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[2017] ZAWCHC 26
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S v Tokhwe (17293) [2017] ZAWCHC 26 (22 March 2017)
THE
HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
High
Court Ref No: 17293
Khayelitsha
Case No: 2/863/2015
In
the matter of:
THE
STATE
and
ZOLANI
TOKHWE
Coram
:
GAMBLE & ROGERS JJ
Delivered:
22 MARCH 2017
DECISION
ROGERS J (GAMBLE
concurring):
[1]
This matter comes before us on automatic review. The
accused was charged in the court a quo with one count of contravening
s 65(2)(a)
of the National Road Traffic Act 93 of 1996 (‘the
Act’) by driving on a public road while the concentration of
alcohol
in his blood was more than 0.05 gr per 100 ml, to wit 0,31
gr. He pleaded guilty and was sentenced to a fine of R20 000 or
20 months’ imprisonment wholly suspended for five years on
condition that he was not convicted of the same offence committed
during the period of suspension.
[2]
There is no difficulty with the conviction. The
sentence, however, warrants interference.
[3]
The offence was committed on 6 December 2014 in Mew Road
Khayelitsha. The accused expressed regret for what he had done. He
said
he had not thought he would encounter the police as he was only
driving a short distance. At that time the accused was 21 years
old.
This was his first offence. He was unmarried but had a son who was
one. He passed grade 11 and did Level 4 Mechanical Engineering
at
False Bay College during 2014. He had a learner’s licence. He
was seeking employment in positions which required a driver’s
licence which he was wanting to apply for. He told the magistrate
that he did not currently have money to pay a fine and was dependent
on his sister.
[4]
In his reasons for sentence the magistrate said that
drunk driving was very prevalent in the Khayelitsha district, the
level of
alcohol was high and that the courts were frequently
criticised for being very lenient in their sentences. He thought that
a ‘huge
amount’ of R20 000, and 20 months’
imprisonment in default thereof, wholly suspended for five years, was
appropriate
because it would not only have a deterrent effect on
young offenders but send a clear message to the public that courts
are losing
patience with perpetrators of these offences.
[5]
The magistrate was right to emphasise the scourge of
drunk driving on our roads and the heavy toll it exacts. I would not
wish to
discourage lower courts from leaning in favour of heavier
rather than lighter sentences for drunk driving and related offences.
Nonetheless, courts must bear in mind the types of sentences which
have been regarded as appropriate in the past and maintain a
proper
sense of proportion. And naturally the individual circumstances of
the accused need to be taken into account. There can
be no ‘one
size fits all’ when it comes to sentencing.
[6]
In
S
v Wilson
2001 (1)
SACR 253
(T) the accused, a first offender, was sentenced to a fine
of R6000 or 18 months’ imprisonment, of which R5000/12 months
were suspended for five years. The court discussed the usual
sentencing range for this offence, ranging from R1000/six months
wholly
suspended to R3600/nine months partially suspended
(256d-257c). The court emphasised the importance of license
suspension
as a deterrent (259f-g). The court concluded that the
sentence imposed by the magistrate was exceptionally heavy and
replaced it
with a fine of R3000/ nine months’ imprisonment,
two-thirds of which was suspended.
[7]
In
S v
Serabo
2002 (1) SACR 391
(E) the court said that sentences for first offenders were fines in
the range of R4 000-R6 000 with the alternative of
imprisonment generally not exceeding eight months, usually less
(398a-400d).
[8]
In
S
v Rooi
[2004]
ZAWCHC 40
the accused’s alcohol level was 0,22 grams. He had
one prior conviction. This court set aside a suspended sentence of
R20 000
or 12 months’ imprisonment and replaced it with
R6 000 or 12 months’ imprisonment wholly suspended. The
court
upheld, however, an order for 240 hours of periodic
imprisonment.
[9]
In
S
v Kammies
[2011]
ZANCHC 11
the accused was found guilty on two counts of contravening
s 65(2)(a), the second offence having been committed four months
after
the first. The lower court took the counts together and imposed
a fine of R50 000, failing which imprisonment of 60 months,
half
of which was suspended. The accused earned R7200 p/m gross. On review
this was set aside and replaced with the following sentences:
count 1
– R4000 or six months wholly suspended; count 2 – R8000
or 18 months of which R2000/six months suspended.
