negligence. The magistrate asked no further questions to clarify the plea explanation or establish the factual basis for a conviction for reckless driving.


It was further accepted on the record that the magistrate convicted the accused “guilty as charged”, and that this was recorded as such on the relevant official forms. The sentence imposed by the magistrates’ court was a fine of R3 500.00 or 24 months’ imprisonment, and the accused had paid the fine (as reflected on a court fine receipt).


On the facts placed before the High Court, there was an absence of detail regarding speed, the nature and condition of the road, the traffic conditions, and the extent to which oncoming vehicles had to slow down or take evasive action. The High Court treated this absence of detail as material given the statutory framework governing convictions for reckless driving.


3. Legal Issues


The central legal questions were whether the magistrates’ court proceedings were in accordance with justice, having regard to the following interrelated issues.


The first issue was whether it is competent in law to convict an accused “guilty as charged” where the charge is framed in a manner that encompasses reckless driving or negligent driving, which the High Court characterised as two discrete criminal offences. This issue was primarily a question of law, concerning the legal competence and correctness of the conviction recorded.


The second issue was whether the accused’s admissions in the section 112 written plea explanation were sufficient to sustain a conviction for reckless driving. This was an issue involving the application of legal standards to the admitted facts, including the distinction in degree between recklessness and negligence and the statutory considerations the court must take into account when determining recklessness.


The third issue concerned the consequences of a reckless driving conviction under the National Road Traffic Act, specifically the statutory scheme requiring suspension of a driving licence upon conviction for reckless driving unless certain conditions are met. This raised a legal compliance question regarding whether the trial court could avoid the statutory consequences without sworn evidence justifying a departure from the default position.


4. Court’s Reasoning


The High Court began by identifying an inherent problem in the conviction as recorded. It held that reckless driving and negligent driving are distinct offences, and that an accused cannot be convicted of both in respect of a single incident by means of a general verdict of “guilty as charged” where the charge is framed in the alternative. On this basis alone, the court considered the conviction defective because it was unclear whether the conviction was for reckless driving or negligent driving, and in any event it was not competent to record a single conviction covering both.


Turning to the sufficiency of the plea explanation, the High Court emphasised that recklessness is a matter of degree and denotes a higher level of blameworthiness than ordinary negligence. It referred to authority indicating that recklessness involves driving carelessly or rashly in a manner that creates a risk of harm to others, and that the difference between negligent and reckless driving is one of degree, with recklessness representing a more serious form of culpable driving conduct.


The court then examined the admitted facts in the written plea explanation. While the admissions established that the accused overtook when it was unsafe and that oncoming vehicles had to slow down, the court found that these admissions, without more, did not necessarily establish the higher threshold required for a conviction of reckless driving. The court noted that the record lacked crucial contextual detail, including the speed, the reasons why the overtaking was unsafe, and the extent of the danger posed as reflected by how oncoming traffic was affected. This absence of factual material was significant because the statutory framework requires a court to evaluate the degree of culpability with reference to concrete circumstances.


In applying the National Road Traffic Act, the High Court highlighted that section 63(2) provides that a person driving in “wilful or wanton disregard” of safety is deemed to drive recklessly, but that this does not remove the need for an evidential and factual basis to support such a finding. Moreover, the High Court stressed that section 63(3) requires the court, when considering whether section 63(1) has been contravened, to have regard to all the circumstances, including the nature, condition and use of the road, the amount of traffic reasonably expected to be present, and the speed and manner in which the vehicle was driven. The High Court treated these considerations as peremptory, and concluded that the magistrates’ court did not and could not properly address them on the scant detail provided in the plea explanation.


The High Court also identified an additional statutory difficulty arising from a reckless driving conviction. It explained that section 35 of the National Road Traffic Act provides for a default consequence—suspension of the driving licence for at least six months for a first offender—unless the court is satisfied, after evidence under oath, that circumstances exist which do not justify suspension or justify a shorter period. The High Court found that no sworn evidence had been presented to justify any departure from the default suspension regime. This reinforced the conclusion that the proceedings were not in accordance with justice if the conviction were treated as one for reckless driving, because the statutory scheme was not properly engaged and the court lacked a lawful basis to avoid the licensing consequences.


