S v Nkuna (B221/08) [2009] ZAGPPHC 301 (2 September 2009)
The High Court found that the evidence presented at trial related to the concentration of alcohol in the accused's blood, not breath, as charged in count 2. The defect in the charge sheet could not be cured by evidence at trial because the accused was unrepresented and would be severely prejudiced by a substitution...
Source-derived case information.
- Citation
- [2009] ZAGPPHC 301
- Parties
- Applicant: The State; Respondent: Loyd Nkuna
- Court
- North Gauteng High Court, Pretoria
- Jurisdiction
- South Africa
- Case Number
- B221/08
- Procedural Posture
- Review Application / High Court Review of Magistrate's Conviction and Sentence
- Outcome
- Conviction and sentence on count 1 (culpable homicide) confirmed; conviction and sentence on count 2 (contravention of section 65(5)(a) of the National Road Traffic Act) set aside.
- Judges
- C J Eksteen, C Botha
- Legal Topics
- Culpable Homicide, Driving Under Influence, National Road Traffic Act, Charge Sheet Defect, Review Proceedings
Source-derived case record
Summary, issues, holding and outcome
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Parties
The State
Applicant
Loyd Nkuna
Respondent
Procedural Posture
Review Application / High Court Review of Magistrate's Conviction and Sentence
Legal Issues
- 1 Whether the conviction and sentence on count 2 (contravention of section 65(5)(a) of the National Road Traffic Act) were valid in light of the evidence presented.
- 2 Whether the defect in the charge sheet could be cured by evidence at trial under section 88 of Act 51 of 1977.
- 3 Whether substituting the conviction on count 2 would prejudice the accused.
Ratio Decidendi
The High Court found that the evidence presented at trial related to the concentration of alcohol in the accused's blood, not breath, as charged in count 2. The defect in the charge sheet could not be cured by evidence at trial because the accused was unrepresented and would be severely prejudiced by a substitution of the conviction. The facts were distinguished from previous cases where amendments were allowed. Accordingly, the conviction and sentence on count 2 were set aside, while those on count 1 (culpable homicide) were confirmed.
Court Disposition
Conviction and sentence on count 1 (culpable homicide) confirmed; conviction and sentence on count 2 (contravention of section 65(5)(a) of the National Road Traffic Act) set aside.
Orders
- The conviction and sentence on count 1 are confirmed.
- The conviction and sentence on count 2 are set aside.
Full Case Text
Judgment text and source record
30 paragraphs
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy
LVS
IN THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG HIGH COURT, PRETORIA)
DATE: 2 SEPTEMBER 2009
NOT REPORTABLE
MAGISTRATE MALAMULELE
Case No: B221/08
Magistrate’s serial no: 66/08
High Court Ref No: 2208
THE STATE VS LOYD NKUNA
REVIEW JUDGMENT
EKSTEEN AJ:
The accused, a [……..], was convicted of charges of culpable homicide and secondly contravening the provisions of Section 65(5)(a) of the National Road Traffic Act 93 of 1996 (excessive amount of alcohol in breath).
The accused was sentenced on 30 July 2008 to pay a fine of ten thousand rand (R10 000.00) of two (2) years imprisonment on count 1. On count 2 the accused was sentenced to pay a fine of twenty thousand rand (R20 000.00) or three (3) years imprisonment. The accused conducted his own defence.
The case was sent on review and the High Court after requested the magistrate for reasons. The case was forwarded to the Director of Public Prosecutions for comment. It was submitted by the state advocate that there was no evidence tendered by the prosecution in respect of the concentration of alcohol in any specimen of breath by the accused
The evidence tendered was in respect of driving with an excessive concentration of alcohol in the blood, being 0.14 gram per 100
millilitres.
The state submitted further “.... That the proceedings are clearly in accordance with broad justice" In terms of section 88 of Act 51 of 1977 the defect in the charge will in any event be cured by evidence at the trial providing the matter which should have been averred. The accused disputed the chain evidence in respect of the sample, clearly conducted his defence with knowledge that the state was alleging that he drove the vehicle while the concentration of alcohol in his blood exceeded the legal minimum that for record purposes the conviction on count 2 van safely be substituted with one of contravention of section 65(2) of Act 93 of 1996.
In S v Hugo 1976(4) SA 536 A the conviction was set aside on the basis of prejudice because evidence had been admitted regarding an allegation which did not appear in the charge An amendment was refused on the grounds of prejudice. In S v Maqelepo 1999(1) SACR 382(0) it was held that, where the evidence adduced, on the one hand, and the allegation contained in the charge sheet, on the other, were of such a nature that the evidence proved an offence other than the alleged in the charge sheet, the difference could not be remedied by section 86
The facts in casu have to be distinguished from the facts in S v Mhlango 2005(1) SACR 209(T).
To comply with the state's submission will be severely prejudiced to an undefended accused
In the result the following order is made:
1. The conviction and sentence on count 1 is confirmed.
2. The conviction and sentence on count 2 is set aside.
C.J EKSTEEN
ACTING JUDGE OF THE HIGH COURT
I agree
C BOTHA
JUDGE OF THE HIGH COURT