REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)
Case No: CC46/2010
In the matter between:
The State
Vs
Clifford Joseph Hendricks

ERASMUS, J 

Introduction
1. The use of a road network, by vehicular means, has become the norm in our civilisation. This way of life poses its own inherent dangers to the safety and wellbeing of society. Appropriate measures must be put in place to ensure that any person who is in control of any mode of transport on our roads is at all times able to be in full control of such an instrument without any of his or her faculties being impaired.

3. It is important that this matter be addressed as it affects innocent sober users on South Africa's roads every day. It is a problem which is increasing and measures need to be in place to safeguard those using our public roads from the harms and dangers of those driving whilst their faculties are impaired.
4. The state ought to be able to utilise, to the full extent possible, all available tools at its disposal. If there is a tool available which both passes constitutional muster and requires a comparatively small allocation of resources, especially in light of the service delivery imperative and the concomitant competition for allocation of resources, it ought not only be used, but prioritised. As is clear from what I describe below there appears no reason, in principle, why an evidential breath test, properly applied, could not be such a tool.
5. Legislative enactments are in place to deal with this issue, the background, development and its application which I shall discuss in this judgment.

9. The accused entered a plea of not guilty to the charge. In particular he placed the following in dispute:

2.2. that the alcohol on ... [his] breath exceeded 0.24 milligrams per 1000 millilitres of... [his] exhaled breath;
2.3. that the testing apparatus used to determine the amount of alcohol on ...[his] breath:

2.3.1. functioned correctly;
2.3.2. was operated correctly;
2.3.3. was operated by a person who is properly qualified to operate such apparatus;
2.3.4. was calibrated correctly;
2.3.5. is capable of accurately determining the alcohol concentration on the breath of a test subject;
2.3.6. is capable of distinguishing between ethyl alcohol and other short chain carbon compounds;
2.3.7. was operated in accordance with the Drager operation guidelines and/or with reasonable operation guidelines;

2.4.1. breath alcohol has no scientifically established direct correlation with a person's motor or perceptual skills and the ability of that person to drive a motor vehicle;
2.4.2. the correlation between breath alcohol and blood alcohol levels differs from individual to individual and therefore a conviction or acquittal may depend solely upon the type of test used and is therefore arbitrary and unreasonable."
3. He made the following admissions in terms of section 220 of Act 51 of 1977:
3.1"... [he] was taken to the Shadow Alcohol Examination Centre in Athlone where a test using a Drager Breathalyser was carried out on ... [him] by Mr John Gaven at approximately 19h37;
3.2. the machine used was the Drager Alcotest 7110 Mk 111;
3.3... [he] consumed no alcohol between the time when ... [he] was arrested and the time that the aforementioned test described above was carried out on ... [him]".

The facts
11.lt  

13. He was taken to the Athlone police station in the back of a police patrol vehicle. It is unclear whether the accused was body searched before being placed in the vehicle.

19. The accused was asked to blow one sample of breath into the Alcotest, whereafter a printout was produced. The result of the breath test reported a breath alcohol concentration of 0.95mg per 1000 millilitres. Since this was in excess of the legal limit of 0.24mg per 1000 millilitres, the accused was formally arrested and charged with the offence of contravening section 65(5) of the RTA.

21. I pause to note that the accused was not asked whether or not he wears dentures. This would be a very important question to ask since there is a danger of a false 'positive' result in the presence of mouth alcohol as will become evident later in this judgment.

22. These facts have to be considered and measured against the legislative framework which I now deal with.

The legislative framework

(a) drive a vehicle; or
(b) occupy the driver's seat of a motor vehicle the engine of which is running, while under the influence of intoxicating liquor or a drug having a narcotic effect.

(a) drive a vehicle; or
(b) occupy the driver's seat of a motor vehicle the engine of which is running, while the concentration of alcohol in any specimen of blood taken from any part of his or her body is not less than 0,05 gram per 100 millilitres, or in the case of a professional driver referred to in section 32, not less than 0,02 gram per 100 millilitres.

(4) Where in any prosecution in terms of this Act proof is tendered of the analysis of a specimen of the blood of any person, it shall be presumed, in the absence of evidence to the contrary, that any syringe used for obtaining such specimen and the receptacle in which such specimen was placed for despatch to an analyst, were free from any substance or contamination which could have affected the result of such analysis.
(5) No person shall on a public road-
(a) drive a vehicle; or
(b) occupy the driver's seat of a motor vehicle the engine of which is running, while the concentration of alcohol in any specimen of breath exhaled by such person is not less than 0,24 milligrams per 1 000 millilitres, or in the case of a professional driver referred to in section 32, not less than 0,10 milligrams per 1 000 millilitres.

