IN THE HIGH COURT OF SOUTH AFRICA (BOPHUTHATSWANA PROVINCIAL DIVISION)

Transcription

1 CA. 120/05 IN THE HIGH COURT OF SOUTH AFRICA (BOPHUTHATSWANA PROVINCIAL DIVISION) In the matter between: THE STATE and OTILENG JOHN TONG REVIEW JUDGMENT ZWIEGELAAR AJ: [1] The Accused was charged with reckless or negligent driving in contravention of Section 63 (1) read with Section 63 (2), 63 (3), 69, 73, 89 (1) and 89 (5) of the National Road Traffic Act, Number 93 of [2] The Accused, who conducted his own defence during the trial proceedings, pleaded not guilty to the aforesaid charge. [3] In terms of Section 115 of the Criminal Procedure Act, Number 51 of 1977 the Accused gave the following explanation of his plea of not guilty:

2 2 I was the driver of the said motor vehicle registration number CJG 169 NW on the said date at Buiten Street in the Rustenburg District. I met a friend of mine whilst leaving Shoprite who asked me to take him to Boitekong. On our way to Boitekong, he took out a Powerade cold drink and opened it and mixed it with some Gordon Gin and asked me to drink it a sit and we went to fetch another friend of ours. I parked the motor vehicle on reaching Boitekong and I was tired and fell asleep in my car. It was 09h00. I woke up at 15h00 only to find out that I was alone my friends were gone. I drove back into town at Buiden, as I was approaching a certain stop street (sign) I tried to apply brakes they failed I couldn t stop and I drove into another car which was in front of me and only bumped it slightly. I eventually managed to stop the car and the owner of the other motor vehicle alighted from his car and we talked I tried to search for my cell phone to call the police and the ambulance only to find that it was missing from my car. The other driver phoned the police. I was arrested only to be released later.

3 3 [3] The State adduced the evidence of the driver of the vehicle into which the vehicle driven by the Accused collided, Mr Johannes Bouwer ( Bouwer ) and that of a Ms Elsa Kruger ( Ms Kruger ). [4] Ms Kruger testified that she did not witness the collision as such but that she had observed the Accused s vehicle prior to it whist driving over a red traffic light nearly collided with her vehicle and very closely missed a pedestrian. [5] Ms Kruger further testified that the Accused s vehicle was driven in a zig zag fashion as if the driver was drunk. [6] Bouwer testified that he was driving a vehicle with registration DIC 970 NW when at the corner of Thabo Mbeki and Buiten Streets in Rustenburg East the Accused s vehicle collided into the back of his vehicle. [7] Bouwer testified that he noticed the Accused s vehicle shortly before the incident in the rearview mirror of his vehicle. [8] According to Bouwer the Accused s vehicle was driven at a high speed in a zig zag fashion. [9] When he approached the Accused subsequent to the collision he formed the impression that the Accused was drunk as his speech was blurred and his movements were incoherent. [10] According to Bouwer the Accused could not stand up

4 4 straight. [11] When giving evidence in his defence the Accused testified that he met with his passenger at approximately 09h00 on the day in question. [12] The Accused testified that when his passenger initially offered him a drink from the bottle of Powerrade the bottle was still sealed and full and that he himself opened it before he took approximately three sips from it. [13] According to the Accused he then handed the bottle to his passenger who after having drank from it mixed it with Gordon s Gin. [14] The Accused testified that when his passenger offered it again to him he declined it and told his passenger that he is a teetotaller. [15] The Accused testified that he woke up at 15h00 whereafter he drove back to Rustenburg. [16] He testified that as he could not stop at the T Junction he collided with the vehicle in front of him. [17] According to the Accused he got out of his vehicle and went to the other vehicle after the collision. [18] The Accused testified that he could not walk properly as he was staggering and he could also not speak properly as his speech was blurred.

