S v Aucamp and Six Similar Cases

• Jurisdiction: South Africa
• Judgment Date: 14 December 2001
• Citation: 2002 (1) SACR 524 (E)

S v Aucamp and Six Similar Cases
2002 (1) SACR 524 (E)

2002 (1) SACR p524

Citation	2002 (1) SACR 524 (E)
Court	Eastern Cape Division
Judge	Kroon J, Jennett J and Van Rensburg J
Heard	December 14, 2001
Judgment	December 14, 2001

Flynote : Sleutelwoorde

Traffic offences — Alcohol related offences — Driving with an excessive quantity of alcohol in the breath — Proof of E offence — Plea of guilty — Questioning of accused in terms of s 112(1)(b) of Criminal Procedure Act 51 of 1977 — Nature of questioning required. F

Headnote : Kopnota

In a number of cases which came before the Court on review the issue was whether the accused were correctly convicted of alcohol-related driving offences where the accused pleaded guilty and was required to make admissions concerning matters of which they had no personal knowledge. The Court held that in respect of the offence of contravening s 62(5)(a) of the Road Traffic Act 93 of 1996, G the elements thereof were that the accused (a) drove a vehicle; (b) on a public road; (c) while the concentration of alcohol in a specimen of breath exhaled by him exceeded the prescribed maximum concentration. That the relevant concentration of alcohol in the accused's breath was ascertained from a sample taken within two hours of the alleged offence and/or that it was ascertained by using the prescribed equipment were not elements of H the offence but the method of proving the offence, possibly the only method. In questioning an accused, where he or she pleaded guilty to a contravention of s 62(5)(a) with reference to the alleged facts of the case in order to establish whether he or she admitted the allegations of the charge it would be difficult to avoid questioning the accused as to the time in relation to his or her driving of a vehicle when the sample of his or her breath was taken I and as to the equipment that was used to ascertain the concentration of alcohol in his or her breath specimen. The Court held that little reliance could be placed upon an accused's admission, without more, that the equipment used to ascertain the concentration of alcohol in his or her breath sample complied with the standard specification. Where the accused pleads guilty the court is not concerned J

2002 (1) SACR p525

with whether the accused is proved to be guilty, and this from evidence, but whether A the court is satisfied from the admissions made by the accused and their reliability that he or she is guilty.

The Court upheld the conviction in those cases where the accused admitted that he or she had been stopped by the traffic police and that a specimen of breath was taken immediately thereafter using the Drager Alcotest 7110 MK III apparatus and that this apparatus complied with the requirements of SABS 1793 in accordance with the provisions of reg B 438 A of the Road Traffic Regulations and that the Drager apparatus had been tested, calibrated and was functioning properly at the time; that the accused accepted and agreed with the analysis of the breath specimen; upon being questioned by the magistrate the accused admitted having partaken of alcohol and recalled having been shown a print-out containing the results of the analysis of the breath specimen. In two C of the cases however where there was no admission that the specimen of breath had been taken within two hours of the accused driving the Court held that the magistrate could not have been satisfied as to the accused's guilt.

Case Information

Reviews. D

Judgment

Jennett J:

This judgment concerns a number of cases emanating from the magistrates' court in East London which came before a Judge of this Court on automatic review and were later set down for argument before a full Court. There are seven cases in all but in respect of two of them the referral for argument before E us has been either premature or unnecessary and they can be disposed of forthwith.

In S v Thanduxolo Sam (CA & R 307/2001) the accused, despite pleading not guilty, was, after the hearing of evidence, convicted of a contravention of s 65(1)(a) of the National Road Traffic Act 93 of 1996 in that he unlawfully drove a motor vehicle F on a public road while he was under the influence of intoxicating liquor or a drug having a narcotic effect, and he was thereafter sentenced to a fine of R6 000 or 12 months' imprisonment of which R2 000 or four months was conditionally suspended for five years. I have serious doubts as to the propriety of the conviction and whether the evidence came anywhere near proving the guilt of the accused. Also G the imprisonment imposed as the alternative to the fine appears to be excessive having regard to the guidelines set out in a judgment of Jones J in S v Serabo and Five Similar Cases 2002 (1) SACR 391 (E) and the other associated cases, delivered on 3 August 2001. It is not appropriate that argument be heard on any aspect of this case H without the magistrate who convicted and sentenced the accused having first been asked to furnish his reasons for convicting the accused and for the sentence imposed - see s 304 of the Criminal Procedure Act 51 of 1977 - and the appropriate request is directed to the magistrate.

In S v William Payne (CA & R 305/2001) the accused pleaded guilty and, after being questioned in terms of s 112(1)(b) of Act 51 of 1977, he was duly convicted of I contravening s 65(1)(a) of the National Road Traffic Act in that he unlawfully drove a motor vehicle on a public road while he was under the influence of intoxicating liquor. It was the accused's second conviction for such an offence and he was sentenced appropriately. No reason is given as to why this case is referred to a Full J

2002 (1) SACR p526

Jennett J

Court for consideration, if indeed it was so referred, and the magistrate has not been asked for his reasons for conviction and/or A sentence. It appears to me nevertheless that the proceedings in the case are in accordance with justice and I have endorsed a certificate to that effect.

In each of the five cases, namely S v Clive Aucamp, S v Mark Redcliffe, S v Morne Christo Rheeder, S v Bergen Salzwedel and S v Mark Pillay, the accused pleaded guilty and was convicted, in the case of Clive B Aucamp of a contravention of s 122(5)(a) of Act 29 of 1989, s 65(5)(a) of the National Road Traffic Act 93 of 1996, in that the accused drove a motor vehicle on a public road at a time when the concentration of alcohol in a specimen of breath taken from him exceeded the prescribed maximum level and thereafter varying sentences were imposed on each of the accused. C

Although the sentences imposed in...