S. v. PULA.

(NORTHERN CAPE DIVISION.)

1972. July 5.   VAN DEN HEEVER, J.

Criminal law. Traffic offences.-Negligent driving.-Overtaking a vehicle against the prohibition of a white line.-Not ipso facto negligent in all circumstances.

Normally it is dangerous to overtake a vehicle which is proceeding at a reasonable speed against the prohibition of a white line; but it is quite conceivable that a stationary or exceptionally slow moving vehicle can be overtaken without the manoeuvre necessarily constituting a danger to traffic which may be expected to be approaching-depending upon the distance for which the person overtaking can be sure that the road is clear, the speed with which he can complete the manoeuvre, the width of the road, etc. Therefore the manoeuvre is not ipso facto negligent in all possible circumstances; although it may be a contravention of a statutory .provision;

Review.

VAN DEN HEEVER, J.: Accused was charged in the magistrate’s court at Taung with driving a motor vehicle on 16th March, 1972 while under the influence of intoxicating liquor; alternatively while the percentage of alcohol in his blood was not less than 0,15 per cent; alternatively in a reckless and/or negligent way.

He pleaded not guilty on the main and alternative charges and conducted his own defence.

Dr. Rebry testified that on 16th March, 1972 at 4.40 p.m. he took a blood sample of the accused and handed it to adjutant-officer Loots. On being examined he smelled of liquor and his conjuctivae were abnormal. but he was normal in all other respects. It is hard to understand on what she based her conclusion that

"at the time of this examination the person was mildly under the influence of alcohol"

and "at the time of the occurrence" (which was "4h10" according to information given to her)

"the person could possibly have been under the influence of alcohol".

The magistrate correctly concluded that there was no proof that the accused had been under the influence of intoxicating liquor.

In view of further evidence, inter alia, that the accused overtook two donkey carts on a blind rise and in the process travelled on the wrong side of an unbroken white line on the tarred road, the magistrate, however, convicted him of reckless driving, but had doubts as to whether, with a view to possible future convictions, he should not have convicted and sentenced him on the first alternative charge as the evidence in his opinion justified a conviction on any of the alternative charges.

Apart from Dr. Rebry's evidence the only witness for the State was Adjutant-Officer Loots. He said:

[The learned Judge analysed the evidence and proceeded as follows].

Accused said in an unsworn statement that

"where the donkey carts travelled there was sufficient room for me to pass"

and that he bought and partook of liquor after leaving the car at the garage.

There is no direct evidence as to the exact time of the alleged offence. The magistrate conceded, in his reply to an inquiry, that a conviction on the first alternative charge was impossible in view of the evidence on record.

Regarding the conviction of reckless driving, the magistrate assumed that it was per se reckless to overtake the donkey carts against the prohibition of a white line, as white lines are painted on tarred roads at places where it is dangerous to travel on the wrong side of such lines. Accused moreover travelled at a very high speed, decidedly more than 80 m.p.h., through a built-up area. He relied on cases such as S. v. Goehlaar, 1965 (1) P.H. 014; S. v. Rossouw, 1965 (1) P.H. 017; and Coetzer v. S., 1966 (2) P.H. 049.

To travel against the prohibition of a white line is, in my opinion, not ipso facto negligent in all possible circumstances; although it may be a contravention of a statutory provision. Normally it is dangerous to overtake a vehicle which is proceeding at a reasonable speed against the prohibition of a white line; but it is quite conceivable that a stationary or exceptionally slow moving vehicle can be overtaken without the manoeuvre necessarily constituting a danger to traffic which may be expected to be approaching-depending upon the distance for which the person overtaking can be sure that the road is dear; the speed with which he can complete the manoeuvre, the width of the road, etc. Simple calculations illustrate this clearly; should two donkey carts be close to each other with a total length of 30 feet, just past the commencement of a white line 350 yards in length, and hardly move, it would take the accused travelling at 35 m.p.h. 3/5 of a second to overtake the full length of the donkey carts, and another 20 or 30 yards-two more seconds at most-to be fully on his correct side of the road again. One may swerve in front of a donkey cart travelling at a very slow speed without forcing it to apply its brakes in order to avoid a collision. In the three seconds it took the accused to overtake, he could only have collided with someone coming from the opposite direction over the remaining 300 yards, if the fatter were to have travelled just over 200 m.p.h.

The accused might have been negligent or even reckless, but in the absence of evidence adduced by the prosecutors to the distance from where this happened to both the commencement of the white line and the top of the blind rise; the speed of the donkey carts, their width, the distance between them, and their position in relation to the width of the road, what that width was, etc. his negligence has not been proved beyond reasonable doubt. Cf. R. v. Mtembu, 1956 (4) S.A. 334 (T). In the cases of Goehlaar and Rossouw such evidence was in fact led. The evidence, moreover, that Loots travelled at 80 m.p.h. but could not overtake the accused in no way justifies the inference that accused travelled "decidedly faster than 80 m.p.h.", as Loots himself testified that he was delayed by the donkey carts (we do not know for how long) and the distance from the top of the blind rise to where the accused parked his car, is unknown. Should this be somewhat more than half a mile, Loots would not have been able to overtake the accused at any speed because when he crossed the rise the accused was already half a mile ahead of him.

The conviction and sentence are set aside, as well as the order regarding the endorsement and suspension of the accused's driver's licence.