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[2018] ZAWCHC 155
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Muller v S (A241/2018) [2018] ZAWCHC 155; 2019 (1) SACR 242 (WCC) (16 November 2018)
Republic
of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO: A241/2018
In
the matter between:
MICHEAL
MULLER Appellant
and
THE
STATE Respondent
Court:
Justice J Cloete
et
Justice M K Parker
Heard:
Friday 16 November 2018
Delivered:
Friday 16 November 2018
JUDGMENT
CLOETE
J
:
[1]
The issues in this appeal against conviction and
sentence, which is with leave of the trial court, are:
1.1 Whether a plea and
sentence agreement concluded in terms of s 105A of the Criminal
Procedure Act
[1]
may include an
agreement that an accused’s drivers licence is suspended for a
particular period without it being incumbent
upon the court to hold
an enquiry in terms of s 35 of the National Road Traffic Act
(“NRTA”);
[2]
1.2 If an agreed period
of suspension cannot form part of a s105A agreement, whether a
subsequent conviction under a different subsection
of s 65 of
the NRTA qualifies as a second offence for purposes of imposition of
a mandatory period of suspension absent circumstances
warranting a
deviation; and
1.3 What circumstances
should be taken into account in considering whether a deviation is
warranted.
[2]
The appellant was charged with contravening
s 65(2)(a) read with ss 89(1) and (2) of the NRTA, it being
alleged in the
charge sheet that on 4 September 2016 and at
Spine Road, Mitchells Plain, he wrongfully drove a motor vehicle
while the concentration
of alcohol in his blood exceeded 0.05g per
100ml, namely 0.13g per 100ml. The appellant has a previous
conviction in 2010 for contravening
s 65(1)(a) of the NRTA for
driving a vehicle on a public road while under the influence of
intoxicating liquor for which he
was sentenced to a fine of R2 500
or 60 days imprisonment, plus a further R5 000 or 4 months
imprisonment suspended
for a period of 4 years on condition that
he was not again found guilty of a contravention of s 65(1)(a)
of the NRTA
during the period of suspension.
[3]
In terms of paragraph 7 of the s 105A
agreement concluded on 17 November 2017 the appellant ‘
admits
guilt in respect of the charge, as mentioned above, and pleads guilty
thereto on the basis set out below’.
The sentence portion of the agreement, from paragraph 19 onwards,
recorded that ‘
the nature of the
offence, the interests of the community and the personal
circumstances of the accused have been duly considered
and taken into
account by both parties’.
One
aggravating factor was stated, being that offences of this nature are
regarded in a serious light. Ten mitigating factors were
listed.
[4]
These included that there was no accident or any
injuries, that the appellant had shown ‘
incredible
remorse’
, was 53 years old and the sole
breadwinner of his family, having been in fixed employment as an
administrative clerk at Groote
Schuur Hospital for 36 years, had
recently lost his wife to cancer, was under debt review, and ‘
has
one previous conviction for a similar offence’.
[5]
The agreed sentence was a fine of R16 000 or
12 months direct imprisonment of which R12 000 was suspended for
5 years,
and that the appellant would pay R4 000 on date of
sentencing. He would also complete 60 hours of community service at
SAPS
in Strandfontein and his driver’s licence would be
suspended for 6 months.
[6]
After convicting the appellant in terms of the
s 105A agreement, the magistrate, without any prior warning,
proceeded to hold
an enquiry in terms of s 35 of the NRTA on the
basis that ‘
his licence was
automatically suspended and why the court should not uplift the
suspension’
. After certain questions
were put to the appellant the magistrate enquired, for purposes of
finalising the enquiry, whether the
appellant had a previous
conviction for a similar offence. After this was disclosed, the
magistrate imposed the following sentence:
‘
Your
fine as agreed to then is the twenty thousand rand (R16 000.00)
or sixteen (16) months imprisonment of which twelve thousand
rand
(R12 000.00) and twelve (12) months is suspended for five (5)
years…
As
far as your licence is concerned, the section, the Act says it is
automatically suspended for five (5) years.’
