Traffic Offences Flashcards
(22 cards)
Define “driving” in the context of traffic offences and explain how it differs from mere presence in a vehicle.
- In terms of South African traffic law, “drive” means to control or attempt to control the direction and movement of a vehicle.
- Importantly, mere presence in a vehicle does not amount to “driving”, however, control over the steering mechanism can render a person a driver even if not in the traditional driver’s seat.
- According to Rooyen, pushing a car while controlling the steering is driving.
- According to Cele, a passenger manipulating handbrake and steering is driving.
- According Blaauw, attempting to start a vehicle while intoxicated is attempting to drive.
What is a “public road” under South African traffic law, and how does its definition affect liability ?
- Whether a road is “public” depends on whether the public commonly uses it; whether the public has a right of access.
- In terms of Kriel, a private road used by the public for 25+ years became a public road.
- In terms of Coetzee a roadhouse parking lot reserved for customers was not a public road.
- Thus, if the road is not public, traffic offences like DUI or reckless driving under the Act may not apply.
What is considered a “vehicle” for the purposes of traffic offences ?
- A vehicle is defined as a device designed or adapted mainly to travel on wheels or crawler tracks, including bicycles; horse-drawn carts; temporarily disabled cars (e.g. those being towed).
- However, a vehicle no longer capable of self-propulsion (e.g. no wheels or engine) is not a vehicle for legal purposes.
What must the State prove to establish that someone contravened Section 59(4) of the Road Traffic Act ?
To prove an offence under Section 59(4), the State must establish the following elements:
- The accused was driving a vehicle;
- The vehicle was being driven on a public road;
The speed at which the accused was driving exceeded one or more of the following: the general prescribed speed limit; the speed limit indicated by a road traffic sign; the speed limit prescribed for that type of vehicle; the conduct was unlawful (no valid justification); the accused acted with fault, typically in the form of intention or negligence.
Can exceeding the speed limit ever be legally justified in South African law ?
- Yes, speeding may be justified in exceptional circumstances where a lawful defence is raised, such as necessity (to save life or prevent serious harm); lawful execution of duties (e.g., emergency vehicles, judges on urgent duty).
- In terms of De Bruin, speeding while performing judicial functions is not unlawful.
- In terms of Pretorius, speeding to get help for a seriously injured child lawful due to necessity.
How is speeding proved in court, and what role does evidence estimation play ?
- Speed measuring devices (e.g., radar, laser);
- Testimony of trained traffic officers estimating speed;
- Video or observational evidence.
Differentiate between reckless and negligent driving (Section 63).
- Reckless driving refers to the intentional disregard for safety; involves consious risk-taking; punishable for up to 6 years imprisonment; wilful disregard.
- Negligent driving refers to the failure to foresee preventable harm; based on reasonable person test; punisable for up to 3 years imprisonment; ordinary negligence.
What is the test for negligent driving and how is it applied ?
The test is based on the diligens paterfamilias (reasonable person) standard:
- Would a reasonable person have foreseen harm ?
- Would they have taken steps to avoid it ?
- If the answer is yes and the driver failed to do so, they may be liable.
What constitutes inconsiderate driving under Section 64 ?
Inconsiderate driving occurs when one drives without due regard to other road users. It:
- Must involve driving (not parking);
- Requires presence of other road users;
- Is based on whether the action inconvenienced or embarrassed others.
What must the State prove to secure a conviction under Section 65(1)(a) of the National Road Traffic Act (driving under the influence) ?
- The accused was driving or attempted to drive a vehicle;
- On a public road;
- While under the influence of intoxicating liquor or a drug;
- To such an extent that the person’s ability to drive was impaired.
What types of evidence can the prosecution use to prove that the accused was under the influence ?
- Observation evidence such as slurred speech, unsteady gait, smell of alcohol, erratic driving.
- Expert testimony, often from arresting officers or medical practitioners.
- Breathalyser results (for indicative purposes).
- Blood test results: showing alcohol concentration above the legal limit under Section 65(2).
- Witness testimony (e.g. from passengers or bystanders).
What is the evidentiary burden on the State in such cases ?
- The State bears the legal and evidentiary burden of proving the accused’s guilt beyond reasonable doubt.
- This includes proving both intoxication and impairment of driving ability, unless relying on Section 65(2) (which deals with exceeding blood/breath limits as a separate offence).
How can an accused person rebut the State’s case in a DUI charge ?
- Challenge the reliability of observation or test evidence (e.g. incorrect procedure, equipment not calibrated).
- Provide alternative explanations for observed behaviour (e.g. fatigue, illness).
- Introduce medical or scientific evidence contradicting impairment or intoxication.
- Dispute identity, if applicable (e.g. someone else was driving).
What are the three types of offences created under Section 65 of the National Road Traffic Act ?
- Driving under the influence of intoxicating liquor or drugs.
- Driving with an excessive concentration of alcohol in the blood.
- Driving with an excessive concentration of alcohol in the breath.
How is “under the influence” interpreted in South African criminal law ?
Being “under the influence” does not require proof of erratic or negligent driving. It involves:
- Impairment of skill (physical coordination/motor control) or impairment of judgment (mental capacity to drive safely).
- Both must be impaired at the time of driving. This is usually proven by evidence of prior alcohol/drug consumption and behaviour and physical condition during and after driving.
What defences are available to a charge under Section 65(1) ?
- Involuntary intoxication, as in Hartyani, where the accused unknowingly consumed alcohol.
- Lack of impairment, if one or both of the required impairments cannot be proven.
- Lack of control/movement of vehicle, must prove the accused exercised control over the vehicle.
What are the legal elements of the offence of “Driving with Excessive Blood Alcohol” under Section 65(2) ?
- Driving or occupying the driver’s seat with the engine running on a public road while having blood alcohol concentration of ≥ 0.05g/100ml for ordinary drivers and ≥ 0.02g/100ml for professional drivers.
- Blood drawn within 2 hours of the offence.
- Proof the blood belonged to the accused.
- Culpability (intent or negligence).
What evidentiary rules apply to proving a charge under Section 65(2) ?
- Expert evidence required to prove blood alcohol concentration.
- Presumptions apply, if the blood was taken within 2 hours and syringe was clean, court will presume validity.
- Prosecution need not prove effects of alcohol—only that the concentration exceeded the legal limit.
What are the elements of “Driving with Excessive Breath Alcohol” under Section 65(5) ?
- Same actus reus as Section 65(2).
- Breath alcohol of ≥ 0.24mg/1000ml for ordinary drivers and ≥ 0.10mg/1000ml for professional driver.
Judicial recognition of breathalyser evidence requires what ?
- Knowledge of the instrument’s function.
- Lack of dispute over reliability.
- Relevance to the enquiry.
Bester case.
What punishment applies for contravention of any part of Section
65 ?
According to Section 89(1) a fine and/or imprisonment for up to six years.
Can a motor vehicle be forfeited under POCA for a Section 65 offence ?
No, unless exceptional circumstances exist.
