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[2018] ZAWCHC 56
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Brink v S (A320/2017) [2018] ZAWCHC 56; [2018] 2 All SA 347 (WCC); 2018 (2) SACR 6 (WCC) (13 March 2018)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE HIGH
COURT, CAPE TOWN)
Case
No: A320/2017
REPORTABLE
In
the matter between:
DANIEL
BRINK
Appellant
and
THE
STATE
Respondent
Coram
Allie, J
et
Davis, AJ
JUDGMENT DELIVERED ON
13 MARCH 2018
DAVIS,
AJ (ALLIE J concurring)
1.
This appeal concerns
the interpretation and application of section 35 of the National Road
Traffic Act 93 of 1996 (“the Act”),
which deals with the
mandatory suspension of driving licenses for prescribed minimum
periods in cases of conviction for specified
traffic offences.
2.
Section
35(1) of the Act lists a various offences under the Act which attract
a mandatory minimum sentence of six months in the
case of a first
offence, five years in the case of a second offence, and ten years in
the case of a third or subsequent offence.
The question in this
appeal is whether a subsequent conviction under a different
subsection of the same section of the Act qualifies
as a second
offence, more particularly, whether a conviction under section 65(2)
of the Act which is preceded by a conviction under
section 65(1) of
the Act counts as two offences.
[1]
3.
The appellant was
charged in the Hermanus Magistrates Court with contravening section
65(2)(a) of the Act on 21 July 2016 by driving
a vehicle on a public
road while the concentration of alcohol in his blood was not less
than 0,05 gram per 100 millilitres, to
whit 0.21 gram per 100
millilitres.
4.
The appellant’s
attorney negotiated a plea bargain on his behalf in terms of
section
105A
of the
Criminal Procedure Act 51 of 1977
, it being agreed that
the appellant would plead guilty to the charge and be sentenced to a
fine of R 10 000.00 (ten thousand
rand) or ten months direct
imprisonment of which half is suspended for a period of five years
(“the plea agreement”).
The plea agreement set out the
circumstances pertaining to the commission of the offence, as well as
factors relevant to the sentence,
both mitigating and aggravating.
The appellant disclosed in the plea agreement that he had a previous
conviction under a 2008 case
number for “
the
same offence”
.
5.
At the hearing on 3 May
2017 the magistrate duly convicted the appellant in accordance with
the provisions of the plea agreement.
Prior to sentencing the State
handed in a record of the appellant’s previous convictions,
which he admitted. The SAP69 recorded
that the appellant had been
convicted in 2009 on one count of driving under the influence of
liquor under section 65(1)(a) of the
Act and one count of reckless
and/or negligent driving under section 63 of the Act (“the 2009
conviction”), for which
he had been sentence to a fine of
R 5 000.00 or ten months imprisonment, plus a further R 5
000.00 or eighteen months
imprisonment conditionally suspended for
five years.
6.
The magistrate
sentenced the appellant in accordance with the plea agreement,
subjecting him to a fine of R 10 000.00 or ten months
imprisonment of
which half is suspended for a period of five years.
7.
Thereafter the
magistrate went on to deal with the question of the mandatory
suspension of the appellant’s driving license
in terms of
section 35(1). He did not before doing so – or at any stage –
notify the appellant of the provisions of
section 35(1) or (3). Nor
did he enquire whether the appellant’s attorney had informed
the appellant of these provisions.
8.
The magistrate
therefore failed to comply with the peremptory provisions of section
35(4) of the Act, which obliges the court convicting
any person of an
offence referred to in section 35(1) to inform the person of the
provisions of sections 35(1), (2) and (3) before
imposing sentence.
The procedural rights afforded to an accused in terms of section
35(4) are an important aspect of the right
to a fair trial, and due
care must therefore be taken to comply strictly with the requirements
of the section. I agree with the
observations by Tshiki J in
S
v Botha
2013 (1)
SACR 353
(ECP) that:
“…
the
wording of s 35(3) of the Act envisages a hearing in compliance with
the constitutional provisions, before the convicted person’s
right to keep or obtain his or her license can be taken away by
operation of law. It is for this reason that the court, in terms
of s
35(4) of the Act, has to advise the convicted person of the
provisions of ss 35(1) – (3) of the Act before the imposition
of sentence. Sentencing, in the sense used in s 35(4) of the Act,
includes the suspension of a license or disqualification to obtain
one, as the case may be.”