[7]
It appears that the reference to ‘
twenty
thousand rand’
was a patent error. In
his reasons for judgment handed down on 30 July 2018 the
magistrate referred to the fine being one
of R16 000. It is
furthermore unclear why he imposed a sentence of 16 months
imprisonment but I will assume, for present
purposes, that this too
was an error. The magistrate also stated that:
‘
It
was further a term of the sentence agreement between the State and
the accused that the accused shall complete 60 hours of community
service at the South African Police Services in Strandfontein. I did
not confirm this part of the sentence agreement as I was of
the view
that the fine would serve as adequate punishment for the accused.
A
further term of the sentence agreement was that the accused’s
driver’s licence shall be suspended for a period of
six months.
I changed that period to five years for the reasons that follow
hereunder.
Section
35 of the National Road Traffic Act, Act 93 of 1996 regulates the
suspension of an accused person’s driver’s
licence upon
conviction for, amongst others, a contravention of Section 65(1), (2)
and (5)… The Section 35 procedure is
a post-sentence
procedure… the court is required to hold an enquiry to
determine whether circumstances relating to the offence
exist which
would justify the court to order that the
ex
lege
suspension shall
not take effect, or shall take effect for a shorter period than that
prescribed by Section 35(1). The Section 35
enquiry is a function
given to the court by the legislature. As such I am of the view that
the State and the defence cannot agree
to a shorter period of
suspension of an accused’s driver’s licence in terms of
an agreement under the provisions of
Section 105A of the Criminal
Procedure Act…’
[8]
One of the grounds of appeal is that the
magistrate misdirected himself in unilaterally altering the terms of
the plea and sentence
agreement in relation to the period of
suspension of the appellant’s drivers licence without informing
the parties prior
to the commencement of the proceedings of his
intention to do so.
[9]
In
State
v DJ
[3]
it was held that where a presiding officer is of the view that the
sentence proposed in a s105A agreement is unjust, he or she
must, at
the outset of the trial, inform the parties of this view and also of
the sentence which is considered to be just. In that
matter both the
State and defence contended before the Supreme Court of Appeal, that
the trial court had committed a fundamental
irregularity by failing
to comply with the peremptory provisions of s 105A(9)(a)-(d) of
the Criminal Procedure Act which read
as follows:
‘
(9)(
a
)
If the court is of the opinion that the sentence agreement is unjust,
the court shall inform the prosecutor and the accused of
the sentence
which it considers just.
(b)
Upon being informed of the sentence which the court considers just,
the prosecutor and the accused may---
(i)
abide by the agreement with reference to the charge and inform the
court that, subject to the right to lead evidence and to
present
argument relevant to sentencing, the court may proceed with the
imposition of sentence; or
(ii)
withdraw from the agreement.
(c)
If the prosecutor and the accused abide by the agreement as
contemplated in paragraph (
b
)(i),
the court shall convict the accused of the offence charged and impose
the sentence which it considers just.
(d)
If the prosecutor or the accused withdraws from the agreement as
contemplated in paragraph (
b
)(ii),
the trial shall start de novo before another presiding officer:
Provided that the accused may waive his or her right to be
tried
before another presiding officer.’
[10]
The Supreme Court of Appeal stated:
‘
[19]
Under this provision the parties have an election. The court must
first inform the prosecutor and the accused of the
sentence that it
considers just. Upon being informed of the sentence which the court
considers just, both parties may decide to
abide by the agreement
subject to the right to lead evidence and to present argument
relevant to sentencing, or withdraw from the
agreement. If both
parties decide to abide by the agreement after being advised by the
trial court that it intends imposing a different
sentence to the one
agreed upon, the court will be at large to impose a sentence which it
considers just. In that event the parties
cannot then complain that
they have been prejudiced, because they would have been given
adequate notice. As soon as the trial judge
formed the view that the
sentences proposed in the plea agreements were unjust, he should have
so informed the parties, and also
of the sentence he considered just,
at the outset of the trial. This would have afforded them an
opportunity to consider their
options. This is especially so because,
after convicting them, there is nothing that they could do, save to
appeal the decision.
