S v Ramakatsa (6/2016) [2016] ZAFSHC 14 (4 February 2016)
- Citation
- [2016] ZAFSHC 14
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Free State High Court, Bloemfontein
- Panel
- S. Ebrahim, C. Van Zyl
- Case number
- 6/2016
More details
- Court
- Free State High Court, Bloemfontein
- Panel
- S. Ebrahim, C. Van Zyl
- Case number
- 6/2016
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The proceedings were not conducted in accordance with justice. The magistrate failed to apply the correct procedure for a serious offence by not questioning the accused under section 112(1)(b). The charge sheet did not specify the concentration of alcohol, which is a material element of the offence. The presiding officer dispensed with the suspension of the driver's licence without hearing evidence under oath, contrary to statutory requirements. These irregularities rendered the conviction and sentence invalid.
Court disposition
Conviction and sentence set aside; any monies paid by the accused in satisfaction of the sentence to be repaid immediately.
Orders
- The conviction and sentence are set aside.
- Any monies paid by the accused in satisfaction of the sentence must be repaid to him immediately.
02
Material facts
Parties
The State
ApplicantNyameko Simon Ramakatsa
RespondentAmounts and remedies
- Fine Imposed: ZAR 1,500
03
Procedural history
Posture
Review Application / Special Review Under Section 304(4) of the Criminal Procedure Act
04
Questions and positions
Legal issues
- 01
Whether the conviction under section 112(1)(a) was appropriate given the seriousness of the offence.
- 02
Whether the charge sheet properly indicated the concentration of alcohol found in the accused's blood.
- 03
Whether the magistrate erred by not suspending the accused's driver's licence in accordance with section 35 of the National Road Traffic Act.
- 04
Whether evidence under oath was required before dispensing with suspension or disqualification of the licence.
Party arguments
- Applicant
- The control magistrate submitted that the seriousness of the offence warranted questioning under section 112(1)(b) of the Criminal Procedure Act. The charge sheet did not specify the concentration of alcohol found in the accused's blood. The presiding officer decided not to suspend the accused's driver's licence without hearing evidence or argument, contrary to section 35(3) of the National Road Traffic Act, which requires evidence under oath before dispensing with suspension or disqualification.
- Respondent
- The accused pleaded guilty and accepted the sentence imposed, which included a wholly suspended fine or imprisonment. No argument was advanced regarding the procedural irregularities identified by the control magistrate.
05
Court’s reasoning
Legal principles
- 01
Criminal Procedure Act 51 of 1977
Questioning under section 112(1)(b) is required for serious offences to ensure the accused understands the charge and admits all elements.
- 02
National Road Traffic Act 93 of 1996, section 35(3)
Suspension or disqualification of a driver's licence may only be dispensed with after evidence under oath is presented.
- 03
S v Swartz (86/2013) [2013] ZAFSHC 93
Failure to record the concentration of alcohol in the charge sheet undermines the validity of the conviction.
06
Ratio, limits and disposition
Ratio decidendi
The proceedings were not conducted in accordance with justice. The magistrate failed to apply the correct procedure for a serious offence by not questioning the accused under section 112(1)(b). The charge sheet did not specify the concentration of alcohol, which is a material element of the offence. The presiding officer dispensed with the suspension of the driver's licence without hearing evidence under oath, contrary to statutory requirements. These irregularities rendered the conviction and sentence invalid.
Obiter and limits
- Magistrates must ensure that all procedural requirements are strictly followed, especially in cases involving serious offences.
- The absence of evidence under oath before dispensing with suspension or disqualification of a licence is a material irregularity.
Court disposition
Conviction and sentence set aside; any monies paid by the accused in satisfaction of the sentence to be repaid immediately.
- The conviction and sentence are set aside.
- Any monies paid by the accused in satisfaction of the sentence must be repaid to him immediately.
Source and reliance status
Free State High Court, Bloemfontein
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.
Free State High Court, Bloemfontein
Judgment
IN THE HIGH COURT
OF SOUTH AFRICA
(FREE STATE DIVISION, BLOEMFONTEIN)
Review No.: 6/2016
In the review between:
THE
STATE
and
NYAMEKO
SIMON RAMAKATSA
CORAM:
VAN ZYL, ADJP et EBRAHIM, J
JUDGMENT:
EBRAHIM,
J
DELIVERED ON: 4 FEBRUARY 2016
[1] The accused was charged with the crime of driving whilst the concentration of alcohol in his bloodastream was excessive (Section 65(2)(a) of The National Road Traffic Act 93 of 1996.) He was convicted on his plea of guilty in terms of section 112(1)(a) and sentenced to pay a fine of R1 500,00 or undergo 3 months imprisonment which was wholly suspended on certain conditions.
[2] The control magistrate detected the following irregularities in the matter upon performing a supervisory check and has requested a special review in terms of section 304(4) of the Criminal Procedure Act, 51 of 1977.
“4.1 In view of the seriousness of the offence of contravention section 65(2) of Act 93 of 1996 it is submitted questioning in terms of section 112(1)(b) of Act 51 of 1977 should have been applied.
4.2 The Magistrate should not have convicted the accused in view of the fact the annexure to the charge sheet does not indicate the concentration of alcohol that was found in a sample of blood taken from any part of the body of the accused.
4.3 With regard to the section 35 of Act No. 93 of 1996 enquiry the Honourable Reviewing Judge is respectfully referred to page 2 line 10 of the transcribed record where the presiding officer already expressed the opinion that she was not going to suspend the driver’s licence of the accused before inviting any evidence or address in this regard.
4.4 Section 35(3) of Act 93 of 1996 is to the effect that suspension of licence or disqualification can only be dispensed with after presentation of evidence under oath. (See S v Swartz (86/2013)(2013) ZAFSHC 93). No such evidence had been adduced.”
[3] The control magistrate’s reservations with regard to the conviction and sentence of the accused are well founded. The proceedings were not conducted in accordance with justice for the reasons stipulated by him in his letter. The conviction and sentence is accordingly set aside and any monies paid by the accused in satisfaction of the sentence are to be repaid to him immediately.
_____
S. EBRAHIM, J
I concur.
____
C. VAN ZYL, ADJP
/eb
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