PRINCIPLES OF

CRIMINAL LAW

Fourth edition

JONATHAN BURCHELL
BA LLB (Natal) LLM Dip in Comparative Legal Studies (Cantab) PhD (Wits)
Professor of Law and Fellow of the University of Cape Town

I: -
JUTA
 Chapter 72: Roa

CHAPTER 72 1 Driving
The driving mu
ROAD TRAFFIC OFFENCES constitute a volt
driving was an ir
tism.5 Intoxicati,
was so drunk d
I INTRODUCTION defence ro a cha
(that is, conduct
Road traffic legislation exists to regulate and control the traffic of vehicles and actio libera in l
persons on public roads. conduct, such a:
Since the advent of vehicles propelled by motor power and capable of great speeds crimes, such as d
at the beginning of the 20th century, the need to control driving in the interests of the where the accus,
physical safety of persons on or using public roads has become vital. Modern road vehicle while int
traffic legislation, in the form of the National Road Traffic Act 93 of 1996, seeks to of drunk-driving
achieve this end by penalising dangerous driving practices.
The National Road Traffic Act seeks to minimise the incidence of traffic accidents 2 Vehicle
by imposing upon the drivers of vehicles duties of care and circumspection in Section 1 of the l
relation to the manner in which they drive vehicles. In brief, the legislation requires
drivers, while driving, to be sober and neither reckless nor negligent. These responsi- a device design,

bilities are enforced by criminal sanctions. a device which

the towing equi
vehicle which i
II DRIVING UNDER THE INFLUENCE OF ALCOHOL OR DRUGS'
Thus a bicycle 01
A INTRODUCTION
3 Public road
Empirical evidence establishes beyond any doubt the high correlation between the
effect of alcohol on the drivers of vehicles and the incidence of serious road Section 1 of the
accidents. 2 any road, street
South African law contains strict provisions against drunk-driving. It is an offence is commonly u
to drive while under the influence of liquor, and it is also an offence to drive having thereof has a
consumed a certain amount of liquor. It is even an offence to occupy the driver's seat thoroughfare; i
of a motor vehicle with the engine running having consumed liquor or while under fare; and (c) ar
the influence of liquor. such road, stret
The effect of thi.
B DRMNG UNDER THE INFLUENCE permission of th
Definition road for the pur
It is an offence for any person while under the influence of intoxicating liquor or a 4 Under the inf
drug having a narcotic effect to drive a vehicle on a public road or to occupy the
A driver is uncle,
driver's seat of a motor vehicle while the engine is running. 3
the skill and ju
Elements diminished or i
The elements of driving under the influence are (1) driving; (2) vehicle; (3) public
road; (4) under the influence; and (5) fault. 4
See ch 4.
5
Compare Trick
6 See ch 21.
1 See generally WE Cooper, TG Sch war & LS Smith Alcohol, Drugs and Road Traffic (1979). 7
See 67-8.
2
See Cooper, Schwar & Smith (n 1) 319ff; LH Ross Deterring the Drinking Driver (1982) 3. 8 See 69-71.
3
National Road Traffic Act 93 of 1996, s 65(1). The penalty is a fine or imprisonment not 9 Gertse 1972 (3
exceeding six years: s 89(2). 10 Lloyd 1929 EC

786
 Chapter 72: Road traffic offences 787

1 Driving
The driving must, in terms of general principles of criminal liability, at least
constitute a voluntary act.4 In principle, then, the offence is not committed if the
driving was an involuntary act brought about by epilepsy, or other form of automa-
tism.5 Intoxication can cause conduct to be involuntary. 6 What, then, if the driver
was so drunk that his act of driving was involuntary? Can his drunkenness be a
defence to a charge of drunk-driving? Criminal liability requires voluntary conduct
(that is, conduct controlled by the accused's conscious will).7 Strictly speaking, the
des and
actio libera in causa principle, 8 which founds liability on some prior voluntary
conduct, such as getting drunk in the first place, does not apply to circumstance
1t speeds
crimes, such as drunk-driving. However, the fault for drunk-driving is present either
mof the where the accused foresees or ought ro foresee that he or she would drive a motor
ern road vehicle while intoxicated and so 'prior' fault is built into the definition of the offence
seeks to of drunk-driving.
iccidents 2 Vehicle
!ction in Section 1 of the National Road Traffic Act 1996 defines a vehicle as:
requires
responsi- a device designed or adapted mainly to travel on wheels or crawler tracks and includes such
a device which is connected with a draw-bar to a breakdown vehicle and is used as part of
the towing equipment of a breakdown vehicle to support any axle or all the axles of a motor
vehicle which is being salvaged other than such a device which moves solely on rails.
Thus a bicycle or animal-drawn cart is a vehicle for these purposes.9