7)	For the purposes of subsection (5) the concentration of alcohol in any breath specimen shall be ascertained by using the prescribed equipment.
(8) Any person detained for an alleged contravention of any provision of this section shall not -
(a) during his or her detention consume any substance that contains alcohol of any nature, except on the instruction of or when administered by a medical practitioner;
(b) during his or her detention smoke until the specimen referred to in subsection (3) or (6) has been taken, as the case may be.
(9) No person shall refuse that a specimen of blood, or a specimen of breath, be taken of him or her."
25. It is therefore incumbent upon the State, in order to sustain a conviction in terms of section 65(5), whether (a) or (b), to prove that the result produced was obtained by using the "prescribed equipment" as stated in section 65(7).

"(1) For the purpose of this regulation type-approved and type-approval means that one example of a specific make and model of equipment has been tested in terms of the South African National Accreditation System (SANAS), by an accredited test laboratory in terms of SANS 1793: Evidential breath testing equipment and a test report indicating compliance with such specification is issued in respect of such make and model of equipment."

(2) The equipment to be used to ascertain the concentration alcohol in any breath specimen as contemplated in section 65(7) of the Act, shall comply with the requirements of the standard specification, SANS 1793: Evidential breath testing equipment and shall be type-approved as contemplated in subregulation (1).

(3) If, in any prosecution for an offence under section 65(5) of the Act, an allegation is made in the charge sheet, in relation to the prescribed equipment used to ascertain the concentration of alcohol in a breath sample, a certified copy of a test report, indicating that the specific make and model of equipment complies with SANS 1793, issued by an accredited test laboratory shall, in absence of evidence to the contrary, be prima facie evidence as to the fact that the equipment complies with the provisions of subregulation (2).

"Where in any prosecution for an alleged offence in terms of this Act, it is necessary to prove that any equipment used for road traffic law enforcement purposes, was calibrated or verified to establish the accuracy and traceability, of such equipment, a certificate issued by a laboratory that is accredited for the purpose of issuing such certificates and conducting the tests required for such calibration or verification, by the South African National Accreditation System (SANAS), shall in the absence of evidence to the contrary, by mere production thereof be prima facie evidence as to such calibration or verification."

29. As Reg 332 refers to SANS 1793 it is important to consider the contents thereof, to which I now turn.

33. In SANS 1793:2006 it is stated that "[f]or the purpose of this recommendation, only ethanol is considered alcohol", which is also the definition used in OIML R 126:1998 (E) Edition 1 - the English language version of the first edition which is still in effect.
34. Because of the nature of this case, it is important that I summarise the salient features of the standard as presented in terms of the OIML R126.

36.This proffered OIML certificate does not make mention of either a particular model of that 'pattern' - specifically the model number 8314647 used in this case - or of any version of operating firmware or software whatsoever as having been tested.

39. In terms of point 1.1 of the introductory section titled "Scope", "for the purpose of this Recommendation, only ethanol is considered as alcohol". Point 1.5 gives the further purpose of R 126 as being "to define the performance requirements of EBA's and the means and methods employed in testing them."

42. That is followed by a note stating that "[adjustment using dry gas is possible provided that the difference of effect between wet and dry gases is known or can be automatically corrected".

45. Factors which influence the operation of an EBA are listed as "[influence quantities" in section 5.5. Annex A - a 'mandatory' provision - lists the "test methods and factor values" to be used. Of particular importance are those not immediately apparent and which may cause an incorrect reading to be produced by the EBA. In other words, a power failure will not be of concern since there will not be a reading, but ethanol in the mouth is a concern because it will influence a reading.

47. The point made here resonates with the evidence led before me that the EBA (the Alcotest) in issue is, and can be, programmed in whichever way the national authorities order it to be. In South Africa, as discussed later it will become apparent that the Alcotest as used in this case was minimally equipped and programmed.
48. So-called 'interfering substances' are referred to under point 5.5.3 titled "[pjhysiological influence factors" and listed in detail in Annex C to R 126 - which is in turn labelled as being 'mandatory'.

 
49. The 'mandatory' provisions of Annex C state that EBAs shall be tested for interfering substances by means of "dry test gas" - first of ethanol alone and then by means of ethanol to which only one of the list of given substances has been added at a time. There are nine substances listed and again there is a note that national authorities may choose to test the influence of other potentially interfering substances according to the prescribed protocol.
50. Physical influence factors and physical disturbances are listed in 5.5.2 and 5.5.4 respectively and covered in detail in Annex B and Annex D, both of which are 'mandatory'. These provisions relate to aspects such as ambient temperature and relative humidity, atmospheric pressure and presence of hydrocarbons in the environment, power supply, shock and electromagnetic disturbances.
51. Section 6 is titled "Technical requirements" and details the parameters within which EBAs may operate and still be compliant with R 126. I note that national authorities are advised in some instances that they may specify requirements over and above those provided for in R 126.

