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[2016] ZAWCHC 58
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S v Lourens (16424, 205/16, 26/2016) [2016] ZAWCHC 58; 2016 (2) SACR 624 (WCC) (13 May 2016)
IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE HIGH COURT, CAPE TOWN
High Court Ref. No: 16424
Magistrate’s Court Case No: 205/16
Magistrate’s Court Ref. No.: 26/2016
In the matter between:
THE STATE
And
WERNER
LOURENS
.................................................................................................................
Accused
Judgment: 13 MAY 2016
SAVAGE J:
[1]
This
matter came to this Court by way of review from the Magistrate’s
Court at Piketberg in terms of section 302 of the Criminal
Procedure
Act 51 of 1997 (“the CPA”). The accused, Mr Werner
Lourens, was convicted of contravening s 65(1) of the
National Road
Traffic Act 93 of 1996 (“the Act”) in that on 17 October
2015 on Asblom Street, a public road in Piketberg,
the accused drove
a motor vehicle while under the influence of alcohol. The accused
pleaded guilty to both the main and the alternative
charge under s 65
(2) in which he admitted that the concentration of alcohol in his
blood was 0.18/100ml.
[2]
Having
convicted the accused on the main charge, the presiding magistrate
explained the provisions of s 35 of the Act to the accused
who
testified following his conviction that he is 21 years old,
unmarried, has passed matric and that he has been employed for
8
months at Dup Meubels in Piketberg earning R5000 per month. He has
held a driving licence for two years and requires his licence
at work
as he undertakes deliveries. The accused stated that the incident
took place at 21h30, that he was alone in the vehicle,
the road was
quiet with no other vehicle or pedestrians involved and no accident
occurred. It was submitted for the state that
although the accused
was a first offender a serious crime was committed and that the
police had been contacted regarding his driving.
The accused was a
danger to himself and the public and a sentence must be imposed which
sends a message and serves to deter the
future commission of the
offence.
[3]
The
magistrate sentenced the accused to a fine of R6000 or 12 months
imprisonment of which half was suspended for a period of 4
years on
condition that the accused was not again convicted of a similar
offence during the period of suspension. In addition,
the accused’s
driving licence was suspended for a period or 6 months from 15 March
2016. The matter was thereafter referred
to this Court for review in
the ordinary course in terms of section 302 of the CPA. Having had
regard to the matter, it appeared
to this Court in terms of s
304(2)(a) that the proceedings were not in accordance with justice
for the reasons which follow, but
that it was not necessary to obtain
a statement from the judicial officer who presided at the trial
setting forth the reasons for
the sentence imposed which were
self-evident. Furthermore, given the period of suspension of the
driving licence imposed, the matter
was considered urgent and
therefore stood to be determined forthwith.
[4]
On
review the accused made written submissions to this Court regarding
the suspension of his driving licence, which submissions
were
supported by way of a letter from his employer, Mr Japie du Plessis,
the owner of Dup Meubels CC in Piketberg. These submissions
confirmed
the accused’s evidence that he requires his driving licence for
purposes of his employment in order that he is
able to undertake
deliveries for his employer.
[5]
Section
35 of the Act, which was amended with effect from 20 November 2010 by
Act 64 of 2008, provides that:
‘
35(1)
Subject to subsection (3), every driving licence or every licence and
permit of any person convicted of an offence referred
to in -
(a) section
61(1)(a), (b) or (c), in the case of the death of or serious injury
to a person;
(aA) section
59(4), in the case of a conviction for an offence, where-
(i) a speed in
excess of 30 kilometers per hour over the prescribed general speed
limit in an urban area was recorded; or
(ii) a speed in
excess of 40 kilometers per hour over the prescribed general speed
limit outside an urban area or on a freeway was
recorded;
(b) section 63(1),
if the court finds that the offence was committed by driving
recklessly;
(c) section 65(1),
(2) or (5), where such person is the holder of a driving licence or a
licence and permit, shall be suspended
in the case of -
(i) a first
offence, for a period of at least six months;
(ii) a second
offence, for a period of at least five years; or
(iii) a third or
subsequent offence, for a period of at least ten years, calculated
from the date of sentence.
(2) Subject to
subsection (3), any person who is not the holder of a driving licence
or of a licence and permit, shall, on conviction
of an offence
referred to in subsection (1), be disqualified for the periods
mentioned in paragraphs (i) to (iii), inclusive, of
subsection (1)
calculated from the date of sentence, from obtaining a learner's or
driving licence or a licence and permit.
