- September 6, 2022
- |Concise Law Reports (CLR), Criminal Law And Procedure
CRIMINAL LAW – REVIEW – NON-COMPLIANCE WITH SECTION 51 OF RTT ACT 22 OF 1999
The accused was charged in the Magistrates Court of Opuwo with the contravention of section 82(5) (a) of the Road Traffic and Transport Act 22 of 1999 (the Act): Driving with an excessive breath alcohol level. The accused plead guilty to the charge and the magistrate, unsatisfied with his replies, entered a plea of not guilty in terms of Section 113 of the CPA. The trial proceeded before a different magistrate who then convicted the accused after evidence was presented. The accused was thereafter sentenced to a wholly suspended sentence.
The matter came before the High court on automatic review in terms of Section 302 of the CPA as amended. The review court sent the following query to the magistrate:
‘1. Why was the reason for the unavailability of the Magistrate who noted the plea not addressed on record in terms of Section 118 of the Criminal Procedure Act 51 of 1977?
- Why did the learned Magistrate not apply the provisions of Section 51(3) of the Road Traffic and Transport Act 22 of 1999?’
In The magistrate in reply conceded that she failed to note on record the reason for the unavailability of the initial magistrate and furthermore due to an oversight did not apply section 51(3) of the Act.
KESSLAU AJ (SALIONGA J concurring) considered the review and stated that:
Section 118 allows for a different magistrate to proceed with trial after a plea of not guilty, if the initial magistrate is no longer available. The duty is however on the State to put the reason for the unavailability of such magistrate on record and for the magistrate to note same as part of the record. A failure to comply amounts to irregular proceedings however whether such irregularity vitiates the proceedings depends on the circumstances of the particular case. In casu the accused did not suffer prejudice and thus the court was satisfied that the irregularity did not vitiate the entire proceedings.
The accused indicated during proceedings that he does not possess a driver’s licence thus section 51(3) of the Act applies which in no uncertain terms states that:
‘If a person convicted of an offence mentioned in subsection (1) is not the holder of a driving licence, the court, apart from imposing a sentence, shall declare such person to be disqualified from obtaining a learner’s licence or driving licence for such period as the court may determine, but not being less than the minimum period contemplated in paragraph (a), (b) or (c) of subsection (2), as may be applicable.’
Provided that the accused is given the opportunity to address the court before an order in terms of section 51(3) is made.
The court found the proceedings in as far as the conviction and sentence to be in accordance with justice and confirmed same. However, the court found that the magistrate did not comply with the provisions of section 51 of the Act and remitted the matter to the magistrates court for the magistrate to comply with that section.
S v Tjambiru NAHCNLD 06 September 2022