Having concluded that a reckless driving conviction could not be sustained, the High Court considered the appropriate remedial course on review. It held that the matter was suitable for the High Court itself to substitute a conviction on the alternative, lesser offence of negligent driving under section 304(2)(c)(i) and (iv) of the Criminal Procedure Act, rather than remitting the matter to the magistrates’ court. It reasoned that the accused’s admissions clearly established negligent driving, and that substituting the lesser conviction caused no prejudice to the accused, particularly as negligent driving did not carry the same statutory licensing consequences discussed in relation to reckless driving.


In reconsidering sentence, the High Court held that the sentence imposed was linked to the defective conviction and thus had to be set aside and reconsidered afresh. On the admitted facts, it characterised the accused’s negligence as being at the extreme end of the negligence continuum, involving driving a minibus taxi into the lane of oncoming traffic when it was unsafe, thereby endangering passengers and other road users. In this evaluative sentencing assessment, the High Court concluded that there was no basis to reduce the fine, and that a fine of R3 500.00 remained appropriate even though the substituted conviction was for negligent rather than reckless driving.


Finally, the High Court directed that the judgment be brought to the attention of magistrates in the relevant cluster, emphasising (i) that a court must convict of either reckless or negligent driving, not both, and (ii) that reckless driving convictions require compliance with the statutory considerations in section 63(3) and the licensing consequences under section 35.


5. Outcome and Relief


The High Court set aside the conviction recorded as “guilty as charged” and set aside any conviction for reckless driving.


The High Court substituted a conviction for negligent driving.


The sentence imposed by the magistrates’ court was set aside, and the High Court imposed sentence afresh as a fine of R3 500.00. The accused’s prior payment of R3 500.00 (on 7 March 2022, as reflected in the identified court fine receipt) was deemed to be payment of the fine imposed on review.


The judgment included an administrative direction that the Registrar provide a copy to the Senior Magistrate, Worcester, for dissemination of the guidance contained in the judgment. No separate costs order was made (the matter being a criminal review).


Cases Cited


S v Van Zyl 1969 (1) SA 553 (A)


S v Smith 1973 (3) SA 217 (T)


Legislation Cited


Criminal Procedure Act 51 of 1977, section 112


Criminal Procedure Act 51 of 1977, section 304(4)


Criminal Procedure Act 51 of 1977, section 304(2)(c)(i)


Criminal Procedure Act 51 of 1977, section 304(2)(c)(iv)


National Road Traffic Act 93 of 1996, section 1


National Road Traffic Act 93 of 1996, section 35


National Road Traffic Act 93 of 1996, section 63(1)


National Road Traffic Act 93 of 1996, section 63(2)


National Road Traffic Act 93 of 1996, section 63(3)


National Road Traffic Act 93 of 1996, section 69


National Road Traffic Act 93 of 1996, section 73


National Road Traffic Act 93 of 1996, section 89(1)


National Road Traffic Act 93 of 1996, section 89(5)


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The High Court held that the magistrates’ court proceedings were not in accordance with justice because the accused was convicted “guilty as charged” on a charge framed as reckless or negligent driving, notwithstanding that these are distinct offences requiring a conviction on one or the other. The court further held that the written plea explanation contained insufficient admissions to sustain a conviction for reckless driving, particularly given the absence of facts addressing the statutory considerations mandated by section 63(3) of the National Road Traffic Act.


The High Court held that the appropriate remedy was to set aside the reckless driving conviction and substitute a conviction for negligent driving, which the accused’s admitted facts supported. It also held that the sentence had to be reconsidered and that a fine of R3 500.00 was appropriate on the substituted conviction, with the prior payment deemed to satisfy the fine.


LEGAL PRINCIPLES


A conviction on a charge framed in the alternative as reckless or negligent driving must result in a conviction for one discrete offence only; it is not competent to convict an accused “as charged” in a manner that effectively conflates two distinct offences arising from the same incident.


The distinction between reckless driving and negligent driving is a matter of degree, with recklessness reflecting a more serious form of culpable driving conduct. A court must be satisfied that the proven or admitted facts justify the higher degree of blameworthiness required for recklessness, rather than ordinary negligence.


When determining whether section 63(1) of the National Road Traffic Act has been contravened by reckless driving, a court is required by section 63(3) to have regard to all relevant circumstances, including the nature, condition and use of the road, the amount of traffic reasonably expected, and the speed and manner of driving. A conviction for reckless driving cannot properly be sustained where the record lacks sufficient factual material to enable these statutory considerations to be addressed.


