S v Masumpa

• Jurisdiction: South Africa
• Judge: Van Zyl J and Ebrahim J
• Judgment Date: 11 February 2005
• Docket Number: CA&R 65/2005
• Court: Ciskei High Court
• Hearing Date: 11 February 2005
• Citation: 2005 (2) SACR 512 (CkH)

S v Masumpa
2005 (2) SACR 512 (CkH)

2005 (2) SACR p512

Citation	2005 (2) SACR 512 (CkH)
Case No	CA&R 65/2005
Court	Ciskei High Court
Judge	Van Zyl J and Ebrahim J
Heard	February 11, 2005
Judgment	February 11, 2005

Flynote : Sleutelwoorde F

Legal practitioners — Duties of — Duty to represent interests of client — Appellant's attorneys failing to appear to argue appeal — No explanation for non-appearance — Registrar enjoined to obtain explanation on affidavit from attorneys for their failure to appear and their failure to safeguard interests of their client. G

Traffic offences — Driving while under influence of intoxicating liquor — Accused charged with contravening s 65(1)(a) read with s 89(1) of National Road Traffic Act 93 of 1996 — Fact that accused was involved in a collision not proving that he was under influence of intoxicating H

2005 (2) SACR p513

liquor — No evidence that his driving ability had been impaired by consumption of liquor — Fact that blood test A showed alcohol concentration of 0,06 g per 100 ml not warranting inference that accused was incapable of exercising proper control over motor vehicle — Conviction and sentence set aside.

Traffic offences — Driving with an excessive concentration of alcohol in the blood — Accused charged with contravening s 65(2)(a) or (b) read with s 89(2) of National Road Traffic Act B 93 of 1996 — Evidence not showing that blood had been properly taken or that specimen was properly identified as being that of accused — Conviction accordingly not sustainable.

Headnote : Kopnota

The appellant had been unrepresented at trial and was convicted of contravening s 65(1)(a) read with s 89(1) of the National C Road Traffic Act 93 of 1996 in that he had driven a motor vehicle while under the influence of alcohol. He obtained legal representation for his appeal, but on the day of the hearing neither he nor his legal representative appeared to argue the appeal. In the absence of any explanation for the non-appearance the Registrar was enjoined to obtain D from the attorneys concerned an explanation on affidavit for their absence from Court and their failure to safeguard the interests of the appellant. On receipt thereof the issue would receive the Court's further attention. The Court proceeded to deal with the appeal in accordance with its inherent powers of review.

Held, on the merits, that the trial court had misdirected itself in concluding that the evidence established all the elements E necessary for a conviction. There was no evidence concerning the manner in which the appellant drove. The fact that the vehicle he had been driving was involved in a collision could not in itself be regarded as proof that the appellant had been under the influence of liquor. Furthermore, there was no evidence that he was incapable of exercising proper control over the vehicle, or that his ability to drive had been F impaired due to the consumption of liquor. (Paragraphs [14] and [15] at 516f - h.)

Held, further, that the fact that the results of a blood test showed a concentration of alcohol of 0,06 g per 100 ml of blood did not warrant the inference that the accused was under the influence of alcohol to the extent that he was incapable of exercising proper control over a motor vehicle. (Paragraph [17] at 517a.) G

Held, further, that in any event there was no evidence to show that the blood specimen had been properly taken and that it was not contaminated, or that the blood specimen was properly identified as having been that of the appellant. Accordingly, the evidence could not sustain a conviction on either of the alternative charges of having driven a motor vehicle, or having occupied the driver's seat thereof, H while the concentration of alcohol in his blood was not less than 0,05 g per 100 ml. (Paragraph [18] at 517b - c.) Conviction, sentence and order declaring the appellant unfit to possess a driver's licence set aside.

Annotations:

Cases cited

Reported Cases

S v Mkhuzangewe 1987 (3) SA 248 (O): referred to. I

Legislation cited

Statutes

The Criminal Procedure Act 51 of 1977, s 118: see Juta's Statutes of South Africa 2004/5 vol 1 at 1-352 J

2005 (2) SACR p514

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