S v Silengano (CR 125/2023) [2023] NAHCMD 742 (16 November 2023)

Case Title:

S v Bornface Silengano

CR NO: 125/2023

Division of Court:

Main Division

Heard before:

January J et

Justice Christiaan AJ

Delivered on: 16 November 2023

Neutral citation: S v Silengano (CR 125/2023) [2023] NAHCMD 742 (16 November 2023)

ORDER

1. The conviction and sentence are set aside.

2. The matter is remitted to the same court in terms of s 312(1) of Act 51 of 1977 with the direction to further question the accused in terms of s 112(1)(b) of the Act.

3. In the event of a conviction, regard must be had to the sentence already served and fines paid by the accused

.

Reasons for the above order:

CHRISTIAAN AJ (JANUARY J concurring):

[1] The accused pleaded guilty to a charge of driving under the influence of intoxicating liquor in contravention of s 82(1)(a) read with s 1, 86, 89 (1) and 89 (4) of the Road Traffic and Transportation Act, 22 of 1999 and driving without a driver’s license in contravention of s 3(1)(a) read with s 31(2). The court thereafter questioned him in terms of section 112(1)(b) of the Criminal Procedure Act 51 of 1977, as amended on the first count. . He was convicted as charged and sentenced to a fine of N$5000 or 5 months’ imprisonment. The magistrate applied s 112(1)(a) in respect of the second count and convicted him on his plea of guilty.

[2] On review, I directed a query to the learned magistrate as to how the court satisfied itself that the accused admitted all the elements of the offence if no question was asked whether the intoxicating liquor had impaired his skills or affected his ability to drive.

[3] In reply, the learned magistrate conceded that a crucial fact was omitted thus, making it impossible for the court to be satisfied with the guilt of the accused. She thereafter requested that the conviction be set aside and the matter remitted to the court a quo to apply section 113 of Act 51 of 1977.

[4] A plea of guilty to a charge of driving a motor vehicle while under the influence of liquor must incorporate an admission that the accused’s driving ability was impaired as a result of the consumption of intoxicating liquor. This is necessary on account of the relevant substantive law requirement that ‘the skill and judgment normally required of a driver in the manipulation of a vehicle (must be) diminished or impaired as a result of the consumption of intoxicating liquor.’¹

[5] In S v Mzimba² the court noted as follows with regard to this essential requirement:

….‘This element of the crime requires an impairment, not only of an accused's state of mind, i.e. that the alcohol induced him to a state that he was prepared to take risks, but that his driving ability was impaired. It is therefore necessary that an accused charged with an offence of drunken driving should admit that he/she lacked the necessary skill and judgment normally required in the manipulation of a motor vehicle and that such skill or judgment has been diminished or impaired as a result of the consumption of alcohol or drugs.’

[6] It follows that, the correct procedure in such an instance is to change the plea of guilty to one of not guilty. The court cannot be satisfied with the accused’s plea of guilty because he did not admit all the elements of the offence he is charged with.

[7] I wish to add that by the time this judgment is delivered, the accused would have served his sentence and this judgment would be for academic purposes only. It would therefore serve no purpose for the matter to be remitted to the magistrate to apply the provisions of section 113 of the Criminal Procedure Act 51 of 1977.

[8] In the result:

1. The conviction and sentence are set aside.

2. The matter is remitted to the same court in terms of s 312(1) of Act 51 of 1977 with the direction to further question the accused in terms of s 112(1)(b) of the Act.

3. In the event of a conviction, regard must be had to the sentence already served and fines paid by the accused.

P CHRISTIAAN

ACTING JUDGE

H JANUARY J

JUDGE