Case Review: Specific crimes

• Jurisdiction: South Africa
• Date: 24 May 2019
• Pages: 88-94
• Published date: 24 May 2019
• Citation: (2009) 22 SACJ 88
• Author: Shannon Hoctor

Case Reviews

Specific crimes

Shannon Hoctor

University of KwaZulu-Natal, Pietermaritzburg

Road traffic offences

In S v Bagadi 2008 (2) SACR 400 (T), the court reaffirmed the distinction

between the offences contained in s 65(1) of the National Road Traffic

Act 93 of 1996 (driving under the influence of alcohol) and s 65(2) of

this Act (driving a motor vehicle while the concentration of alcohol in

the accused’s blood is over the prescribed limit), holding that the former

is a more serious offence (para [13]) based on the ‘vastly different sen-

tences’ imposed on conviction for the different offences, and on the fact

that the former offence requires an actual impairment of the accused’s

driving ability (unlike the latter, which the court refers to as ‘merely

technical’). The offence set out in s 65(5) (driving a motor vehicle whilst

the concentration of alcohol in the accused’s breath is over the pre-

scribed limit, in issue in casu) can clearly be distinguished from the

s 65(1) offence on the same basis as the s 65(2) offence (see para [15]).

Thus a condition of suspension of sentence which included non-contra-

vention of s 65(1) alongside non-contravention of s 65(2) and (5) was

held to be overbroad and prejudicial, given that the facts founding a

conviction of s 65(2) (or s 65(5)) would not necessarily found liability in

terms of s 65(1).

Theft

In a case which began in the Windhoek magistrates’ court, in S v Van

Coller 1970 (1) SA 417 (A), it was held that where someone takes

another’s property for purposes of keeping it as security for payment,

this cannot be regarded as theft, given that the accused continues to

acknowledge the ownership of the person from whom the article was

removed. This ruling was followed in the Namibian case of S v Hengua

2008 (2) SACR 404 (NmHC).

88

(2009) 22 SACJ 88

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