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[2012] ZAECPEHC 65
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S v Botha (CA&R: 120119) [2012] ZAECPEHC 65; 2013 (1) SACR 353 (ECP) (17 September 2012)
7
REPORTABLE
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE, PORT
ELIZABETH
CA&R:
Review No: 120119
Date
delivered:17.9.2012
In the matter between:
THE STATE
vs
LORRAINE BOTHA
REVIEW JUDGMENT
SUMMARY: Accused herein
was convicted by the Port Elizabeth Magistrate’s Court of a
contravention of section 65(2)(a) of the
National Road Traffic Act 93
of 1996 (the Act). She was legally represented by an advocate. During
the proceedings in terms of
section 35(1) of the Act and having been
advised of all her rights in terms of the Act she elected not to
testify as is required
by section 35(3) of the Act. Despite her not
having complied with the provisions of section 35(3) of the Act, the
presiding magistrate
found that the provisions of section 35(1) shall
not take effect.
On review the Court ruled
that no Court can force the accused to testify but in the event of
her electing not to testify the Court
cannot make an order that the
provisions of section 35(1) shall not take effect. This is so in view
of the peremptory nature of
the provisions of section 35(1)(2) and
(3) of the Act. On a proper interpretation of section 35(3) the Court
can only deviate from
the requirement to suspend the licence if it is
satisfied, after
presentation of evidence under oath, that
circumstances relating to the offence exist which do not justify the
suspension.
(My emphasis)
TSHIKI J:
[1] In this case the
accused, who was a 33 year old female at the time of the offence and
was legally represented throughout the
trial proceedings, pleaded
guilty and was convicted of a contravention of section 65(2)(a) of
the National Road Traffic Act 93,
of 1996 (as amended) (the Act). In
her statement in terms of section 112(2) of the Criminal Procedure
Act 51 of 1977 (the CPA)
she admitted,
inter alia
, that at the
time she was driving the motor vehicle on a public road her blood
alcohol concentration exceeded the legal limit and
was 0.18 grams per
100 millilitres of blood. She was sentenced to pay a fine of
R5 000.00 (five thousand rand) or in default
of such payment to
undergo five (5) months imprisonment. Half of her sentence was
suspended for five (5) years on appropriate conditions.
Of note and
more importantly for the purposes of this judgment, the Court ordered
that circumstances existed which justified the
departure from the
provisions of section 35(1) of the Act, which prescribes for the
automatic suspension of licences and permits.
[2] During the stage of
sentence proceedings the presiding magistrate had to consider,
inter
alia,
the application or otherwise of section 35(1) of the Act
with regard to the automatic suspension of the accused’s
driving
licence, subject to the provisions of section 35(3) of the
Act which deals with the oath opportunity to present evidence
regarding
circumstances under which a court would not order such a
suspension. The accused’s legal representative informed the
Court
that she is aware of all the provisions of section 35 of the
Act but that she nonetheless elected not to testify. Thereafter, her
legal representative addressed the Court from the bar both in respect
of mitigating factors, as well as in respect of the application
of
the provisions of section 35(1) of the Act. The presiding magistrate
then ordered that provisions of section 35(1) (suspension
of her
driver’s licence) shall not take effect.
A senior magistrate had
noticed the apparent irregularity in the application of section 35 of
the Act, and referred the presiding
magistrate to the judgment in
S
v Ngqabuko
(2012) JOL 28816
(ECG) and instructed him to send
the proceedings to this Court by way of special review with the
purpose of having the proceedings
relating to section 35 of the Act
set aside and for an appropriate order to be made.
[3] Section 35 of the Act
provides:
“
35 On
conviction of certain offences licence and permit shall be suspended
for minimum period and learner’s or driving licence
may not be
obtained
Subject to subsection (3), every
driving licence or every licence and permit of any person convicted
of an offence referred to
in –
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-
A speed in excess of 30 kilometres
per hour over the prescribed general speed limit in an urban area
was recorded; or
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 –
a first offence, for a period of at
least six months;
a second offence, for a period of at
least five years; or
a third or subsequent offence, for a
period of at least ten years, calculated from the date of sentence.
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 periods mentioned in paragraphs (i) to
(iii), inclusive,
of subsection (1) calculated from the date of
sentence, from obtaining a learner’s or driving licence or a
licence and
permit.
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.
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.
...”
[4] In his reasons for
judgment,
which accompanied the record, the
presiding magistrate herein seems to agree, and correctly in my view,
that the provisions of section
35(3) of the Act are peremptory in
nature in that they require the convicted person to present evidence
under oath if he or she
intends to persuade the Court that the
provisions of subsection (1) or (2), as the case may be, should not
take effect.
[5] Consequently, where
an accused person is convicted of contravening any of the specified
offences, the conviction triggers the
automatic suspension of the
licence or permit in the case of a holder thereof, or where the
person who drove without a licence,
disqualification from obtaining
one, as the case may be. It is clear from the language used in
section 35(3), of the Act that only
persuasive facts which are
adduced by way of evidence under oath may persuade the Court from
granting an order in terms of the
provisions of section 35(1) or (2).
(
S v Van Rooyen
2012 (2) SACR 141
at 146 para [6]).