Upon a conviction for reckless driving, the statutory framework governing licence suspension under section 35 of the National Road Traffic Act operates as a default consequence, and any deviation from that consequence requires compliance with the statutory mechanism, including the presentation of evidence under oath to justify a non-suspension order or a shorter suspension period.


On special review, where the record supports a conviction on a lesser alternative offence, the reviewing court may substitute a conviction and impose the sentence the magistrates’ court ought to have imposed, in terms of the remedial powers conferred by section 304(2)(c) of the Criminal Procedure Act.

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[2023] ZAWCHC 41
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Majeng v S (47/2023) [2023] ZAWCHC 41 (28 February 2023)

IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
Number:  47 / 2023
Magistrate’s
Court Serial No:  29 / 2022
Magistrate’s
Court Case No:  74 / 2020
In
the matter between:
SECHABA
MAJENG

APPLICANT
And
THE
STATE

RESPONDENT
Coram:
Wille J
et
Maher, AJ
Received:
9 February 2023
Delivered:
28 February 2023
JUDGMENT
THE
COURT:
Introduction:
[1]
This ‘special’ review came before us in terms of section
304(4)
of the Criminal Procedure Act 51 of 1977 (‘the CPA’).
An inspection by a Judicial Quality Assurance Officer
established
that the accused, charged with the offence of
contravening the provisions of section 63(1) read with sections 1,
63(2), 63(3),
69, 73, 89 (1), and 89(5) of the National Road Traffic
Act 93 of 1996 (‘the NRTA’), namely the offence of
reckless
or negligent driving was found to be ‘guilty as
charged.’  The judgment recorded this conviction in both
the J4
and J15 official forms.
[2]
In the circumstances, the Senior Magistrate, Worcester, to whom this
information
was conveyed by the officer described above, was correct,
in the view that the proceedings of which the accused was convicted
and
sentenced in the Laingsburg Magistrate’s Court were not–‘
in
accordance with justice
’- and submitted the matter for
review.  The sentence imposed by the court
a quo
was a
fine of R3500,00 or twenty-four months’ imprisonment.
Context:
[3]
The accused was legally represented and ‘seemingly’
pleaded
guilty to the offence of ‘reckless’ driving.  We
say ‘seemingly’ as the accused’s legal
representative
submitted a written plea in terms of section 112 of
the CPA.  The plea set out the facts and circumstances giving
rise to
the plea of guilty.  In his plea explanation, the
accused pleaded guilty to a charge of reckless driving, albeit
somewhat
ambiguously.
[4]
We describe the plea as ambiguous as in his plea explanation, the
accused
stated, among other things, that: (a) he voluntarily pleads
guilty to the charge of ‘reckless or negligent’ driving;

(b) while driving a vehicle he overtook vehicles when it was not safe
to do so; (c) oncoming traffic had to slow down for the vehicle
he
was driving and, (d) he admits his conduct amounted to (could ‘be
regarded as’ or ‘be classified as’),
but not
necessarily equated to reckless driving.  The accused did not
explain why his conduct constituted the crime of reckless
driving,
save for the facts listed in his written plea, and no questions were
put to the accused by the court.
[5]
Furthermore, the initial written notice handed to the accused,
notifying
him to appear in court, states that he was summonsed to
face charges of ‘reckless and negligence (sic) [driving].’

The magistrate was satisfied with the accused’s guilty plea
and, as already indicated, found the accused ‘guilty as

charged.’  The magistrate did not refer to the conviction
of the offence of either reckless driving or negligent driving.

As a matter of law and logic, these are two discrete criminal
offences, and an accused can only be found guilty of either negligent

or reckless driving and not both in respect of a single incident.
Consideration:
[6]
Aside from
the apparent error in the accused’s conviction, the proceedings
warrant closer scrutiny.  The facts and circumstances
set out in
the written statement by the offender do not
per
se
sustain a conviction of reckless driving.  The word
‘recklessness’ imports various degrees of incautiousness.

