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[2021] ZAWCHC 64
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Pedro v S (A236/2020) [2021] ZAWCHC 64; 2021 (2) SACR 102 (WCC) (15 April 2021)
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Note:
Certain
personal/private details of parties or witnesses have been
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Policy
In
the High Court of South Africa
(Western Cape
Division, Cape Town)
REPORTABLE
Case
No: A
236/2020
In
the matter between:
SELWIN
PEDRO APPELLANT
And
THE
STATE
RESPONDENT
Bench:
Gamble, J and Lekhuleni, AJ. Heard: 19 March 2021
Delivered:
15 April 2021
This
judgment was handed down electronically by circulation to the
parties' representatives via email and release to SAFLII. The
date
and time for hand-down is deemed to be 15 April 2021 at 10h00.
JUDGMENT
LEKHULENI
AJ:
INTRODUCTION
[1]
This matter came to this court by way of
an appeal from the decision of the Magistrate's Court, Oudtshoorn.
The appellant, Mr Selwin
Pedro was convicted of contravening
section 65(2)(a) of the National Road
Traffic Act 93 of 1996
("the
NR TA")
in
that on 22
November
2018
and at
or
near
Dysselsdor
p
,
on a
public
road
in
the district of Oudtshoorn he drove a motor vehicle, namely a BMW
bearing registration number FFY […] while the concentration
of
alcohol in his blood was 0,19 g per 100 ml in excess of the limit of
0,05 per 100 ml as stated in section 65(2)(a) of NRTA.
FACTUAL
BACKGROUND
[2]
The matter served before the court below
on 25 July 2019. The appellant was legally represented by Ms. L.
Prinsloo, a local attorney.
After the charge was put to him, the
appellant pleaded guilty. A statement in
terms of
section
112(2)
of
the
Criminal Procedure Act 51 of 1977
("
the
CPA
") was read into the record
and was handed in as
an Exhibit. The said statement was
confirmed by the appellant. As usual, the State accepted the
appellant's plea.
The
appellant was subsequently convicted as
charged.
[3]
The State proved a number of previous
convictions against the appellant including a previous conviction for
drunken driving in terms
of
section 65(1)(a)
committed on 30 November
2015. Ms Prinsloo made substantive submissions regarding the
appellant's
personal
circumstances and
even
called
the
appellant
to testify in mitigation of sentence in
terms of
section 35(3)
of the
NRTA
on why the court
should
not suspend his drivers' licence.
[4]
In his testimony, the appellant informed
the court that he had held the driving licence for 21 years and he
required his licence for work and also
for personal use. He testified that he needed his licence to travel
from Belhar, Cape Town
where he lived to Dysselsdorp where he worked
and also to Port Elizabeth where his daughter was based. On being
questioned by the
court, he stated that quite often he worked after
hours and if there was something that happened on site after hours,
he was called
to attend to it and to give a report to the employer.
He also testified that when he was required to visit the site after
hours,
there was no public transport available at that time.
[5]
What could be gleaned from the statement
in terms of
section 212(2)
of the CPA are
the facts relating to the offence. A day
before he
was
arrested, the appellant drank a few beers with his friends at his
house. His neighbour asked him to fetch her husband who was
standing
next to a clinic. It was during the night at 23h00. The neighbour
informed him that it was dangerous for her husband to
walk at that
time of the day and the appellant then drove to fetch his neighbour.
After he picked him up, and on his way home,
the appellant heard the
siren of a police vehicle driving behind him. He was stopped and the
police observed that he was drunk
and they arrested him. He was then
taken to the hospital where a blood sample was extracted from
him. He was then arrested and charged
with drunken driving.
[6]
In mitigation of sentence, Ms
Prinsloo addressed the
court
ex
parte
and advised the
court that
the
appellant was 51 years old and was
divorced. She informed the court that the appellant had a girlfriend
with whom he was in
a
relationship for
the
past three years. She also stated that the appellant had three
children from his marriage. Two of
them
were 26 years old and the last born daughter was 20 years old and
studied in Port Elizabeth. The daughter was dependent upon
him. The
appellant passed matric and has a diploma. He had been employed at
that time at Grinaker-LTA as a Safety Officer for the
previous
thirteen years and earned a gross income of R21000 per month.
