S v Maqam (R86/2021) [2021] ZAFSHC 325 (18 November 2021)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION,

BLOEMFONTEIN

Case No: R86/2021

In the matter between:

THE

STATE

and

THABILE

MAQAM

CORAM: MOLITSOANE, J et DANISO, J

JUDGMENT BY: MOLITSOANE, J

DELIVERED ON: 18 NOVEMBER 2021

[1] This matter is before us in terms of section 304(4) of Act, 51 of 1977 (the CPA) for special review. The accused was charged with contravention of section 65(2)(a) read with certain provisions of the National Road Traffic Act, 93 of 1996 (the Act)- driving a vehicle whilst the concentration of alcohol in the blood exceeded the legal limit.

[2] He was convicted and sentenced to a fine of R10 000 or 6 month’s imprisonment which was suspended with certain conditions. The court, acting in terms of s35(3) of the Act, further ordered that the suspension of the accused’s driver’s licence should not take effect.

[3] Upon his plea, the legal representative of the accused handed in as evidence a statement in terms of s112(2) of the CPA. The first part of this statement is a regurgitation of the charge sheet and simply states that the accused admits guilt on the charges levelled against him. The second part contains the factual matrix upon which a conviction was based and we quote same in full as follows:

“I confirm that on the abovementioned day, I was from a friend’s party on the previous day (23 February 2019) and we drank a lot of beer on that night, and I went home at around 3am on the 24 February 2019. I then woke up at 10am and I had to go to town to buy some groceries. I was stopped by the Traffic Officer with my full cooperation and she could smell alcohol from me as I was answering her questions and I was arrested.

I knew at all times that it was wrong to operate a motor vehicle while I was with a high volume of alcohol in my system.

I confirm that I have no defence in law that I can raise and I hereby plead guilty.”

[4] The view of the Senior Magistrate is that the conviction cannot be sustained as the accused did not admit:

a) That the blood sample was drawn, sealed and sent for analysis;

b) That the blood was drawn within two hours after the accused drove the vehicle.

[5] With regard to an order in terms of s35(3) the Senior Magistrate is of the view that no evidence under oath relating to the offence as to why the accused’s driver’s licence should not be suspended, was led.

[6] The following encapsulates the response of the Magistrate seized with the trial to the issues raised by the Senior Magistrate:

“1. The accused was charged with contravening s65(2)(a) Act 93 of 1996-excessive amount of alcohol in blood and pleaded guilty in terms of s112(2) Act 51 of 1977.

2. In his statement, the accused admitted to driving a motor vehicle with excessive alcohol in his blood.

3. The facts did not disclose that his blood was drawn within 2 hours of being stopped by the traffic officer, nor did he explain that the blood was properly drawn, sealed and sent for analysis.

4. The accused submitted the s212 certificate as an exhibit but did not state in his statement that the results of the blood test were per the s212 certificate.

5. I admit that the accused has admitted to the elements of the offence but does not disclose the facts pertaining to the blood specimen.”

[7] Section 65(2)(a) of the Act provides 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 of a professional driver referred to in section 32, not less than 0,02 gram per 100 millilitres.”

[8] Section 65(3) of the Act creates a presumption on which the state may rely in order to prove the concentration of alcohol in the blood of the accused at the time of the alleged offence. It states 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…..”

[9] The court in S v Tentelil[1] held as follows with regard to the presumption in s65(3):

“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 that fact.”

[10] A closer look at the statement handed in terms of s112(2) indicates that the first jurisdictional fact as set out in Tentelil (supra) was not satisfied. The statement is silent as to when the accused drove the vehicle. What is said is only that he woke up at 10h00 and had to go to town to buy groceries. We know when he woke up but do not know when he left to town.

[11] The statement is silent as to the time when the accused was stopped by the traffic officer. The statement is further silent as to when his blood specimen was drawn for the purposes of analysis of alcohol in his blood. In these circumstances it cannot be said that the blood was drawn within two hours as envisaged by s65(3). The accused did not admit that blood was drawn within two hours. The state did not tender admissible evidence to confirm that the blood of the accused was drawn within two hours of commission of the offence.

[12] In the absence of proof of the first jurisdictional fact envisaged in s65(3), the court ought to have entered a plea of not guilty in terms of s113 of the CPA. Seeing that the court a quo failed to do so I am not satisfied that, on this point alone, that the proceedings were in accordance with justice. There is accordingly no need to deal with other issues raised by the Senior Magistrate. The course set out in s312 of the CPA ought to be followed. I accordingly make this order:

ORDER

1. The conviction, sentence and order made in terms of section 35(3) of the National Road Traffic Act, 93 of 1996 are hereby set aside.

2. The case is remitted to the court a quo to enable it to act in terms of s113 of the Criminal Procedure Act, 51 of 1977.

P. E. MOLITSOANE,

J

I concur.

N.S. DANISO, J

[1] (D122/ 2002) [2002]ZAWCHC 57 (1 November 2002).