[2]
9.
In this case the
appellant was legally represented at the trial, and no point was
taken on appeal regarding the magistrate’s
failure to comply
with the provisions of section 35(4) of the Act. Furthermore, the
appellant, duly assisted by his attorney, did
in fact testify in the
section 35(3) enquiry. It can therefore safely be inferred that
appellant’s attorney had informed
him of the provisions of
section 35(1) and (3), and I am satisfied that the appellant could
not have been prejudiced by the magistrate’s
failure to comply
with the requirements of section 35(4).
10.
Although the magistrate
did not articulate the purpose therefor, he proceeded to conduct an
enquiry as envisaged in section 35(3)
in order to ascertain whether
there were circumstances which warranted deviating from the
prescribed minimum suspension period.
11.
The appellant testified
in the section 35(3) enquiry. During the course of his evidence in
chief he volunteered that he was currently
without a driving license
because his license had been “
revoked
during a previous incident.”
12.
During
cross-examination he testified that his license had been suspended
for six months in 2008, and that his license was currently
suspended
for five years until 2020 for “’
n
vorige dronkbestuur.”
He
admitted that he had been driving without a license when he committed
the offence for which he was being tried.
13.
The conviction which
gave rise to the current five year suspension did not appear on the
SAP69. Nor was it referred to in the plea
agreement.
14.
The magistrate then
questioned the appellant as follows regarding the 2015 conviction:
“
Court
:
Mnr Brink, as die Hof nou so mooi kyk na die tydperk van
opskorting
was eers verstrek in 2020, blyk dit dat u in 2015 moes skuldig bevind
gewees het op ’n klagte as ek dit reg verstaan
sê u dit
is ook ’n dronkbestuur klagte?
Appellant
:
Ja.
Court
:
Die hoofklagte of was dit die alternatiewe klagte
beteken dat te veel
alcohol in u bloed of was dit die hoofklage waarop u skuldig bevind
is?
Appellant
:
Dit klagte was vir alcohol ja, maar ek het voordat hulle enige
bloedtoetse gedoen het,
het ek gesê ek wil net skuldig pleit.
Court
:
Ek verstaan dit, maar die Hof wil vasstel is u skuldig
bevind op die
hoofklagte, beteken die hoofklagte van dronkbestuur beteken u het
geen vermoëns gehad om daardie voertuig to
bestuur nie of was
dit die alternatiewe klagte wat beteken u het die vermoëns gehad
om’n voertuig to bestuur, u het
net to veel alcohol in u
bloedsisteem gehad?
Appellant
:
Ek het die vermoë gehad om te bestuur, maar …
(tussenbeide)
Court
:
Dit is nou die ene van 2015. Ek praat van hierdie
ene.
Appellant
:
Ja
Court
:
Is dit die alternatiewe klagte waarop u skulding
bevind is?
Appellant
:
Ja.
Court
:
Die rede hoekom – die Hof sou in elk geval
vir u gevra het wat
was die rede vir die opskorting aangesien dit nie aangewys word op
hierdie vorige veroordelings, die enigste
vorige veroordeling
aangewys hierop is die een van 2009, is dit korrek so?
Appellant
:
2008.
Court
:
Ja, 2009 is u skuldig bevind.
Appellant
:
Ja, dis korrek.
Court
:
Ek wil net vasstel eers laastens voor ek afsluit,
waar was u skuldig
bevind in 2015?
Appellant
:
Pretoria.
Court
:
Pretoria se hof se wees. Kan u die datum onthou?
Appellant
:
Nee.
Court
:
So as die Hof dit reg het is dit u derde ooortreding,
derde
soortgelyke oortreding waarop u vandag skulding bevind is?
Appellant
:
Soortgelyk.
Court
:
Is dit korrek so?
Appellant
:
… (no audible answer)”
15.
On the strength of the
appellant’s answers the magistrate accepted that the appellant
had been convicted for an alcohol related
offence in 2015, despite
the absence of any record thereof on the SAP69. He therefore
considered that the appellant had three relevant
convictions, all
alcohol-related, being the 2009 conviction in terms of section 65(1),
the 2015 conviction in terms of section
65(2) (apparently), and the
current conviction in 2017 under section 65(2).
16.
The magistrate further
found that there were no circumstances relating to the offence which
warranted a departure from the prescribed
minimum period of
suspension, and he accordingly ordered that the Appellant’s
license be suspended for a period of 10 (ten)
years in accordance
with section 35(1)(iii) of the Act.