[7]
The magistrate sentenced the appellant
to a fine of R12000 or 18 months imprisonment of which R6000 or nine
months' imprisonment
was suspended for a period of five
years on
condition that the appellant was not
found guilty of contravening
section
65(1)
and
65
(2) of the NRTA committed during the period of
suspension. In addition, the appellant's driver's licence was
suspended for a period
of five years as from 25 July 2019.
In terms of
section 103
of the
Firearms
Control Act 60 of 2000
, the court did not declare the appellant unfit
to possess a firearm.
[8]
The appellant applied in the court a
quo
for leave to appeal only against
that part of the sentence which related to the suspension of his
driving licence. The application
for leave to appeal was refused by
the magistrate. However, on
17
August 2020 this court on petition (per Bozalek and Francis AJ)
granted leave to appeal on that aspect. In granting leave to
appeal,
the court noted that there were conflicting decisions
in this division
on the interpretation of
section
35
of the NRTA.
The
court also proposed that a full bench of
three judges be constituted to hear the appeal. In essence, it is
this order that the appellant
seeks to impugn. The sentiments that
were
raised
by the court that granted the petition will be addressed later in our
judgment.
PRINCIPAL
SUBMISSIONS
BY THE PARTIES
[9]
At the hearing of this appeal, Adv. C.
Prinsloo appeared pro bono on behalf of the appellant and the court
would like to thank him
in this regard. He contended on behalf of the
appellant that the magistrate erred in failing to consider the
personal circumstances
of the accused together with the circumstances
relating to the offence when he made the licence suspension order. He
argued that
the court a quo overlooked the decision of this court in
State v Lourens
2016
(2) SACR 624
(WCC) in which it was held that in considering a
suspension order in terms of
section 35
of the NRTA the court has to
give sufficient weight to the elements of the well-known triad
principle as stated in
S v Zinn
1969
(2) SA 537
(A). Counsel pointed out to this Court that pursuant to
the suspension of his licence, the
appellant had lost his employment.
[10]
Ms Van Wyk, who appeared for the State,
argued that the appellant was not a first offender. She submitted
that the appellant was
convicted of drunken driving in 2015 and that
the court a quo was correct in its order suspending the appellant's
licence. She
implored the court to dismiss the appeal and to confirm
the order of the trial court.
APPLICABLE
LEGAL PRINCIPLES AND DISCUSSION
[11]
Section 35
of the NRTA was among other provisions of the NRTA that
were amended with effect from 20 November 2010 by the
National Road
Traffic Amendment Act 64 of 2008
. The amendment of
section 35
reads
as follows:
"(1)
Subject to subsection 3, every driving licence or every licence 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 licence or
a
licence 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 licence or of
a
licence 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
licence or driving licence or
a
licence 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),
respectivel
y
,
the
court
ma
y
,
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
licence or a licence and permit in terms of this section
[12]
As it will appear more fully hereunder, this section has been the
subject of considerable debate
in this court. The debate can roughly
be divided into two schools of thought, both in terms of the
reasoning and the outcome. The
one school adopts what I would term a
more literal and a narrow interpretation of
section 35(3)
to the
effect that in determining whether a non-suspension order was
justified, the law-maker has now limited factors which may
be taken
into account exclusively to 'circumstances relating to the offence'.
This is typified by the following passage in
S
v
Greet
2014 (1)
SACR
74
(WCC) at para 11 where Rogers J (Saldanha J concurring) stated:
"There
was evidence in the present matter that the appellant required his
driving licence for work purposes and might lose
his job if the
licence was suspended. He had a four year old child in respect of
whom he paid maintenance of R500 per month. He
also testified that he
drank only on weekends and that subsequent to the incident he had
given up alcohol altogether. He was, furthermore,
a first offender.