:ween the 3 Public road

ous road Section 1 of the National Road Traffic Act defines a 'public road' as
any road, street or thoroughfare or any other place (whether a thoroughfare or not) which
m offence is commonly used by the public or any section thereof or to which the public or any section
.ve having thereof has a right of access, and indudes-(a) the verge of any such road, street or
iver's seat thoroughfare; (b) any bridge, ferry or drift traversed by any such road, street or thorough-
hile under fare; and (c) any other work or object forming part of or connected with or belonging to
such road, street or thoroughfare.
The effect of this definition is that, except for ways which cannot be used without the
permission of the owner, nearly every place where a vehicle can be driven is a public
road for the purposes of the National Road Traffic Act.
iquor or a 4 Under the influence
>ccupy the
A driver is under the influence of intoxicating liquor if:
the skill and judgment normally required in the manipulation of a motor car is obviously
diminished or impaired as a result of the consumption of alcohol.10
(3) public !,,

See ch 4.
4

Compare Trickett 1973 (3) SA526 (T) 529H. See also 68.
5
6
See ch 21.
; (1979). 7 See 67-8.
1982) 3. 8
See 69-71.
sonment not 9 Gertse 1972 (3) SA 59 (C).

JO Lloyd 1929 EDL270.

788 Principles of Criminal Law Chapter

Thus it is not necessary that the driver should be so drunk as to be incapable of Only
driving or indeed so drunk that his skill and judgement are grossly impaired; 11 ir is
sufficient that alcohol or drugs have impaired his capacity to drive.12 Medical Blood-al
evidence as to the accused's degree of intoxication is not essential for a conviction This ele
and the evidence of any witness is sufficient to establish that the driver was under the alcohol i
influence at the time he or she was dciving. 13 is essenr
not less t
5 Fault This r
The fault element of this offence may consist in either intention or negligence. 14 alcohol i
There is fault where the accused knowingly drinks alcohol or takes narcotic drugs rheweigl
foreseeing that he would drive a vehicle while under the influence of the substances. The cc
Negligence, however, is sufficient fault for the offence.'-' In other words it is of rhe ch
sufficient ro show that the accused had negligently failed to foresee that he would sample ii
drive a vehicle while under the influence. the cond1
The fact that an accused was so drunk at the time that he or she did not realise that Sectio1
he or she was driving while under rhe influence will not necessarily establish an specimen
absence of fault. This is because the fault element is satisfied when the accused
foresees, or ought to have foreseen, that he will drive a vehicle while under the D OCCI
influence (so-called 'antecedent' fault).16 The subsequent drunkenness thus does not It is an of
preclude a finding of fault on the part of the accused. 17 The position may be differenr drug havi
where the accused did not foresee the possibility that he would drive a vehicle, 18 or excess of
did nor know that he was under the influence of alcohol.1 road.29