THE
QUESTIONS WHICH ARISE IN THIS APPEAL
17.
Three questions arise
in this appeal, namely:
17.1.
whether it is only
convictions under an
identical
provision
of the
Act which constitute previous convictions for the purposes of section
35(1)(ii) and (iii), or whether successive convictions
for
any
of the similar offences grouped together
under subsections 35(1)(a), (aA), (b) or (c) are relevant for
purposes of determining whether one is dealing with a second or third
offence for purposes of section 35(1)(ii) and (iii);
17.2.
whether or not the
magistrate ought to have taken into account the 2015 conviction which
was not reflected on the SAP 69;
17.3.
whether or not there
are circumstances which warrant a deviation from the prescribed
minimum period of suspension in this case.
THE
INTERPRETATION OF SECTION 35(1) OF THE ACT
18.
Section 35 reads as
follows:
“
(1)
Subject to subsection 3, every driving license or every license 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 kilometres
per hour over the prescribed general speed limit in an urban area was
recorded; or
(ii)
a speed in excess of 40 kilometres
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 license or a license 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;
(iii)
a third or subsequent offence, for a
period of at least ten years,
calculated from
the date of the sentence.
(2) Subject to
subsection (3), any person who is not the holder of a driving license
or of a license and permit, shall, on conviction
of an offence
referred to in subsection (1), be disqualified for the period
mentioned in paragraphs (i) to (iii), inclusive, of
subsection (1)
calculated from the date of the sentence, from obtaining a learner’s
license or driving license or a license
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.
(4) A court
convicting any person of an offence referred to in subsection (1)
shall, before imposing sentence, bring the provisions
of subsection
(1) or (2), as the case may be, and of subsection (3), to the notice
of such person.
(5) The
provisions of section 36 shall with the necessary changes apply to
the suspension of a driving license or a license and
permit in terms
of this section.”
19.
Section 35(1) can be
understood in one of three ways:
19.1.
First, an offence for
the purposes of subsections (i), (ii) and (iii) can be understood as
meaning an offence referred to in
any
of subsections (a), (aA), (b)
or
(c), so that, for instance, a conviction under section 63(1) for
reckless driving, which is listed in subsection (b), followed
by a
conviction under section 65(1) for driving under the influence of
alcohol, which is listed in subsection (c), will count as
two
offences for purposes of section 35(1)(ii) (“the first
interpretation”).
19.2.
Second, an offence for
the purposes of subsection (i), (ii) and (iii) can be understood as
meaning
any
offence referred to in
one
of
subsections (a),
(aA), (b)
or
(c), so that a conviction for reckless driving, referred to in
subsection (b), followed by a conviction for driving under the
influence, referred to in subsection (c), would not count as two
offences, whereas a conviction under section 65(1) for driving
under
the influence followed by a conviction under section 65(2) for
driving with excess alcohol in the blood, would count as two
offences
for purposes of subsection (ii), since both are referred to in
subsection (c) (“the second interpretation”).
19.3.
Third, an offence for
the purposes of subsections (ii) and (iii) can be understood as
meaning a second, third or subsequent conviction
for the
same
offence
, i.e., a
subsequent conviction under the identical provision on which the
previous conviction was based, so that a conviction under
section
65(1) for driving under the influence followed by a conviction under
section 65(2) for driving with excessive blood alcohol
would not
count as two offences for the purposes of subsection (ii), even
although both offences are referred to in subsection
(c) (“the
third interpretation”).
20.
Ms
Jansen, who appeared on behalf of the appellant, relied on
S
v Van Rooyen
[3]
(“Van
Rooyen”)
,
a decision of Van Zyl J (with whom Mjali J concurred), in which the
Court opted for the third interpretation.
21.
The
Court in
Van
Rooyen
understood
the task of interpreting section 35(1) of the Act as a search for the
intention of the legislature, to be gleaned from
the ordinary meaning
of the language used in the provision in the context of the statute
as a whole.
[4]
The Court first
set about ascertaining the so-called ordinary meaning of the phrase
“
second
offence”
divorced
from its particular context in section 35(1). In this regard the
Court called into aid English cases in which the phrases
“second
offence” and “subsequent offence” have been
construed to mean successive offences committed under
the same
section.
[5]
No detail
appears from the judgment regarding the wording of the provisions or
the relevant statutory context under consideration
in the English
authorities relied upon.