(3) If a court
convicting any person of an offence referred to in subsection (1), is
satisfied, after the presentation of evidence
under oath, that
circumstances relating to the offence exist which do not justify the
suspension or disqualification referred to
in subsection (1) or (2),
respectively, the court may, notwithstanding the provisions of those
subsections, order that the suspension
or disqualification shall not
take effect, or shall be for such shorter period as the court may
consider fit.’
[6]
Unlike
s 35(1)(c) of the Act which provides that a driving licence ‘
shall
be suspended
’
where an accused
has been convicted in terms of s
65(1),(2)
or (5)
, s 34(1) records that the court
holds a discretion providing that:
‘
34(1) Subject to section 35, a court
convicting a person of an offence in terms of this Act, or of an
offence at common law, relating
to the driving of a motor vehicle
may, in addition to imposing a sentence, issue an order, if the
person convicted is -
(a) the holder of a licence, or of a licence and
permit, that such licence or licence and permit be suspended for such
period as
the court may deem fit or that such licence or licence and
permit be cancelled…;
(b) the holder of a licence, or of a licence and
permit, that such licence or licence and permit be cancelled, and
that the person
convicted be disqualified from obtaining a licence,
or a licence and permit, for any class of motor vehicle for such
period as
the court may deem fit...; or
(c) not the holder of a licence, or of a licence
and permit, declaring him or her to be disqualified from obtaining a
licence, or
a licence and permit, either indefinitely or for such
period as the court may deem fit.’
[7]
Section
276 of the CPA details the sentences that may be passed upon a person
convicted of an offence. While the suspension or cancellation
of a
driving licence is not a sentence provided in s 276, in terms of s 35
of the Act it is clearly a punishment imposed consequent
to an
offence committed under s 65 (as is s 34 in relation to the offences
cited in that provision). With sentences often combined
by judicial
officers in order to arrive at an appropriate punishment,
[1]
a decision to cancel or suspend a driving licence
is integral to such a determination. A suspension or cancellation
order is therefore
not a purely administrative adjunct to the
sentence but constitutes a significant part of the punishment
imposed.
[2]
[8]
The
material amendments made to s 35(3) by Act 64 of 2008 were the
inclusion of the words ‘
after the
presentation of evidence under oath
’
and
‘
circumstances relating to the
offence exist’.
From a plain
reading of the amended provision, s 35(3) authorises the Court ‘
after
the presentation of evidence under oath
’
to
find that ‘
circumstances relating
to the offence exist’
which
justify a decision not to suspend a licence or to suspend it for such
shorter period that the Court considers appropriate.
[9]
In
Greeff v
S
[3]
Rogers J, with Saldanha J concurring, stated with
regards to the amended s 35(3) that –
‘…
whereas previously there was
no limit on the circumstances to which a court could have regard in
determining whether a non-suspension
order was justified, the
lawmaker has now limited the circumstances which may be taken into
account to ‘circumstances relating
to the offence’…Since
the suspension of a driving licence in terms of s35(1) serves not
only to protect the public
but to punish the offender (s v Van
Rensburg
1967 (2) SA 291
(C ) at 296E-F), the circumstances which -
prior to the amendment - could properly be taken into account would
have included all
the circumstances relevant to the imposition of the
sanction of that kind: not only the circumstances of the crime would
have been
relevant but also the personal circumstances of the accused
and interests of the community. That is why one will find, in cases
decided prior to the amendment, weight being attached, for example,
to the importance to the accused person of having a driving
licence
for purposes of his work and family commitments, the fact that the
accused was a first offender and so forth. It is perfectly
clear that
the lawmaker, by not confining the relevant circumstances to those
‘relating to the offence’, has deliberately
narrowed the
circumstances to which regard may be had. Unless a particular
circumstance can properly and rationally be said to
relate to the
offence, it must be left out of account.’
[4]
[10]
It
was stated further in
Greeff
:
‘
In my view, the fact that the holding
of a driving licence is of particular importance to an accused person
for work or family reasons
is not a circumstance that can properly be
said to relate to the offence. The same is true of the fact that the
accused might be
a first offender. Indeed, s35(1), in setting up the
periods of automatic suspension, expressly takes into account whether
the accused
is a first, second or multiple offender…
.’.
[5]
[11]
As
with the current matter, it was made clear in
Greeff
that the court was only concerned with suspensions
for which s35(1) provides read with s35(3) and not with the court’s
discretionary
power to suspend a licence in terms of s34(1).