54. Point 6.12, titled "Measuring cycle", refers to "[ajdvisable provisions' in Annex I and provides that "[njational authorities shall define what constitutes a measuring cycle, i.e. the set of operations which may permit the operator to conclude whether or not a person is under the effect of alcohol".

56. The provisions of Annex I point 3 state the minimum requirements of "each measurement" which forms part of a determined measuring "cycle" - verification of a zero starting point and verification of correct operation of the EBA. These are points 6.8.and 6.9 respectively of R 126 itself.
57. Annex I presupposes a measuring cycle of two breaths spaced a minimum of two minutes apart in order to safeguard against false 'positive' results. It is debatable whether, in the absence of a second breath sample, an ECC as part of the Alcotest used in this case can function as a second test.

59. There is a repeat warning about ethanol in the mouth at point 6.15.3 and a comment that "it may be sufficient to include this information in the user manual" - as opposed to an inscription on the machine itself regarding waiting time before a test which was previously recommended.

Prosecution guidelines

five sub-sections which read:

2.2. The operator must keep in his/her possession the operator's certificate for the equipment in question or a certified copy.
2.3. Only the equipment which complies with Regulation 332(4) of the Regulations in terms of the national Road Traffic Act may be used. Equipment must be calibrated at least once every six months by an accredited laboratory and a calibration certificate issued. A certified copy of the calibration certificate shall be available on site. Equipment that is outside the six month period must be recalibrated before it may be used for calibration purposes.
2.4. After maintenance and repair of the equipment, it must be recalibrated.
2.5. All calibrations, maintenance and repairs shall be recorded in an appropriate service record, which is kept for each unit."

72. It became clear that calibration of the second, additional, component of the Alcotest is not performed by NMISA since the 'dry gas' method would lead to damage of this component.

74. The science, which is common cause and on the basis of which these offences were created, becomes more important in the light of the constitutional points raised in the plea proffered by the accused in this matter.

76. The kind of alcohol recreationally consumed is more specifically named ethyl alcohol or ethanol. It is the presence of this type of alcohol in a consumer's blood which is a particular concern since its presence therein has the potential to impair driving ability because it is conveyed to the brain via the bloodstream.

79. Despite the fact that a drink or two cheers up most people, alcohol is actually a nervous system depressant - the more you drink, the more difficult it is for your brain to function properly. This is why someone who has had too much to drink has difficulty in walking a straight line, or speaks in a slurred fashion, drives in a weaving pattern across the road and is slow to brake in an emergency situation.
80. Driving requires the simultaneous and rapid use of various basic skills ranging from perception and judgement through decision-making and finally to physical reaction. When a driver has had too much to drink that driver's ability to effectively coordinate these processes is negatively impacted.

82. Before the advent of routine blood testing, the level of impairment of a driver due to alcohol consumption used to be gauged at the scene by officers trained to determine such. Inevitably, drivers deemed sufficiently impaired to be criminally prosecuted would challenge this observation in various ways. An obvious basis would be that the impairment may have been caused by something other than a quantity of ethanol sufficient to cause such impairment.

85. When it became possible to scientifically determine the quantity of ethanol in an impaired driver's blood, that development became the logical progression in order to avoid the subjective element inevitably present when officers were tasked to gauge a person's level of impairment caused by ethanol. Blood samples would be taken and the level of ethanol in the driver's blood would actually be measured as a scientifically based indication of the impairment feared.
86. As time went by, science, equipment, and the understanding of the relationship between ethanol consumption and ethanol impairment all developed to the point we know it today. We know, for instance, that some persons may develop a tolerance towards high consumption of ethanol which others do not have. This will result in a situation where the highly tolerant person and the not so tolerant person may both produce an identical test result but the latter will exhibit a greater degree of impairment.

88. Clearly, it is not possible to individualise each test to each driver tested to the point that there can never be any question of a lack of fairness to any one individual. Therefore a balance needs to be sought between the scourge which is sought to be eradicated and the rights of each individual driver with an ethanol reading in either blood or breath in excess of the legislated amount. The legislature has an obligation to introduce measures to protect society from the effects described above.