22.
Having concluded that
the “ordinary” meaning of the phrase “second
offence” was a second conviction for
the same offence, the
Court in
Van Rooyen
proceeded to determine whether this ordinary meaning led to an
absurdity which justified a departure therefrom. The State submitted
in this regard that it would be absurd if the license of a person
with successive convictions under sections 65(1), (2) and (5)
could
only be suspended for a period of 6 months on each occasion, as this
would negate the public interest in suspending the licenses
of
drivers who pose a danger to the public. It was also contended that
it would be anomalous that a prior conviction for driving
under the
influence could be considered an aggravating factor for purposes of
imposing sentence for a subsequent conviction for
driving with
excessive blood alcohol, but could not be considered a previous
offence for purposes of subsections (ii) and (iii).
23.
Neither
of these arguments found favour with the Court in
Van
Rooyen.
It
reasoned that section 35(1) does not do away with the court’s
power under section 34 of the Act to impose a longer period
of
suspension than the minimum prescribed in section 35(1).
[6]
Thus, where an offender has three successive convictions for
alcohol-related offences under different sections of the Act, a court
is not confined to the minimum suspension of six months for a first
offence, but may exercise its general discretion under section
34 to
impose a longer period of suspension.
24.
The Court in
Van
Rooyen
considered
that:
“
In
terms of its
ordinary
meaning
section 35(1) is intended to strike at repeat offenders of the
same
offence
as opposed to repeat offenders of the offences listed in section
35(1) or, on the proposed interpretation of the State, of related
offences.
[7]
…
[The
phrase ‘a second offence’ in subsection (1)]
must
be accorded its
ordinary
meaning
,
namely a second contravention of the
same
section in the Act
.”
[8]
[Emphasis
added]
25.
The
approach in
Van
Rooyen
to the task of statutory interpretation is based on outdated
authorities and is not in keeping with the current law on
interpretation,
which was expressed as follows by Wallis JA in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[9]
(“Endumeni”)
:
“
Interpretation
is the process of attributing meaning to the words used in a
document, be it legislation, some other statutory instrument,
or
contract, having regard to the context provided by reading the
particular provision or provisions in the light of the document
as a
whole and the circumstances attendant on its coming into existence.
Whatever the nature of the document, consideration must
be given to
the language used in the light of the ordinary rules of grammar and
syntax; the context in which the provision appears;
the apparent
purpose to which it is directed and the material known to those
responsible for its production. Where more than one
meaning is
possible each possibility must be weighed in the light of all these
factors. The process is objective, not subjective.
A sensible meaning
is to be preferred to one that leads to insensible or unbusinesslike
results or undermines the apparent purpose
of the document….
The inevitable point of departure is the language of the provision
itself, read in context and having
regard to the purpose of the
provision and the background to the preparation and production of the
document.”
[10]
26.
The
Court in
Van
Rooyen
attempted
to ascertain the so-called ordinary meaning of the words “second
offence” in abstract, without having regard
to their particular
statutory context. This, with respect, is a flawed approach for, as
Lewis JA observed in
Novartis
SA (Pty) Ltd v Maphil Trading (Pty) Ltd, “Words without context
mean nothing.”
[11]
It has been made clear that, while the starting point in the task of
interpretation remains the words of the document, the process
of
interpretation does not stop at a perceived literal or “ordinary”
meaning of the words. From the outset the words
used are to be
considered in the light of the relevant context. Interpretation is no
longer a process that occurs in stages, but
is “
essentially
one unitary exercise
”.
[12]
27.
I am therefore of the
view that the interpretation of section 35(1) undertaken by the Court
in
Van Rooyen
falls to be reconsidered, having due regard to context and the
purpose of the provision in question.
28.
Commencing with a
consideration of the context provided by the Act as a whole, it is
important to note that section 34 of the Act
empowers a court
convicting a person of an offence related to the driving of a motor
vehicle (whether in terms of the Act or at
common law), in addition
to any sentence which it may impose, to suspend the person’s
driving license, or disqualify him
or her from obtaining a driving
license
for such
period as the court may deem fit
.
The period of the suspension or disqualification therefore lies in
the discretion of the court, which is not limited.
29.
The power conferred
under section 34 is
subject
to section 35
. The
effect of this is that the Court’s general discretion to
determine the period of suspension is limited in the particular
circumstances referred to in section 35, inasmuch as minimum periods
of suspension are prescribed in specified circumstances.