C DRJVlNG WITH EXCESSlVE ALCOHOL IN THE BLOOD E BREA-

Definition It is an of
motor vel·
It is an offence for any person to drive a vehicle on a public road or occupy the
specimen
driver's seat of a motor vehicle while the engine is running while the concentration of
alcohol in a specimen of his blood is not less than 0,05 grams per 100 millilitres or in millilitres.
the case of a professional driver not less than 0,02 grams per 100 millilitres.20 Section
specimen<
Elements
The essential elements of driving with excessive alcohol in the blood are (1) driving;2' III NEGl
(2) vehicle;22 (3) public road;23 (4) blood-alcohol; and (5) fault.24
A INTRC
The Natio1
11Magula 1939 EDL 207. care and at
12
Spicer 1945 AD 433 ac 436.
13
Mhetoa 1968 (2) SA 773 (0).
14 Els 1972 (4) SA 696 (T);Fouche 1973 (3)SA308 (NC)313;Hartyani 1980 (3)SA 613 (T).
15 Fouche (n 14) 313D; Fo11che1974 (1) SA 96 (A) !01; Hartyani (n 14). 25
Iveson l9
16 See SA Strauss in (1984) 101 SAL]396 at 399-400. See 69-71. 16
lveson (n
17 JL Snyman Dronkenskap asVeru,eer (1977) 186. 27 For cases
18
Compare Kelder 1967 (2) SA 644 (T) 647; Fouche (n 14) 314B-C. 1978 (4).
19 Hartyani (n 15) (X reasonably unaware that his drink had been laced with liquor).
on the me
211 National Road Traffic Acr 93 of 1996, s 65(2). The penalty is a fine or imprisonmenr nor 28
Marx 197
exceeding six years: s 89(2). 29 National
21 See 791.
bloodstre.
22 See also 791. 311 National
23 See also 79 L
tests in dri
2-1 See 788. vMut11al<
 al Law Chapter 72: Road traffic offences 789

1ble of Only element (4) requires discussion here.

;
11
it is
Blood-alcohol
iedical
viction This element of rhe offence is established simply by proving the concentration of
der the alcohol in the specimen of blood taken from the body of the accused. In this regard it
is essential to show that the concentration of alcohol in the specimen of blood was
not less than 0,05 grams per 100 millilitres.
This means chat what must be established is the ratio between the weight of
ence.14 alcohol in a certain volume (100 millilitres) of blood.25 The offence is committed if
: drugs the weight of alcohol exceeds 0,049 grams.26
:ranees. The concentration of alcohol in the blood must be proved by way of the evidence
:Js it is of the chemical analysis27 of the blood. It is essential for the state to establish that the
would sample in question was the blood of the accused and that it, when analysed, was in
the condition it was when taken from the body of the accused. 28
ise that Section 65(9) states that: 'No person shall refuse that a specimen of blood, or
,lish an specimen of breath, be taken of him or her.'
1ccused
der the D OCCUPYING THE DRIVER'S SEAT
toes not It is an offence for any person whi1e under the influence of intoxicating liquor or a
.ifferent drug having a narcotic effect, or who has a concentration of alcohol in his blood in
:Je,18 or excess of the minimum, to occupy the driver's seat of a motor vehicle on a pub1ic
road.29

E BREATHALCOHOL
It is an offence to drive a vehicle on a public road or occupy the driver's seat of a
motor vehicle while the engine is running while the concentration of akohol in any
:upy the specimen of breath exhaled by such person is not less than 0,24 milligrams per 1 000
·ationof millilitres.30
res or in Section 65(9) states that: 'No person shal1 refuse that a specimen of blood, or
0
specimen of breath, be taken of him or her.'

riving;z1 III NEGLIGENT OR RECKLESS DRIVING

A INTRODUCTION
The National Road Traffic Act seeks to compel drivers to exercise such duties of skill,
care and attention by penalising 'negligent' driving. By invoking the concept of negli-

3 (TI.
is Iveson 1975 (3) SA 90 (0) 92H-93D.
26 Iveson (n 25) 93E.
27 For cases in which the reliability of the method of,}nalysis was put in issue, see S v Strydom