In context, this means that a person drives recklessly if he or
she drives carelessly or thoughtlessly, rashly or inconsiderately,

thereby creating a risk of harm to others.
[1]
[7]
The
distinction between reckless and negligent driving is a matter of
degree.  Recklessness, in essence, is the more significant
form
of carelessness and negligence, the lesser form.
[2]
In this case, it seems apparent that the offender drove a vehicle;
(a) by overtaking when it was not safe to do so and, (b)
that
oncoming traffic had to slow down for the vehicle which he was
driving.  The presiding officer did not determine whether
the
offender’s conduct was of such a high degree as to amount to
gross negligence and thus ‘recklessness.’  Gross

negligence includes conscious negligence.
[8]
By legislative intervention, the NRTA provides that:
‘…
any
person who drives a vehicle in wilful and wanton disregard of the
safety of persons or property shall be deemed to drive that
vehicle
recklessly…’
[3]
[9]
This only makes explicit a feature of recklessness in the ordinary
sense.  In
this case, we have no facts showing; (a) at what
speed the offender was driving; (b) why it was unsafe to overtake
vehicles in
the manner that he did; (c) to what extent the oncoming
traffic had to slow down for the vehicle driven by the offender.  We

are not persuaded that the accused’s apparent conviction for
‘reckless’ driving can be sustained and upheld on
the
scant detail in his written statement.  Moreover, and in any
event, while section 63 of the NRTA, provides in subsection
(2), that
‘without restricting the ordinary meaning of the word
“recklessly” any person who drives a vehicle
in wilful or
wanton disregard for the safety or of persons or property shall be
deemed to drive that vehicle recklessly.’
[10]
This is subject to subsection (3), which provides that when the
court, in considering whether
subsection (1) has been contravened,
the court shall have regard to all the circumstances of the case,
including but without derogating
from the generality of subsection
(1) or (2), the nature, condition and use of the public road upon
which the contravention is
alleged to have been committed, the amount
of traffic which at the relevant time was or which could reasonably
have been expected
to be upon that road, and the speed at and how the
vehicle was driven.
[11]
When accepting the accused’s plea and convicting the accused,
the court did not have regard
to any of the above peremptory
considerations.  Insufficient details in this respect are set
out in the accused’s plea.
[12]
An additional problem arising from the conviction is that in terms of
section 35 of the NRTA,
upon conviction in terms of section 63(1) of
the NRTA, namely where a court finds that the offence was committed
by driving recklessly
and the accused is the holder of a driving
licence or a licence and permit, it shall be suspended in the case of
a first offence
for a period of at least  (six) months, unless
the court is satisfied, after the presentation of evidence under
oath, that
circumstances relating to the offence exist which do not
justify the suspension or disqualification referred to in subsection
(1)
or (2), respectively.  Even with the provisions of those
subsections, the court may order that the suspension or
disqualification
shall not take effect or shall be for such a shorter
period as the court may consider fit.
[13]
No sworn evidence was adduced at the trial to justify the court’s
decision not to suspend
the accused’s licence for the
obligatory six month period, assuming it was his first offence and
assuming that the guilty
verdict was for reckless driving.
[14]
Therefore, the default setting under the NRTA is that an accused’s
licence must be suspended.
To avoid this automatic consequence
by operation of law, there must be evidence adduced, on oath, which
shows that a suspension
is not justified.  In that case, the
sub-section provides that a decision to suspend the accused’s
licence is precatory
and not mandatory.  Section 63(3) of the
NRTA then provides that the court may, after considering the
evidence, order that
there either be no suspension or a suspension of
the accused’s licence for less than six months.  As
neither of the
above enquiries took place, the court could neither
find the accused guilty of reckless driving for this reason alone nor
rule
that the accused’s licence was not to be suspended.
[15]
It is also not competent to convict an accused when charged in the
alternative as being guilty
‘as charged.’  To
re-iterate, the ‘reckless’ and ‘negligent’
driving offences are discrete.
The accused could only have been
found guilty of one or the other, namely either ‘reckless
driving’ or ‘negligent
driving’ but not both.
[16]
The evidence and content of the accused’s plea are insufficient
to sustain a reckless driving
conviction.  There is no evidence
or any admissions in respect of, among other things, the nature,
condition and use of the
public road where the offence was committed,
the amount of traffic which was or which could reasonably have been
expected to be
upon the road, and the speed and the way the accused
drove the vehicle.  In all the circumstances, the proceedings
were not
–‘
in accordance with justice
’- and
the conviction falls to be reviewed and set aside.
[17]
In our view, this is a matter where this court should convict the
accused (in this case on the
alternative charge of negligent driving)
as is provided for in section 304(2)(c)(i) and (iv) of the CPA and
then to impose a sentence
or make such order as the magistrate's
court ought to have imposed or made in terms of 304(2)(c)(iv) of the
CPA.
[18]
In the circumstances, and as negligent driving is a lesser offence
than reckless driving and
the accused’s plea explanation does
not include sufficient unequivocal admissions to cover all the
elements of the crime
of reckless driving, the accused is clearly
guilty of the alternative charge of negligent driving.
[19]
There is no prejudice to the accused as the apparent conviction for
the more serious offence
of reckless driving is set aside, and in its
stead, he is found guilty of a lesser offence.  Furthermore, on
a conviction
of negligent driving, there is no statutory provision
empowering a court to order that the accused’s licence be
endorsed
(namely suspended), which also redounds to the benefit of
the accused as this potential consequence is avoided.  There is,

