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[2022] ZAKZPHC 84
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S v Ngwenya (R50/22;) [2022] ZAKZPHC 84 (9 September 2022)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU
-
NATAL
DIVISION,
PIETERMARITZBURG
REVIEW
NO.: R50/22
MAGISTRATE'S
CASE NO.: A590/21
MAGISTRATE'S
SERIAL NO.: 13/22
THE
STATE
And
MDUDUZI
INNOCENT NGWENYA
REVIEW
JUDGMENT
MNGADI
J
[1]
This is an
automatic review in terms of s302 (1) (a) (ii) of the Criminal
Procedure Act 51 of 1977 (the Act) emanating from Newcastle
Magistrate's Court (Mr B.S Zondi). The section provides that if upon
consideration of the record of the proceedings it appears
to the Judge
that the proceedings are not in accordance with justice he shall
obtain from the judicial officer a statement setting
forth the
reasons for convicting the accused and the sentence imposed whereupon
the record of the proceedings and the statement
by the judicial
officer shall be considered by the court of appeal having
jurisdiction over the court which convicted and sentenced
the
accused
.
[2]
On
13 April
2022,
I
received
the
record
of the
proceedings
from
Newcastle
Magistrate
'
s
Court.
I
perused the record and I doubted whether the sentence imposed on
the
accused
was
appropriate
.
[3]
The
charge
against
the
accused
alleged
the
following
.
He
was
guilty
of
contravening the provisions of s50 (i) read with s51
,
64,74,76,90(i)
(a) , s90 (2)(a) of the National
Land
Transportation
Act
no5
of
2009
(the
NLTA).
It
alleged that
upon or about 16 December 2021 the accused did wrongfully and
unlawfully operate a road based public transport service
conveying
for reward fare paying passengers by means of a Toyota Minibus Hiace
motor vehicle having a license number [....] on
or upon P42 road
lngogo which is a public road in the magisterial district of
Newcastle without being a holder of a permit or operating
license
issued in respect of the vehicle or in the case of a temporary
replacement of the vehicle the necessary written authorization
in
terms of s74 of the NLTA.
[4]
The record
shows that the accused
,
after he was
informed of his rights to legal representation
,
elected to
conduct his own defense.
[5]
Before the accused
pleaded to the charge, the learned magistrate advised the accused
that if he pleads guilty he shall be asked
questions in terms of s112
(1) (b) of the
Criminal
Procedure Act 51 of 1977 (the CPA) and that if he answered the
questions satisfying
the
court
that
he
admits
all
elements
of
the
charge,
the
court
will
find
him
guilty as charged
,
if the court
is not so satisfied, it will change the plea of guilty to a plea of
not guilty, then the matter will go to trial.
That means,
explained the magistrate, that the matter shall be adjourned to allow
the state to call witnesses to come and give evidence
,
and that his
motor vehicle currently impounded shall remain impounded until the
case is finalized
.
[6]
The
charge
was
then
put
to
the
accused
and
he
pleaded
guilty.
The
accused
admitted that on 16 December 2021 on a public road within the
jurisdiction of Newcastle his driver drove the motor vehicle
registration [....] carrying fifteen (15) passengers who had each
paid R290
.
00
without the necessary permit issued in terms of the NLTA and he knew
that to be a contravention
of s50 (1)
read with s90(A) and (B) of the NLTA.
The court then
convicted the accused as charged
.
[7]
The state
produce a record of the previous convictions of the accused which the
accused admitted.
The learned
magistrate then said :
'
Mr
Ngwenya, you are now given an opportunity to place this court
a
mitigating
factor for the court to consider before imposing sentence
'.
[8]
The accused
then addressed the court.
He stated that
he was asking for a leniency
,
he had made a
mistake.
He
said he had children, the eldest child was 21 years old and at a
university
,
the second
child was 19 years old and in matric, the third child was three (3)
years and in grade 4 and the youngest child was in
pre-school.
[9]
The accused
stated that he
supported
his
family
with
the vehicle
.
He added that
he was asking the court to waive the pounding fees, which had
accumulated,
and he did not
have the money to pay them
.
He asked that
the court order him to pay a fine of R5 000
which
was
the
money
he
had.
[10]
The Prosecutor
addressed
the court
stating that the offence was very
serious and
prevalent
;
many people
loose their lives in taxi wars between those with licenses and those
without
licenses
.
He asked the
court to impose a sentence,
which reflects
the public interest.
[11]
The learned
magistrate then asked the accused the following questions:
'
Court
:
How do
you earn a living Mr Ngwenya?
