S v Khenene (50/02) [2002] ZANWHC 26 (27 June 2002)

CA NO.50/02

IN

THE HIGH COURT OF SOUTH AFRICA

BOPHUTHATSWANA

PROVINCIAL DIVISION

THE STATE

VS

MANDLA B. KHENENE

REVIEW

Pako AJ: The accused stood trial at the magistrate’s court on two counts. Count 1 relates to driving a motor vehicle on a public road whilst under the influence of intoxicating liquor in contravention of section 65 (1) (a) of Act 93 of 1996. In count 2 he is charged with contravening section 12(a) of Act 93 of 1996 for driving a motor vehicle on a public road without a licence. He pleaded guilty to these counts. He was found guilty in respect of both counts. The sentence imposed is as follows:-

“Count 1

Four thousand rands (R4000-00) or twenty four (24) months imprisonment, half of which is suspended for three (3) years on condition that accused is not convicted of the offence of contravening section 65(1) (a) of Act 93 of 1996 (Driving whilst under the influence of intoxicating liquor) committed during the period of suspension. Further that accused is disqualified to obtain (sic) a driver’s license for the period of 2 years i.t.o sec 35(2).

Count 2 Six hundred rands (R600-00) or three (3) months imprisonment wholly suspended for a period of three (3) years on condition that accused is not convicted of the offence of c/s. 12 (a) Driving without a licence, committed during the period of suspension”. The following are facts which led to these proceedings. On the 14 June 2001 the accused consumed a lot of beer. As a result of this consumption, he became so intoxicated that when he drove the motor vehicle in question on Ledig-Bakubung public road, he lost control and collided with another motor vehicle. The record is silent as to whether any person was injured or not. I will assume that no person was injured. When the matter came before me on automatic review, I raised amongst others, the following queries (now in a summary form): “1. Why did the presiding officer convict the accused in respect of count 1 in the absence of admission by accused that he drove a motor vehicle on a public road?

2. Was the charge in count 2 not fatally defective because of lack of allegation in the charge sheet that the accused drove on a public road?

3. Why did the magistrate, before imposing sentence in respect of count 1, not comply with the peremptory provisions of section 35(4) of Act 93 of 1996 by informing the accused of the provisions of sub-section (2) and sub-section (3) of section 35? Can the disqualification to obtain a driver’s licence stand without the accused having been informed of such provisions?”

Count 2

Six hundred rands (R600-00) or three (3) months imprisonment wholly suspended for a period of three (3) years on condition that accused is not convicted of the offence of c/s. 12 (a) Driving without a licence, committed during the period of suspension”.

The following are facts which led to these proceedings. On the 14 June 2001 the accused consumed a lot of beer. As a result of this consumption, he became so intoxicated that when he drove the motor vehicle in question on Ledig-Bakubung public road, he lost control and collided with another motor vehicle. The record is silent as to whether any person was injured or not. I will assume that no person was injured.

When the matter came before me on automatic review, I raised amongst others, the following queries (now in a summary form):

“1. Why did the presiding officer convict the accused in respect of count 1 in the absence of admission by accused that he drove a motor vehicle on a public road?

2. Was the charge in count 2 not fatally defective because of lack of allegation in the charge sheet that the accused drove on a public road?

3. Why did the magistrate, before imposing sentence in respect of count 1, not comply with the peremptory provisions of section 35(4) of Act 93 of 1996 by informing the accused of the provisions of sub-section (2) and sub-section (3) of section 35? Can the disqualification to obtain a driver’s licence stand without the accused having been informed of such provisions?”

The learned magistrate responded to the afore-said queries. I am satisfied with and impressed by the comprehensive response of the magistrate. I am satisfied that the defect and omission I mentioned in my query were cured by admissions made by the accused in response to the questions in terms of section 112 (1) (b) of Act 51 of 1977 in regard to count 2. The learned magistrate also, quite correctly, conceded that in view of the fact that she did not inform the accused of the provisions of section 35(1) and 35(2) as provided in section 35(4) of the National Road Traffic Act (Act 93 of f1996) the order for disqualification of the accused from obtaining a driver’s licence cannot stand. The conviction and sentence are, in my view, in order and they must be confirmed. The order for disqualification of the accused from obtaining a driver’s licence cannot stand in view of the violation of the accused’s right to a fair trial entrenched in section 35(3) of the Constitution Act 108 of 1996. The reason to inform the accused of the provisions of sections 35(1) and 35(2) of Act 93 of 1996 is to enable the court to decide whether circumstances exist which do not justify the disqualification referred to in section 35(2) (See section 35(3) of Act 93 of 1996). A failure to inform the accused of the afore-said provisions and to afford him the opportunity to address the court on the question of disqualification and the period of disqualification amounts to denial of the right to a fair trial. The order for disqualification of the accused from obtaining a driver’s license has to be set aside. For the afore-going reasons I make the following order: 1. The conviction and sentence in respect of both counts are confirmed.

The learned magistrate responded to the afore-said queries. I am satisfied with and impressed by the comprehensive response of the magistrate. I am satisfied that the defect and omission I mentioned in my query were cured by admissions made by the accused in response to the questions in terms of section 112 (1) (b) of Act 51 of 1977 in regard to count 2. The learned magistrate also, quite correctly, conceded that in view of the fact that she did not inform the accused of the provisions of section 35(1) and 35(2) as provided in section 35(4) of the National Road Traffic Act (Act 93 of f1996) the order for disqualification of the accused from obtaining a driver’s licence cannot stand.

The conviction and sentence are, in my view, in order and they must be confirmed. The order for disqualification of the accused from obtaining a driver’s licence cannot stand in view of the violation of the accused’s right to a fair trial entrenched in section 35(3) of the Constitution Act 108 of 1996.

The reason to inform the accused of the provisions of sections 35(1) and 35(2) of Act 93 of 1996 is to enable the court to decide whether circumstances exist which do not justify the disqualification referred to in section 35(2) (See section 35(3) of Act 93 of 1996). A failure to inform the accused of the afore-said provisions and to afford him the opportunity to address the court on the question of disqualification and the period of disqualification amounts to denial of the right to a fair trial. The order for disqualification of the accused from obtaining a driver’s license has to be set aside.

For the afore-going reasons I make the following order:

1. The conviction and sentence in respect of both counts are confirmed.

The order for disqualification of the accused from obtaining a driver’s license for a period of two years is set aside and the case is remitted to the magistrate to comply with the provisions of sections 35(3) and 35(4) of Act 93 of 1996.

O.A. PAKO

ACTING JUDGE OF THE HIGH COURT

I agree

B.E. NKABINDE

JUDGE OF THE HIGH COURT

DATED: 27 JUNE 2002