5 5 [19] The Accused testified that he when he looked for his cellular phone to call the South African Police Service he discovered that it was missing together with his money and banking cards. [20] During cross examination the Accused testified that he was driving to 60 km/h at the time and that had the brakes of his vehicle not failed he would have been able to stop. [21] When asked during cross examination why he had not disputed Bouwer s evidence that he was driving at a high speed the Accused just remained quiet. [22] During his address on the merits the Accused stated that the negligence was due to the drink that I had earlier. [23] The learned Magistrate found the Accused guilty as charged. [24] According to the SAP 69 Form, which was admitted as Exhibit A, the Accused had no previous convictions. [25] In mitigation of sentence the Accused placed on record that he is 47 years of age, married with five children aged 19, 17, 15, 13 and 10 years respectively all of whom are attending school, that he is employed at Impala Mine as an Impresser operator earning approximately R per month and that his wife is unemployed. [26] The Accused also confirmed that he is a first offender.

6 6 [27] The Accused submitted that an appropriate sentence would be a suspended sentence or a fine. [28] The Accused indicated that he would be able to pay a fine of R [30] The Accused was sentenced to six (6) months imprisonment or a fine of two thousand rand or ( ) wholly suspended for a period of three years in which the Accused is not convicted contravening National Traffic Act during the period of suspension. [31] On automatic review the Magistrate was requested to comment on the following: 1. Is the period of suspension (three months) not too short? Should it not be a long period in order for it to be of any practical value? 2. Was it the Magistrate s intention to direct that the Accused should not again be convicted within the period of suspension or was it the intention to order that the Accused should not again be convicted of an offence committed during the period of suspension.? 3. Should the condition of suspension not state the section and number of the Statute that the Accused should not again contravene with clarity and if so what is the number of the section and Statute the Magistrate had in mind? 4. Should the fine not be imposed with

7 7 imprisonment as the alternative thereto and not the other way round (as the Magistrate has ordered)?

8 8 [32] The Magistrate s answer to the aforesaid reads as follows: 1. The J15 does not reflect 3 months the intention was to say 3 years this was a typing error which the typist inserted as there is no such in the J This is truly a matter of semantics as the sentence clearly states that the Accused should be convicted of contravening Sections of the National Traffic Act during the period of suspension e.g.. Shortened for contravening of Section that I usually use due to a small space in J15 in which to write the sentence. [33] The Accused s defence appears to be twofold in nature, namely, firstly involuntary intoxication and secondly sudden emergency. [34] Involuntary intoxication is intoxication brought about without the conscious and free intervention of the affected person. [35] For example, like in the matter of S v Els 1972 (4) SA 696 TPD where the accused, who was charged with driving a vehicle under the influence of intoxicating liquor and who was suffering from porphyria, an hereditary disease in which the sufferer may show all the symptoms of drunkenness except for the smell of alcoholic liquor, without any alcohol having been consumed, gave evidence that he attended a party at his brother s house on the evening of his arrest, and was given two drinks which he assumed to be beer shandies, these being the drinks he had asked for. However, he discovered subsequently,

9 9 when his suspicions were aroused on hearing the result of the blood analysis, that his brother had added vodka to what appeared to be an innocent beer shandy. The accused said that he had no knowledge of this. His only observation at the time was that he found it to be a pleasing drink and asked for another. When at the later stage he asked his brother about the possible causes of his drunkenness on that evening, his brother first denied having done anything, but subsequently admitted that he added vodka. [36] Involuntarily intoxication is a complete defence on a charge of a crime committed during the intoxication. [37] The reason for this is that as the offender could not have prevented it, he or she can therefore not be blamed for it. [38] As regards his defence of involuntarily intoxication the version of the Accused in the instant matter entails that he had no knowledge of the effect which the soft drink offered to him by his passenger would have upon him, because the latter must have doctored it by the addition of one or another unknown drug which caused his incapacity. [39] It is trite law that when the defence of an accused is that he became intoxicated through no fault on his own that the correct test is whether the State has proved its case beyond a reasonable doubt and that no onus is placed on an accused to prove affirmatively on a balance of probabilities that intoxicating liquor or a drug had been administered to him without his knowledge and that had it not been so

