R v Mantell

• Jurisdiction: South Africa
• Judge: Rosenow J and Bloch J
• Judgment Date: 24 December 1958
• Citation: 1959 (1) SA 771 (C)
• Hearing Date: 07 November 1958
• Court: Cape Provincial Division

A Bloch, J.:

The appellant was charged in the magistrate's court, Cape Town, with a contravention of sec. 107 (1) (c) of Ord. 19 of 1955

'in that on 13th March 1958 he drove his motor car on a public road called de Waal Drive at a speed or in a manner which was dangerous to the public regard being had to the circumstances of the case including the nature, condition and use of the said public road and the amount of traffic which is actually at the time or might reasonably be expected to be thereon.'

B He pleaded not guilty, but was convicted and fined £20 (or two months' imprisonment with compulsory labour) and his driver's licence was suspended for three months. His grounds of appeal are, in substance, that the evidence did not prove beyond reasonable doubt that he had driven at the speed or in the manner alleged, and that the sentence is excessive.

C The evidence in the case was that of J. H. Prins, a traffic constable, and of appellant himself.

Prins stated that at 5.30 p.m. on the afternoon in question he was driving a patrol car, an Austin A.50, which had already done nearly 38,000 miles, towards the City. On approaching the built-up area he was D passed by a sports car travelling 'at an excessive speed', and then observed another sports car driven by the appellant, which was rapidly catching up with him. The appellant's car was a sports model Triumph, known as a T.R.2. The appellant overtook Prins, who set off in pursuit. He says that he accelerated to a speed of approximately 65 miles per E hour, but that the appellant gained steadily on him. He eventually caught up with the appellant in Jutland Avenue, where the appellant had slowed down behind other traffic. Upon being informed by Prins of the speed at which he had been trailed, appellant stated that he was in a hurry to keep an appointment in the City at 5.30 p.m. The traffic at the time was, according to Prins, normal, and the appellant overtook a few F moving vehicles. He had trailed the sports car for approximately half a mile. The locality is part of a built-up area, where houses and flats are close to the road, and where the municipal speed limit is 35 miles an hour.

Cross-examined Prins admitted that the T.R.2 model Triumph is equipped G with special brakes known as disc brakes, and that it is more controllable than the Austin car, in which Prins himself was travelling. He admitted that De Waal Drive was a double carriage-way, and that on the portion thereof on which the appellant had travelled there could be no cars approaching from the opposite direction. Indeed, the two carriage-ways are at substantially different road levels. There are two H cross-roads leading into the part of the De Waal Drive on which the appellant travelled. At the time concerned there were no people in the De Waal Drive and at that time of the day the flow of traffic is mostly in the opposite direction leading out of the City.

It will be observed from this evidence that it is not suggested for the Crown that the upper carriage-way leading into Cape Town was at the time in question occupied by any pedestrians, nor that at the two intersecting roads which enter that carriage-way were there any pedestrians

Bloch J

or vehicles waiting to enter or cross the De Waal Drive. There is further no suggestion that there were any people, children or animals on the side-walk which flanks the mountain side of the carriage-way. It is also not alleged that the appellant would not have been able to see from A a substantial distance away the emergence of any pedestrian on to the side-walk, or of any pedestrian or traffic on to the carriage-way itself.

The evidence of the appellant as to speed is that he did not look at his speedometer, and could not say what his speed actually was, but he thought that it could not have been as high as had been stated by Prins. He insisted when he first obtained a sight of the traffic constable's B car it was actually gaining on him. He claims that he had his car under proper control, and that he could have stopped with safety if anybody had stepped off the pavement. He affirms that his vehicle is fitted with special brakes, and that because of this factor he could safely drive C faster than an ordinary motor car could drive. There were only two cars on the road, which he had passed, and in his view he had driven neither dangerously nor negligently.

The magistrate found as a fact that the appellant had travelled at a speed in excess of 65 miles an hour, and that

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