Whatever the relevance of these circumstances might be, if the court
were considering a suspension in terms of
section 34(1)
, they cannot
in my view be regarded as circumstances relating to the offence as
contemplated in the amended
section 35(3)
, i.e. circumstances
relating to the fact that on 30 July 2011 the appellant drove a
vehicle in Church Street, Vanrhynsdorp, at
a time when the alcohol in
the blood exceeded the limit specified in
s 65(2}(a).
"
[13]
The very same court adopted an identical
approach in
State v De Bruin
WCHC
Ref 141270 (Unreported judgment of 29 January 2015). In that case,
the court went on to say that the amendments made to
section 35
of
the NRTA with effect from 20 November 2010 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. In S
v
Tokhwe
[2017] ZAWCHC 26
(22 March
2017) Rogers J, in a matter which came before the court by way of
automatic review, acknowledged the difference
of opinion on
this section in this Division and stated
that he adhered to the views he expressed in the two cases discussed
above.
The
Presiding Judge in this matter
(who agreed with
Rogers J in the
Tokhwe
matter) expressly declined to deal
with the difference of opinion as the issue
had not been argued before that court.
[14]
The second school of thought in this
Division adopts a wider interpretation of the section and
applies a purposive approach to
sentencing. This school has
observed
that both
the
circumstances pertaining to the
commission of the offence as well as the
factors relevant to the sentence, both
mitigating and aggravating, must be
considered
conjunctively
when a suspension order is considered. This is the approach adopted
in
Lourens
(supra)
by Savage J (Henney J
concurring) who opined that imposing a sentence is an action that
requires the court to work purposively
at finding the most appropriate sentence
in a manner which accords with an accused's fair trial rights
embodied in section 35 of
the Constitution.
[15]
Her
Ladyship
reasoned that
this
approach is
buttressed
by
the
views expressed decades ago in
State
v Zinn (supra)
at
540
G
,
that in
sentencin
g
,
the personal circumstances of the accused are to be
considered together with, inter alia, society's demand for
retribution,
which must be carefully balanced. Her Ladyship went on
to state that:
"[17]
For all of these reasons, the view I take of the matter is that, in
considering an appropriate sentence under section
35 consequent to
the commission of an offence in terms of s 65(1), an interpretation
of the words 'circumstances relating to the
offence' in section 35(3)
is to include a consideration of the circumstances of the offender
and the interests of the community."
[16]
It must be stressed that a number of subsequent Full Court decisions
pronounced in this division have disagreed with the narrow
approach
adopted in
S v Greet
and
S v
De Bruin
and supported the view expressed in
Lourens.
For instance,
in
S v Muller
(Case A241/18 - Unreported Judgment of 16
November 2018) Cloete J (Parker J concurring) agreed with the
reasoning and finding of
the Full Court in
Lourens.
In that
court's view, the section 35(3) enquiry indeed forms an integral part
of the determination of an appropriate sentence.
[17]
However , Cloete J lamented the uncertainty on the difference of
opinion that has led to the most unsatisfactory result that
lower
courts are left in the dark as to which authority they are bound by.
Meanwhile in
S v Brink
2018 (2) SACR 6
(WCC) Davis AJ (Allie J
concurring) and in
S v Stockenstroom
Case no. A24/2018
(Unreported decision of 09 March 2018) Thulare AJ (Bozalek J
concurring) found that the circumstances relating
to the offence in
terms of section 35 are not limited in this manner but include
traditional sentencing factors, such as the personal
circumstances of
the accused.
[18]
In my view, this difference of opinion is caused by the
interpretation of section 35(3) of the NRTA, in particular
whether
this section limits the power of the court to only consider the
circumstances relating to the offence or to consider the
triad
applicable in sentencing proceedings when giving consideration to an
order of suspension in terms of section 35(3). In my
opinion, the
appropriate place to begin with is giving content and meaning to this
provision, and for this court to consider the
constitutional and
jurisprudential principles that govern the task of statutory
interpretation
.