10 10 administered, he would not have been in the condition he was in at the time. If it appears from the evidence as a whole that there was a reasonable possibility and there was no culpa on the part of an accused then he is entitled to his acquittal. S v Fouché 1974 (1) SA 96 (AA) at 101 H to 102 A; and S v Hartyani 1980 (3) SA TPD. [40] It appears that the State has not disputed the Accused s evidence that his passenger offered him a soft drink. [41] The State s attack on the Accused s evidence has been limited to the following: Question: The drink also had no effect because you said you could drive from where you had parked up until the place of the collision. Answer: Question: Answer: Question: Answer: Correct. You slept for several hours before driving? Correct. I put it to you that you were negligent on that day. No answer. [42] In this regard the following submission was made on behalf of the State: If it was the drink he slept well enough for seven hours he remembered well the robots and stop signs

11 11 where he stopped. [43] It is, however, so that the evidence of the State witnesses clearly indicated that the Accused was under the influence at the time of the collision. [44] It is also of importance that the State has not adduced any medical evidence regarding the state of sobriety of the Accused at the time of the collision such as an analysis of a sample of his blood or evidence regarding the processes and time periods involved in the absorption of alcohol or a drug in the blood stream and its elimination. [45] I am satisfied that on the evidence as a whole it is clear that the Accused was under the influence. [46] The next question for consideration is whether his aforesaid condition was through any fault of the Accused s own or not. [47] I am satisfied that on the evidence as a whole it is reasonably possibly true that it was through no fault of the Accused. [48] In reaching the aforesaid conclusion I took the apparent improbability that the contents of a sealed container could have been tampered with into consideration. [49] The Accused did not give any description of the nature of

12 12 the container in which the Powerade was or of its stopper or seal. [50] During cross examination on behalf of the State he was also not asked for such a description. [51] In the absence of such evidence no judicial notice may be taken of the nature of the container. [52] I am of the view that the possibility that it could have been tampered with cannot be ruled out beyond a reasonable doubt. [53] I am therefore satisfied that the State has failed to proof any culpability on the side of the Accused and that he could therefore not have contravened the provisions of Section 63 (1) or (2) of the National Road Traffic Act, Number 93 of [54] I am not impressed with the defence of sudden emergency as raised by the Accused in the circumstances of the present matter especially in view thereof that when it was put to the Accused during cross examination on behalf of the State that there was nothing wrong with the brakes of his vehicle that he indicated that he agrees with the aforesaid statement. [55] I am, however, of the view that the conviction ought to be set aside and intend to make an order to such effect. [56] Before I do so, I consider it appropriate to make the

13 13 following remarks regarding the fact that the Magistrate found the Accused guilty as charged. [57] Section 63 (1) of the National Road Traffic Act, Number 93 of 1996, creates two separate crimes, namely reckless driving and negligent driving. [58] If an accused person is charged with contravening the Section 63 (1) he is in fact charged with reckless driving and alternatively with negligent driving. [59] A court must then convict him either of reckless or negligent driving. [60] In view of the aforesaid, I am of the view that the Magistrate s verdict of guilty as charged is not a competent one. [61] As regards the sentence imposed by the Magistrate and more specifically the condition of suspension the following remarks are called for: 61.1 It was held in S v Malgas and Others 1979 (3) SA 178 (A) at 181 that where a condition of suspension is related to prevention of criminal conduct by the accused it should be made clear that the conviction of an offence committed within the period of suspension will break the condition It was held in S v Rundwa 1961 (3) SA 545 (O) and S v Rulashe 1970 (2) SA 724 (O) that a

14 14 sentence of imprisonment or the payment of a fine is not a competent sentence A fine is thus imposed with imprisonment as alternative in the event of the fine, and not the other way round It was held in Rex v Cloete 1950 (4) SA 191 (E DLD) at 192 F to G that at least two principles should be observed in the imposition of conditions of suspension. The first is that the condition imposed should bear at least some relationship to the circumstances of the crime which is being punished by the imposition of the suspended sentence. It need not be closely related but should be related to it in some degree at least, even though slightly related and not divorced from it, or remote from it. The second is that the condition be stated with such precision that the convicted person may understand the ambit of the condition It was held in S v Van den Berg 1976 (2) SA 232 (TPD) at 234 E that in the considerations of the conditions of suspension of sentence to be imposed the offender, his character, his past and his weaknesses should also not be lost sight of It was further held in S v Van Dyk (supra) at 235 A that it is understandable that a large number of offences, even if her is a relationship between them,

