S v Fourie

• Jurisdiction: South Africa
• Judge: Hlophe JP and Msimang AJ
• Judgment Date: 07 September 2001
• Citation: 2001 (2) SACR 674 (C)
• Hearing Date: 17 August 2001
• Counsel: J H Theron for the State.
• Court: Cape Provincial Division

Msimang AJ:

The respondent in this appeal is a regional court magistrate stationed at George. During the period covering 3 March 2000 he was doing duty at the Knysna Circuit Court and had to commute daily G from George for that purpose. It would appear that, due to certain circumstances which he had not foreseen and through no fault on his part, he departed from George on the morning of 3 March 2000 later than he was wont to do. It so happened that, on the previous day (2 March 2000), he had given an undertaking to a State witness that, on the following day (3 March 2000), the court proceedings H would commence promptly at 09h00 and that she would begin giving her testimony at that time, thus enabling her to return to her work on the same day and not forfeit her earnings for that day. Ordinarily, the respondent would leave home at 08h00 to undertake the 45 minute trip to Knysna. However, on the day in question, due to the said circumstances, he could only leave home at 08h30. He therefore found I himself compelled to drive faster than he would normally do so as to enable him to make up for the lost time and arrive at his destination on time. While he was driving on the N2 - Keytersnek Road, which is a public road situate in the district of Knysna, he drove through a speed J

Msimang AJ

trap operated by a traffic officer attached to the Cape Provincial Traffic Department. He was found to have driven at a speed of 129 A kilometres per hour which was in excess of the maximum speed permitted on that section of the road (namely, 80 kilometres per hour). This incident led to his being charged with a contravention of s 85(4)(b) of the Road Traffic Act 29 of 1989. He subsequently appeared before the Knysna magistrate's court on this charge and pleaded 'not guilty'. After a trial, during which he was B represented by an attorney, the appellant was found not guilty and acquitted. The Director of Public Prosecutions was, however, not satisfied with the decision of the magistrate acquitting the respondent and, on 25 Januay 2001, he invoked the provisions of Rule 67(13) of the Rules promulgated under the Magistrates' Courts Act 32 of 1944 and appealed against the said decision. The provisions C of Rule 67(13), read together with s 310 of the Criminal Procedure Act 51 of 1977, provide that the Director of Public Prosecutions may only appeal against a decision of a lower court on a question of law. The facts upon which the State case against the respondent was based are not in dispute and it is evident from the notice of appeal that the issues in respect of which the Director of Public Prosecutions is D appealing relate to the application of the relevant law to those facts. It therefore follows that the appeal is properly before this Court.

Before dealing with the legal issues raised in the appeal it is, in my view, necessary first to make a few remarks regarding the respondent's behaviour in this appeal. He filed heads of argument in which he made it quite clear that he was opposing the appeal and that E he stood by the heads of argument filed on his behalf in the court a quo in support of his acquittal. At the same time, he indicated that he did not intend to appear during the hearing of the appeal. He gave no reasons for this attitude. Indeed, when the appeal F was called before us, the respondent did not appear and neither was there any appearance on his behalf. It is important to emphasise here that court officials, especially judicial officers, should conduct themselves in such a manner that perceptions are not created in the minds of the general public that they regard themselves as being above the law. Such a perception can certainly discredit the administration G of justice in the eyes of the public and, consequently, bring the administration of justice into disrepute. That we can ill-afford, given the obvious need to improve the...