FORM A
FILING SHEET FOR SOUTH EASTERN CAPE LOCAL DIVISION JUDGMENT

PARTIES: 

THE STATE

and

BANTUBONKE WILLIAMS

•	Case Number: 20080177
•	High Court: EASTERN CAPE DIVISION
•	DATE HEARD: 	
DATE DELIVERED: 7/8/08
JUDGE(S): PLASKET J, GROGAN AJ

LEGAL REPRESENTATIVES –

Appearances:
•	For the Appellants(s): 
•	for the Respondent(s): 
Instructing attorneys:
•	Appellant(s)
•	Respondent(s): 

CASE INFORMATION -
•	Nature of proceedings	: Review 
•	Topic: 
•	Key Words: 

IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION)
						
REVIEW CASE NO: 20080177
						CA&R NO:
						DATE DELIVERED: 7/8/08
NOT REPORTABLE

In the matter between

THE STATE

and

BANTUBONKE WILLIAMS

REVIEW JUDGMENT

PLASKET J:

[1] The accused was charged, in the Magistrate’s Court, East London with the offences of reckless or negligent driving in contravention of s 63(1) of the National Road Traffic Act 93 of 1996 (count 1), driving a motor vehicle without a licence in contravention of s 12(a) of the same Act (count 2) and the common law offence of malicious injury to property (count 3).  

[2] He pleaded guilty to all three counts and after being questioned in terms of s 112(1)(b) of the Criminal Procedure Act 51 of 1977, was convicted as charged.  He was sentenced as follows on counts 1, 2 and 3 respectively: (a) to a fine of R1 500,00 or four months imprisonment suspended for four years on condition that he is not again convicted of reckless or negligent driving committed during the period of suspension; (b)	to a fine of R700,00 or three months imprisonment suspended for five years on condition that he is not again convicted of driving without a licence committed during the period of suspension; and (c)	to a fine of R300,00 or three months imprisonment suspended for five years on condition that he is not again convicted of malicious injury to property committed during the period of suspension.

[3] I queried the correctness of the conviction in respect of counts 1 and 3 and have now received the magistrate’s response.

[4] The relevant aspects of the accused’s questioning in terms of s 112(1)(b) in respect of count 1 reads as follows:
‘Court:	Is it correct that you were driving a motor vehicle, Ford Meteor, registration BTM068EC?
	Accused:	That is correct, your worship.
Court:	Tell us what happened in connection with this case that led you to be before court today. About this reckless and negligent driving.
Accused:	Your worship, what happened on the day in question, I met up with the owner of this motor vehicle and then it was raining, and then he asked me to permission to kick start of his behalf.
	Court:		Yes, proceed.
Accused:	And then, your worship, I came to the edge of the road, and then it is where the tyre burst, that is when I proceeded and bumped it, or smashed the garage.
	Court:		Are you saying that the tyre burst?
	Accused:	Yes.
	Court:		And the police were called and you were then arrested?
	Accused:	Yes.’

[5] Two problems are apparent from this passage. The first is that the magistrate has not indicated whether the accused was convicted of reckless driving or of negligent driving. Secondly, there is not a fact in the answers given by the accused that establishes either recklessness or negligence on his part. All that is known is that when he was in control of the vehicle it was raining, a tyre burst and it collided with a garage. No link was made between the driving of the vehicle and recklessness or negligence on the part of the accused. On this account the conviction on count 1, as well as the sentence must be set aside.

[6] The relevant aspects of the accused’s questioning in terms of s 112(1)(b) in respect of count 3 reads as follows:
‘Court:	Tell us what happened in connection with malicious injury to property.
Accused:	It is after the tyre burst, your worship, and I swerved and I smashed into the door.
Court:	Did you observe as to whether the garage door was damaged?
	Accused:	Yes.’

[7] Nothing in this explanation can, in my view, be construed as an admission that the accused intentionally and unlawfully damaged the garage. For that reason alone, the conviction and sentence in respect of count 3 must be set aside.

[8] The following order is made:
(a)	The conviction and sentence in respect of count 2 are confirmed.
(b)	The convictions and sentences in respect of counts 1 and 3 are set aside.

________________ 
C. PLASKET
JUDGE OF THE HIGH COURT

I agree, 

________________ 
J. GROGAN
ACTING JUDGE OF THE HIGH COURT