90. By the end of 1938 it was an offence for a person to drive a motor vehicle on a public road while being under the influence of intoxicating liquor or narcotic drugs in the Transvaal, Cape, Orange Free State and Natal. During 1955 and 1957 attempts were made to consolidate the various ordinances however, Transvaal still had their own ordinance. In 1966 a further attempt was made for the uniformity of theordinances with success, the Road Traffic Ordinance 21 of 1966 came into operation on 1 January 1967 and for the first time introduced an offence that related to blood alcohol concentration.

(a) Drives a vehicle; or
(b) Occupies the driver's seat of a motor vehicle, the engine whereof is running,
While under the influence of intoxicating liquor or a drug having a narcotic effect, shall be guilty of an offence....

(a) Drives a vehicle; or
(b) Occupies the driver's seat of a motor vehicle, the engine whereof is running,
While the percentage of alcohol in his blood expressed in grams per one hundred millilitres of blood is not less than 0.15 per cent, shall be guilty of an offence...."

98. It is for this reason that the breath testing is used and relied upon - it is a far less time consuming, economically more advantageous as well as preventing all the potential negative impacts of working with blood. When a breath test is done, one does not have to wait for months for the results since the results are printed by the Alcotest immediately after the breath sample is taken and this would lead to the realisation of speedy and effective justice. As I have indicated above however, it remains clear that any method used must comply with the rule of law.

102. It had been accepted since the 1930s that the principle applicable in Henry's Law as demonstrated in a laboratory could be replicated in the human respiratory tract. Deep lung, more specifically alveolar, air had been accepted to be the repository for the quantity of ethanol sought to be measured since the alveoli are directly perfused by ethanol-containing capillary blood. The ethanol concentration in the blood supplying the lungs would then be reflected in the air expelled from the lungs once a balance between the two had been achieved.

105. This 'new paradigm' states that the airways between the alveoli and the mouth of an individual are not 'anatomic dead space' such that they do not interact with the air which travels from the outside environment to the alveoli and back again.

109. Ultimately, the question posed is whether an instrument, if sufficiently specified as well as correctly programmed and operated, can deliver a result based on which a person may properly be prosecuted given the South African legislative framework and constitutional imperatives. The premise on which a breath testing instrument is based may not be unassailable in scientific terms, but the question I have to consider is whether the Alcotest can deliver a result based on which a person may properly be prosecuted - irrespective of whether it was built on the basis of the old paradigm and not the new one.
110. The defence's position was that the Alcotest, admittedly predicated on the old paradigm of measurement of aBrAC, was therefore not capable of producing a result reflective of BAC, whether it be ABAC or VBAC. The State obviously espoused a contrary view.
111. In considering the evidence presented in respect to the "old paradigm" and the proposed 'shift' to the "new paradigm", I have to consider what result the Alcotest in question delivers. In other words, does it make a material difference to the result whether the air measured actually originates from the alveoli or the bronchi and the resultant BrAC represents aBrAC or bBrAC?
112. In order to answer that question I shall turn to the evidence before me which I accept. The most tangible are the various diagrams and graphs which seek to demonstrate the principles involved.
113. The lungs are perfused by the pulmonary circulation loop, and deoxygenated blood becomes oxygenated blood when the gaseous exchange between carbon dioxide takes place in the alveoli. This is why it has been accepted that there would be an equivalent gaseous exchange between BAC and BrAC.   The airways,including the bronchi are perfused by the body's main, or systemic, circulatory system and it was accepted that no gaseous exchange therefore took place outside the alveoli.

121. Whilst it is accepted that breath and blood alcohol limits can differ from individual to individual, it is possible to overcome any potential prejudice by having regard to the particular characteristics of the particular subject so as to compensate for that.

"The exercise of public power has to be rational. In a constitutional State arbitrariness or the exercise of public power on the basis of naked preferences cannot pass muster. Judgments of this court suggest that, objectively viewed, a link is required between the means adopted by the legislature and the end sought to be achieved. The fact that rationality is an important requirement for the exercise of power in a constitutional State does not mean that a court may take over the function of government to formulate and implement policy. If more ways than one are available to deal with a problem or achieve an objective through legislation, any preference which a court has is immaterial. There must merely be a rationally objective basis justifying the conduct of the legislature. Provided a legitimate public purpose is served, the political merits or demerits of disputed legislation are of no concern to a court. In Pharmaceutical Manufacturers Chaskalson P made it clear that the rationality standard does not mean that courts can or should substitute their opinions for the opinions of those in whom the power has been vested. A court cannot interfere with a decision simply because it disagrees with it or considers that the power was exercised inappropriately. The question of the rationality of the Twelfth Amendment was left undecided in Matatiele 2. In UDM 2 it was held that rationality is a minimum requirement for the exercise of public power and that the Pharmaceutical Manufacturers qualification 'applies also and possibly with greater force to the exercise by Parliament of the powers vested in it by the Constitution, including the power to amend the Constitution'. In view of the finding below on rationality in the light of the facts of this case, it is not necessary to take this specific point any further. The respondents argue that it is eminently rational to do away with cross-boundary municipalities. The applicants agree with the idea of abolishing cross-boundary municipalities and do not attack the rationality of the Twelfth Amendment as a whole, but only the part of it that locates Merafong in North West. Furthermore, the fact that it is rational for the whole municipality to be located in a single province does not necessarily mean that the province should be in North West, rather than Gauteng, counsel for the applicants specifically contended".