30.
It
is settled law that provisions, such as section 35, which provide for
the suspension of a driving license serve two purposes,
namely to
punish the offender and to protect the public.
[13]
31.
Section 35(1) lists
various offences, grouped by type in four subsections, which attract
minimum license suspensions. Thus subsection
(a) deals with offences
related to breaches of duty in the case of an accident; subsection
(aA) deals with serious speeding offences;
subsection (b) deals with
reckless driving and subsection (c) deals with alcohol-related
offences.
32.
If one considers all
the offences contained in the Act, it is immediately apparent that
the offences listed in section 35(1) are
the most serious offences.
The punishment for these serious offences is not left to the court’s
discretion; instead the court
must ordinarily, i.e., absent
circumstances contemplated in section 35(3), impose the prescribed
minimum licence suspension periods.
It seems to me that the objective
of section 35(1) is to ensure that courts impose harsher penalties
for the serious offences listed
in section 35 than those which might
typically be imposed by courts exercising their general discretion
under section 34.
33.
Section 35(1)(i) to
(iii) provides for progressively longer periods of suspension in the
case of repeat offenders. The obvious reason
is the need to protect
the public by removing dangerous road users who have not been
deterred or corrected by previous punishment.
34.
The various offences in
section 35(1) which attract a minimum mandatory license suspension
are grouped in four categories according
to the nature of the
offence. Thus:
34.1.
Section 35(1)(a), which
refers to sections 61(1)(a), (b) or (c), deals with offences relating
to dereliction of a driver’s
duty in the event of an accident
in which any person is killed or seriously injured.
34.2.
Section 35(1)(aA),
which refers to section 59(4), deals with exceeding the speed limit
by more than 30 kilometres per hour in an
urban area and more than 40
kilometres per hour outside an urban area or on a freeway.
34.3.
Section 35(1)(b), which
refers to section 63(1), deals with reckless driving.
34.4.
Section 35(1)(c), which
refers to section 65(1), (2) or (5), deals with driving under the
influence of alcohol or drugs, or with
an excessive amount of alcohol
in the blood or breath.
35.
The words “first
offence”, “second offence” and “third
offence” in subsections (i), (ii) and
(iii) are qualified by,
and must be understood with reference to, the introductory words at
the beginning of section 35(1), “…
every
driving license … of any person convicted of
an
offence referred to in
–
[subsections
(a), (aA), (b), (c)]”.
36.
It is significant that
the offences referred to in section 35(1) are grouped in subsections
(a), (aA), (b) and (c) according to
type rather than being listed
individually. This suggests, to my mind, that the emphasis is on the
nature
or
type
of the offence rather than the particular
elements
of the offence. By emphasising the latter the Court in
Van
Rooyen
failed to
take into account the deliberate grouping or categorization of the
listed offences in the subsections.
37.
In my view the relevant
question when determining whether an offence is a first, second or
third offence for purposes of section
35(1) is, “does the
offence fall under subsections (a), (aA), (b), (c)?” and not
“does it fall under an identical
statutory provision?”
38.
On this approach an
offence qualifies as a second or third offence for the purposes of
subsection (ii) and (iii) if it is listed
under the same subsection
or category as the previous conviction. Thus a previous conviction
under section 65(1)(a) for driving
while intoxicated plus a
subsequent conviction under section 65(5) for driving with excess
blood on the breath would count as two
offences. A conviction under
section 61(1)(a) for failing to report an accident in the case of a
death, plus a subsequent conviction
under section 61(1)(c) for
failing to render assistance in the case of a serious injury, would
count as two offences. But a conviction
under section 59 for serious
speeding followed by a conviction under section 63(1) for reckless
driving would not count as two
offences, since the offences fall
under different subsections or categories.
39.
To my mind this
interpretation of section 35(1) honours the text and promotes what I
consider to be the clear purpose of the provision,
namely to protect
the public from road users who pose a risk because they have a
tendency for certain dangerous conduct. Repeat
offences attracting
heavier penalties are determined with reference to multiple
related
offences which go to show a particular propensity in the offender
– such as drunken driving or perilous speeding.
40.