Accused
:
The taxi that I own.
Court
:
·
How many
taxis do you own?
Accused:
Three
Court
:
Do
you belong to a particular taxi association?
Accused
:
Yes
,
Sizwe
association.
Court
:
Where
is it base?
Accused
:
From
wanderers to KZN
.
Court
:
KZN is very big, is wanderers in England, sir/ so be more specific, I
know that the taxi association
issue is a certificate which allows
you to move from a particular taxi rank to a particular taxi rank, if
you say KZN, you are
indirectly telling me that your certificate
allows you to operate through the KZN province, which is not, which
is impossible.
Accused
:
from
Wanderers to Emondlo.
Court:
Emondlo in Vryheid?
Accused
:
Emondlo is between Nqutu and Vryheid.
Court:
So your certificate allows you to travel between Nqutu, between
Wanderers and Vryheid?
Accused
:
I do not have a certificate as yet.
Court:
so you are operating without an
operating certificate?
Accused:
that is correct and it was a great mistake.
Court
:
That makes a lot of sense, because otherwise you would not have been
arrested or your driver will
not have been arrested, if that
certificate was in existence. Why will the police or law enforcement
agencies arrest someone who
has a certificate to operate between
wanderers to Emondlo .....[indistinct]. How then you obtain did you
obtain or gain membership
of this taxi association if you do not have
a certificate?
Accused:
We are still on the waiting list to receive
certificates,
Court
:
Again, you are not a member, you are not an official member of this
taxi association.
You are an applicant. You are merely an applicant,
a person who is still waiting to be allocated a space or a
certificate
Accused
:
Yes.
Court
:
Why then did you tell me that you are a member of this association?
Accused
:
Because my taxi was travelling from wanderers to lnkandla, emondlo,
pardon me, your worship, but it was a great
mistake for me to travel
without a permit.
Court
:
Yes, I am saying, I asked you if you are a member of a taxi
association, and you said, yes.
You should have said ,"No, I am
not. I am an applicant, I am still, I have applied I am still
awaiting for a location, I have
not been admitted into this
association".
Accused
:
Understood, I humbly apologize.
Court
:
So
you
are
not
a
member
of
any
association?
Because
you
do
not
have
a
certificate?
Accused
:
Yes
.
'
[12]
The learned magistrate in the judgment
on sentence said
:' The
court must stress
that this is
a
very
dangerous practice
,
because
it
means despite the fact that our government
is
trying by all means to regulate the taxi industry
,
but
there are people who are willing to take
a
risk
operating their motor vehicles without holding
a
valid
permit
.
Therefore
,
stealing
business from the rightful people
,
who are
allowed to operate under law from a particular taxi association
,
a
particular taxi rank to a particular taxi association.
On the
day in question
,
it
means the accused stole business from Wanderers taxi rank and a
particular association.
And he
also stole or offended people who are operating at Emondlo taxi rank.
By
doing so
,
he was
on the ve
r
ge
of provoking two ta
x
i
associations who might find themselves at locked horns
,
fighting
each other
,
shooting
each other, just because of the accused
'
s
behavior
.
And the
court intervened
that
this accused care less
,
he just
does not care what happens when he operates his
taxi
because
of
his
g
r
eediness
,
all
he
wants
is
to
have
a
source
of
income
.
As
to
what
happened or what consequences
,
he just
does not
care
.
I
am
saying
this
,
because
looking at his previous convictions
,
the
accused has been convicted on two occasions for contravening a
similar
provision
in
2014
,
3
January
2014
.
He was
found
guilty
and
convicted
.
Contravening
the same provisions
,
section
50(1) of the National
Land
Transport
Act
.
He was
sentenced to pay
a
fine of R5
000
.
00
or undergo
90
days
imprisonment.
He did
not stop there.
Two
years later
,
he
committed a similar offence.
Contravention
of s50 (1) of the nation Land Transport Act. Sentenced
to pay
a
fine
of R6
000
00
or undergo
2
months imprisonment.
He did
not stop there
,
today
,
yet
again
,
he is
convicted of
a
similar
offence.
This is
a man who does not learn from his mistakes
.
Actually
,
this is
a man who just
does
not
care.
In his
mitigation
factors
he
had an audacity to tell
the court
,'
I
have R5 000
.
00
in my
possession and which I can pay as a fine
'.
For him
to walk
away
from
this problem
and
go
,
go back
and
commit
further
offences
.
This is
a man who believe that he had enough money to buy his
way
out
,
he can
keep contravening the laws of this country
.
