File photo

A Pietermaritzburg High Court judge has criticised a Kokstad magistrate for incorrectly handling a drunk driving case, and overturned the conviction.

Judge Esther Steyn also ordered that a trial should now take place and that her judgment be sent to the Magistrates’ Commission.

Siyabonga Mzimba was convicted earlier this year of drunk driving and was ordered to pay a fine of R3 000 or spend two years in jail.

The case was taken on review and the magistrate was asked why she had convicted Mzimba as he had not admitted all the elements of the offence.

Mzimba admitted drinking but not that it had affected his driving and a breathalyser reading or blood tests were not attached to the judgment. In her reply, the magistrate, who was not named in Judge Steyn’s judgment, said she had made a mistake by not asking if the accused’s mental faculties had been impaired.

“I humbly request that the court confirm the sentence imposed as a reasonable fine on traffic offences of this nature.”

Judge Steyn said a person charged with drunken driving had to admit that he lacked the necessary skill and judgment normally required in the manipulation of a vehicle and that such skill has been impaired by the consumption of alcohol or drugs.

“The magistrate holds the view that the accused should have been questioned about his mental ability which is not sufficient for a conviction.”

She added that the magistrate had failed to inform Mzimba of his right to a review and had not made an order in terms of section 35 of the national road traffic act, which makes it mandatory for judges and magistrates to suspend the licences of convicted persons for specified periods.

“The learned magistrate was obliged to inform the accused, who was unrepresented, of the provisions of section 35 before imposing sentence. The record is also silent on whether the accused is the holder of a driver’s licence. I cannot confirm that the proceedings were in accordance with justice.”

She added that magistrates had an essential role to play in dispensing justice.

“Unrepresented persons are extremely vulnerable and it is the duty of the presiding officer to assist these accused and inform them of their rights. - The Mercury