1978 (4) SA 748 (E); Burger 1980 (3) SA 1219 (T); Terblanche 1981 (1) SA 791 (T). Generally
on the modes of analysis used, see Cooper, Schwar & Smith (n 1) ch 21.
28 Marx 1972 (3) SA 61 (E); Naidoo 1985 (2) SA 32 (N) 38].
29 National Road Traffic Act 93 of 1996, s 65(1) (under the influence), s 65(2) (excess alcohol in

bloodstream).
30 National Road Traffic Act 93 of 1996, s 65(5). On the factual detail relating to breathalyser

tests in drunk-driving cases and the reliability or unreliability of such tests, see Sangoni J in Price
v Mutual & Federal lnsurance Co Ltd 2007 (1) SACR 501 (SE).
 790 Principles of Criminal Law Chapter

gence, the legislature seeks to enforce 'common rules of prudence'31 in driving. In effect she exhib
this means that drivers are required to display the degree of skill, care and consideration wisdom [
which a reasonable man would have displayed in the same circumstances.32 timidity'
A reas
B NEGLIGENT DRMNG foreseen
reasonabl
Definition
The test i
It is an offence for any person to drive a vehicle negligently upon a public road.H. magnitud
;1
tl Elements Since r
t} The essential elements of negligent driving are (1) negligent; (2) driving; (3) vehicle; make an e
1,\,. emergenC
(4) public road; and (5) fault.
reaction t
1 Negligent failure to f
Driving a motor vehicle is an activity that demands a high degree of skill, attention Since ou
from the st
and consideration lest the vehicle, while it is in motion, become the cause of harm or
34
damage to persons
The process or property.
of driving a motor vehicle involves, in essence, the direction of the 2 Driving

course of the vehicle while it is in motion.35 When a vehicle is driven on a public

I
road, the public interest in the safety of persons using the roads requires char the constitLJte
The drivi,
driver, in driving, should direct the vehicle at an appropriate speed, with due driving th
consideration for its relationship on the road to other vehicles and road users and in hypoglyca
accordance with the code of rules of the road. ln Victo
Negligence for these purposes may be stated co be whether a reasonable person, in driving a<
the same circumstances, would have foreseen rhat a particular method of driving vehicle am
constituted a risk of harm to orher persons using the road and would have guarded from epile
against thac risk by desisting from driving in that manner or taking other appropriate attack. He
avoiding action. No harm need result for a conviction of negligent driving so the had a 'wa
offence is a 'circumstance crime'.36 criminally
A reasonable person when driving a vehicle would drive with 'moderation and anticipate
prudent common sense',37 'blending optimism with caution'.38 She would display
3 Vehicle·
neither 'the trained reflexes of a racing driver' nor 'chameleonic caution'. Nor would
4 Public r
31 Glanville Williams [1967) Crim LR 142at 145.
31 Wells 1949 (3) SA 83 (A) 88; Sl,imbarta 1966 (1) SA 771 (N) 775C-D.
3
' National Road Traffic Act 93 of 1996, s 63(1). The penalty is a fine or imprisonment not
exceeding three years: s 89(5)(b). 3
SeeMkw
3
-i CompareMi11isterva11VervoervBekker1975 (3)SA 128 (0) 133D-F: ·10 See gene
A motor vehicle is an intricate and potentially dangerous object. With the continuous increase 1964 (1)
41
of traffic on our roads and the ever-increasing danger of collisions .ind of emergencies which Phillips l
may arise suddenly as a result of unexpected, dangerous and stupid driving and handling of driver's I
mocor vehicles, it is clear that the proper driving and handling of a motor vehicle is becoming 42
See 408.
more an<l more demanding and that a high degree of skill, proficiency, attentivenes:;, care, •
13
See 787;;
and courage is, therefore, demanded of driver[s] of motor vehicles. (in translation). 44
Trickett (
_;; See 787. 4
s{13/ Schc
36 See 91. 4
" Van Rens
37
Except where otherwise indicated, the words quoted in this paragraph are from the famous 47
Trickett (
formulation of the qualities of the reasonable person by Holmes JA in Burger 1975 (4) SA 877 s {16/ Viet<
(A) 879D-E. 49
See also::
33
PQR Boberg The Law o(Delict (1984) 362. 1
· " Seealso ::
 t!Law Chapter 72: Road traffic offences 791

