South Africa High Court, Free State Division, Bloemfontein: The Division Bench of S. Naidoo, ADJP., and P. Molisoane, J. in this particular review under Section 302 of the Criminal Procedure Act, 1977 (CPA) found that all the elements of the offence were not proven in order to sustain a conviction.
In the instant case, the accused was charged under Section 59(4)(a) of the National Road Traffic Act 93 of 1996, in the Brandfort Magistrates Court. He was alleged to have exceeded the speed limit while driving. The speed was recorded by a speed recording device, operated by a traffic officer. Thereafter, he pleaded guilty and later on found guilty after the Court questioned him in terms of Section 112 (1)(b) of the Criminal Procedure Act 51 of 1977 (CPA). He was sentenced to a fine or imprisonment, which was wholly suspended for three years on certain conditions.
Taking note of the case of S v. Enoch Phuzi, Case number R 254/2018, a Full Bench decision of this Court, a letter was addressed to the magistrate enquiring if the accused was asked about competence and ability of the traffic officer who operated the speed recording device, and whether the magistrate satisfied himself that the accused admitted the competence of the traffic officer to operate such a device. In his reply, the magistrate agreed on not asking the accused about the competence of the traffic officer but that he rather focused on the proper functioning of the device. Moreover, the Magistrate conceded that the guidelines set out in Phuzi were not followed and requested that the conviction and sentence be set aside.
In addition to this, the accused did not admit that he knew that it was unlawful to drive at the speed he was driving. Moreover, the Magistrate asked some irrelevant questions to extract information from the accused.
In Phuzi, (Paragraph 31) it was held that – “the competence of the traffic officer to set up and operate the speed measuring device must be admitted in order to prove that the speed was measured in accordance with the manufacturer’s specifications”.
After analyzing all the points at hand, the Court ordered that the conviction and sentence be set aside.[State v. Gomolemo Thakanyane, Review No. R29/2019, decided on 28-06-2019]