123. I find that there is no merit in the constitutional challenge to section 65 (5) as pleaded by the accused. Consequently I am not in agreement with the defence stating:

2.4.1. breath alcohol has no scientifically established direct correlation with a person's motor or perceptual skills and the ability of that person to drive a motor vehicle;
2.4.2. the correlation between breath alcohol and blood alcohol levels differs from individual to individual and therefore a conviction or acquittal may depend solely upon the type of test used and is therefore arbitrary and unreasonable."

The Drager Alcotest 7110 MK 111 as used in this case

	and will appear from the comparative analysis I will discuss below, is minimally equipped: the "SUBJECT MEASUREMENT" segment reflects "FAILED BLOWING 0"; there is a time shown at which the test took place; that is followed by a sequence
	"BLANK" , "MEASURE VALUE", "BLANK" - the import of which will become clear shortly; followed by "RESULT" given as a figure followed by "mg/l".

128. It also became apparent that the operating sequences and instruction manual referred to in sections 6.12 and 8.1.2 respectively of R 126 above are - in the form in which they exist here - not as comprehensive or as clear as it is possible for them to be. Simply put, the instruction manual and operating sequences does not conform to the prescribed detail as to be found in OIML R 126. It is on this manual that training of the operators is based that ultimately leads to a result upon which prosecuting authorities want courts to rely.

133. No evidence was led that Drager is an accredited laboratory, and no calibration certificate was proffered in respect of calibration of the ECC. The chain of custody of the Alcotest was explained as follows: the Alcotest is delivered to Drager by the traffic authorities whereafter Drager will first conduct servicing thereof -documentation presented however showed that an 'adjustment' is made at the same time - the Alcotest is then presented to NMISA and the calibration as discussed above is performed by NMISA, Drager then receives the Alcotest from NMISA and adjusts the ECC to comply with the parameters set by the calibrated IRC before it is returned to the traffic authorities. This process is never independently verified.

1. That a 15 minute waiting period is necessary between the last intake of any alcohol-containing substance so as to avoid a "impermissibly biased measurement". That the same waiting period is to be observed after "vomiting or belching", for the same reason.
2. That a 5 minute waiting period is necessary after smoking in order to prevent possible damage to the unit's sensors.
3. That "the person being tested should breathe normally and evenly, and not breathing in or out deeply several times (hyperventilation)".
4. That the "[a]mbient conditions for measurement" need to be in place, which include an absence of alcoholic vapours in the ambient air - as tested by the environment check function of the unit - as well as "excessive tobacco smoke". No evidential measurements must be performed in environments where there is any alcoholic vapour present.

140. The machine performs an "ENVIRONMENT CHECK" by analysing that freshly pumped air in its previously mentioned ECC, and "[i]f no alcoholic vapours are detected", it goes on to perform a test of its "calibration" while displaying "BLANK CHECK". This "calibration" test is designed to be performed on the IRC with the aidof dry gas which is fed into the unit from an "attached gas cylinder". No evidence was led that there was any external device attached to the Alcotest for 'field testing'.

146. The measuring procedure ends with another automatic "PURGING" sequence, this time described as being performed "again with ambient air" and is completed with another "final internal check" while the display shows "BLANK CHECK". Presumably, given the explanation related to this display earlier in the manual, it is another test performed by the ECC.
147. As outlined above, the manual states that the actual breath alcohol test is performed by the IRC. This would then have to take place before the next step described is possible - display of the result.

150. The third subsection details the printing procedure for the result and it is stated that the default setting is for one "measurement record" to be automatically printed, with a second on demand being possible.

155. Alternatively, in the event that "any unacceptable condition" is identified during the measurement, "the sequence will be interrupted", a "corresponding error is displayed" and a "record" indicating the type of error is also printed. One such "unacceptable condition" is given as an example - "MOUTH ALCOHOL", in whichcase the test cycle "is aborted", the message warning of the condition is displayed and a "protocol is printed".
156. Again, there is reference to the "measuring system" being "flushed" and made ready for measurement. There is also mention that "the test sequence will be interrupted" in case of blowing "without request".