effect she exhibit in relation to the traffic on the road and other circumstances 'Solomonic
-ration wisdom [or] prophetic foresight' on the one hand, or 'headlong haste [or] nervous
timidity' on the other.
A reasonable person would not necessarily guard against every risk of harm
foreseen by him, and where the risk is slight or remote he may well disregard it; a
reasonable person would not, however, disregard a risk that is real or probable.39
The test in this regard is a balancing of the utility of the manner of driving against the
H
magnitude of the risk created by the mode of driving.
Since the reasonable person is not a paragon, he may, in a sudden emergency,
make an error of judgement. Thus a driver is not necessarily negligent if, in a sudden
!hide; emergency, he does not act in the most effective manner to avoid the danger.40 If his
reaction to the emergency is one that a reasonable person would have made, his
failure to prevent a risk of harm or damage to others will not amount to negligence.41
Since our law does not recognise degrees of negligence,42 even the slightest deviation
ention from the standard of the reasonable person will amount to negligent driving.
1rm or
2 Driving
of the
The driving must, in terms of general principles of criminal liability, at least
public
constitute voluntary conduct.43 It is thus a good defence to a charge of negligent
,at the
driving that the driving was an involuntary act44 brought about by epilepsy,45
h due
hypoglycaemia46 or another form of automatism.47
and in
In Victo 8 the accused was charged with negligent or reckless driving. While
driving a car on a public road he had had an epileptic seizure, lost control of the
;on,m
vehicle and collided with a pedestrian and another vehicle. He suffered occasionally
!riving
from epilepsy and generally had a 'warning feeling' five or 10 minutes before an
iarded
attack. He had never had two attacks in one day prior to the day in question. He had
>priate
had a 'warning feeling' on the morning of the accident and the court held him
so the
criminally liable for negligent driving. The court stated that he had reason to
anticipate an involuntary convulsion 'when he set in motion a machine'.
>n and
lisplay 3 Vehicle49
would
4 Public road50

em not
39
SeeMkwanazi 1967 (2) SA 593 (N) 596F-H.
40 See generally Sprenger 1920 EDL 313; Simon 1936 TPD 217; Cawood 1944 GWL 50; Mayne
ncrease 1964 (1) PH 017 (0).
swhich 41
Phillips 1949 (2) SA 671 (0). Compare Crockart 1971 (2) SA 496 (RA) (flaming match between
dling of driver's legs) and Morris 1972 (2} PH H(S) 64 (T) (driver stung by a bee).
42 See 408.
-coming '"'
43 See 787 and ch 4.
;s, care,
44
Trickett (n 5) 529H. See also ch 4.
45 [13/ Schoonwinkel 1953 (3) SA 136 (C); Rossouw 1960 (3) SA 326 (T).
46 Van Rensburg 1987 (3) SA 35 (T).

famous 47
Trickett (n 5).
48 [16)Victor 1943 TPD 77.
SA877
4
See also 788.
so See also 788.
 ;

792 Principles of Criminal Law l Chapter

5 Fault
I
It has I
Insofar as negligence may provide the fault element of a statutory offence,51 and driving i1
negligence by definition is an element of chis offence, it can be said that fault is an a risk of
element of this offence. recklessn
For most purposes, proof that the accused had driven negligently is also proof of This v
fault in the form of culpa. It is, however, perhaps necessary to postulate fault in the recklessn
form of culpa as a separate element of the offence. This is because there are may also
considerations chat prima facie might operate to excuse the accused's negligent recklessn
driving. By postulating a separate element of fault, the issue of whether the accused being the
ought to be excused from liability in these circumstances is brought into focus. Thusa
Thus it is a defence to the charge to show that the accused drove while in a stare of Conce
auromatism.52 Whether this defence will succeed has been made to depend on the nature 01
question of whether the accused ought to have foreseen an epileptic episode or other determin
automatistic seizure while driving.53 It has been held that the defence cannot succeed the drive
if a reasonable person would have foreseen the seizure.54 In effect this is to hold that negligenc
the accused was culpable in driving at all and thus that the negligent driving was serious c
blameworthy notwithstanding its involuntary nature. Liability does not depend on recklessn
invoking the actio libera in causa (prior fault) rule,55 which applies only to conse- Gross
quence not circumstance crimes. Liability is dependent on the fact that the mens rea risk of h,
requirement for the offence is negligence in driving at all and the actus reus is found to
negligent driving at the time of the accident. The N
1 vehicle ir
C RECKLESS DRNING deemed 1
J simply m

