Court name
High Court Main Division
Case number
CRIMINAL 3 of 2013
Case name
S v Tjaseua
Media neutral citation
[2013] NAHCMD 10
Judge
Van Niekerk J
Ueitele J












NOT
REPORTABLE





REPUBLIC
OF NAMIBIA


HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK


JUDGMENT



Case No: CR 3/2013





In the matter between:





THE
STATE





and







SEMSON TJASEUA





(HIGH
COURT MAIN DIVISION REVIEW REF NO 624/2012)





Neutral
citation:
S v Tjaseua (CR 3-2013) [2013] NAHCMD 10 (22
January 2013)







Coram: VAN NIEKERK, J and UEITELE, J


Delivered: 22
January 2013





Flynote: Criminal
law – Traffic offences – Contravention of section 82(1)
of Road Traffic and Transport Act 22 of 1999 - Driving motor vehicle
on public road under influence of liquor – Accused pleading
guilty but denying that his driving skills were impaired –
Conviction and sentence set aside






Summary: The
accused pleaded guilty to a charge of c/section 82(1) of Road Traffic
and Transport Act 22 of 1999, namely that he drove a motor vehicle on
public road under the influence of liquor. During the questioning in
terms of section 112(1)(b) of the Criminal Procedure Act, 1977 (Act
51 of 1977), he stated that at the time of the incident his driving
skills were not impaired and that he drove well. The Court held that
the accused did not admit an element of the offence, namely that he
had been under the influence of liquor. The conviction and sentence
were set aside and the matter remitted to the magistrate in terms of
section 312(1) to enter a plea of not guilty in terms of section 113.




ORDER








  1. The result is that
    the conviction and sentence are set aside.


  2. In terms of section
    312(1) of the Criminal Procedure Act, 1977 (Act 51 of 1977), the
    matter is remitted to the court a quo and the magistrate is
    ordered to enter a plea of not guilty in terms of section 113.







REVIEW
JUDGMENT






VAN
NIEKERK, J ( UEITELE, J concurring):





[1] The
accused stood trial in the magistrate’s court of Windhoek on a
charge of contravening section 82(1) of the Road Traffic and
Transport Act, 1999 (Act 22 of 1999) in that he allegedly drove a
motor vehicle on a public road while being under the influence of
intoxicating liquor or a drug having a narcotic effect. The accused
pleaded guilty to the charge.





[2]
During the questioning in terms of section 112(1)(b) of the Criminal
Procedure Act, 1977 (Act 51 of 1977), the following was inter alia
recorded (the omissions, insertions and underlining are mine):






Tell the Court, in detail
what did you do wrong on the 12th of December 2011 and at
or near Otjomuise in the district of Windhoek? --- Your Worship, I
was driving my vehicle coming from Otjomuise on the way home Your
Worship, while I was under the influence of alcohol.







Is Otjomuise road a public or
private road? --- It is a public road, Your Worship.







And you said you drove under the
influence of intoxicating liquor, what did you consume? --- Only beer
Your Worship.







How many quantities, how many
did you drink? --- Four beers, Your Worship.







What was the registration number
of your motor vehicle? --- NKC 77C GP, Your Worship.







Did you know that it is wrong to
drive a motor vehicle on a public road while under the intoxicated
liquor or …… [a drug having a] narcotic effect? ---
Yes, Your Worship.







Did you also realize that it is
wrong to drive on a public road under the influence of intoxicating
liquor or …………. [a drug having a]
narcotic effect and that upon conviction, you can be punished? ---
Yes, (inaudible)



Were your driving skills
impaired? --- No, Your Worship, it was (sic) not
impaired.







How was (sic) your
driving skills? --- Your Worship, I was driving well it is only
because there was a road block.







What happened at the road block,
when you were stopped? --- Yeas, Your Worship.







And what transpired there? ---
Then Your Worship, a breath sample was taken from me, me the driver.







Well so far from the answer[s]
given by the Accused person the Court is satisfied that the Accused
…. [has] admitted to all the elements of the offence. And the
verdict he is guilty as charged.’





[3]
Thereafter the accused was sentenced to a fine of N$2 000 or 12
months imprisonment.





[4] When
the matter was sent for review the transcribed record had certain
handwritten changes on it which conveyed that the accused’s
answers underlined above were to the effect that he did not drive
well because his driving skills were impaired. It would seem that
the trial magistrate thought that the record was incorrectly
transcribed and that he mistakenly sought to correct it. However,
when the recording was listened to it was clear that the accused
actually stated that his driving skills were not impaired and that he
drove well.





