Rex v Coetzee

• Jurisdiction: South Africa
• Court: Cape Provincial Division
• Judge: Herbstein J
• Judgment Date: 08 November 1949
• Citation: 1950 (1) SA 101 (C)
• Hearing Date: 08 November 1949

Herbstein, J.:

This matter came before me as reviewing Judge, and on the 27th July, 1949, I granted the usual certificate that the proceedings appeared to be in accordance with justice. Thereafter the Attorney-General drew my attention to certain facts, suggested that the certificate had been wrongly granted and requested that the matter be reconsidered.

From the papers it would appear that a preparatory examination was commenced against the accused in respect of a charge of culpable homicide, and, alternatively, contravening sec. 48 (1) (f) of Ord. 15 of 1938. At the conclusion of the preparatory examination the record was forwarded to the Attorney-General for his consideration. This official remitted the case for trial by the magistrate's court, Swellendam, with increased jurisdiction in terms of sec. 95 of Act 32 of 1944, upon a charge of culpable homicide. The prosecutor of the magistrate's court then issued a summons against the accused on charges of culpable homicide and, alternatively, contravening sec. 48 (1) (f) of Ord. 15 of 1938. The acting additional magistrate who tried the case did not ask to see the letter of remit and took it for granted that the proceedings were in order. Even when at a later stage the Letter of remit was handed in he did

Herbstein J

not examine it but acted on the basis that the proceedings were in accordance with the instructions of the Attorney-General - a frame of mind which, in the circumstances, was quite understandable.

At the end of the trial the presiding officer convicted the accused on the alternative count and sentenced him to pay a fine of £50 or in default of payment imprisonment for six months with hard labour. He also ordered the accused's driving licence to be endorsed. His reasons for doing so were stated by him, in reply to a request for a report after the conviction and sentence had been confirmed, as follows:

"The evidence was considered in relation to the charge of culpable homicide and the court would have had no hesitation in convicting on that charge had it not been that an alternative charge was preferred. The court was convinced that the death occurred as a result of the negligence of the accused, and was satisfied that the intent to kill was absent but that the accused did use the road without due care and attention as this was an open street and he should have been on the alert seeing that there were children alongside the road at the time. It was however proved that he exercised a certain amount of care but in the opinion of the court not sufficient...