162. Two types of message are displayed on the Alcotest. The one kind requires intervention by Drager Service and is indicated by "ERROR" followed by a number "XXX" indicating the type of error. In such a case, the machine additionally prints out an automatic message listing the type of fault and switches itself off. The other kind can be remedied by a operator and the action to be taken in such cases is listed.

163. A fault display of "BLANK CHECK INCORRECT" refers to the "[z]ero adjustment" being "incorrect" and is to be remedied by ensuring that the "ambient air is clean and free from alcohol and tobacco smoke". As shown above, a "BLANK CHECK" was previously in this manual characterised as a calibration check using a test gas cylinder. It would then follow that this check being incorrect would indicate a fault with the calibration and not with the environment, this "remedy" therefore confuses the issue at this point.
164. The "MOUTH ALCOHOL" fault protocol was set out in detail before, under the heading "Incomplete breath samples", but listed as an "unacceptable condition". Here, the operator is referred back to the previously covered "Preconditions" section.

166. The two faults which follow - "BLOWING NOT ALLOWED" and "READINESS TO BLOW EXPIRED" - may be remedied by "[r]epeat measurement". The one thereafter, "OUT OF MEASURING RANGE", refers the reader to the "technical data" which follows near the end of the manual.
167. "ALCOHOL CONCENTRATION TOO BIG" is displayed when there is suspicion of mouth alcohol and the reader is referred to that fault. Evidence was lead that any detection of an extraordinary result would depend on the interaction between the IRC and the ECC. Evidence given on behalf of the state showed that the Alcotest delivered false 'positive' results for mouth alcohol if the correct waiting protocol was not followed.
168. The last listed fault able to be remedied by the operator is "KEYBOARD-ERROR" which requires a repeat of the desired function, after - "[i]f necessary" disconnecting and reconnecting the keyboard.

171. The second subsection is titled "Measurement cycle" and reflects a "[mjeasuring range" of 0 to 300 ug/100ml. The 'typical' duration of a measuring cycle is given as "4 minutes" and the number of tests "per cycle" is listed as "3". No detail is provided as to what each of those tests is. There are three "allowed failures (per test)", but no detail as to the meaning thereof.
172. "Characteristic operation values" follow and list power supply, fuses, type of printer, paper, time display, typical warm-up time at room temperature, approximate dimensions and weight in the last subsection.

174. Lastly there is an "Order List" - section 15 - which gives part numbers, including the model number 83 14 647, as discussed above.

176. A document titled "Drager Alcotest 7110 MK 111 Training" was handed up as an exhibit. It is three pages long and consists, save for three complete sentences, of bullet points. Presumably it is intended as an overview of what is to be presented at the training course and used in conjunction with the manual discussed above.
177. The total time "(for 10 delegates)" is "+/-5 hours" during which the given "[training objectives" of the transfer of "skills and knowledge required to operate the Alcotest 7110 in a competent and professional manner" are transferred to "selected persons". These persons are then "assessed" by means of a 15 minute theory test - for which a minimum of 18 out of a possible 25 marks must be obtained - and a "practical test" lasting approximately 75 minutes. The practical test consists of five segments, namely "[s]et up", "[ajctivate key board", "[s]elect no. of printouts", "[cjhange location" and lastly "[t]est a subject". No further detail is provided and it is not clear what is required for a person to "successfully pass" this aspect of the testing.

178. The approximate time break-down for the remainder of the course is given as follows: 30 min for understanding the physiology of alcohol and the body, 10 min for a brief history of the Alcotest - and knowledge of keyboard, 5 min for clarity on intended use, maintenance and calibration, 10 min for familiarisation with the preconditions for the person being tested, 30 min for identification of instrument features, 60 minutes for attaining knowledge to set up the Alcotest 7110, 30 min for knowledge of procedure for testing and 60 min for practice with the instrument prior to testing.
179. The sections of the "Course Content" follow the above order of items and are sequentially marked "A" (physiology of alcohol and the body) - "J" (the tests). "A" includes "Henry's Law" and related concepts which I discuss below. "B" appears to be the history of Drager itself. "C" to "H" reflect bulleted items which appear in the manual discussed above save for three additional items not found there: the last item under "E" is "[k]now the legal limit" and the last two items of "H" are "[signatures required on protocol to complete test" and "[Register and safe keeping of protocols" respectively.

196. This finding of the court in Chun - while nominally based on an Alcotest MK 111-was based on their particular model "C". Clearly, it is comparatively more comprehensively specified and programmed than the one discussed above in relation to South Africa.

