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IN THE HIGH COURT OF SOUTH AFRICA

(TRANSKEI DIVISION)

HIGH COURT REF NO. 213159

MAGISTRATE SERIAL NO.14/07

CASE NO. 638/06

In the matter between:

THE STATE

vs

SANDILE NGOBELA

REVIEW JUDGEMENT

_____________________________________________________________

KHUZWAYO AJ

[1] The accused appeared before a magistrate for the district Mt Ayliff on two separate charges. Firstly in that upon or about 23 December 2006 on Ntshiza Street a public road the accused drove a motor vehicle with registration letters and number ND 486435 whilst the concentration of alcohol in any specimen of breath exhaled by him was 0.25 milligrams per 1000 millilitres. Secondly that on the same day and under similar circumstances, whilst the accused drove ND 486435, he drove the said motor vehicle without a drivers licence. The accused pleaded guilty to Count 11 and was convicted accordingly. However, accused pleaded not guilty to Count 1 and the trial proceeded and was found guilty at the end of the trial.

[2] The charges against him were in terms of Section 65(1)(a) (b) read with Section 1, 65(3), 65(4), 65(8), 65(9), 69(1), 73 and 89 of the National Road Accident Traffic Act 93 of 19996. The accused also faced another offence for driving without a drivers licence. The matter came before a review Judge to be reviewed in terms of Section 303 of the Criminal Procedure Act 51 of 1977, as amended, after magistrate had passed the following sentences:-

“Both counts taken as one for sentence. Fined R10 000.00 or undergo 12 months imprisonment of which R9 000.00 or eight months is suspended for period of 5 years on condition that accused not convicted of driving a motor vehicle under the influence of liquor or drugs and driving a motor vehicle without a licence committed during the period of suspension of his sentence” .

[3] On 12 March 2007 the Registrar of the High Court (Transkei Division) received the record in terns of Section 303. The matter was reviewed by Tshiki AJ who raised the following query:

“The magistrate is requested to respond to the following query:

1. The magistrate is requested to give full reasons for convicting the accused in line with the following:

1. In view of the fact that the witness Khayalethu Buso found the accused’s vehicle parked on the road, which evidence was accepted to prove that the accused was found driving his vehicle or that he was sitting behind the steering wheel whilst the engine was running?

2. What symptoms or behaviour were found on the person of the accused to suggest that he was driving the vehicle whilst under the influence of liquor in particular:-

   1. How was it proved that the accused’s driving was aberrant? Or

   2. that he drove his vehicle negligently or recklessly to prove that his skill and judgment he would normally need in order to drive the car were diminished or detrimentally affected?

   3. Would it be sufficient to prove the guilt of the accused

   4. parked the vehicle on the road;

   5. did not pick a key from the ground; What conduct was displayed by the accused to show that he “was not able to pick up the car keys of his vehicle?”

3. Why was the accused not disqualified from obtaining a driver’s licence in terms of section 34 of the National Traffic Act 93 of 1996?”

This query was received by the Magistrates Court on 04 April 2007.

[4] For some undisclosed reason(s), the magistrate’s response to the reviewing Judges’ query was received by the Registrar on 11 July 2007, the response is quoted verbatim as follows:

“In resubmitting the court record I wish to resubmit the following comments in respect of paragraphs as set out by the Honourable Judge.

1. I submit with respect that accused has admitted to have driven the said motor vehicle in issue on this date. The attention of the Honourable Judge is drawn to accused answer in respect of question no. 1 on count 1. On that score it is clear that accused was stopped by the Traffic Officer on the N2 road while he was driving the said motor vehicle. Under normal circumstances the accused was supposed to have told the court that he was not driving the said motor vehicle when the Traffic Officer stopped him.

2. I submit with respect that if the accused in issue was sober on this date in issue he should not have parked his motor vehicle in the middle of the road as to block the traffic flow. The accused should have given the Traffic Officer a valid reason for doing so. There was nothing in the Traffic Officer for confronting the accused for his conduct. The accused was behind the steering wheel and the engine of his motor vehicle was running. The Traffic Officer was not supposed to allow the accused to drive his motor vehicle further in order to judge the mode of driving of the accused as the accused would cause an accident. I submit with respect that accused did not pick up the car keys on the ground as ordered by the Traffic Officer and if accused was able to do so he should have done.

3. I may allude to the fact His Lordship is based on the fact the accused exceeded the prescribed amount of breath on alcohol by 1 per cent on the prescribed amount of 0,24.

4. I would pose no harm even if the accused is convicted on the alternative count.

5. I submit with respect that I did not make an order for disqualification in terms of sec.34 of Act 93 as the accused was a first offender and I was persuaded by his personal circumstances. I allude to the fact that the provisions of sec. 34 of Act 93/1996 are not permissive but do not an ouster clause from exercise of judicial discretion. I am of the view that I have exercised my discretion not capriciously.

6. I humbly implore His Lordship to confirm the said proceedings and to condone the late rendition of the court record as our office is serviced by one typist who is overburdened with typing work.”(sic)

[5] On 1 August 2007 Sishi AJ (as he then was) attended to the review of this matter and considered both the query and the response thereto. He then raised a further query to the following effect:

“Ad sentence

The record reveals that the accused was convicted on 2 counts, viz, driving a motor vehicle under the influence of liquor and driving a motor vehicle without a driver’s licence.

• It is not recorded on the J4 that he was also convicted of driving a motor vehicle without a driver’s licence, why?

Ad sentence

The record does not reflect that the two counts were taken as one for the purposes of sentence.

Were the two counts taken as one for the purposes of sentence.

Were the two counts taken as one for the purposes of sentence.”

This query was received by the Magistrate’s Court on 7 August 2007.