[6] In other words, if
the Court has only heard submissions from the bar, there has been no
enquiry in accordance with section 35(3)
of the Act. Consequently,
the Court is precluded from making any order, other than suspending
the licence or disqualifying the
person from obtaining one, as
provided for in section 35(1) and (2) of the Act. An accused person,
as in the present case, who
elects not to testify, cannot be held to
have persuaded the Court not to order the suspension of her driver’s
licence if
the accused willingly elected not to give evidence under
oath. Evidence on oath is a jurisdictional requirement before a Court
may even consider whether or not to deviate from applying the
peremptory provisions of section 35(1) of the Act.
[7] In my view, the
wording of section 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 licence can be taken away by
operation of law. It is for this reason
that the Court, in terms of
section 35(4) of the Act, has to advise the convicted person of the
provisions of sections 35(1)-(3)
of the Act before the imposition of
sentence. Sentencing in the sense used in section 35(4) of the Act,
includes the suspension
of a licence or disqualification to obtain
one, as the case may be.
[8] Another concern
raised by the presiding magistrate, was the fact that the accused in
this case was aware of all the provisions
of section 35 of the Act,
because she was represented by her legal counsel who also informed
the Court of her awareness of her
rights in terms of the provisions
of section 35 of the Act. However, the accused elected not to testify
on oath in terms of the
provisions of section 35(3) of the Act, but
to proceed by way of submissions from the bar. My view is that the
provisions of section
35(1)-(4) of the Act do not undermine a
convicted person’s right to silence. The Act does not compel
such an accused to testify,
but the consequences of electing not to
testify, will not favour an accused convicted of any of the specified
offences, because
the Court in that situation has no discretion which
it can exercise in terms of section 35(3) of the Act, if there is no
evidence
on oath. The court is bound to apply the peremptory
provisions of section 35(1) or (2) of the Act in the absence of
evidence on
oath.
[9] The Court in the
present circumstances, should have invoked the provisions of section
35(1), because there were no existing
circumstances placed before it
on oath which justified a decision not to impose the suspension of
the accused driving licence.
I say so,
inter alia
, because on
page 15 of the record, and after the accused had been informed by her
counsel of her rights in terms of section 35(3),
there is evidence to
show that she was aware of the consequences of her election.
Furthermore, on page 18 lines 5-10 the following
discussion is
reflected on the record:
“
Court :
Thank you. Of course your client understands that by
refusing to testify or by electing not
to testify, runs a risk that her driving licence may be cancelled,
endorsed or suspended?
She is acutely aware of that?
Van Der Spuy : She is aware of that
Your Worship.”
[10] An accused person
who is legally represented is assumed to have been fully and
adequately informed by his or her legal representative
of his or her
rights which pertain to the merits and demerits of the case he or she
is facing in Court. The common law principle
is that for the duration
of his or her mandate, the legal representative is in control of the
manner of presentation of the defence
of his or her client.
Ordinarily the Court should not likely interfere with such
relationship unless there are apparent indications
that a failure of
justice or illegality may occur. In this case, the presiding
magistrate pertinently enquired from accused’s
counsel if his
client understood the consequences of exercising her rights to remain
silent and the answer was in the affirmative.
(
S v Matonsi
1958 (2) SA 450
(AD),
S v Mvelase
2004 (2) SACR 531
(W)
at 536h-537a).
[11] Every accused person
has the right to elect not to testify in Court. That the consequences
of such an election may at a later
stage prove not to be beneficial,
does not assist the accused. That is the inevitable risk involved in
choosing not to testify.
Up to the stage when the present accused’s
legal representative confirmed his client’s awareness of her
rights in terms
of section 35 of the Act, there was no irregularity
in the proceedings. The only irregularity committed by the Court was
ordering
that the provisions of section 35(1) shall not take effect.
[12] The trial Court was
not empowered to deviate from the provisions of section 35(1) which
are peremptory in nature. The deviation,
in the absence of evidence
under oath regarding circumstances which would justify it, was a
reviewable irregularity.
[13] As provided for in
section 35(1) of the Act, the Court ought to have suspended the
accused’s driver’s licence for
the prescribed period of
six months (the minimum period) for a first offender such as the
accused was. The magistrate’s failure
to do so, warrants the
setting aside of his order and substituting it with one imposing the
suspension of the accused’s driver’s
licence for the
reasons set out above.
[14] In the result I make
the following order:
[14.1] The conviction and
sentence of the accused are hereby confirmed.
[14.2] The magistrate’s
failure to order the suspension of the accused driver’s licence
in terms of
section 35(1)(c)
of the
National Road Traffic Act 93 of
1996
is hereby set aside and is substituted with the following order:
“
In
terms of
section 35(1)(c)(i)
of the
National Road Traffic Act 93 of
1996
, the accused’s driver’s licence is hereby suspended
for a period of six months calculated from the date on which the
accused is made aware of the provisions of this order. The magistrate
is directed to inform the accused of the contents of this
order.”
_________________________
PW TSHIKI
JUDGE OF THE HIGH COURT
Revelas J: I agree
_______________________
E REVELAS
JUDGE OF THE HIGH COURT