S v Wells

• Jurisdiction: South Africa
• Judgment Date: 27 November 1989
• Citation: 1990 (1) SA 816 (A)

S v Wells
1990 (1) SA 816 (A)

1990 (1) SA p816

Citation	1990 (1) SA 816 (A)
Court	Appellate Division
Judge	Joubert JA, Hefer JA, Milne JA, MT Steyn JA, Friedman AJA
Heard	November 17, 1989
Judgment	November 27, 1989

Flynote : Sleutelwoorde H

I Criminal law — Traffic offences — Exceeding the speed limit — Contravention of s 102 of Road Traffic Ordinance 21 of 1966 (T) — Accused caught in a speed trap on a freeway where dangerous to stop him — Accused not apprised of offence at time and not afforded an opportunity of checking the speed measuring device and its installation — No rule or J principle of law which entitles an accused to be afforded an opportunity to inspect or check speed measuring apparatus in situ.

1990 (1) SA p817

A Court — Supreme Court — Judgments of — Revision of by presiding Judge — Judicial officer entitled to amend, supplement or explain his judgment provided that the substance thereof is not affected.

Headnote : Kopnota

The respondent had been convicted in a magistrate's court of speeding in contravention of s 102 of the Road Traffic Ordinance 21 of 1966 (T). The State's case was based on the evidence of a traffic officer who had set B up a speed trap on a freeway where it would have been dangerous to stop motorists. The traffic officer used a camera to photograph offenders who speeded. The respondent had been photographed after going through the trap and was not apprised at the time of the offence and was accordingly not given an opportunity of checking the speed measuring device and its installation. In an appeal to a Provincial Division the Court set aside the conviction on the ground that the respondent had not been afforded C such opportunity. In a further appeal the State challenged the correctness of this decision. At the hearing of the appeal there were two records before the Court, viz a typed transcript of the ex tempore judgment and a revised version thereof. The State contended that the orginal version was to be regarded as the judgment of the Court a quo whilst the respondent contended that the revised version was to be regarded as its judgment.

D Held, that a judicial officer was entitled to amend, supplement or explain his judgment provided that the substance thereof was not affected: in the present instance the revised judgment dealt with the same rationes decidendi as the original judgment but in much greater elaboration without changing or violating the tenor of the unrevised version and was to be held as the judgment of the Court.

Held, as regards the merits of the appeal, that there was no rule or principle of law which entitled an accused to be afforded an opportunity E to inspect or check the speed measuring apparatus in situ.

Held, accordingly, that the respondent had been correctly convicted of the offence and the appeal therefore had to succeed.

Case Information

Appeal by the State from a decision in a Provincial Division (Spoelstra J and Bregman AJ). The facts appear from the judgment of Joubert JA.

K P C von Lieres und Wilkhau SC for the appellant (the State) referred F to the following authorities: R v Armoed 1936 EDL 214; S v De Leeuw 1980 (3) SA 815 (A); S v Dinwa en Andere 1967 (3) SA 339 (E); Estate Garlick v CIR 1934 AD 499; S v Fisher en 'n Ander 1969 (2) SA 632 (A); S v Glegg 1973 (1) SA 34 (A); S v Goliath 1972 (3) SA 1 (A); R v Majero and Others 1948 (3) SA 1032 (A); R v Mthembu 1959 (4) SA 129 (N); S v Seleke en 'n G Ander 1980 (3) SA 745 (A); S v Sigwahla 1967 (4) SA 566 (A); S v Sinkankanka and Another 1963 (2) SA 531 (A); In re Appeal: S v Stofile and Others 1989 (2) SA 629 (Ck); R v Sweidan 1931 AD 459; S v Thomas and Another 1978 (1) SA 329 (A); S v Van der Merwe 1979 (2) SA 760 (T); Firestone South Africa (Pty) Ltd v Gentiruco AG 1977 (4) SA 298 (A); The Selective Voet (Gane's translation) vol 6 at 325; Huber Jurisprudence of H My Time (Gane's translation) vol 2 at 333.

The respondent appeared in person and referred to the following authorities: Garlick v Commissioner of Inland Revenue 1934 AD 499 at 502; Randfontein Estates Ltd v Robinson 1921 AD 515 at 519; Steyn Uitleg van Wette 5th ed at 101, 119 and 118; Hiemstra Suid-Afrikaanse Strafproses 4th ed at 408; S v Van der Merwe 1979 (2) SA 760 (T) at I 764H; Solomon and Another NNO v De Waal 1972 (1) SA 575 (A) at 580H; S v Meyer 1972 (3) SA 480 (A) at 484E.

Cur adv vult.

J Postea (November 27).

1990 (1) SA p818

Judgment

A Joubert JA:

On Tuesday afternoon, 26 January 1988, the respondent ('Mr Wells') drove his motor car on the N1 freeway, a public road, in the Randburg district. Appropriate road traffic signs en route indicated that the general speed limit of 120 km per hour was applicable to the road and that speed law was enforceable by camera. He unwittingly drove through a speed trap on the road without being apprised thereof by a B traffic officer. He was subsequently charged in the Randburg magistrate's court with the contravention of s 102 of the Road Traffic Ordinance 21 of 1966 (T) in that he had exceeded the general speed limit on the road by having driven his motor car at a speed of at least 137 km per hour. He pleaded not guilty but he was convicted as charged and C sentenced to a fine of R60 or 30 days' imprisonment.

Mr Wells, a practising attorney, conducted his own defence during the trial. Apart from the formal admission that the road in question was a public road, he also admitted 'that the apparatus which was used in regard to the matter is a...