[12]
It has been stated by our courts prior to
the coming into force of the Act and later its subsequent amendment,
that the principles
which guide a court in deciding whether to
endorse, suspend or cancel a driving licence are the same as those
which guide a court
in determining an appropriate sentence, with the
court holding a discretion as to how it should proceed.
[6]
In
Cooper's Motor
Law
[7]
it was emphasised in relation to an offence
committed prior to the Act that not only does this require a
consideration of the nature
and ‘
gravity
of the offence and the degree of the offender's culpability, the
court should also bear in mind that to deprive an individual
of the
right to drive on a public road is a severe punishment and that the
suspension or cancellation the driving licence is an
even more severe
punishment or a person whose livelihood depends on the driving of the
vehicle
’
.
[13]
The pre-constitutional era matter of
S
v Toms; S v Bruce
[8]
took issue with reducing the court’s
normal sentencing function to the level of a rubber stamp. It
reiterated, with reference
to
R v
Mapumulo
and others,
[9]
that the infliction of punishment is in the first
instance pre-eminently a matter for the discretion of the trial court
and that
courts should, as far as possible, have an unfettered
discretion in relation to sentence; and secondly that punishment is
to be
individualised to entail a proper consideration of the
individual circumstances of each accused person.
[10]
Our courts in cases such as
S
v Malgas
[11]
and
S v Dodo
[12]
have had regard to prescribed minimum sentences
under our constitutional order.
S v
Malgas
made it clear that
while
the emphasis has shifted to the objective gravity of the type of
crime and the need for effective sanctions against it, the
factors
traditionally taken into account in sentencing are not to be excluded
in the sentencing process; with
S
v Dodo
stating
that minimum sentences do not compel
a
sentencing court to act inconsistently with the Constitution.
[14]
The court in
Greeff
found that s 35(3) limited the discretion of the
sentencing court so as to exclude a consideration of the personal
circumstances
of the accused or the interests of the community.
Having regard to the wording of s35, I am unable to agree that in the
consideration
of s35(1) read with s 35(3) of the Act ‘
circumstances
relating to the offence
’
do not
include the personal circumstances of the accused or the interests of
the community but are limited only to circumstances
related to the
commission of the offence itself.
[15]
Imposing a sentence
is an action that requires the court to work purposefully at finding
the most appropriate sentence
[13]
in a manner which accords with an accused’s
fair trial right embodied in s35 of the Constitution. Our courts have
emphasised
repeatedly that a
sentence
imposed must
always be
individualised, considered and passed dispassionately, objectively
and upon a careful consideration of all relevant factors
on the basis
that retribution and revenge alone do not drive sentencing.
[14]
As was stated in
S
v Dodo,
[15]
in relation to prescribed minimum sentences in
terms of s 51(1) of Act 105 of 1997,
‘
(i)
f
the sentencing court, in considering the circumstances of the case,
is satisfied that these are such as to render the prescribed
sentence
unjust in that it would be disproportionate to the crime, the
criminal and the needs of society so that an injustice would
be done
by imposing that sentence, it may impose a lesser sentence
.’
[16]
An
interpretation of s 35(3) of the Act that a consideration of the
accused’s personal circumstances and the interests of
the
community are to be excluded has the result that the sentence imposed
is not appropriately individualised and is not imposed
after
careful
consideration of all relevant factors.
A
presumption exists in favour of construing legislation in such a
manner that rights are not interfered with and courts are to be
cautious of unduly extending provisions so as to alter existing law,
or to impose burdens that previously did not exist.
[16]
An interpretation of s35(3) of the Act must occur within the context
of the scheme of not only the statute but the appellant’s
constitutional fair trial right,
[17]
with statute law interpreted in such a manner that
it alters the existing law no more than is necessary.
[18]
Had the legislature intended that s35(3) of the
Act was to remove from the sentencing jurisdiction of the court a
consideration
of an accused’s personal circumstances and the
interests of the community, in my mind, this would not only have had
to have
been made pertinently clear in the provision but the
provision would then have had to overcome the impact that the removal
of the
individualisation of sentence would have on an accused’s
fair trial right. It does not do so and in my mind the interpretation
given to s 35(3) in
Greeff
is
incorrect.
