The Free State High Court in Bloemfontein has overturned a drunk driving conviction and sentence, citing multiple procedural irregularities and contradictions in the original trial.
The case, involving a farm worker charged with driving under the influence, will now be heard afresh before a different magistrate. Following a review, Judge J van Rhyn, with Judge J van Zyl concurring, remitted the matter to the lower Dealesville Magistrate's Court.
The accused was charged with contravening section 65(1)(a) or (b) of the National Road Traffic Act. He allegedly drove a motor vehicle on a public road or occupied the driver's seat of a motor vehicle, the engine of which was running, while under the influence of intoxicating liquor or a drug having a narcotic effect. This happened on 21 February 2020 at Andries Pretorius Street at Boshoff.
The man furthermore faced an alternative charge of driving his Fiat bakkie while the concentration of alcohol in his blood exceeded the legal limit. However, on review, the High Court found that the alternative charge was not put to the accused or had been deleted, and accordingly, no pleas were recorded.
His legal representative indicated to the court that "it is believed that the alternative count was withdrawn" by the prosecution. This was not confirmed by the State. The attorney handed in a written statement from which it was apparent that he simply declared that he admits guilt on the charge of driving under the influence of liquor. Crucially, when the charge was read into the record it was stated that the accused had on 21 February 2024 committed the offence and not during 2020.
The accused said he was coming from his girlfriend's place where there was a party the previous night. "I was then trying to get home; when I was in Andries Pretorius Street I saw a roadblock that had many police officers. They then stopped me and requested to search the car, and that was when they then found a single bottle of alcohol. They then requested to take me to the hospital and I was thereafter arrested," he said. "I confirm that at the time of committing the offence, I was in my sound and sober senses."
He was slapped with a fine of R5,000 or 10 months' imprisonment, wholly suspended for five years on condition that he was not convicted of a similar offence. The trial court further ordered that his driver's licence should not be suspended.
The Dealesville Magistrate’s Court will have to start the trial again under a different presiding officer. Picture: File
The case took a dramatic turn on 21 November 2024 when the Acting Senior Magistrate, Bloemfontein enquired from the presiding officer which charge the accused pleaded guilty to, as no plea had been recorded in respect of the alternative charge. From the response, it became clear that no plea was tendered by the accused in respect of the alternative charge and that this aspect was not followed up during the hearing of the matter.
It was also noted the plea did not admit all the elements of the charge, and there was no indication that the accused consumed alcohol prior to being stopped at the roadblock. Additionally, there was no indication if the alcohol consumption had an effect on the skills and abilities of the accused to drive the motor vehicle like an ordinary driver would.
"I agree with the contention by the Acting Senior Magistrate that the plea of guilty is not in accordance with justice… The accused did not admit all the elements of the offence on the main or alternative counts," Judge J van Rhyn wrote in the judgment.
"The essence of a charge is that an accused person has to be informed with sufficient clarity of the case that the State wants to pursue against him. The particulars as to the time when the offence was committed must be set forth."
Judge van Rhyn added that upon a conviction, the driving licence of an offender should be automatically suspended. "An enquiry should be held to determine whether or not the automatic suspension of the driving licence should be lifted or not. The offender must then be called upon to give cogent reasons why such mandatory suspension should not immediately take effect."
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