S v Machimana (A541/09) [2009] ZAGPPHC 236 (22 June 2009)
- Citation
- [2009] ZAGPPHC 236
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- M F Legodi, W L Seriti
- Case number
- A541/09
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- M F Legodi, W L Seriti
- Case number
- A541/09
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the accused did not admit all the elements of the offence of driving under the influence of liquor, nor the alternative charge relating to the concentration of alcohol in his breath. The admissions made during questioning were insufficient to justify a conviction under section 112(1)(b) of the Criminal Procedure Act. The conviction and sentence were therefore set aside, and the matter was referred back to the trial court for further questioning to establish whether the accused admits all the elements of either the main or alternative charge. If not, the plea must be changed to not guilty in terms of section 113.
Court disposition
Conviction and sentence set aside; matter referred back to the trial court for further proceedings.
Orders
- Conviction and sentence are set aside.
- The matter is referred to the trial court to further question the accused in terms of section 112(1)(b) of the Criminal Procedure Act to establish if all elements of the offence are admitted.
- If the accused admits all elements and is found guilty, the court should impose an appropriate sentence.
- If the accused does not admit all elements, the plea must be changed to not guilty in terms of section 113 of the Criminal Procedure Act 51 of 1977.
02
Material facts
Parties
State
ApplicantStubbs Machimana
Respondent03
Procedural history
Posture
Review Application / Review Judgment Following Queries to the Magistrate Regarding Conviction.
04
Questions and positions
Legal issues
- 01
Whether the accused admitted all the elements of the offence of driving under the influence of liquor.
- 02
Whether the conviction based on the plea and questioning under section 112(1)(b) was justified.
Party arguments
- Applicant
- The magistrate held the view that the conviction was in accordance with justice, asserting that the accused admitted the elements of the offence. The accused pleaded guilty and answered affirmatively to questions regarding his consumption of liquor and knowledge of the prohibition against driving under the influence.
- Respondent
- The Office of the Director of Public Prosecutions argued that the accused did not admit all the elements of either the main count or the alternative charge. The admissions elicited during questioning were insufficient to justify a conviction under the relevant statutory provisions.
05
Court’s reasoning
Legal principles
- 01
Section 112(1)(b) of the Criminal Procedure Act 51 of 1977
A conviction following a guilty plea under section 112(1)(b) of the Criminal Procedure Act requires that the accused admits all the elements of the offence.
- 02
Section 113 of the Criminal Procedure Act 51 of 1977
If the accused does not admit all the elements of the offence, the plea must be changed to not guilty under section 113.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the accused did not admit all the elements of the offence of driving under the influence of liquor, nor the alternative charge relating to the concentration of alcohol in his breath. The admissions made during questioning were insufficient to justify a conviction under section 112(1)(b) of the Criminal Procedure Act. The conviction and sentence were therefore set aside, and the matter was referred back to the trial court for further questioning to establish whether the accused admits all the elements of either the main or alternative charge. If not, the plea must be changed to not guilty in terms of section 113.
Obiter and limits
- The court shared the view of the Office of the Director of Public Prosecutions that the admissions were insufficient for conviction.
- It is not necessary to elaborate further on the insufficiency of the admissions.
Court disposition
Conviction and sentence set aside; matter referred back to the trial court for further proceedings.
- Conviction and sentence are set aside.
- The matter is referred to the trial court to further question the accused in terms of section 112(1)(b) of the Criminal Procedure Act to establish if all elements of the offence are admitted.
- If the accused admits all elements and is found guilty, the court should impose an appropriate sentence.
- If the accused does not admit all elements, the plea must be changed to not guilty in terms of section 113 of the Criminal Procedure Act 51 of 1977.
Source and reliance status
North Gauteng High Court, Pretoria
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
North Gauteng High Court, Pretoria
Judgment
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG HIGH COURT, PRETORIA)
Magistrate: Lenyenye
High Court ref np.: 60
Magistrate Serial Number: 18/2008
Case no. A445/08
CASE NO:A541/09
DATE:22/06/2009
STATE vs STUBBS MACHIMANA
REVIEW
JUDGMENT
When this matter was initially laid before me, I raised certain queries with the magistrate regarding conviction.
The accused appeared in the magistrate court for the district of Lenyenye on a charge of driving a motor vehicle whilst under the influence of liquor.
In the alternative he was charged with driving a motor vehicle whilst the concentration of alcohol in any specimen of breath exhaled by him was not. less than 0.24 milligrams per 1000 millilitres to wit 0.7S per 1000 millilitres.
He pleaded guilty to the charge and supposedly to the main charge.
Questioning in terms of section 112(l](b) elicited the followings:
that along the road he was stopped by the traffic officers, that the traffic officers were in possession of a machine or an equipment called breathalyzer, that the traffic officers tested alcohol in his breath by using a breathalyser anti that he was told it exceeded the limit, that he did consume liquor on the date in question and that he drank six and half Hunters Dry.
The trial court then enquired from the accused if he knew that It was not allowed to drive while under the influence of liquor and the accused answered in the affirmative. The accused was then convicted based on the answers indicated above which were elicited during questioning.
I enquired from the magistrate if the accused had admitted all the elements justifying a conviction on driving a motor vehicle whilst
under influence of liquor.
The magistrate as I understood her, held the view that conviction was in accordance with justice, that is, the accused admitted the elements of the offence.
The matter was referred to the Office of the Director of Public Prosecutions for comment. In their view, the accused did not admit
all the elements of the main count, nor the alternative charge. I share this view and I do not find it necessary to elaborate.
I would therefore make an order as follows:
1. Conviction and sentence are set aside,
2. The matter is referred to the trial court to proceed as follows:
2.1. further question the in terms of section 112( l)(b) of the Criminal Procedure Act to establish if the accused admits all the elements of the offence either on the main charge or alternative charge,
2.2. should the court, find that the accused admits all the elements of the offence and finds the accused guilty, the court should impose such sentence as it may find appropriate, or
2.3. should the court find that the accused does not admit all the elements of the offence it being either on the main charge or
alternative charge, the court should change the plea to that of not guilty in terms of section 113 of the Criminal Procedure Act 51 of 1977.
M
F LEGODI
JUDGE
OF THE HIGH COURT
It is so ordered
W. L. SERITI
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