They were thus denied the option of making an
informed choice.
[20]
This approach is clearly contrary to the objectives of the Act. In
S
v Solomons
para 11
Moosa J held as follows:
“
The
purpose of making such information known is to enable the parties to
make an informed choice whether to abide by the plea bargaining
process or to resile therefrom. The failure on the part of the
presiding officer to do so, in my view, constituted non-compliance
with the peremptory provisions of s 105A(9)(
a
).”
For
all the abovementioned reasons the appeal must be upheld and the
answer to the question of law is that the High Court was wrong,
as
indicated above.’
[11]
The State and defence agree that in the present
case the magistrate did not comply with s 105A(9). The issue
which nonetheless
falls to be determined is whether he was obliged to
do so in respect of the period of suspension of the appellant’s
drivers
licence.
[12]
In
S
v Greeff
[4]
Rogers J (Saldanha J concurring) stated
obiter
as
follows:
‘
[4]
The appellant applied in the court a quo for leave to appeal only
against the suspension of his driving licence. The application
for
leave was refused by the magistrate, but on 11 March 2013 this court
on petition granted leave to appeal on that aspect. In
terms of s
309(4)(
b
)
of the Criminal Procedure Act read with s 307 of that Act, the
execution of a sentence imposed by a lower court is not suspended
by
the noting of an appeal. There is authority that this does not apply
to ancillary orders such as the suspending of a driving
licence, and
that in relation to such ancillary orders the common law, that an
appeal suspends execution, prevails (see
S v Abraham
1964 (2)
SA 336
(T), and cases there cited;
S v Kelder
1967 (2) SA
644
(T) at 648H-649B; Hiemstra
Criminal
Procedure
p 30-53; Du
Toit et al
Commentary
on the Criminal Procedure Act
p
30-48C). Strictly speaking, the suspension of a driving licence in
terms of s 35(1) occurs ex lege unless a contrary order is
made in
terms of s 35(3) and the suspension is thus not pursuant to an order
(see
S v Wilson
2001
(1) SACR 253
(T) at 259
h
).
Since we were not addressed fully on the subject, I shall assume that
the suspension of the appellant’s licence was itself
suspended,
pending the outcome of this appeal, which is what the legal
representatives on both sides seem to have believed. On
this
assumption the appeal has not been rendered academic by the passing
of time. In any event, it is desirable that we should
state our view
on the substance of the appeal.’
[13]
However in
S v
Lourens
[5]
Savage J (with whom Henney J concurred) held that:
‘
[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, 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
.’
[emphasis
supplied]
[14]
Support for
the view taken by Savage J in
Lourens
(
supra
)
is to be found in
S v
Jaftha
[6]
where the Supreme Court of Appeal stated:
‘
[11]
Third, no account was taken of the suspension of Jaftha’s
licence for five years on his second conviction. I do not consider
this to be a misdirection.
It
was not merely a part of the punishment, but also an important and
justifiable measure taken in order to ensure that Jaftha did
not
endanger himself and others again
.’
[emphasis
supplied]
[15]
I agree with the above reasoning and finding of
the Full Bench in
Lourens
(
supra
).
It is accordingly my view that the s 35 enquiry indeed forms an
integral part of the determination of an appropriate sentence.
This
being the case, it was open to the parties to include an agreed
specific period of suspension of the accused’s drivers
licence
in the s 105A agreement. It is therefore also my view that the
magistrate erred in concluding that the s 35 enquiry
was merely
‘
a post-sentence procedure’.
Because he did not consider the sentence agreed upon in the s 105A
agreement to be just, the magistrate was duty bound to
follow the
peremptory provisions of s 105A(9). His failure to do so has the
consequence that both the conviction and sentence
must be set aside.
