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[2017] ZAWCHC 143
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S v Permall (171172) [2017] ZAWCHC 143; 2018 (2) SACR 206 (WCC) (8 December 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
Review
High Court Ref 171172
In
the matter between
THE
STATE
And
GRAHAM
THOMAS RAYMOND PERMALL
CORAM:
BOQWANA J; THULARE AJ
JUDGMENT DELIVERED ON 08
DECEMBER 2017
THULARE
AJ
[1]
The proceedings in this matter were considered on review in terms of
section 304
of the
Criminal Procedure Act No. 51 of 1977
and I had
doubts as to whether the proceedings were in accordance with justice,
with particular reference to the sentence imposed.
The statement of
the judicial officer who presided at the trial was obtained wherein
he set forth his reasons for the sentence,
and the matter lay for
consideration by this court.
[2]
The accused appeared in person, pleaded guilty to the charge and
after being questioned by the magistrate, he was found guilty
of
driving a vehicle on a public road in the district of Caledon whilst
the concentration of alcohol drawn from his body exceeded
the
prescribed limit of 0.05g per 100ml, to wit 0.22g per 100ml, in
contravention of the provisions of the National Road Traffic
Act No.
93 of 1996 (the NRTA). The State had accepted that the accused had
consumed an unknown quantity of brandy and ciders the
night before,
and that on the day of his arrest he had made a u-turn in the road in
a manner that drew the attention of the police
whereupon he was
stopped. The police detected that he smelt of liquor and took him to
a hospital for his blood to be drawn, which
led to his arrest and the
charges against him.
[3]
He was sentenced to a fine of R15 000-00 or 30 months imprisonment
wholly suspended for five years on condition that he is not
convicted
of driving a vehicle on a public road whilst the concentration of
alcohol in his blood exceeded the prescribed limit
in contravention
of section 65(2) of the NRTA. As a first offender who did not hold a
driving licence, he was disqualified from
obtaining a learner’s
or driving licence for a period of six months from the date of his
sentence.
[4]
In obtaining the statement from the magistrate, he was more
specifically asked to comment on the sentence he imposed on the
accused, with his attention being drawn to the provisions of the
Adjustment of Fines Act No. 101 of 1991 (AOFA).
[5] In his comments,
rightly so, the magistrate made reference to section 89 of the NRTA.
Section 89(2) of the NRTA provides as
follows:
“
89
Offences and penalties
(2) Any person
convicted of an offence in terms of subsection (1) read with section
42(1) or (2), 44(1), 45(2), 46(1) or 65(1),
(2), (5) or (9) shall be
liable to a fine or to imprisonment for a period not exceeding six
years.”
[6] The magistrate,
rightly so, also referred to section 1(1)(a) of AOFA which provides
that:
“
1.
Calculation of maximum fine
(1)(a) If any
law provides that any person on conviction of an offence may be
sentenced to pay a fine the maximum amount of which
is not prescribed
or, in the alternative, to undergo a prescribed maximum period of
imprisonment, and there is no indication to
the contrary, the amount
of the maximum fine which may be imposed shall, subject to section 4,
be an amount which in relation to
the said period of imprisonment is
in the same ratio as the ratio between the amount of the fine which
the Minister of Justice
may from time to time determine in terms of
section 92(1)(b) of the Magistrates’ Courts Act, 1944 (Act 32
of 1944), and the
period of imprisonment as determined in section
92(1)(a) of the said Act, where the court is not a court of a
regional division.”
[7]
The ruling of the magistrate on AOFA is problematic. The magistrate’s
statement is that the sentence imposed is well within
the court’s
sentence jurisdiction and that section 1 of AOFA does not prescribe a
specific ratio between the fine and the
alternative imprisonment
imposed.
[8] Section 92(1)(b) of
the Magistrates’ Courts Act No. 32 of 1944 (the MCA) to which
AOFA refers, also refers to subsection
(1)(a) thereof, and both reads
as follows:
“
92
Limits of jurisdiction in the matter of punishments
(1)
Save as otherwise in this Act or in
any other law specially provided, the court, whenever it may punish a
person for an offence
–
(a)
by imprisonment, may impose a
sentence of imprisonment for a period not exceeding three years,
where the court is not the court
of a regional division, or not
exceeding 15 years, where the court is the court of a regional
division;
(b)
by fine, may impose a fine not
exceeding the amount determined by the Minister from time to time by
notice in the Gazette for the
respective courts referred to in
paragraph (a);”
[9]
Government Notice 217 in Government Gazette 37477 of 27 March 2014
provides for the “
Determination
of monetary jurisdiction for causes of action in respect of courts
for districts
”
and specifically under section 92(1)(b) of the MCA determined an
amount of R120 000-00 where the court is not the court
of a
regional division, and R600 000-00 where the court is the court of a
regional division.
