S v Du Plessis (R36/2021) [2021] ZAFSHC 158 (24 June 2021)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case number: R36/2021

THE

STATE

And

PIETER

DANIEL DU PLESSIS Accused

CORAM: MBHELE ADJP, et DANISO, J

JUDGMENT BY: DANISO, J

DELIVERED ON: 24 JUNE 2021

[1] This is an automatic review of the proceedings pertaining to the conviction of the accused based on his guilty plea on the offence of driving a motor vehicle in excess of the general speed limit in contravention of section 59 (4) (a) of the National Road Traffic Act[1] (“The Act”).

[2] The accused was sentenced to R12 000.00 or 2 months imprisonment of which R8 000.00 or 1 month imprisonment was suspended for a period of 5 years with conditions. The provisions of section 35 of the Act were not invoked.

[3] In terms of section 112 (1) (b) of the Criminal Procedure Act 51 of 1977 an unrepresented accused may be convicted on his plea of guilty provided the court has satisfied itself on the facts stated by the accused that he is indeed guilty by questioning the accused to establish that he admits all the elements of the offence to which he has pleaded guilty.

[4] The speed of a motor vehicle is measured by a Radar. In the reported judgment of this division, S v Phuzi 2019 (2) SACR 648 (FB)[2] citing with approval S v Carstens (R143/2011)

ZAFSHC delivered on 25 August 2011 the court succinctly set out the requirements to be met when questioning an accused to establish his guilt on a charge of exceeding the general speed limit and held that:

“A radar is a measuring instrument. lt is, to state the obvious, a machine and machines malfunction if not properly maintained. The precision of the radar is, like most measuring instruments, dependent on how regularly it is calibrated. lf it is not calibrated regularly, as per the instructions of its manufacturer, it will malfunction. lt is therefore important for the judicial officer to enquire from an unrepresented accused whether s/he admits that the device was functioning properly at the relevant time and whether the calibration certificate was shown to him/her. lf it was not shown to himlher, s/he must be asked whether s/he admits that it was calibrated as required. An accused should also be asked whether s/he admits that the officer who operated the device had been properly trained to do so. lt was not done in this matter.”

[5] In the transcript of the proceedings the following is recorded:

COURT: Did you exceed the speed limit?

ACCUSED:

Yes, Your Worship, I did.

COURT: Did you exceed the speed limit of a 100 kilometres per hour?

ACCUSED:

Yes, Your Worship.

COURT: Now did you exceed the speed limit by travelling at 164 kilometres an hour?

ACCUSED:

They showed me on the camera.

COURT: Who showed you?

ACCUSED:

The traffic official.

COURT: May someone exceed the speed limit of a 100 kilometres an hour on that particular portion of the road being R30?

ACCUSED:

No, Your Worship.

COURT:

Okay, then why did you do it?

ACCUSED: To tell you the truth me and my boy were coming from Klerksdorp, we were singing in the bakkie and I did not realise the speed, so I am guilty.

COURT: Is that an excuse for you to exceed the speed limit?

COURT: Right, I want you have a look at these documents that the state I am sure intends to hand up as an Exhibit before the Court. The first document is an operator’s certificate. Have you had sight of that particular document?

COURT: Do you have any objection to it being handed up as an exhibit before this Court?

COURT: The second document there is that of a calibration certificate of the machine that was used to measure your speed. Have you had sight of it?

ACCUSED:

Yes.

COURT: Do you have any issue with that particular document or an objection to it being handed up and marked as an exhibit before this Court?

ACCUSED:

No.

COURT: Right, the next document is that of an identification certificate. Have you had sight of that document?

COURT: Was it explained to you?

COURT:

Do you have any objection to it being handed up and marked as an exhibit before this Court?

COURT:

The last document is that of the traffic officer, the appointment card of the traffic officer that stopped you. Have you had sight of that document?

COURT:

Right, do you have any objection to it being handed up and marked as an exhibit before this Court?

ACCUSED:

No. Your Worship.

COURT:

Thank you. Does the state accept the facts?

PROSECUTOR: Yes, Your Worship.

COURT: Right, the calibration certificate is marked EXHBIT A for the purpose of the record. The operator’s certificate is marked EXHIBIT B. The copy of the identity card of the traffic officer that stopped you is marked EXHIBIT C. And lastly the identification certificate is marked EXHIBIT D for the purpose of the record.

[6] It is clear from the transcript that no enquiry was made by the learned magistrate to establish whether the accused admits that at the time of the incident the speed measuring device was functioning properly, the calibration certificate was shown to him and that the officer who operated the device had been properly trained to do so.

[7] In his prompt and comprehensive response to the query I addressed in that regard, the learned magistrate concedes that the questioning of the accused was not adequate.

[8] I’m of the view that on facts admitted by the accused it has not been established that the accused admitted all the elements of the offence to which he has pleaded guilty. The inadequacy in the questioning of the accused renders the proceedings to be not in accordance with justice they stand to be set aside.

[9] In the circumstances I make the following order:

(1) The conviction and sentence are set aside.

NS DANISO, J

I concur and it is so ordered.

NM MBHELE, ADJP

[1] Act No. 93 of 1996.

[2] Para [34].