[19]
Our Constitution requires a purposive approach to statutory
interpretation - See
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others
[1999] ZACC 17
;
2000 (1) BCLR 39
(CC) at para 24;
Daniels v Campbell
NO and Others
[2004] ZACC 14
;
2004 (7) BCLR 735
(CC)
at paras 22-23. The starting point should be section 39(2) of
the Constitution which provides that:
"When
interpreting any legislation, and when developing the common law or
customary law, every court, tribunal or forum must
promote the
spirit, purport and objects of the Bill of Rights."
[20]
In
Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors: In Re Hyundai Motor Distributors (Pty)
Ltd and Others v
Smit NO and Others
2000
(10)
BCLR 1079
(CC) at para 22,
the Constitutional
Court interpreted this
provision to mean,
inter
alia,
that the Constitution requires
judicial officers to read
legislation,
where possible, in ways which give effect to its fundamental values
and in conformity with the Constitution.
[21]
In
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others
[2004] ZACC 15
;
2004 (7) BCLR 687
(CC) at para 91, Ngcobo J stated:
"The
technique of paying attention to context in statutory construction is
now required by the Constitution, in particular,
s 39(2). As pointed
out above, that provision introduces a mandatory requirement to
construe every piece of legislation in a manner
that promotes the
'spirit, purport and objects of the Bill of Rights."
[22]
A contextual or purposive reading of a
statute must remain faithful to the actual
wording of the statute. A contextual
interpretation must be sufficiently clear to accord
with the rule of law. The purpose of a
statute plays an important role in establishing a
context that clarifies the scope and
intended effect of a law -
See Bertie
van Zyl (Pty)
Ltd
and Another v Minister of Safety and Security
2010
(2) SA 181
(CC) at para 22. Mindful of the imperative to read and
interpret legislation purposively in conformity with section
39(2)
of
the
Constitution,
I
turn
to
consider
the
question
whether,
properly construed, section 35(3) of the
NRTA
limits
the power of the court when considering
a cancellation or a suspension order in
terms of section 35(1) of the NRTA to confine
itself exclusively to the circumstances
pertaining to the offence to the exclusion of other factors relevant
in sentencin
g
.
[23]
In my view, the provisions of section 35(3) of the NRTA must be
examined together with the other subsections of section 35
and not in
isolation. Section 35(1) lists 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. When one considers all
the offences listed in the NRTA it is
apparent that the offences listed in section 35(1) are the most
serious offences - See S
v Brink
2018
(2) SACR 6
(WCC) at para 32. In the absence of circumstances
mentioned in
section
35(3) the court is
bound
to impose the minimum licence suspension envisaged in that section.
Section 35(4) makes it mandatory for a court convicting
any person of
an
offence
referred to in
subsection
(1)
before imposing sentence,
to bring the provisions of subsection (1) or (2) (i.e. the
possibility of a suspension of licence as the case may be), to the
attention of the accused.
("emphasis
added '')
[24]
Gleaned from the plain reading of this section in its entirety, it is
clear that the imposition of sentence and the order of
cancellation
or suspension of a driving licence must be considered together. This
view is supported by the fact that the suspension
of a driving
licence is punitive in nature. The sentence that a court may impose
in terms of section 276 of the CPA must have due
regard to the
punitive nature of a suspension order that may be ordered as a result
of an offence committed under section 65 of
the NRTA.
[25]
In other words, in imposing an
appropriate sentence for a contravention of section 65(1) or (2) of
the NRTA, the court must give
sufficient weight to all relevant
circumstances including aggravating and mitigating factors as well
the circumstances
relating
to the offence envisaged in section 35(3) of
the NRTA.
Accordingly, the court may, having
regard to the nature of the offence, the public interest, the
personal circumstance of the accused
as well as the effect of the
suspension order on the offender, decide on the appropriate sentence
and the period of suspension
(if necessary), of the driving licence.
[26]
In my opinion,
this is
what is
intended by
section 35(3) and (4). However,
before a sentence is imposed, the
accused must be
informed
of
the
right to present evidence under oath as to why the suspension order
in terms of section 35(1) should not take effect. In my
considered view, this is a procedural
requirement that this Court may not
overlook. More importantly, in
considering the cancellation or suspension of a driver's
licence, a court enjoys an unfettered
discretion and should apply the facts before it in
conformity with what the section
stipulates.