[6] It appears from the record that there was another problem with the record, though I could not find a copy of the magistrates response to the query raised by Sishi AJ, on 15 May 2008 Norman AJ raised the following further query:

“ (a) The Magistrate is requested to complete another J4 form which will reflect the

conviction of driving a motor vehicle without a licence and the sentence imposed.

2. This would address the first part of the query raised by Justice Sishi on 1 August 2007.

2. There does not seem to be a response to the second part of the query from the Magistrate. Kindly respond thereto as soon as possible.

3. As soon as that has been done the record must be resubmitted to the Registrar of this Court.”

This query was received by the Magistrate’s Court on 27 May 2008 and responded to on 4 June 2008 which response was received by the Registrar on 13 June 2008.

Delay in bringing the matter to finality

[7] Reading of the contents of the J4 of the sentence passed read together with the indication that “accused not released. Fine not paid” signify that the accused was kept in custody. Therefore whilst there was a lengthy delay, the accused was in custody according to the J4.

1. The magistrate signed the J4 to the effect that on 20 February 2007 whilst the matter had been finalized on 6 February 2007.

2. On 12 March 2007 the Registrar’s office received the court record, hence on 29 March 2007 a query was sent out and resume on 4/407 by magistrate.

3. Response to the query was received by the Registrar on 11 July 2007. it took three (3) months to respond to the query and another query was sent on 1 August 2007. Followed by another query on 15 May 2007.

4. All in all it took a period almost sixteen (16) if not seventeen (17) months to finalise this review.

[8] Whilst the matter raised by review judges were relevant to the resolution of the matter, the process turned too slow to produce responses to enable finalisation of this matter. As the sentence passed by the magistrate has a R1 000.00 (One Thousand ) rand or four (4) months deficit, one set to do a reconciliation of the sentence and requested an urgent enquiry from the Prisons Authorities as to whether or not a person of the accused’s name and particulars ever came into their custody. With the assistance of Mr. Qalani, it was established that the accused person was never in custody at either Mount Ayliff Prison or Wellington Prison (Mthatha). Mr Qalani brought to my attention that in fact the accused was released on 6 February 2007 after one Lumka Ngobela paid a fine of R1 000.00 at Mount Ayliff Magistrate Court.

[9] I had said earlier in this judgment that the process followed in this review is challenged by time for a number of reasons, the end result is that the administration of justice is negatively affected.

1. There are various other matters emanating from Mount Ayliff

Magistrates Court which have been brought long after the prescribed period in Section 303. I am aware that on the 16^th June 2008 in this Division in the matter of “State vs Thomas Zenzele Mkhize High court Review Case No. 213554” Majiki AJ found that a period of eight (8) months elapsed without receipt of the response from the magistrate who was required to respond to a query raised in the matter. As a result of such lengthy delay the matter could no longer be referred back to the magistrate for retrial as the accused had probably served most of the part of the effective sentence passed against him.

2. The following three (3) matters were not responded to by the Mount Ayliff Magistrates Court irrespective of the nature of the queries raised and the relevance of time to the merits of the matter. Common in all these matters is that a response dated 8^th May 2008 only received by the Registrar’s office on 23^rd June 2008 is not helpful either. It simply collated these matters under the content mentioned herein above in Paragraph [4].

1. S v Rwere Thala: 213007: REV 59/2006: CASE 444/2006.

It was received in the magistrates’ court on 30 JANUARY 2007;

2. S v SIYANDA QWANE AND ANOTHER: 213657 : REV 71/07

It was received in the magistrates’ court on 14 NOVEMBER 2007;

iii) S v SIPHO KUHLE: 213775: REV 117/07 CASE 726/07

It was received in the magistrates’ court on 11 FEBRUARY 2008.

2. In this case the failure to enter correct details in the J4 has further exacerbated the delay. What appears apparent is a disregard of the dispensation of a duty because the manner in which the J4 is structured is intended, amongst other reasons, to facilitate a speedy resolution of matters in terms of Section 303 of the Act.

2. Undoubtedly, a delay is costly in various requests, such as that,

1. the resources could have been directed in other matters, whilst the plight of the accused person suggest otherwise,

2. the accused persons sometimes serve punishment, when otherwise he/she should not have sent into prison,

3. At the time when the query has to be attended to, the reviewing judge may have a particular approach to the matter which all get lost as there is no prompt attention to the query. Causing further delay in the resolution of the matter.

Merits of the matter

[10] The merits of the matter under review could have been addressed in April 2007 when there still existed an opportunity to correct the matter, as it was the case. The query around the “conviction” of the accused in the main count was replied to by the magistrate who, states that:

“It would pose no harm even if the accused is convicted on the alternative count”.

[11] I do not accept the response of the magistrate to the query raised by Tshiki AJ as the evidence did show that the motor vehicle was found parked on the road. The query is based on the evidence of the traffic officer. Therefore, I find that the accused should not have been found guilty as charged. In his response the magistrate has conceded that the accused could have been found guilty on the alternative count. I accept such as an indication that on his reconsideration has found that there is merit in the query, but fall short to concede that the conviction per se is unwarranted.

[12] I have had regard to the query on the whether the sentence passed was treated as one for purposes of sentence. The J4 received on 12 March 2007 indicated that. I suppose this query was raised by error.

Conclusion

[13] As a consequence of the above, I make the following order:

a) The conviction on count 1 is set aside

b) The conviction on count 11 is confirmed and sentence passed is set aside and substituted with the following sentence that “the accused is sentenced to undergo a period of six (6) months in prison or pay a fine of R500. 00”.

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KHUZWAYO AJ

ACTING JUDGE OF THE HIGH COURT

I AGREE: PAKADE J

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JUDGE OF THE HIGH COURT

DELIVERED ON: 26 JUNE 2008

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