REVIEW JUDGMENT DELIVERED : 1 NOVEMBER 2002

Transcription

1 Republic of South Africa REPORTABLE IN THE HIGH COURT OF SOUTH AFRICA (CAPE OF GOOD HOPE PROVINCIAL DIVISION) HIGH COURT REF No : 1907/2002 CASE No : D 122/2002 Magistrate s Series No : 171/2002 In the matter of THE STATE and JOHANNES TENTELIL REVIEW JUDGMENT DELIVERED : 1 NOVEMBER 2002

2 2 MOOSA, J: This matter came before me by way of automatic review. The accused was charged with two counts, one of which was driving under the influence of liquor and the other was driving without a valid licence. The accused pleaded guilty to both counts. In respect of the count relating to driving under the influence of alcohol, the trial court applied the provisions of Section 112(1)(b) of the Criminal Procedure Act, No 51 of 1977 ( the Act ). The court was not satisfied that the accused admitted all the elements of the charge and noted a plea of not guilty in terms of Section 113 of the Act. In respect of the count relating to driving without a valid licence, the trial court applied the provisions of Section 112(1)(a) of the Act and found the accused guilty of such charge. The court thereafter postponed the matter for trial in respect of count 1 and sentence in respect of count 2. On the day of the trial, the prosecution put to the accused the alternative charge to count l, namely that he drove the vehicle on the date and the place in question, while the concentration of alcohol in his blood was not less than 0,05 gram per 100 ml. The

3 3 State alleged that it was 0,16 gram per 100 ml. The accused pleaded guilty to the alternative charge. The trial court applied the provisions of Section 112(1)(b) of the Act and found him guilty of the alternative charge. On the first count the court imposed a fine of R1 200 or three months imprisonment and in addition imposed a sentence of 12 months imprisonment which was conditionally suspended for a period of four years. On count two, the court imposed a fine of R400 or one month imprisonment. I might mention that the accused was not assisted by a legal representative during any stage of these proceedings. I was not satisfied that the accused had admitted all the elements of the alternative charge to count 1. When the accused was questioned in terms of Section 112(1)(b) of the Act, on the main charge of count 1, namely drunken driving, the accused, in his reply, did not admit that his capacity to drive was affected by the intake of alcohol, nor did he admit that the blood specimen was taken from him within two hours after the contravention. He, in fact, stated that the blood specimen was taken more than two hours later. When the alternative charge was subsequently put to the accused, he admitted that he drove the vehicle on the day in question while the concentration of alcohol in his blood was 0,16 gram per 100 ml. On this occasion the court did not clarify the time limit within which the blood specimen was taken from the accused. The record,

4 4 according to his earlier statement, reflects that the blood specimen was taken more than two hours after the contravention. In terms of Section 304(2)(a) of the Act, I requested the trial court to furnish me with its reasons for convicting the accused on the alternative charge to count 1. The trial court submitted that the accused admitted all the elements of the alternative charge to count 1. In the trial court s view it was therefore not necessary for the accused to admit that the blood specimen was taken within two hours of the alleged offence. In support of this contention, the court relied on COOPER : MOTOR LAW, Vol 1, 1982 edition, at p 562, point 2. With respect, the passage in question does not support his contention. One of the essential elements of the alternative charge, according to the passage, is that the concentration of alcohol exceeds the statutory limit. In discussing the legal requirements for the proof of this element, Cooper mentions the presumption contained in Section140(2) of the relevant Ordinance. The provision has substantially been imported into Section 65(3) of the National Road Traffic Act, No 93 of 1996 ( the Traffic Act ) which now uniformly applies throughout the country. The only difference between the previous regime and the present regime is that the threshold of the alcohol concentration in the blood has been reduced from 0,08 to 0,05 gram per 100 ml. Cooper at p 653 concludes that: For the presumption to operate the State must establish beyond a

