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[2017] ZAWCHC 164
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S v Permall (171172) [2017] ZAWCHC 164 (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
et
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 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 0.22r per 100ml, in
contravention of the provisions of the National Road Traffic
Act No.
93 of 1996 (the NRTA). The State had accepted that he 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 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 have a
driver’s licence, he was disqualified
from obtaining a
learner’s or driver’s 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, 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 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, 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 of 27 March 2014 (Government Gazette 37477 of
27 March 2014) provides for an amount of R120 000 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.
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 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 of the maximum amount of fine to be imposed and the maximum
term 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 divide by the ratio determined,
3333.33, 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 two full years and a full 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 (Act No. 101 of 1991). The proceedings,
in my view,
are not in accordance with justice. 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 contravention of section 65(2) of the
National Road Traffic Act, 1996 (Act No. 93 of 1996) committed
during
the period of suspension. Accused is disqualified to obtain a
learner’s or driver’s 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