Van der Bank v S (A53/2021) [2021] ZAWCHC 262; 2022 (1) SACR 307 (WCC) (10 December 2021)

Van der Bank v S (A53/2021) [2021] ZAWCHC 262; 2022 (1) SACR 307 (WCC) (10 December 2021)

The court held that the two-hour period contemplated in section 65(2)(a) of the National Road Traffic Act commences at the time the driving stops, not at the time of arrest. The State failed to prove beyond reasonable doubt that the blood sample was drawn within two hours of the cessation of driving, as the evidence showed the driving stopped at approximately 01h15 and the blood was drawn at 03h29, outside the prescribed period. Consequently, the statutory presumption under section 65(3) could not apply, and the State did not establish the appellant's guilt beyond reasonable doubt. The conviction and sentence were set aside.

Citation
[2021] ZAWCHC 262
Parties
Appellant: Betrum Ernest Van der Bank; Respondent: The State
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
10 December 2021
Case Number
A53/2021
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence From Magistrates Court
Outcome
Appeal upheld; conviction and sentence set aside.
Judges
N Nyati, P A L Gamble
Legal Topics
Driving Under Influence, National Road Traffic Act, Presumption of Alcohol Content, Evidentiary Presumptions
Criminal Law Driving Under Influence National Road Traffic Act Presumption of Alcohol Content Evidentiary Presumptions

Case Brief

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Parties

Betrum Ernest Van der Bank

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence From Magistrates Court

Legal Issues

  1. 1 Whether the two-hour period for drawing a blood sample under section 65(2)(a) of the National Road Traffic Act commences at the time of arrest or at the time the driving stops.
  2. 2 Whether the State proved beyond reasonable doubt that the blood sample was drawn within the prescribed two-hour period.
  3. 3 Whether the statutory presumption under section 65(3) of the National Road Traffic Act applies in the circumstances.

Ratio Decidendi

The court held that the two-hour period contemplated in section 65(2)(a) of the National Road Traffic Act commences at the time the driving stops, not at the time of arrest. The State failed to prove beyond reasonable doubt that the blood sample was drawn within two hours of the cessation of driving, as the evidence showed the driving stopped at approximately 01h15 and the blood was drawn at 03h29, outside the prescribed period. Consequently, the statutory presumption under section 65(3) could not apply, and the State did not establish the appellant's guilt beyond reasonable doubt. The conviction and sentence were set aside.

Court Disposition

Appeal upheld; conviction and sentence set aside.

Orders

  • The conviction and the resultant sentence are set aside.