5 5 reasonable doubt through admissible evidence that the specimen of the accused s blood was taken within two hours (my emphasis) of the time of his driving. The relevant part of Section 65(2) of the Traffic Act reads as follows: No person shall on a public road drive a vehicle while the concentration of alcohol in any specimen of blood taken from any part of his or her body is not less than 0,05 gram per 100 millilitres or in the case The State, in proving the concentration of alcohol in the blood of the accused at the time of the alleged offence, could rely on a presumption created in terms of Section 65(3) of the Traffic Act. It reads as follows: If, in any prosecution for an alleged contravention of a provision of subsection 2, it is proved that the concentration of alcohol in any specimen of blood taken from any part of the body of the person concerned was not less than 0,05 gram per 100 millilitres at any time within two hours after the alleged contravention, it shall be presumed, in the absence of evidence to the contrary, that such concentration was not less than 0,05 gram per 100 millilitres at the time of the alleged contravention

6 6 For the presumption to operate, two essential requirements ought to be present. They are, firstly, that a blood specimen from the accused s body had to be taken within two hours of the alleged offence and, secondly, the concentration of alcohol in that blood specimen had to be not less than 0,05 grams per 100 millilitres. The first jurisdictional fact must either be admitted by the accused or there must be other admissible evidence which confirms such fact. (See S v NAIDOO 1985 (2) SA 32 (N) at 38 D F.) MILTON in SOUTH AFRICAN LAW AND PROCEDURE Vol ΙΙΙ (Statutory Offence) 2 nd edition in G3 at 53 reinforces this statement as follows: If there is no evidence as to when the specimen was taken or when the driving occurred, the charge fails unless the State can establish the concentration of alcohol in the accused s blood at the time of the driving by other evidence. (S v ACKERMANN 1967 (2) PH 062 (N).) The second jurisdictional fact, namely the concentration of alcohol in the blood, can be established by the production of a certificate or an affidavit by the analysis expert. In terms of Section 212(4) of the Act, the production thereof is prima facie proof of the findings. In S v NAIDOO (supra) at 41J, Thirion, J, writing the judgment for the full bench, opined: It is advisable, if not essential, that the certificate should be produced to the court in all prosecutions under S 140(2)(a) of Ord 21 of 1966.

7 7 (Now Section 65(3) of the Traffic Act.) In the case under review there is no admission by the accused that his blood specimen was taken within two hours of his driving the motor vehicle in question. In fact, his evidence is to the contrary. He stated that the blood specimen was taken more than two hours after the contravention. The State relied on the presumption to establish that, at the time of the driving, the concentration of alcohol in the accused s blood exceeded the statutory limit. In my view the State has failed to establish an essential jurisdictional fact, namely that the blood specimen was taken within two hours of the contravention, which would have triggered the operation of the presumption. With regard to the second jurisdictional fact, the accused during questioning, in terms of Section 112(1)(b), admitted that, at the time he was driving, the concentration of alcohol in his blood exceeded 0,05 grams per 100 ml and was in fact 0,16 grams per 100 ml. On what basis the accused made such admission is not clear from the record. There is no indication from the record that a certificate or an affidavit had been handed in as an exhibit confirming the result of the blood analysis with regard to the alcohol concentration. It also does not form part of the record that has been placed before me for purpose of review. There is also no indication that the accused made the admission on the strength of a certificate or an affidavit. If no such affidavit or certificate was

8 8 available at the time the accused made the admission, it is not clear from the record what was the source of his information, or did he make the admission on the basis of the ipse dixit of the State? An accused who is not legally presented cannot, as a rule, admit to facts which fall outside the scope of his knowledge unless there are other grounds on which the court could rely for the truth of the admitted fact. (See S v ADAMS & 10 OTHER SIMILAR CASES : 1986(3) SA 733 (C) at 742A D.) The court in S v MAVUNDLA 1976 (4) SA 731 (N) at 733B, sounded the following warning: Extra caution is therefore needed when an undefended accused offers to admit a fact unlikely in the nature of things to be within his own knowledge. In the present case the accused was unrepresented. He could not legally admit to the concentration of alcohol in the specimen of blood taken from him in the absence of a certificate or affidavit in terms of Section 212(4) of the Act or other acceptable evidence. Such information fell outside the scope of his knowledge. In any event, he did not admit that the blood specimen was taken within two hours of the alleged contravention. In the premises, I am not satisfied that the proceedings were in accordance with justice.

9 9 The conviction and sentence in respect of the alternative charge to count 1, are set aside. The case is remitted to the court a quo to enable it to act in terms of Section 113 of the Act.. E MOOSA N C ERASMUS, J: I agree... N C ERASMUS