I respectfully disagree
with the reasoning of the Court in
Van
Rooyen
that the
answer in cases of repeat offences under related, but not identical,
statutory provisions is that a heavier penalty can
be imposed in
terms of the Court’s general discretion under section 34 of the
Act. To my mind the clear objective of section
35(1) is to limit the
Court’s discretion in the case of the most serious offences
under the Act. It therefore makes no sense,
in my view, to fall back
on the general discretion under section 34 in cases where a person is
repeatedly convicted of offences
listed in section 35 which are
similar but not the same.
41.
I am therefore not
persuaded by the argument that the appellant’s previous
conviction under section 65(1) Act was not relevant
and should not
have counted as a first offence in relation to his current conviction
under section 65(2) of the Act. I consider
that the correct
interpretation of section 35(1) is the second interpretation referred
to above. Accordingly both the 2009 and
the 2017 convictions are
relevant since they are both alcohol-related offences referred to in
section 35(1)(c).
42.
I
should mention, for the sake of completeness, that I do not regard
the first interpretation as correct. Had the Legislature intended
that an offence referred to in
any
one of
subsections (a), (aA), (b) or (c) would count as a previous offence
for purposes of subsections (ii) and (iii), it would have included
the word “
or”
between
subsection (b) and subsection (c). The absence of the word “
or
”
is significant; it indicates that previous offences should be
determined with particular reference to subsection (a), (aA),
(b) and
(c) as opposed to all these subsections. Furthermore, the first
interpretation would, in my view, lead to arbitrary and
oppressive
results. For instance, a person convicted of driving at 95 kilometres
per hour in a 60 kilometre zone, and subsequently
for the unrelated
offence of driving while over the alcohol limit, would be susceptible
to a mandatory license suspension of five
years. It is
well-established that where two meanings can be given to a statutory
provision, the Legislature is presumed to have
intended the milder
rather than the harsher meaning.
[14]
Hence I prefer the second of the three possible interpretations of
section 35(1) referred to.
Should
the magistrate have taken the 2015 conviction into account
?
43.
The minimum license
suspension provisions in section 35(1) of the Act are penal in
character. Proof of a second or third offence
within the meaning of
section 35(1) is a jurisdictional fact for the applicability of the
increased minimum suspension periods
in sections 35(1)(ii) and (iii).
44.
In keeping with the
ordinary allocation of the burden and standard of proof in criminal
matters, is seems to me that the State must
bear the onus of proof
beyond reasonable doubt that the convicted person has been convicted
of a second or third offence
as contemplated in section 35(1)
before the minimum mandatory suspension periods come into operation.
45.
A court must be
satisfied, beyond a reasonable doubt, that the convicted person has
previously been convicted of a relevant offence
before it can impose
the increased penalties referred to in section 35(1)(ii) and (iii).
The evidence must be clear and reliable
in order to sustain the
imposition of the penalty.
46.
It is customary for
previous convictions to be proved by the state producing a SAP69 and
the person admitting the contents thereof.
In this case, however, the
SAP69 form produced by the State appears to have been incomplete or
out of date inasmuch as it did not
include the appellant’s 2015
conviction. The fact of the 2015 conviction only emerged when the
appellant testified during
the section 35 enquiry, and the magistrate
relied on his evidence for purposes of determining the applicable
suspension period.
47.
In
my view it is insufficient, as a matter of principle, for a Court to
rely
solely
on the evidence given by a convicted person regarding his or her
previous convictions for purposes of applying the mandatory minimum
suspension periods referred to in section 35(1)(ii) and (iii). I say
this because our law does not permit the conviction of an
accused
person of an offence solely on the basis of his or her confession,
but requires independent evidence of the commission
of the
offence.
[15]
The reason for
this is that confessions are not always reliable.
48.
The same concern arises
in regard to an accused’s evidence of previous convictions for
statutory offences under the Act, particularly
those related to
alcohol, which are technical in nature. In addition, memories fade so
that the precise nature and dates of previous
convictions cannot
reliably be established solely with reference to the oral evidence of
an accused. All things considered, it
seems to me that a layperson’s
evidence regarding previous convictions is intrinsically unreliable –
or at least insufficient
to meet the threshold of proof beyond a
reasonable doubt.
49.
But even if I am wrong
as regards this general statement of principle, I in any event
consider that in this case the appellant’s
evidence regarding
the 2015 conviction can hardly be regarded as sufficiently clear and
satisfactory to constitute proof beyond
a reasonable doubt.
50.