[10]
In terms of AOFA, one has to determine the ratio between the amount
which the Minister has determined in terms of section 92(1)(b)
of the
MCA which is R120 000-00 and the period of imprisonment as determined
in terms of section 92(1)(a) which is three years
imprisonment or 36
months. A simple mathematical calculation shows that 120 000-00
divide by 36 equals 3333.33, which is the ratio
between the fine and
the period of imprisonment. The maximum period of imprisonment of 6
years equals 72 months. The ratio, 3333.33
multiplied by 72 months
gives a meticulously mathematically correct sum of 239 999-76
which should be a reasonably appropriate
amount of R240 000-00. It is
worth noting that dividing 240 000-00 by 72, also gives one the ratio
of 3333.33. In terms of AOFA,
the maximum fine which the magistrate
was competent to impose was R240 000-00 on a term of imprisonment of
6 years. The ratio between
the maximum fine to be imposed and the
maximum period of imprisonment for the offence for which the accused
was convicted, is 3333.33.
[11]
In my view, section 1(1)(a) of AOFA read with section 92(1)(a) and
(b) of the MCA, provides a statutory rule which should guide
magistrates, who are both appointed in the districts and the regional
divisions, not only to calculate the maximum fine or the
term of
imprisonment as the case may be, but also in the computation of the
fine or term of imprisonment in the sentences that
the courts impose.
The statutory rule is a technique of mathematical legal science to be
applied to the analysis and synthesis
for the determination of fines
and terms of imprisonment in the magistrates’ courts. It
follows that, in my view, AOFA provides
a statutory rule of the
computation of limits of jurisdiction in matters of punishment.
Considering both provisions of AOFA and
the MCA referred to, the
ratio between the amount of the fine and the term of imprisonment, in
the magistrates’ courts, is
3333.33, save as specially provided
in any other law.
[12]
Where a magistrate, like in the present case, had determined to
impose a fine of R15 000-00, a simple meticulous mathematical
calculation shows that that amount divided by the ratio, 3333.33,
determined the maximum period of imprisonment was 4.5 months.
A
reasonably appropriate term of imprisonment, on the fine determined,
was either 4 of 5 months imprisonment. The learned magistrate
was
misdirected when he imposed an alternative imprisonment of 30 months.
It is a ruling which bears no relation to the law, from
which he
departed without any valid reasons, which guided his computation of
punishment. The magistrate quoted the correct law,
but simply did not
make proper rulings of the law and as a result did not apply the law
correctly on his judgment on sentence.
A sentence is in the
discretion of the magistrate, however, that discretion does not
enable courts to impose sentences which are
more severe than the
sentence which the magistrate was competent to impose, moreso where
the severity is founded on a drastic and
unexplained departure from
principles and rules, which includes statutory rules of calculations
and computation.
[13]
The difference between a maximum of 5 months and 30 months is very
huge. It is a full two years and one month’s difference.
The
sentence imposed was wholly suspended for five years. The
intervention of this court is not simply academic, as there is a
risk
to the accused being adversely affected by the magistrate’s
misdirection, unless the High Court intervenes, in the event
of the
suspended sentence being put into operation. The risk of the adverse
consequences of this misdirection is not only to the
accused. Where
the magistrate unduly departed from what the Legislature has ordained
on how fines and terms of imprisonment are
to be calculated, for
inexplicable reasons, and the sentence is put into operation because
the accused is unable to pay the fine,
the prison population run the
risk of being increased for almost three years by a man who in
accordance with the law, ought not
to have been in prison for more
than five months. The Department of Justice and Correctional Services
is in recent years battling
with prison overcrowding.
[14]
Consequently, I am satisfied that the alternative sentence of 30
months imprisonment on a fine of R15 000-00, although wholly
suspended for five years on condition that the accused is not
convicted of driving a vehicle on a public road whilst the
concentration
of alcohol in his blood exceeded the prescribed limit
in contravention of section 65(2) of the NRTA, is unduly
disproportionate
and not in accordance with the provisions of the
Adjustment of Fines Act, 1991. The proceedings, in my view, were not
in accordance
with justice and it warrants the interference of this
court on review. In my view, it is only fair that the accused gets
the benefit
of the least severe of the period of imprisonment in the
determination of what is an appropriate sentence.
[15]
In the result, I would make the following order:
The
sentence imposed by the trial court is set aside and substituted with
the following:
“
The
accused is sentenced to a fine of R15 000-00 or four months
imprisonment wholly suspended for five years on condition that the
accused is not convicted of contravening section 65(2) of the
National Road Traffic Act, 1996 (Act No. 93 of 1996) committed during
the period of suspension. Accused is disqualified from obtaining a
learner’s or driving licence for a period of six months.”
…………………………………………………………………
..
DM
THULARE
ACTING
JUDGE OF THE HIGH COURT
I
agree, and it is so ordered.
…………………………………………………………………
..
NP
BOQWANA
JUDGE
OF THE HIGH COURT