[10]
Although the ameliorating effect of suspending a
sentence is substantial, the sentence must nevertheless be
appropriate, having
regard to the
Zinn
triad.
After all, the sentence might be brought into effect if the accused
were to repeat the crime. In the present case, that could
mean
imprisonment of 20 months, given that the accused is currently not
earning. Even if he were to get a job, a fine of R20 000
is, as
the magistrate himself put it, ‘huge’ (ie very large in
relation to the accused’s resources) and one which
would almost
certainly be beyond his capacity to pay.
[11]
In terms of s 35(1)(c) of the Act the accused’s
conviction would automatically have resulted in the suspension of his
licence
for six months (or a disqualification against applying for a
new licence for six months) were it not for the fact that the court
a
quo exercised its power in terms of s 35(3) to uplift the automatic
suspension. The magistrate so acted because the accused was
applying
for jobs which required a driver’s license. He considered that
the sentence was a sufficient deterrent.
[12]
In
S v Greeff
2014
(1) SACR 74
(WCC) and
S v De Bruin
WCHC
Ref 141270 (unreported judgment of 29 January 2015), in judgments
concurred in Saldanha J, I analysed the legislative history
of s 35
and concluded that it was no longer permissible to uplift the
automatic suspension on the sorts of grounds mentioned by
the
magistrate. A different view was reached by Savage J (with Henney J
concurring) in
S v Lourens
2016
(2) SACR 624
(WCC), where it was held that in exercising its power
under s 35(3) the trial court may take into account all factors
traditionally
affecting sentence.
[13]
Unfortunately it appears that this difference of
judicial opinion is not going to be resolved in this division because
of a view
that a judgment of a three-judge panel on appeal from the
magistrate’s court has no greater binding force than a judgment
of a two-judge panel. The difference of opinion would thus not be
settled by referring such a case to a three-judge panel. This
view
rests on the premise that the authority of a court depends on its
status and not a counting of heads (see Hosten et al
Introduction
to South African Law and Legal Theory
2
nd
Ed at 413; Hahlo & Kahn
The South African
Legal System and its Background
1968 at
246-247). This rule certainly applies to the Supreme Court of Appeal
– the binding effect of its judgments is unaffected
by whether
the court comprised three or five judges or whether the court was
unanimous or split. Whether the same applies to two-judge
and
three-judge panels of the High Courts seems not to be settled (Hahlo
& Kahn op cit at 252). Be that as it may, it seems
that, unless
and until the question is resolved by the Supreme Court of Appeal,
magistrates and judges in the Western Cape will
be entitled to follow
whichever decision they regard as correct.
[14]
Although I adhere to the views I expressed in
Greeff
and
De Bruin
,
it is not permissible on automatic review to alter the court a quo’s
decision adversely to the accused (see
Hiemstra’s
Criminal Procedure
at p 30/23-24). My
own opinion is that in the circumstances of the present case the
automatic suspension should not have been
uplifted, even if the
magistrate had the power to do so. Automatic suspension in terms of
s 35(1) is intended as a deterrent.
It will often be a more
effective deterrent than a conventional criminal sentence. In the
present case, the accused’s lack
of financial means coupled
with the inappropriateness of direct imprisonment made suspension of
his licence for six months (or
disqualification from applying for a
new licence for six months) entirely apposite.
[15]
However this course is not open to us. It is also not
open to us to impose an unsuspended but more modest fine with the
alternative
of imprisonment since any unsuspended sentence might be
regarded as adverse to the accused. The only way of correcting the
unduly
harsh sentence imposed by the magistrate is to reduce the
amount of the fine and alternative imprisonment. In my view, a
suspended
fine of R4000, failing which imprisonment of six months,
would fit the case.
GAMBLE
J
[16]
I do not express an opinion on the difference of
judicial opinion reflected in
Greeff
and
Lourens.
I was not
party to either of these decisions and the matter has not been
argued. Save as aforesaid, I concur in the above judgment.
[17]
The following order is made: (i) The accused’s
conviction is confirmed. (ii) The sentence imposed by the court
a
quo is set aside and replaced with the following sentence: ‘The
accused is sentenced to a fine of R4000, failing payment of
which six
months imprisonment, the whole of which is suspended for five years
on condition that the accused is not convicted of
a contravention of
s 65(2)(a) of Act 93 of 1996 committed during the period of
suspension.’
_____________________
GAMBLE
J
_____________________
ROGERS
J