15 15 should be included in the condition of suspension The National Road Traffic Act, Number 93 of 1996, creates a multitude of offences In this regard it is of significance to note that Section 89 (1) provides that any person who contravenes or fails to comply with any provision of the Act or with any direction, condition, demand, determination, requirement, term or request there under shall be guilty of an offence, whilst the effect of he provisions of Section 89 (2) is that any person convicted of an offence in terms of Section 89 (1) read with Section 42 (1) (operating a motor vehicle which is not in road worthy condition on a public road) or (2) (operating a motor vehicle which is not complying with the requirements in respect of a certification of roadworthiness in relation to such motor vehicle on a public road), 44 (1) (operating a motor vehicle on a public road in respect of which a notice to discontinue its operation has been issued), 45 (2) (failure of a registering authority to submit the particulars of a registered owner to the Member of the Executive Council responsible for road traffic matters within seven days of the registration of such operator), 46 (1) (failure of a registering authority to issue an operator card), 65 (1) (driving a vehicle or occupying the driver s seat of a motor vehicle the engine of which is running while under the influence of intoxicating liquor or drug having a narcotic effect), (2) (driving a vehicle or occupying the

16 16 driver s seat of a motor vehicle the engine of which is running with an excessive amount of alcohol in the blood) and (5) (breath) (a) (refusing the taking of a specimen of blood or breath), 17 (4) (wilfully or negligent issuing or authorising of a learner s licence contrary to the provisions of chapter IV) 18 (5) (wilfully or negligently issuing, authorising the issue or undersign or failing to endorse a driver s licence contrary to the provisions of Section 17) 59 (4) (driving a vehicle on a public road at a speed in excess of the general or prescribed speed limit), 61 (2) (removing a vehicle involved in an accident in which another person is killed or injured from the position in which it come to rest, until such removal has been authorised by a traffic officer), 66 (3) (without lawful excuse temper with a vehicle or any part of the equipment or the accessories of any vehicle or wilfully damage it, or throw any object at such a vehicle, 68 (1) (2) (3) (4) and (6) (unlawful acts in relation to registration plates, registration mark or certain documents), 61 (1) (failure to comply with duty of driver in event of accident) and 68 (1) (reckless or negligent driving of a vehicle) The aforesaid clearly shows not only the multitude of offences created by the National Road Traffic Act, Number 93 of 1996, but also the diversity thereof What relationship there can be between driving vehicle recklessly or negligently and a registering authority failing to submit the

17 17 particulars of a registered owner to the Member of the Executive responsible for road traffic matters In view of the aforesaid it is clear that a more referral to the National Road Traffic Act, Number 93 of 1996, in a condition of suspension is much too wide I am further of the view that to merely refer to any offence relating to the actual driving of a car as was done in the matter of Rex v Cloete (supra) is also too wide as it is clear from the provisions of Sections 63 (1), 64, 65 (1) (a), 65 (2) (a), 62, 66 and 59 (4) that the offences created by the National Road Traffic Act, Number 93 of 1996, involving the driving of a vehicle are also diverse in nature Had it been required from me to consider the sentence I would have set aside the condition of suspension imposed by the Magistrate and substituted same with the following: on condition that the Accused is not convicted of contravention of Section 63 (1) of the National Road Traffic Act, Number 93 of 1996, involving the negligent driving of a vehicle. [62] The following order is made: The conviction and sentence is set aside.

18 18 C.J. ZWIEGELAAR ACTING JUDGE OF THE HIGH COURT I agree M.M. LEEUW JUDGE OF THE HIGH COURT DATED:..