S v Modiakgotla (88/01) [2001] ZANWHC 41 (4 October 2001)

CA NO : 88/01

IN THE

HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

THE

STATE

vs

BENEDICT

TSHEPO MODIAKGOTLA

REVIEW:

LEEUW J:

The accused was arraigned of the following charges in terms of the Road Traffic Act No 93 of 1996 (The Act):

(a) Count 1: Contravention of section 63 : Reckless or Negligent Driving in the alternative contravention of section 64 : Inconsiderate Driving

(b) Count 2 : Contravention of section 12 (a): Driving without a valid driver’s licence;

(c) Count 3 : Contravention of section 61 (1) (a) : Failure to stop after an accident;

(d) Count 4 : Contravention of section 61 (1) (b) : Failure to ascertain the Nature and extent of any injury sustained by any person after an accident.

The accused, who is Fourteen (14) years old and represented by his guardian, pleaded guilty to all the counts. The Magistrate questioned the accused in terms of section 112 of the Criminal Procedure Act on all counts and the plea of guilty on all charges was accepted by the public prosecutor. The Magistrate then stated the following on convicting the accused: “You pleaded guilty to the charges that were put to you. The State has accepted your plea of guilty on all charges after section 112 proceedings. I am satisfied that you have correctly pleaded guilty as you admitted all the elements of the charges as put to you. You are therefore found guilty as charged.” During questioning on count 1, the accused stated that he drove his vehicle recklessly in that he was driving at 120 km/h and made a sharp turn without indicating and as a result collided with a pedestrian. On count 1, the accused was charged with Reckless or Negligent driving, in the alternative inconsiderate driving. It is therefore not clear from the Magistrate‘s verdict whether the accused is convicted of reckless or negligent driving or the alternative charge. From the questioning, it is not clear as to whether the collision with the pedestrian happened on the road itself or on the side of the road.

The accused, who is Fourteen (14) years old and represented by his guardian, pleaded guilty to all the counts.

The Magistrate questioned the accused in terms of section 112 of the Criminal Procedure Act on all counts and the plea of guilty on all charges was accepted by the public prosecutor.

The Magistrate then stated the following on convicting the accused:

“You pleaded guilty to the charges that were put to you. The State has accepted your plea of guilty on all charges after section 112 proceedings. I am satisfied that you have correctly pleaded guilty as you admitted all the elements of the charges as put to you. You are therefore found guilty as charged.”

During questioning on count 1, the accused stated that he drove his vehicle recklessly in that he was driving at 120 km/h and made a sharp turn without indicating and as a result collided with a pedestrian.

On count 1, the accused was charged with Reckless or Negligent driving, in the alternative inconsiderate driving. It is therefore not clear from the Magistrate‘s verdict whether the accused is convicted of reckless or negligent driving or the alternative charge.

From the questioning, it is not clear as to whether the collision with the pedestrian happened on the road itself or on the side of the road.

The other charges are closely related to the first count. Taking into account the fact that the accused is 14 years old and further that he has no driver’s licence, it would be essential for the Magistrate to establish whether the accused was fully aware of the provisions of the Act which pertain to failure to stop or assessing the nature of injuries after the accident. The Learned Magistrate ought to have entered a plea of not guilty in terms of section 113 of the Criminal Procedure Act and the State would have had to lead evidence to prove the elements of unlawfulness. The sentence imposed does not seem to be appropriate under the circumstances. The accused is 14 years old, and a sentence in terms of section 297 (1) (a) (i) (dd) (conditional postponement), is most appropriate for one who requires rehabilitation usually because of some illness or other problem. See S v S 1977 (3) SA 830 (A). Furthermore, it is inappropriate for a presiding officer to give a probation officer a discretion with regard to what the accused must do in order not to break the conditions of a suspended sentence. See S v Schultz 1991 (1) SACR 679 (E). The proceedings were therefore not in order and the following order is accordingly made: “1. The conviction and sentence are set aside.

2. The proceedings are remitted to the Magistrate in terms of section 324 of the Criminal Procedure Act No 51 of 1977; 3. A plea of not guilty in terms of section 113 of the Criminal Procedure Act should be entered;

The other charges are closely related to the first count. Taking into account the fact that the accused is 14 years old and further that he has no driver’s licence, it would be essential for the Magistrate to establish whether the accused was fully aware of the provisions of the Act which pertain to failure to stop or assessing the nature of injuries after the accident.

The Learned Magistrate ought to have entered a plea of not guilty in terms of section 113 of the Criminal Procedure Act and the State would have had to lead evidence to prove the elements of unlawfulness.

The sentence imposed does not seem to be appropriate under the circumstances. The accused is 14 years old, and a sentence in terms of section 297 (1) (a) (i) (dd) (conditional postponement), is most appropriate for one who requires rehabilitation usually because of some illness or other problem. See S v S 1977 (3) SA 830 (A). Furthermore, it is inappropriate for a presiding officer to give a probation officer a discretion with regard to what the accused must do in order not to break the conditions of a suspended sentence. See S v Schultz 1991 (1) SACR 679 (E).

The proceedings were therefore not in order and the following order is accordingly made:

“1. The conviction and sentence are set aside.

2. The proceedings are remitted to the Magistrate in terms of section 324 of the Criminal Procedure Act No 51 of 1977;

3. A plea of not guilty in terms of section 113 of the Criminal Procedure Act should be entered;

4 The matter should be heard by a different presiding officer from the one who originally tried the accused.”

M

M LEEUW

JUDGE

OF THE HIGH COURT 4 OCTOBER 2001

4 The matter should be heard by a different presiding officer from the one who originally tried the accused.”

M

M LEEUW

JUDGE

OF THE HIGH COURT

4 OCTOBER 2001