I
Definition while rec
It is an offence for any person to drive a vehicle recklessly upon a public road.56 Intention

I
that the :
Elements
recklessI}
The essential elements of reckless driving are (1) reckless; (2) driving; (3) vehicle;
I Sectior
and (4) public road. ing foresi
f or indiffe
1 Reckless
f
In its ordinary meaning the word 'recklessness' imports 'various degrees of incau-

l
J

tiousness' ,57 such as: without care concerning the consequences of danger, indiffer-
ence to danger, not paying heed to danger, thoughtlessness, rashness. 58 In context I
60 See eg C
61
this means that a person drives recklessly if he or she drives carelessly or thought- Seeegf
lessly, rashly or inconsiderately, thereby creating a risk of harm59 to others. ! 62 See ch 2

I 65
61
In Van .t
VanZyl
l
·
65 Smith 1
51
See 422-3, 430. 66 Smith (1
52
See 67-8. 67 Van Zy1
53 [16/ Victor (n 48) 84; Van Rensbttrg {n 46). See 67-8.
person'
5 / 16] Victor (n 48); Van Rensburg (n 46). 6 Rasool:
55
See 67-8. 69 Compai
56
National Road Traffic Act 93 of 1996, s 63(1). The penalty is a fine or imprisonment not 70The 'wi

exceeding six years: s 89{5)(a). 71

The 'wa
57
Van Zyl 1969 (1) SA 553 (A) 558B. 72 See Vm:
58 VanZyl(n 57)558E.
conseqr
5 It is not necessary, for a conviction of this offence, that any harm actually results. Reckless
ten aam
driving is, therefore, a 'circumstance crime': see 91. to bear,
 !Law Chapter 72: Road traffic offences 793

It has been a matter of dispute whether in order to convict an accused of reckless

1
and driving in this sense it must be proved that the accused was aware that he was creating
: is an a risk of harm to others.60 This contention flows from a view61 that conceptually
recklessness is a type of 'conscious' or 'advertent' negligence.62
)Of of This view has been authoritatively rejected63 in favour of a view that holds that
in the recklessness is not confined to the notion of conscious (advertent) negligence but
·e are may also include inadvertent negligence.64 On this approach the distinction between
ligent recklessness and negligence is simply a matter of degree; recklessness in essence
cused being the grosser form of carelessness and negligence the lesser form.
Thus a person who drives in a grossly negligent manner drives recklessly.
:ate of Conceived as gross negligence, recklessness is thus negligence of a very serious
m rhe nature or, put another way, a particularly high degree of negligence.65 In order to
other determine whether a driver had been reckless, a court must first determine whether
,cceed the driver had driven in a negligent manner. If it is concluded that there had been
d that negligence on the driver's part, the next enquiry is whether the negligence was so
g was serious or of such a high degree as to amount to gross negligence and thus
nd on recklessness.66
:onse- Gross negligence includes conscious negligence so that a person who foresees a
-ns rea risk of harm but unreasonably concludes that the harm will not materialise can be
·eus is found to have been grossly negligent.67
The National Road Traffic Acts 63(2)) provides that 'any person who drives a
vehicle in wilful and wanton disregard of the safety of persons or property shal1 be
deemed to drive that vehicle recklessly'. This ascribed meaning, it is submitted,
simply makes explicit a feature of recklessness in the ordinary sense. This is that,
while recklessness may consist in inadvertence, it is not confined to inadvertent acts.
6
Intentional conduct may equally amount to recklessness. 68 In other words, the fact
that the accused acted with do/us does not preclude a finding that he had acted
recklessly.69
ehide; Section 63(2) of the National Road Traffic Act may thus be construed as postulat-
ing foresight70 of harm or damage to person or property and a conscious disregard of
or indifference to71 such risk as the ascribed meaning of the term 'recklessness'.72
mcau-
differ-
ontext 60 See eg Grob/er 1964 (2) SA 776 (f) 782D.
ought-
61
See eg Ellis 1959 (4) SA 497 (SR) 498.
62 See ch 25 for the concept of conscious negligence.
63 In Van Zy/ (n 57).
64 VanZyl (n 57) 557A-E, 559E-F. Compare Grob/er (n 60) 780.
65 Smith 1973 (3) SA 217 {T) 219A.
66 Smith (n 65) 219A.
67 Van Zyl (n 57) 557C-D. It is pointed out, however (at 557D-E), that it is not the case that a

person who is consciously negligent is necessarily alsQ grossly negligent.