200. Since persons giving breath samples in South Africa do not benefit from the truncation and ratio used in Chun to convert the given breath alcohol reading into a blood alcohol result, an adequate substitute is required. The logical choice would be the addition of the breath temperature 'module' as used in the German Evidential model.
201. Addition thereof would also guard against irregular - as opposed to normal -breathing by a test subject. Evidence was presented that both hyper- and hypoventilation affects a person's breath temperature and therefore also the given result. It would also be an aid to the operator in that the test subject's breathing pattern would not require careful observation to notice irregular breathing.
202. It is noteworthy that the Evidential model requires two separate breath samples, spaced minutes apart, each of which is individually measured. It is deemed to be necessary, notwithstanding the ECC testing, to prevent possible false positive results from mouth alcohol.
203. I now turn to the final evaluation of the elements of the offence.
204. As stated above, there was a dispute as to whether the accused was in fact the driver of the motor vehicle in question. After considering all the evidence placed before me I have no hesitation to find, beyond a reasonable doubt, that the accused was in fact the driver of the particular vehicle.
205. I have not been referred to any case law on the definition of alcohol. The only evidence presented is in terms of the SANS 1793:2006 and the OIML R 126:1998 provisions which stipulate that the test applied, as in this instance, is for ethyl alcohol alternatively termed ethanol. Hence a test would need to be performed specifically for the presence of ethanol. The enquiry however does not end there, in order to accept the result reported by the Alcotest, I have to consider whether such is produced after a proper analysis of a sample of breath of the accused. This result must exclude any other type of substance which might mimic ethanol in its scientific make-up.
206. It is common cause that a possibility exists of contamination by interfering substances. The Alcotest is designed to detect interfering substances and programmed to report any presence thereof in the event that it exceeds the prescribed parameters. However this detection and reporting is dependent on the proper functioning and effective working of the ECC. In the instant matter it is common cause that the ECC is not calibrated by an accredited laboratory as prescribed in the Regulations. This does not satisfy the requirements of the RTA as read with the Regulations. A second breath sample, which would potentially be a safeguard apart from the ECC, is absent in this case. Therefore I am unable to find that the state proved beyond a reasonable doubt that the reported result reflected alcohol, as defined, on the breath of the accused and expressed in milligrams per 1000 millilitres.
207. The state is entitled to rely on the result obtained from any specimen of breath from the accused. Hence I must be satisfied that any reported result is from breath and nothing else, so as to be satisfied that it meets the requirement of section 65(5). We have heard evidence from the State that the Alcotest is designed not to report mouth alcohol expressed in milligrams per 1000 millilitres in the printout. The RTA is also clear that what should be measured is exhaled breath. This would exclude any reading for mouth alcohol.

209. The question arises whether the Alcotest, absent the safeguards described above could render a result that could exclude an analysis of anything else but breath. The evidence of the expert on the experiments he performed, in my view must raise a reasonable doubt.

210. Alcotest, model number 8314647, must further comply with section 65(7) read with Reg 332, which prescribes type testing of the prescribed equipment. It is instructive to note that the SABS type tested a Drager Alcotest 7110 MK 111RSA on 18 February 1998. The question arises whether this type testing was sufficient to comply with the said statutory provisions and regulations. It is common cause that the regulation at hand came into being after this type testing. Similarly the OIML R 126 applicable in this matter came into being in 1998 and was only confirmed at a much later date as pointed out above. The software for the machine in the instant matter, version 1.1 was only finalised in December 1999.
211. It is common cause that the operation of the machine that includes the analysis, calculations and results reported are software driven, hence the logical conclusion is that type testing should be done on the equipment as it is used in the field by law enforcement officials. The Alcotest as currently set up with software version 1.1 in contrast to the type tested software version 1.0 could not be a type approval in itself as envisaged by the legislation. The state sought to rely on the type testing certificate dated 18 February 1998. There is no indication that the type testing complied with the mandatory provisions of the OIML R 126:1998 which was applicable at the time of the alleged offence.