[5] Based
on the actual answers given the magistrate was asked to explain on
what basis the accused was convicted. The magistrate’s
response is that there is no way that the court could have been
satisfied that the accused admitted all the elements of the offence
in question. I agree entirely.





[6] In S
v Cloete
1994 NR 190 HC at 191G-192C) this Court stated:






The elements of this
offence are: that the accused (i) drove (ii) a vehicle (iii) on a
public road (iv) while under the influence of liquor (v) mens rea.







The accused admitted elements
(i), (ii), (iii) and (v). In respect of element (iv) the accused
denied that his driving skill was impaired as a result of the alcohol
consumed by him and he further stated that he drove in a normal way
but disobeyed a stop sign. In this regard it was stated in R v
Lloyd
1929 EDL 270 at 274 that an accused may be considered to be
under the influence of intoxicating liquor if it is proved that



the skill and judgment
normally required in the manipulation of a motor car is obviously
diminished or impaired as a direct result of the consumption of
alcohol’.




(See also S v Grobler
1972 (4) SA 559 (O) at 561D-E.)







The accused's admission that he
disobeyed a stop sign is, in the context of this denial that his
driving skills were not impaired, of little significance. The fact
that a person disobeys a traffic sign is not per se proof that his
driving skills are impaired by the intake of alcohol. This offence is
frequently committed by people who did not take a drop of alcohol.
The further admission by the accused that he knows that it is wrong
to drive a vehicle on a public road whilst drunk was, in the light of
his previous denials, no more than a general statement of fact and
not an admission that he was drunk at the time when he drove the
vehicle. It must also be pointed out that, although a person who is
drunk will obviously contravene the section, it is not necessary for
the State to prove that the accused was drunk in order to secure a
conviction. It is enough if the State proves or, for that matter the
accused admits, that his driving skill and judgment were impaired by
the intake of alcohol.’





[7] In S
v Jansen
2006 (1) NR 337 HC 339E-J Mainga J (as he then was)
expressed the same position thus:






To prove a contravention
of s 82(1) it is not sufficient for the State to prove mere
consumption of intoxicating liquor (Cooper
Motor
Law
vol 1 at 554);
the State must prove something more than that the driver has had a
few drinks or that his breath smells of liquor.
R
v Donian
1935 TPD 5
at 9;
R v Tathiah
1938 NPD 387 at 392;
R
v Lloyd
1929 EDL 270
at 274;
R v Magula
1939 EDL 207 at 211……………. 'The
onus is on the prosecution, on a charge of driving under the
influence, to establish the impairment in the driver's ability to
drive, if there was any, was caused by the consumption of alcohol.'
(
S v Piccione
1967 (2) SA 334 (N) at 336.) The elements of the offence of driving
under the influence are that the accused (i) drove (ii) a vehicle
(iii) on a public road (iv) while under the influence of liquor or
drugs (v)
mens rea
(Milton
South African
Criminal Law and Procedure

vol III Statutory Offences G3-61).



An accused may be considered to
be under the influence of intoxicating liquor, if it is established
that 'the skill and judgment normally required in the manipulation of
a motor car is obviously diminished or impaired as a direct result of
the consumption of alcohol' (
R
v Spicer
1945 AD 433
at 435-6;
S v Grobler
1972 (4) SA 559 (O) at 561D-E; Milton
South
African Criminal Law and Procedure (supra)

at G3-63 and all the cases the learned author refers to in fn 14;
S
v Engelbrecht
2001
(2) SACR 38 (C) at 44i, 46a-d, 47d; Cooper
Motor
Law
vol 1 at 554).’





[8] In
this case the accused, although he at first appeared to admit the
fourth element of the offence, namely that he was under the
influence, in fact denied it when he stated that he drove well and
that his driving skills were not impaired. He should therefore not
have been convicted.





[9] The
result is that the conviction and sentence are set aside. In terms
of section 312(1) of the Criminal Procedure Act, 1977 (Act 51 of
1977), the matter is remitted to the court a quo and the
magistrate is ordered to enter a plea of not guilty in terms of
section 113.




­





___________________


K van
Niekerk


Judge














__________________


S F I
Ueitele


Judge