68 Rasool 1975 (1) SA 322 (N) 324F.
69 Compare Shupika 1973 (2) SA 471 (RA) 472H-473A.
em not 70
The 'wilfulness' element.
71 The 'wantonness' element.
72 See Van Zyl (n 57) 559E-F where consciousness of risk coupled with indifference to the

consequences, ie do/us eventualis ('risiko-bewustheid wat gepaard gaan met onverskilligheid

leckless ten aansien van die intrede van die gevolg dws met opset met moontlikheidsbewussyn') is said
to be a meaning of recklessness 'included in the ascribed meaning'.
 G
-u -
'·•

794 Principles of Criminal Law Chapter 72

l,i
,ll ! , An accused who drives her vehicle at another person with the object of frightening exempted
him commits this form of recklessness.73 So too, to enrer an intersection at high so. 81 Neces
speed would constitute recklessness in this sense,74 as would driving a seriously limit.82
defective vehicle while knowing it to be defective.75
··•1··Ii: 2 Driving8
; I· 2 Drove 76

3 Vehide8
3 A vehicle 77

4 Publicro
78
4 On a public road
5 Speedlin
IV SPEEDING There are t
determined
A INTRODUCTION Proof th,
Proper traffic control includes control of the flow of movement of traffic and by the estin
accordingly requires the regulation of che speed of travel of vehicles using the roads. of the spee<
The speed of travel permitted on roads is indicated by road signs and it is an 1 An estim
offence to travel at a speed in excess of that indicated by the relevant sign. speed limit
usually app
B DEFINITION The dete
of moveme
Any person who drives a vehicle on a public road at a speed in excess of the speed
limit commits an offence.79 6 Fault

C ELEMENTS It is probal
contrary91
The essential elements of speeding are (1) unlawful; (2) driving; (3) vehicle;
(4) public road; (5) speed limit; and (6) fault.

1 Unlawful t
The Act80 exempts the driver of a fire-fighting vehicle, or an ambulance, or a police t De Bruin
81

!
81 [ 5SJ
Pret,
officer driving in the execution of his duties, or a person driving while engaged in .i See 788,
civil defence, from observing the general speed limit, provided that the vehicle is 1
s-1 See 788,
j;
driven with due regard to the safety of other traffic and a warning noise is constantly

l
l 85 See 783,
l
sounded while the vehicle is exceeding the speed limit. State officials may also be S6 Where a
speed lin
situated

j a,
freeway,
A roadsi
that roa<
73 Rasool (n 68) 324. Compare Slmpika (n 69) 473: 'A motorist who drives with the intention of 88 The Min
frightening [a pedesrrian] ... must appreciate that there is a risk of at least doing serious bodily a9 Va11der1
harm to the pedestrian ... [and is] clearly guilty of reckless driving'. 911
Measure
1 Compare Grobler (n 60). Some latitude is given to privileged vehicles in entering intersections over a ff
with alarms sounding. usually,
75 Compare Nqlllata 1966 (2) PH 05 6 (E). proved 1
76
See 788,791. (Murray
77 See 788, 791. '
'
1
There a1
78 See 788, 791. that rhe
79 National Road Traffic Act 93 of 1996, s 59(4). The penalty is a fine or imprisonment not conside1
exceeding three years: s 89(3). liabiliry
80 National Road Traffic Act 93 of 1996, s 60. CCC2d
 llaw Chapter 72: Road traffic offences 795

enmg exempted from observing the speed limit if expressly or impliedly authorised to do
- high so.8l Necessity has been held to constitute a good defence to exceeding the speed
1ously limit.82