[27]
The presentation of evidence in
mitigationof sentence envisaged by section 274
of
the
CPA and the presentation of evidence in
terms of section 35(3) are
intended to arm a court with sufficient
information in respect of the offence and the offender so
as to
enable
it
to
exercise
the
sentence
discretion
properly.
In the
exercise
of
that discretion, the court is bound by
the general principles of sentencing as enunciated in
S
v Samuels
2011 (1) SACR 9
(SCA)
where the Supreme
Court
of Appeal stated:
'[91]
It is trite that the determination of an appropriate sentence
requires that proper regard be had to the well-known triad of
the
crime, the offender and the interests of society. After all, any
sentence must be individualised and each matter must be dealt
with on
its own peculiar facts. It must in fitting cases be tempered with
mercy. Circumstances vary and punishment must ultimately
fit the true
seriousness of the crime. The interests of society are never served
by too harsh or too lenient a sentence.·
[28]
Furthermor
e
,
it is well
established in
our
law
that a provision such as section 35 of the NRTA which provides for
the suspension of a driving licence serves two purposes,
namely, to
punish the offender and to protect the public. See
S
v Van Rensburg
1967 (2) SA 291
(C)
and
S v Markman
1972
(3) SA 650
(AD) at 6550 . The cancellation or the suspension of a
driver's licence has far reaching consequences inter alia, the
deprivation
of an individual of the right to drive on a public road.
[29]
In my judgment, it must be assumed that
when the legislature introduced the amendment of section 35(3) in
terms of the NRTA, the
legislature was aware of the general
principles of sentencing espoused above as well as the dual purpose
of section 35. The legislature
must at least
prima
facie
be taken to have intended that
an
order
of suspension or
cancellation was
to serve the
purpose indicated in
this decision, namely, that of
protecting the public and of punishment.
Furthermor
e
,
the legislature must have been aware that it is trite that courts
have to consider the triad and the applicable principles
of sentencing
when
imposing
a
punishment.
In
my view, if the legislature intended the
courts
to
consider the circumstances relating to
the
offence
as
the sole
consideration for the cancellation or suspension order, the
legislature would have expressly stated so.
[30]
It is worth noting that from the reading
of section 35(4), a court is bound to inform an accused person before
the imposition of
sentence of the possibility of a suspension order
being made. In my opinion, it is obvious from this provision that the
general principles applicable in
sentence proceedings find application in cases involving a
contravention of
section 65(1)
or
65(2).
In
addition,
the
factors
that
the
court has to consider in passing
sentence and in making the punitive suspension order in terms of
section 35(3) are so inextricably
imbricated that they cannot be
separated or
dealt
with disjunctively.
[31]
One of the noticeable innovations of the 2010 amendment of
section 35(3) of the NRTA is the presentation of evidence
under oath
in order to determine if circumstances relating to the offence exist
which do not justify the suspension of a driving
licence. The court
can only consider these circumstances after convicting an offender
and during sentence proceedings. The evidence
in terms of section
35(3) of the NRTA must be presented during the presentation of
evidence in mitigation of sentence. In my view,
the evidence in terms
of section 35(3) cannot be heard disjunctively with the evidence in
mitigation of sentence in terms of section
274 of the
CPA.
[32]
Section 274 provides that a court may,
before passing sentence, receive such
evidence as it thinks fit in order to
inform itself as
to
the proper sentence to
be
passed.
Section
274(2) provides that the accused may address the court on any
evidence received under subsection (1), as well as on the
matter of
the sentence, and thereafter the prosecution may likewise address the
court. The circumstance relating to the offence
as well as all
relevant factors that have been placed before the court must be
considered by the court conjunctively after the
presentation of
evidence in terms of section 35(3) of the NRTA read with section 274
of the CPA in determining whether an order
of suspension or
cancellation has to be ordered.
[33]
It must be stressed that the
introduction of section 35(3) in my view was intended to test under
oath and through cross-examination
the veracity of the circumstances
relating to the offence during evidence in respect of sentence. It
was not
intended
to
be
considered in
isolation
or
on
a
piecemeal
basis in
passing
sentenc
e
.