[17]
A
plain reading of the words ‘
circumstances
relating to the offence
’
in the
amended s 35(3) includes a consideration of the personal
circumstances of the offender and the interests of the community
so
as to allow the sentencing court to impose a sentence dispassionately
on consideration of all relevant factors traditionally
relevant to
sentencing. Punishment should ‘…
fit
the criminal as well as the crime, be fair to society, and be blended
with a measure of mercy according to the circumstances
’
.
[19]
In order that it does so, as was stated decades
back in S v
Zinn,
[20]
the personal circumstances of the appellant are to
be considered against society’s demand for retribution which
must be carefully
balanced with the nature and circumstances of the
crime. Intrinsic to an offence is an offender whose criminal conduct
occurs within
the context of the community. To find differently is to
unduly insulate the factual circumstances under which an offence is
committed
when it need hardly be stated that an offence is not
capable of commission without an offender who operates within the
broader
context of his or her community. For all of these reasons,
the view I take of the matter is that in considering an appropriate
sentence under s 35 consequent to the commission of an offence in
terms of s 65(1) an interpretation of the words ‘
circumstances
relating to the offence
’
in s
35(3) is to include a consideration of the circumstances of the
offender and the interests of the community.
[18]
Having
explained the provisions of s 35 to the accused, it is clear that the
magistrate had regard to the provisions of that section
but failed to
take account of the personal circumstances of the accused, including
that he required a driving licence for his work,
that he was a first
offender and that there was no injury or accident caused by his
offence. Given that the accused is gainfully
employed in a position
which requires a driving licence he runs the risk that such
employment, in difficult economic times, may
be terminated were this
Court to confirm the suspension of his licence. In this regard, the
sentence imposed upon the accused was
unduly harsh, was one that was
not in the interests of justice and it warrants the interference of
this Court on review. I am satisfied
that the relevant circumstances
related to the offence exist, as were placed before the presiding
magistrate under oath, to justify
this Court, in terms of s
304(2)(c)(ii) of the CPA, setting aside only that part of the order
of the magistrate which suspends
the accused’s driving licence.
Order
[19]
In
the result, I propose the following order:
1.
The conviction of the
accused for driving a motor vehicle while under the influence of
alcohol on a public road in terms of s 65(1)
of Act 93 of 1996 is
confirmed.
2.
The following
sentence imposed upon the accused is confirmed on review:
‘
1.
The accused
is ordered to pay a fine of R6000-00 or serve a period of 12 months
imprisonment, of which one half is suspended for
a period of 4 years
on condition that the accused is not convicted of an offence in terms
of s 65(1) or (2) of Act 93 of 1996 committed
during the period of
suspension.
’
3.
The order of the
magistrate in terms of which the accused’s driving licence was
suspended for a period of 6 months with effect
from 15 March 2016 is
reviewed and set aside.
KM SAVAGE
JUDGE OF THE HIGH COURT
I agree and it is so ordered.
RCA HENNEY
JUDGE OF THE HIGH COURT
[1]
Du
Toit et al Commentary on the Criminal Procedure Act at 30-12
[2]
S
v Van Rensburg
1967
(2) SA 291
(C) at 297E-F.
[3]
2014
(1) SACR 74
(WCC).
[4]
At
para 8.
[5]
At
para 9.
[6]
S
v Dalldorf
1947
(1) SA 215(E)
at 216;
R
v Weddy
1947
(2) SA 892
(E) at 893.
[7]
‘
Exercise
of Discretionary power’ (RS 1, 2009) para 34.2 at B4-22. See
also
S
v Strydom
1996 (2) SACR 636
(W).
[8]
[1990] ZASCA 38
;
1990
(2) SA 802
(A) at 7.
[9]
1920
AD 56
at 57
[10]
With
reference to
S
v Rabie
1975(4)
SA 855 (A) at 861 D;
S
v Scheepers
1977(2)
SA 154 (A) at 158 F - G
[11]
2001
(2) SA 1222
(SCA)
[12]
[2001] ZACC 16
;
2001
(3) SA 382
(CC)
[13]
SS
Terblanche Guide to Sentencing in South Africa, 2
nd
ed
(2007) at 2.
[14]
Mudau
v S
(764/12)
[2013] ZASCA 56
(9 May 2013).
[15]
Supra
at
para 40.
[16]
Pretorius
v Transnet Bpk
[1994] ZASCA 178
;
1995
(2) SA 309
(A) at 318C.
[17]
LAWSA 360.
[18]
LAWSA
25 part 1 at 340.
[19]
S
v Rabie
1975
(4) SA 855
(A)
[20]
1969
(2) SA 537
(A)
at 540G-H