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South Africa: Kwazulu-Natal High Court, Pietermaritzburg
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2023
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[2023] ZAKZPHC 130
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S v Mvelase (R68/23A) [2023] ZAKZPHC 130 (10 November 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
number:
R68/23A
In
the matter between:
THE
STATE
and
MSHIKASHIKA
RONALD
MVELASE
ACCUSED
REVIEW JUDGMENT
MOSSOP
J:
[1]
This
is a matter subject to automatic review in terms of the provisions of
section
302(1)
(a)
of the
Criminal Procedure Act 51 of 1977
.
[2]
The
accused appeared in the Newcastle Magistrate’s Court on a
charge of operating a taxi on a public road without being in
possession of a valid permit to do so. When the charge of
contravening
section 50(1)
read with
section 90(1)(a)(b)
of the
National Land Transport Act 5 of 2009
was put to him, he pleaded
guilty and was thereafter correctly convicted in accordance with his
plea.
[3]
He
was sentenced to a fine of R25 000 or, in default of such payment, to
6 months’ imprisonment.
[4]
The
accused was apparently neither the owner of the taxi nor its driver,
but its operator. The vehicle belonged to his brother but
it had been
entrusted to the accused so that he could operate it for his own
benefit. The taxi had been driven by his cousin when
it had been
pulled over and the lack of the necessary permit ascertained. This is
of passing significance only because it transpired
that the accused
had a previous conviction for drunk driving.
[5]
In
mitigation of sentence, the accused indicated that he earned an
income of R2 000 per month with which he supported himself, his
four
children and two nephews and a disabled brother. All of this was
accepted by the State.
[6]
It
is not the fact of the accused’s conviction that is disturbing.
That conviction is in order. What is troublesome is the
sentence
imposed upon him, which appears to be out of the norm for similar
offences committed in that district. Indeed, in my view,
it induces a
sense of shock, particularly when regard is had to the fact that the
accused is a first offender and given his accepted
monthly income. In
my view the sentence imposed is unduly harsh.
[7]
In
response to a query from this court on the sentence, the magistrate
responded that she:
‘
[h]ad
considered suspending a portion of the sentence but these offences
have become so prevalent within our district and the only
way to
deter the Accused and like minded persons is if such sentences are
imposed.’
[8]
I,
regretfully, do not agree with this line of reasoning. I would have
thought that where there is a high incidence of this type
of offence,
a suspended portion of a sentence would serve to dissuade an accused,
or other like-minded people, from offending or
reoffending, as the
case may be. The suspended portion of the sentence would hang over
the accused’s head like the proverbial
sword of Damocles.
[9]
This
court may interfere on review if a lower court imposes a
sentence
that is inappropriate. An inappropriate sentence is one that induces
a sense of shock.
[1]
This court
may also intervene if the lower court misdirects itself when imposing
sentence.
[2]
In my
view, it appears that the accused’s personal circumstances have
been relegated to a secondary consideration at the expense
of the
interests of the community. While the community needs protection from
operators of public taxis that are not properly authorised
to operate
as such, it appears to me that the magistrate has not considered all
sentencing options open to her that could be applied
to achieve that
result.
[10]
In
my view, the sentence imposed is inappropriate and the magistrate has
committed a significant misdirection in not suspending
a part of the
sentence that she intended to impose. This court has the power to
intervene to ensure that an injustice does not
result.
[11]
I
would accordingly propose the following order:
1.
That
the conviction of the accused is confirmed;
2.
That
the sentence imposed be set aside and replaced with the following
sentence:
A fine of R25 000 or 6
month’s imprisonment, half of which is suspended for a period
of 5 years on condition that the accused
is not again convicted of
contravening
section 50(1)
of the
National Land Transport Act 5 of
2009
, which offence is committed during the period of suspension.
MOSSOP
J
I
agree:
VAHED
J
Date of judgment:
10 November 2023
[1]
S
v De Jager and Another
1965
(2) SA616 (A).
[2]
S
v Kibido
1998(2) SACR 213 (SCA).