In my view the
appellant’s responses to the magistrate’s questions about
the charges in relation to the 2015 conviction
were not such that one
can be certain that he understood the questions and was able to give
reliable and accurate answers. The
question regarding the
“alternative charge” is of a technical procedural nature,
and is not an appropriate question
to address to a layperson.
Furthermore the magistrate’s question as to whether or not the
appellant had the capacity to drive
a vehicle is misleading, since
one may be under the influence of alcohol and yet still have the
capacity to drive a motor vehicle.
And in any event, the magistrate
interrupted the appellant and prevented him from properly completing
his answer in regard to the
question whether he had the capacity to
drive a motor vehicle or simply had too much alcohol in his blood. In
addition, it seems
to me that the appellant was hesitant when the
magistrate put it to him that the present offence was his third
similar offence,
and his silence suggests to me that he may have been
unsure how to answer. One cannot be certain that he understood the
import
of the question and his response cannot be taken as an
admission of the correctness of what the magistrate was putting to
him.
51.
I therefore consider
that the magistrate erred in taking the appellant’s 2015
conviction into account and therefore concluding
that the appellant
had three relevant convictions for purposes of section 35(1). In my
view the magistrate ought to have taken
into account only the
appellant’s 2009 conviction for contravention of section 65(1)
and his 2017 conviction for contravention
of section 65(2)(a) of the
Act, so that the applicable minimum license suspension period is five
years, in terms of section 35(1)(ii),
and not ten years.
Should
the prescribed minimum suspension period be applied in this case?
52.
The appeal against the
suspension period was aimed at the ten-year suspension which the
magistrate imposed on the assumption that
the appellant had two
relevant previous convictions in addition to his 2017 conviction in
the current proceedings.
53.
In the light of the
conclusion reached above regarding the 2015 conviction, it is
unnecessary to consider whether the ten-year suspension
was excessive
in all the circumstances, because it is the five-year suspension
period referred to in section 35(1)(ii) which applies
in this case.
The ten-year suspension period imposed by the magistrate therefore
falls to be set aside and substituted with an
appropriate sentence by
this Court.
54.
The question which then
arises is whether there are circumstances relating to the offence
which do not justify the minimum five-year
suspension period, as
contemplated in section 35(3) of the Act.
55.
In
S
v Greef
2014 (1)
SACR 74
(WCC) (“
Greef”
),
Rogers J (Saldanha J concurring) held that the words “
circumstances
relating to the offence”
are
limited to circumstances which can properly and rationally be said to
relate to the offence, and do not include an accused’s
personal
circumstances, such as the need for a driver’s license for
purposes of employment or family responsibilities.
56.
A different view was
taken in
S v Lourens
2016 (2) SACR 624
(WCC)(“
Lourens”
)
in which Savage J (Henney J concurring) held that section 35(3) of
the Act, properly construed, does not do away with the Court’s
discretion, in imposing a license suspension, to consider all factors
relevant to the exercise of the sentencing discretion, including
an
accused’s personal circumstances and the interests of the
community. Savage J reasoned that it is entrenched
in our law that a sentence must always be individualised and based on
a consideration of the sentencing triad, and that section
35(3) must
be interpreted in a manner consonant with the right to a fair trial
and the existing law in regard to sentencing. Had
the legislature
intended to limit the sentencing discretion by excluding
consideration of the accused’s personal circumstances
or the
interests of the community, it would have had to do so pertinently in
clear terms. In the absence of any such indication,
the learned Judge
concluded that the interpretation given to section 35(3) in
Greef
was incorrect.
57.
I agree with the
interpretation of section 35(3) adopted in
Lourens
for all the reasons articulated in the judgment of Savage J. I
therefore intend to approach the question at hand by considering
all
the traditional sentencing factors, including the personal
circumstances of the appellant.
58.
The appellant’s
written plea explanation and his oral evidence reveal that he is 34
years old and unmarried, but in a stable
relationship. He has no
children. He has professional qualifications for computing and small
business management, but has been
unemployed for the last five years
and is dependent on his family for financial support. At the time
when he committed the offence
in question, he was depressed about his
inability to find employment. His driving license has been suspended
until 2020 and he
is hampered in his efforts to obtain employment as
all the jobs for which he is eligible require a driving license.
According to
the appellant he currently drives around with his
brother, who provides garden services. Presumably he assists his
brother in that
regard.
59.
The appellant admitted
that he has a tendency to drink too much. He also admitted in his
plea explanation that he had been convicted
on a drug possession
charge around the same time as the commission of the offence in these
proceedings.
