S v Markman

• Jurisdiction: South Africa
• Judge: Ogilvie Thompson CJ, Trollip JA and Kotzé AJA
• Judgment Date: 30 May 1972
• Citation: 1972 (3) SA 650 (A)
• Hearing Date: 18 May 1972
• Court: Appellate Division

A Trollip, J.A.:

The problem raised by this appeal is whether or not this Court is justified in interfering with an order made by a magistrate's court under sec. 146 (b) of the Cape Road Traffic Ordinance, 21 of 1966, suspending the appellant's driver's licence for six months for negligent driving. An appeal to the Eastern Cape Division having failed, the B matter came before us on appeal on leave being granted by a member of this Division.

The facts were not in dispute and fall within a small compass. At about 2 p.m. on a bright and sunny day, the appellant, a 28 year old married woman, drove a Chevrolet motor car, at about 20 m.p.h., from west to C east along 10th Avenue towards its intersection with Brighton Drive, Port Elizabeth. This intersection is controlled by stop-signs in favour of traffic travelling in Brighton Drive. Whether or not the appellant stopped before entering the intersection will be considered presently. She did, however, proceed to enter and cross it at a time when the complainant, Mrs. Botha, was also approaching it from the north in a D Mini Minor motor car at about 35 m.p.h. Mrs. Botha saw the Chevrolet car approaching along 10th Avenue, but she assumed that it would stop at the stop-signs. Thus she took no further notice of it. The appellant, on the other hand, did not see Mrs. Botha's motor car approaching. A collision between the two vehicles occurred in the intersection. In E consequence, Mrs. Botha was cut on the forehead and bruised on her face, one of the three children travelling with her sustained bad facial cuts, and her motor car was seriously damaged. By the time the trial was held those injuries had healed and appellant's insurer had had Mrs. Botha's motor car repaired.

The appellant was charged under sec. 138 (1) of the Ordinance with F reckless or negligent driving. She pleaded guilty to negligent driving. Mrs. Botha testified for the State. The appellant did not give evidence. When she pleaded guilty, her attorney merely handed into court a written, unsworn statement, signed by her, which set out her version of the occurrence. This statement was, without objection from the prosecutor, admitted as an exhibit in the case.

G As to admissions made by the appellant in that statement, they, of course, had to carry their due probative value against her. As to assertions therein in her favour, they were of less probative value than sworn testimony, but the court had to consider them and accord them such H weight as, in the circumstances of the case, it considered they deserved (cf. R. v Vather and Another, 1961 (1) SA 350 (AD) at pp. 354H to 355B, and R. v Celé, 1959 (1) SA 245 (AD) at pp. 256G to 257A).

On Mrs. Botha's evidence and the appellant's statement the magistrate found her guilty of negligent driving (in my view, correctly) and sentenced her to pay a fine of R60 or to undergo 30 days' imprisonment and suspended her driver's licence for six months. It is only the order for suspension that is now in issue.

The magistrate held that she was negligent

'in that she entered the intersection at a stage when it was unsafe to do so'.

Trollip JA

In his reasons for imposing the sentence and the order suspending her licence, he said:

'The fact that the stop-sign was erected at the entrance to the intersection was a clear and distinct warning that there would be traffic in the through street. She however completely disregarded and ignored these factors and proceeded to enter the intersection without A satisfying herself that it was safe to do so. On its most favourable view the accused's conduct was a failure to take the most elementary precaution thus constituting a most deplorable departure from the norm of the bonus paterfamilias.'

Consequently, according to the magistrate, her entering the intersection in that manner was not done 'inadvertently or through lack of due care B and attention' but 'constituted driving of a particularly dangerous kind', which, in his view, warranted, inter alia, the suspension of her driver's licence under sec. 146 (b) of the Ordinance.

The Court a quo held that the magistrate, in approaching the matter in that way, had not misdirected himself on the facts. In the appeal before us the correctness of that view was challenged by Mr. van Heerden for the appellant.

C The first enquiry is whether the State proved that the appellant did not obey the stop-signs and stop her motor car before entering the intersection. The appellant said in her statement:

'I re-call...