IN THE HIGH COURT OF SOUTH AFRICA WESTERN CAPE HIGH COURT, CAPE TOWN

CASE NO: A449/10 
LOWER COURT CASE NO. 458/09
In the matter of:

and

WEINKOVE, AJ
1. Appellant was charged with contravening Section 65(1 )(a) of Act 93 of 1996 in that on Saturday, 19 July 2008, he drove a motor vehicle, CVY 11989 while under the influence of alcohol. The alternate charge was that he drove at a time when his blood alcohol level was in excess of 0.05g/100ml, i.e. being 0.20g/100ml. A second alternative charge was that he drove recklessly or negligently.

"In terms of subsections 212 (4) (a) and 212 (8) (a) of the Criminal Procedure Act, 1977 (Act 51 of 1977), I, Lunga Soboyisi. hereby certify as follows:

MOORREESBURG 98-07-2008

On 22 August 2008, in the performance of my official duties, I broke the intact seal and found a blood specimen with a label attached to it bearing the following identification mark:

FA121177

5.1. The gas chromatographs are calibrated before the specimens are analysed. Calibration is done by using certified alcohol standards of different concentrations to obtain a calibration curve. The certified standards are supplied by the National Metrology Institute of South Africa (NMISA), which is the custodian of national measuring standards in South Africa.
5.2. The blood specimen and internal standard (tertiary butanol) are dispensed into a headspace vial by means of a diluter/dispenser that has been verified with respect to volume.
5.3. The headspace vial referred to in 5.2 is then equilibrated in a headspace autosampler and. after a set period of time, a sample of the headspace in the vial is injected onto a column in a gas chromatograph. The headspace sample containing the alcohol and internal standard flows with the mobile phase (nitrogen) through the column where, as a result of interactions between the compounds (alcohol and internal standard) and the column matehal, the compounds are separated. The two gas chromatographs are operated under different experimental conditions using columns of differing polahty.
5.4. At the end of the column a detector is situated that detects the compounds flowing with the mobile phase through the column. The signal generated by the detector is captured by chromatographic software and a chromatogram is illustrated. The chromatogram represents the detector's response to the alcohol and internal standard, which are observed as separate peaks, and provides the information necessary to calculate the alcohol concentration. Alcohol and internal standard are identified by their retention times (i.e. their time of residence on the column).

6.1. The ion selective meter is calibrated by using certified reference standards of different concentrations, which are obtained from the National Metrology Institute of South Afhca (NMISA).
6.2. The electrode is placed directly into the blood specimen and the concentration is displayed and recorded.
6.3. In addition, a quality control standard is analysed regularly during the analysis of a batch to check instrument performance.
6.4. This method has been validated."

and further

above.

6. The State called various witnesses:
4.1. Mr. Alexander ("Alexander"), who was the driver of the vehicle whose car Appellant collided with on the night in question;
4.2. Julene Alexander, who was a passenger in Mr. Alexander's car at the time;
4.3. Constable Collin Felix ("Felix") of the South African Police;
4.4    Inspector Engelbrecht of the South African Police; and
4.5. Dr. van Heerden.

7. The accident happened late on Saturday night at about 23h00. Alexander explained that while he was travelling he noticed a vehicle driving closely behind him. He moved to the left to allow that vehicle to pass. The vehicle in passing him collided with the back of his vehicle and then drove off. Alexander thought the vehicle was going to stop but when it did not do so he gave chase only to find that Appellant, who was driving the vehicle, was following another vehicle, apparently in the belief that it was the vehicle with which he hac collided.

8. When Alexander caught up with appellant, he spoke to him and testified that he detected a strong smell of alcohol on Appellant's breath and noticed that his eyes were red and bleary. As he put it, it was clear to him that Appellant's eyes were not normal. Inspector. Engelbrecht gave similar evidence, as dio Felix.
9. Appellant was arrested and taken to Dr. van Heerden for examination. Felix testified that in his view Appellant was drunk, his speech was slurred and he was unstable on his feet. He staggered slightly and his presentation was similar by the time he got to the doctor. Dr. van Heerden's opinion was that, after his clinical examination, Appellant was moderately under the influence of liquor and that his condition was such that he could not drive a motor vehicle. Naturally, he gave no opinion as to whether Appellant could have driven a vehicle at an earlier stage.

In the result, I would dismiss the appeal.

WEINKOVE, AJ

CLEAVER, J