60.
The appellant is
evidently aware that he has a problem with alcohol, as he voluntarily
spent three months in a rehabilitation centre
during 2016 in order to
address his addiction issues, funded by his family. Unfortunately he
could not afford to spend longer in
the centre due to the medical
costs associated with his father’s cancer treatment. He
currently attends Alcoholics Anonymous
meetings in the area where he
resides, and as at the date of his sentencing on 3 May 2017 he had
not consumed any alcohol for some
two to three months.
61.
As regards the
commission of the offence in these proceedings, the accused stated
that he had been drinking since approximately
20h30 on the night in
question. At around 23h00, he decided to drive to the Engen shop to
buy cigarettes, regardless of the fact
that he had been drinking for
some 2½ hours and did not have a valid driving license. No
collision occurred, and no person
was injured, and the appellant’s
unlawful actions were only detected when he was pulled over by the
police, who smelled alcohol
on his breath.
62.
Although I am mindful
of the fact that no person or property was injured as a result of the
appellant’s actions, this does
not, in and of itself, warrant a
departure from the prescribed minimum suspension period. Nor does the
appellant’s difficulties
in finding employment.
63.
In my view there are
seriously aggravating factors in the appellant’s case which
dictate that the minimum mandatory suspension
period of five years
should be imposed. This is the appellant’s second
alcohol-related offence (excluding the 2015 conviction),
and he has
also admitted to a recent charge for drug possession. He clearly has
a problem with addiction. Although there are indications
that the
appellant is aware of his problem and is taking steps to address it,
there are also indications that he might be in denial
as regards the
extent of his addiction. He drank again after leaving the
rehabilitation centre, and he admitted to having drunk
beer, which he
regarded as different from “strong alcohol”, as recently
as two to three months before the sentencing
hearing.
64.
In the circumstances it
seems to me that the appellant poses a clear risk to road users as a
result of his addiction issues and
his inability to restrain himself
from getting behind the wheel of a car even although his license has
been revoked. In my view
the interests of the community require that
the appellant be removed from the roads for a substantial period of
time so as to afford
him a sufficient opportunity to deal with his
alcohol addiction and reform his conduct.
65.
I can see no reason in
this case for deviating from the applicable minimum suspension
period. Indeed, I consider it entirely appropriate
that the
appellant’s license be suspended for a period of five years in
terms of section 35(1)(ii). He has only been saved
from a minimum
suspension of ten years by the State’s failure to produce a
current SAP69 form.
Conclusion
66.
In the result, I
propose the following order:
1.
The appeal against the
suspension of the accused’s driving license for a period of 10
years is upheld.
2.
The 10-year suspension
of the accused’s driving license is set aside and replaced with
a suspension for a period of 5 years.
3.
The 5-year suspension
shall run from 3 May 2017, being the date on which the accused was
sentenced.
_________________________
D M DAVIS
Acting Judge of the High
Court
I
agree and it is so ordered.
_________________________
R ALLIE
Judge of the High Court
[1]
Section
65(1) of the Act deals with driving under the influence of
intoxicating liquor or drugs, while section 65(2) deals with
driving
with an excess amount of alcohol in the blood.
[2]
Paragraph
[7].
[3]
2012
(2) SACR 141 (ECG)
[4]
Id
para [17].
[5]
Id
para [19].
[6]
Id
para
[23].
[7]
Id
para
[24].
[8]
Id
para
[27].
[9]
2012
(4) SA 593
(SCA).
[10]
Id
para
[18].
[11]
2016
(1) SA 518
(SCA) para [29].
[12]
See
Bothma-Batho
Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk
2014
(2) SA 494
(SCA) at para [12], quoting Lord Clarke SCJ in
Rainy
Sky SA v Kookmin Bank
[2011]
UKSC 50
([2012] Lloyd’s Rep 34 (SC) para 21).
[13]
See,
for instance,
S
v Van Rensburg
1967
(2) SA 291
(C) at 296 E – F;
S
v Markman
1972
(3) SA 650
(AD) at 655 D – G;
S
v Greef
2014 (1) SACR 74
(WCC) at 78 f – g.
[14]
See
J R de Ville
Constitutional
& Statutory Interpretation
para
2.7, p 193 and para 2.7.1.3, p 198.
[15]
See
section 209
of the
Criminal Procedure Act 51 of 1977
.