2 Driving83

3 Vehicle84

4 Public road85

5 Speed limit
There are three types of speed limits, namely, a general speed limit,86 a special limit
determined for any particular road,87 and a speed limit for particular vehicles.88
Proof that the speed of a vehicle exceeded the speed limit may be provided either
c and by the estimation of the speed of the vehicle by an observer,89 or by the measurement
oads. of the speed of the vehicle.
An estimate of speed may be accepted as proof that the accused had exceeded the
1s an
speed limit if the court is satisfied that the estimate is reliable. Such evidence is
usually approached with caution.
The determination of the speed of travel of a vehicle is achieved by timing the rate
of movement over a distance.90
speed
6 Fault
It is probable that speeding is an offence of strict liability. There are no cases to the
contrary91 and the statutory provision that allowed for a defence of lack of fault
ehicle;

police 81 De Bruin 1975 (3) SA 56 (n. See also ch 9.

ged in
82
58] Pretorius 1975 (2) SA 85 (SWA). See ch 10.
/
83 See 788, 791, 794.
1ide is 84 See 788, 791, 794.
stantly 85 See 788, 791, 794.

ilso be 86 Where a public road or section thereof, other than a freeway, is situated in an urban area, the

speed limit is 60 km per hour. Where a public road or section thereof, other than a freeway, is
situated outside an urban area, the speed limit is 100 km per hour. If the road in question is a
freeway, the speed limit is 120 km per hour.
87
A road sign displayed on a public road may indicate a speed limit other than the general limit for
that road.
88 The Minister may prescribe a speed limit in respect of any particular class of vehicle.
1tion of
89 Van der Westhuizen 1929 CPD 484; Frankel 1940 TPD 159; Hickey 1963 (3) SA 96 (SR).
s bodily
0
Measurement is by clock, involving the use of stopwatches that measure the time taken to travel
sections over a measured distance (see, for the method of timi,ng employed, Crouch 1917 TPD 56) or,
usually, electronic devices. For readings of such devices to be accepted evidence, it must be
proved that the device was functioning properly both before and after the reading was taken
(Murray 1979 (2) SA 677 (E)).
91 There are no South African cases on the point, a fact which may indicate a universal assumption
that the offence is one of strict liability. Indeed the issue seems only to have enjoyed judicial
1ent not consideration in Canada, where it has consistently been regarded as an offence of 'absolute'
liability (Gillis (1974) 18 CCC (2d) 190; Hickey (1976) 70 DLR (3d) 689; Lemieux (1978) 40
CCC2d 33; Harper45 CR (3d) 186).
796 Principles of Criminal Law

based upon reasonable mistake has been repealed.92 Certainly a case can be made for
treating speeding as an offence of strict liability. 93
On the other hand, it is at least arguable that the elementary principles of justice
that allow a defence of reasonable mistake to be raised in relation to contravention of
statutory provisions are no less valid and persuasive in respect of contraventions of
speed limirs.94 It is thus submitted that.there may be a case for admitting fault in the
form of culpa as an element of the offence of speeding.95
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92
See Duvenhage 1968 (2) SA 614 (T). The provision was repealed in 1985. SAL} I
93
As in Hickey (1976) 68 DLR (3d) 88 at 94: The
Effective and simple regulation is necessary in order to achieve intensive, economic and floweri
efficient use of the road system; hence the precise prescription of speed limits ........ The safety smokec
of other users of the highway can hardly be promoted by the subjective test of the propriety of rhe con
the conduct of an individual in violation of a clearly proscribed act. There is ....... in this day plant is
and age no stigma whatever attached to the violation of the simplest speed limits ..........What l Elsewr
may be of consideration however is the position of the law in the eyes of the community ... 3
Du To
of simple speeding offences encumbered hy the creation of a defence [of lack of mens reaJ settlers
where the [speed] limits have been so clearly and precisely imposed because of the needs of 4 Both al
the community .... (n 1) 1
94Why should a defence that rhe accused exceeded the speed limit because he had relied upon a
regardi
faulty speedometer while bona fide ignorant of the defect, not succeed? 116ff;
95 This is also the view advanced in Hickey (n 93) where it was held char an accused could escape
SACJ2
liability on a speeding charge if he could show he had acted under reasonable mistake of fact. 5
See 801