unarguably, no prejudice to the accused in this regard.
[20]
The sentence was imposed for an apparent conviction of reckless
driving, and accordingly, it
too falls to be set aside, and the
sentence considered afresh.  We say it is unnecessary to remit
the matter to the trial
court for sentence as this court is in as
good a position as the trial court to impose an appropriate
sentence.  As regards
an appropriate sentence, the degree of
negligence evinced by the accused in the manner in which he drove his
vehicle, is at the
‘extreme’ end of the negligence
continuum, and it can only be described as constituting a ‘high’
degree
of negligence.
[21]
The accused drove a minibus taxi into the lane of oncoming traffic
when it was unsafe to do so.
He thereby endangered the lives of
his passengers and the occupants of the approaching vehicles, whose
drivers had to take
evasive action to avoid a collision.  In the
circumstances, we can see no justification to reduce the fine imposed
by the
court
a quo
even though it may have been intended as a
conviction on the more serious offence of reckless driving.
[22]
In light of the degree of negligence, a fine of less than R3500,00
imposed by the trial court
would be wholly inappropriate.  We
believe imposing a fine of R3500,00 is appropriate based on the
admitted facts.
[23]
The Senior Magistrate, Worcester, is requested to bring to the
attention of magistrates in his
cluster of courts that where an
accused is charged with the statutory crime of reckless or negligent
driving, the accused person
can be convicted either of reckless or
negligent driving, but not both.
[24]
Further, before an accused can be found guilty of reckless driving,
in terms of subsection 63(3)
of the NRTA, the court must have regard
to all the circumstances of the case, including but without
derogating from the generality
of subsection (1) or (2), the nature,
condition and use of the public road upon which the contravention is
alleged to have been
committed, the amount of traffic which at the
relevant time was or which could reasonably have been expected to be
upon that road,
and the speed at which and how the vehicle was
driven.
[25]
Where an accused is found guilty of reckless driving and is the
holder of a driving licence or
a licence and permit, the court must
suspend the accused’s licence or a licence and permit for a
period of at least six months
for a first offender and a more
extended period for second, third or multiple offenders in terms of
section 35(1) of the NRTA,
unless the court is satisfied, after the
presentation of evidence under oath, that circumstances relating to
the offence exist
which do not justify a suspension or
disqualification or should be for a shorter period as the court may
consider fit.
Order:
[26]
In the result, it is ordered as follows:
1.
The conviction of ‘guilty as charged’ is set aside.
2.
Any conviction that may have been returned against the accused
for
‘reckless’ driving is set aside.
3.
The accused is convicted of ‘negligent’ driving.
4.
The sentence imposed upon the accused is set aside.
5.
The accused is sentenced afresh to a fine of R3500,00, and the

payment of R3500,00 by the accused on 7 March 2022, as reflected in
Court Fine Receipt G0638940, shall be deemed to be the payment
of the
fine so imposed.
6.
The Registrar of the High Court is requested to deliver a copy
of
this judgment to the Senior Magistrate, Worcester, to bring to his
notice the content of this judgment.
WILLE,
J
I
agree:
MAHER,
AJ
[1]
S
v Van Zyl
1969 (1) SA 553 (A) 558 B.
[2]
S
v Smith
1973
(3) SA 217 (T) 219 A
[3]
Section
63(2) of the Act.

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