This provision was introduced so that the court can be placed in a
better position to make an informed decision whether a suspension
order is appropriate or not.
[34]
In my view, therefore, the suggestion
that the introduction of section 35(3) was
aimed at limiting the unfettered
discretion of the court to the factors relating to the offence when
considering an order in terms
of section 35(3) is, with respect,
incorrect
and
in conflict with the plain reading of the Act, in particular the
provisions of section 35(4).
[35]
More importantly, if one has regard to
the unfettered discretion conferred upon
a court by section 35(3) as to the
length of time for which a court can suspend the licence,
it
becomes
apparent
that
the
discretion
of
the
court
is
not
limited
to
the
circumstance relating to the offence. It is also apparent that the
court's discretion is not restrained by the circumstances
relating to
the offence in determining the period of suspension. For instance, a
court may convict an accused person for a contravention
of section
65(1) or
(2)
of the NRTA and still
find
that notwithstanding
the
fact
that the accused is not a first offender, his/her personal
circumstances justify that a shorter period of suspension should
be
ordered.
[36]
In other words, the court must of
necessity not lose sight of the effect a suspension order may in
certain circumstances have on
the offender. In doing so, it must
consider the personal circumstances of the accused. The court cannot
therefore
look
at
the
circumstances relating to the
offence
in isolation and turn a blind eye to the
personal circumstances of the accused.
Such an approach, with respect, would most
likely lead to a failure or a
miscarriage of justice.
[37]
Sentencing is about achieving
the right balance between the
crime,
the
offender
and the interests of the community - S
v
Zinn (supra)
at 540 G-H. In
S
v Banda
1991 (2) SA 352
(BG) at 355A
Friedman J, as he then was, noted with admirable brevity that 'the
elements of the triad contain an equilibrium and
a tension. A court
should, when determining sentence, strive to accomplish and arrive at
a judicious counterbalance between these
elements in order to ensure
that one element is not unduly
accentuated at the
expense of and
to
the
exclusion
of
the
others.' In
my
opinion,
a suspension or a cancellation order constitutes a significant part
of punishment and it is obligatory for a court to consider
all
relevant facts before it makes such an order.
[38]
If I correctly understand the approach
of the first school of thought that professes the narrow
interpretation of section 35(3),
it suggests that a court should only
consider the circumstances relating to the offence and simply ignore
the severity
and
the adverse effect of the order of suspension on the offender. From a
contextual
reading
of section 35 it cannot be said that this was the intention of the
legislature. In
my
view, this approach is with respect erroneous.
[39]
In
S v
Markman (supra)
at
656A-B, the Appellate Division, as it
then
was,
found that the suspension or cancellation of a driver's licence for
negligent driving, even where the driving of vehicles is
not the
accused's vocation, can in itself cause appreciable, sometimes even
severe hardship, since the motor car has become an
essential part of
our modern way of living. The court noted that ordinarily, therefore,
it
ought
not to be lightly ordered, and that it should not be ordered without
prior enquiry
by
the court into how it will affect the accused in his or her
particular circumstances. I
am
aware that this case was decided before the 2010 amendments. However
in my view, the principle enunciated in this decision holds
sway to
date.
[40]
The enquiry as to how the suspension of
the licence would affect the offender
cannot be diligently conducted unless
all the personal circumstances of the accused are placed before court
for consideration.
The
court would not
be
in a position to know
the impact of a suspension order on the
offender if the enquiry is only limited to the circumstances relating
to the
offence.
In other
words,
a suspension of
a
driving licence
is
an
ingredient which
has
to
be
taken
into
account by
a court when
imposing sentence. It must not be
dissociated from all the other factors and dealt with in isolation or
on a
piecemeal
basis.
As
this
very
case demonstrates, the taking
away
of
an
accused's driving licence is a severe punishment that quite often
impacts on his livelihood and
that
of his family and dependants.