213. I return to the test report again and note some of the salient features thereof. It was approved two days before the alleged type testing report of the Alcotest, it needs to be noted that this device was built and developed in Germany and must have been shipped to our shores for type testing. Presumably the type testing was done after the standard was approved. I find it surprising that within two days compliance could be obtained. It is instructive to note that the manufacturer was represented in the group that made representations for the development of the standard. For purposes of compliance with the standard the accredited laboratory had to have regard to the operating instructions, as will become apparent later, the operating instructions in this instance, leave much to be desired. In as far as it relates to the testing for the operation requirements, it had to be tested multiple times and at various operating conditions. Having regard to the number of tests to be conducted and the frequency thereof I cannot accept the test report at face value in the absence of an analysis thereof and/or evidence that supports the conclusion.
214. The legislative framework that had to be complied with for purposes of this case is the OIML R 126:1998 which was incorporated in SANS 1973:2006 which replaced SABS 1793:1998. The SABS standard was termed edition 1 and the SANS standard is termed edition 2. In 1998 however the OIML R 126 had not yet been incorporated into South Africa, hence it is inconceivable that the standard applied for purposes of the test report could be the same as the standard applied to the device for the use in the instant matter. Further to that one must have regard to the manner in which standards are developed by the OIML in the foreword to the OIML R 126 it is stated that the 1998 edition was developed by a subcommittee and was approved by another committee in 1997 and submitted to the conference body only in 2000 for formal sanction. I have also made reference to the differences between the SABS 1793:1998 and SANS 1793:2006 and no evidence was led that type testing of any sort was conducted between 1998 and 23 January 2010 when the incident occurred.
215. Reg 332 (3) of the 2007 edition provided for a presumption when a certified test report is submitted. The test report submitted here has as a footnote the following: "this report relates only to the specific sample(s) tested as identified herein. It does not imply SABS approval of the quality and/or performance of the item(s) in question and the test results do not apply to any similar item that has been tested." Because of the disclaimer by the accredited laboratory, this certificate can therefore not be one as envisaged in Reg 332 (3).
216. The State further sought to rely on the premise that no type-testing by the SABS or SANAS was in fact necessary since the OIML itself had already approved the Drager Alcotest 7110 MK 111 as compliant with its R 126:1998. As indicated with reference to Chun, except for the model number, the type number was the same. The Alcotest in Chun was set up totally different to the one in South Africa. So that in itself proves that the state's argument cannot prevail. I note however that no test report in the format required by R 126 Annex E was ever proffered.
217. Based on the OIML certificate of compliance produced, I can only conclude that that a Drager Alcotest 7110 MK 111 basic specification model, loaded with whatever operating system it so comes, is in principle capable of producing the desired result. Since I cannot find that the Drager Alcotest 7110 MK 111 RSA model number 8314647 with software version 1.1as used in this case, was ever tested, the State's argument cannot prevail.
218. Accordingly, I do not need to deal with the question of whether the OIML testing facility is in fact "an accredited test laboratory" or whether the testing would, in terms of Reg 332, have to be done by SANAS and "in terms of SANS 1793" - which is in turn the wholesale adoption of OIML R 126:1998. A document was produced that suggest that the OIML testing facilities would comply with a testing laboratory in terms of the Accreditation for Conformity Assessment, Calibration and Good Laboratory Practice Act 19 of 2006. This document was handed up during argument and no evidence was led in respect of the basis of which the suggestion is made. The document is in the form of a "to whom it may concern" letter which seems to have been produced during September 2010. It makes mention that the OIML certification is done by the Laboratorie nationale De Metrologie Legale and by virtue of its accreditation with another body and that body's membership of another organisation, it falls within the prescripts of act 19 of 2006. Not only is this letter inadmissible as evidence but even if it was admissible, it is so vague that it would not have moved me.
219. Reg 332 requires further of the state to prove that the equipment used was calibrated or verified to establish the accuracy and traceability of such equipment by an accredited laboratory. It is further required in terms of the prosecution guidelines and the Drager instruction manual that calibration should take place every 6 months. In terms of the prosecution guidelines the calibration should take place after any maintenance and repairs have been done.

221. In the event that prescribed equipment is properly calibrated it should not only function properly but be operated by a person who is properly qualified to operate such equipment. I have pointed out above that the operator lacked sufficient training in my view and simply failed to follow standard operating procedures as prescribed in the operator's manual, the OIML and the prosecution guidelines. To this extent such failure would vitiate a reliable result.
222. There is an operator's statement that ought to be completed when a person is tested on the Alcotest. On the evidence presented this statement was not completed in terms of a sworn statement and not all the pages of the statement were presented to the court.
223. In terms of the operator's certificate it is presumed that the operators have undergone training in order to operate the Alcotest effectively. The certificate of the operator that performed the test on the accused was admitted into evidence, however it is noted that this certificate is dated 12 February 1999. The Alcotest in question, was programmed with software version 1.1 which was finalised in December 1999. There is no certificate to prove that the operator was trained in terms of the software version 1.1 on the Alcotest that was used in producing this particular result.

224. The factual findings herein represent the unanimous opinion of the court.
225. I am of the view that save for the fact that the accused was the driver of the motor vehicle on a public road on the day in question, the state failed to prove any of the other elements of the offence as charged. Consequently the accused is acquitted of the charge.