[16]
In
S
v DJ
(
supra
)
the Supreme Court of Appeal held that the matter should be remitted
to the trial court
de
novo
before another presiding officer
[7]
,
and I will therefore follow this approach.
[17]
This dispenses with the need to consider the
remaining issues in this appeal, including what circumstances should
be taken into
account in considering whether a deviation from the
prescribed periods of suspension is warranted.
[18]
However, it
needs to be brought to the attention of the Director of Public
Prosecutions Western Cape (DPP) that there are two lines
of
conflicting decisions within this Division on this issue. On the one
hand there are
S
v Greeff
(
supra
)
and
S v
De Bruin
[8]
in which the Full Bench held that the amendments made to s 35 of
the NRTA with effect from 20 November 2010
[9]
have the consequence that, whereas previously there was no limit on
the circumstances to be taken into account, they are now restricted
to those relating to the offence itself, and unless a particular
circumstance can properly and rationally be said to relate to
the
offence, it must be left out of account.
[19]
On the
other are
S
v Lourens
(
supra
),
S v
Brink
[10]
and
S v
Stockenstroom
,
[11]
in which the Full Bench held that the circumstances are not limited
in this manner but include traditional sentencing factors,
such as
the personal circumstances of the accused.
[20]
Of course no appeal lies from one Full Bench to
another. The two lines of conflicting decisions, without the DPP
having approached
the Supreme Court of Appeal to obtain clarity, has
led to the most unsatisfactory result that lower courts are left in
the dark
as to which authority they are bound by. This is illustrated
by the magistrate’s finding that:
‘
Section
35(3) places an onus on the accused to prove circumstances relating
to the offence, and not personal circumstances to enable
a court to
make a determination under that section. This view is supported by
case law:
Greeff v S
2014 (1) SACR 74
(WCC)
and
S v Enoch De
Bruin…
This
latter judgment clearly sets out the intention of the legislature. In
arriving at my decision I was persuaded by these two
judgments, as
opposed to the judgment of the Honourable Judge Savage in
S
v Werner Lourens…
I
am of the view that
Greeff
v S
and
S
v Enoch De Bruin
correctly
reflect the intention of the legislature. I am particularly persuaded
by the views expressed by the Honourable Judge Rogers
in paragraphs
[6], [7] and [8] of his judgment in
S
v Enoch De Bruin…’
[21]
I thus intend directing that a copy of this
judgment is forwarded to the DPP for attention. I accept, of course,
that the present
matter is not one in which this issue falls to be
determined, but believe that it is in the interests of the proper
administration
of justice for the DPP, when the opportunity again
arises, to approach the Supreme Court of Appeal in order for this
issue to be
clarified.
[22]
In the result I propose the following order:
1. The appeal is
upheld.
2. The conviction and
sentence are set aside.
3. The matter is
remitted to the District Court Mitchells Plain for the trial to
commence
de novo
before another magistrate.
4. The Registrar is
directed to forward a copy of this judgment to the Director of Public
Prosecutions, Western Cape.
__________________
J
I CLOETE
PARKER
J
I
agree.
__________________
M
K PARKER
CLOETE
J
It
is so ordered.
[1]
Act 51 of 1977.
[2]
Act 93 of 1996.
[3]
2016 (1) SACR 377 (SCA).
[4]
2014 (1) SACR 74 (WCC).
[5]
2016 (2) SACR 624 (WCC).
[6]
2010 (1) SACR 136 (SCA).
[7]
At 384b-c.
[8]
Unreported decision of Rogers J (Saldanha J concurring) in Western
Cape High Court automatic review reference no. 141270 of 29
January
2015.
[9]
Amended by the
National Road Traffic Amendment Act No 64 of 2008
.
[10]
2018 (2) SACR 6
(WCC) of Davis AJ (Allie J concurring).
[11]
Unreported decision of Thulare AJ (Bozalek J concurring) under case
no. A24/2018 of 9 March 2018.