[41]
To this end, I respectfully agree with
the views expressed by Savage J in S
v
Lourens
that a plain reading of the
words 'circumstances
relating
to the offence' in the
amended
section 35(3) includes a consideration of the personal circumstances
of the
offender
and the interest of the community so as to allow the sentencing court
to impose a sentence dispassionately
on
consideration of
all
relevant factors traditionally relevant
to sentencing.
[42]
In conclusion on this point, I take the
view that for all intents and purposes, in considering a suspension
order under section
35 based on the conviction for an offence in
terms of
section
65(1) and
(2),
an interpretation
of
the
words
'circumstances
relating
to the offence' in section 35(3), should include a consideration of
the circumstances of the offender and the interest
of the community
as was stated in the
Zinn
case.
I
also find that the
narrow
interpretation
accorded
by the court in S
v Greef
and
S
v De Bruin
is
likely to lead to an injustice and is in conflict with the long
established sentencing principles entrenched in our law discussed
above.
[43]
Reverting to the present matter, it is
evident that the trial court considered the provisions of section
35(3) and applied the narrow
approach applied in the
Greef
matter. The magistrate failed to
take into account the personal circumstances of the accused at all.
The trial
court
failed to consider the fact that the accused often worked late and
that he required his driver's licence for his work.
[44]
As I have said, at the hearing of this
appeal, the Court was informed that pursuant to the impugned
suspension order, the appellant
lost his employment. It is
indubitable that
the
suspension of
the
appellant's driving licence has
had
a deleterious effect on the appellant
and his livelihood. The trial court failed to take into account the
fact that the
appellant
was not involved in an
accident.
The trial
court
failed to consider the fact that the appellant had few drinks with
his friend and his neighbour asked him
to fetch her husband who was at a corner
next to a clinic nearby. It was unsafe for the husband of
the neighbour to walk home. The
road
was
not
busy
and
it
was
late at
night in a remote country town.
[45]
In my view, the court a
quo
over-emphasized the fact that the
appellant was a
second
offender and that
he
did
not
learn from
his
previous indiscretions.
This
is
borne out by the interaction between the
appellant and the court during the section 35(3) enquiry. On a
conspectus of all the evidence,
I am
of
the opinion that a suspension of
the
appellant's driving licence for a period of five years under these
circumstances was grossly disproportionate to what could
be
considered fair and reasonable in the circumstances of this case. In
my judgment, a suspension order for a shorter period should
have been
ordered.
ORDER
[46]
In the result, I would propose that the
appeal be upheld and the order suspending the appellant's driving
licence for five years
be set aside and be replaced
with the following order:
"In
terms of section 35(3) of the NRTA, the accused's driving licence is
suspended for a period of eighteen months. The period
of suspension
will be antedated from the date of sentence, 25 July 2019".
Lekhuleni
AJ
Acting
Judge of the High Court
GAMBLE,
J:
[47]
I
have
read the judgment of my Acting Colleague, Lekhuleni AJ, with which I
fully agree.
[48]
In
paragraph
13
of
his
judgment,
Lekhuleni
AJ
refers
to
the
matter
of
S
v Tokhwe,
a matter which came before Rogers J and myself in March 2017 as an
automatic review in the ordinary course under s 302 of the CPA.
We
considered the sentence
imposed
by the magistrate excessive
and
interfered without more.
[49]
The issue of the automatic suspension of
the accused's driver's licence was dealt with by Rogers J
en
passant
in the course of his
judgment. I regarded the point
as
an
obiter dictum
for
the purposes of the automatic review and did not consider it
necessary to enter into the
debate
regarding the two schools of
thought
with which my
Acting
Colleague
has dealt
so extensively
in
his
judgment
above.
My position was articulated thus in
Tohkwe
-
"[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."
[50]
The matter having now been fully ventilated in this appeal, I am
satisfied that the purposive
interpretation preferred by my Acting
Colleague, which accords with the approach adopted in
Lourens,
and in subsequent similar matters by the majority of judges in this
Division, is the correct one.
[51]
There will accordingly be an order in the terms proposed by Lekhuleni
AJ.
GAMBLE
J
JUDGE
OF THE HIGH COURT