He can
keep operating his taxi between taxi ranks under which he has no
permission
,
no
authority whatsoever
.
Because
he just has money to pay.
This
offence is
a
very
serious offence.
You do
not buy your way out by paying R5 000.00 fine and walk away
,
go back
to old ways
.
And
operate your taxi without a permit
.
It does
not work that way.
The
accused
person
told the court that the person
who was
operating
the
motor vehicle on the day in question was his driver, which therefore
tells the court that the accused is an employer
.
He
further
told
the court
that
he owns
three
taxis
,
which
I
assume
that
these taxis
,
other
two taxis
,
also
has othe
r
two
drivers
.
People
who depends on the accused person with
r
egards
to their source of income
.
Our
society
looks up to our courts to protect them from people like you
,
Sir
.
People
who behave negligently and carelessly
,
people
who do not care about other people
'
s
lives
,
because
when the taxi wars erupt
,
when
the taxi wars start
.
And
when you start shooting at each other
,
it is
the members of the public who suffers the most
,
because
they get killed while travelling on your taxis
,
without
knowing that you do not own
a
permit to
travel from point
a
to point B.
You did
not learn from the first mistake.
You
refused to learn from your second mistake
.
Maybe
you will learn from this third mistake
.
Therefore
,
the
court w
i
ll
impose
a
sentence
,
which
is tougher
.
However
,
the
court will have leniency
,
cons
i
de
r
ing
that this offence is an offence which carries a fine of up to R100
000 or 2 years impr
i
sonment.
However,
the court will impose the following sentence
,
your
sentence is as follows
:
YOU ARE
SENTENCED TO PAY AN AMOUNT OF FORTY THOUSAND (R40 000) OR IN DEFAULT
OF PAYMENT,
TO
UNDERGO TWELVE (12) MONTHS
'
IMPRISONMEN
."
[13]
The
magistrate
after
imposing
sentence,
ordered
that
from
the
date
the
motor vehicle
impounded to the date the accused made his first appearance in court
impounding fees are not waived, but from after
that date impounding
fees of the vehicle were waived
.
[14]
On 13 April
2022 I addressed the following query to the learned magistrate: "The
learned magistrate is requested to address
the following
:
1.
The
court sentenced the accused for inter alia in that by his activity he
was stealing business from
a
particular
association
.
What
evidence was presented before court in this regard?
2.
What
evidence was presented before the court that the accused by operating
as
he
did on that particular day he was provoking
a
conflict
between the taxi association?
3.
Previously
fined between R6 000 and R5 000 for similar contravention were
imposed on the accused
;
why
instead of
a
gradual
increase
a
fine in the
amount R40 000 was fixed?
4.
What
information was before the court relating to the accused's ability to
lawfully raise the fine?
5.
The court
was concerned by the accused repeating the commission of the crime,
why was part of sentence not suspended for five years
to keep the
accused in
a
straight
line?
6.
The
court
dealt
with the impounding fees.
Were
the provisions of s87 of Act
5
of 2009
referred to in the charge and explained to the accused on the
commencement of the t
ri
al?
If not
,
was the
court not bound to waive impoundment
fees?
[15]
O
n
30 August
2022
, I
received the
file
.
It shows that
on 27 June 2022
,
the Reg
i
st
r
ar
received the learned magistrate
'
s
statement
,
but
up to 30 August 2022
,
the Deputy
Director Public Prosecutions had not responded.
In my
experience, despite t
i
meous
specific requests to the OPP to provide this court with its comment
after receipt of the magistrate's response
,
it ignores
regrettable the requests.
In the
statement
,
the
mag
i
strate
said the following
:
"
1.
I humbly concede that no direct evidence was presented before court
in this regard.I humbly submit that
,
the
court took judicial notice that accused was operating his motor
vehicle for
a
gain in an
area in which he does not have
a
permit to
operate
.
2.
I
concede that
,
there
is no evidence on the record that
,
the
accused as he did on that particular day he was provoking
a
conflict
between the taxi associations.
I
hereby humbly submit
t
hat
in determining
,
considering
and imposing sentence I was guided by
t
hree
guiding p
r
inciples
,
collectively
known as
"
trial
of Zinn
',
thereby
,
paying
more attention on the road public interest
.
3.
In respect of
sentence
.
The
Honorable Judge is humbly referred to exhibit A of the
r
ecord
as well as the provisions
of S90
(2) (a) of Act
5
of 2009 and
paragraph
25
,
page
13-14 of the record
.
The
court, respectively
,
considered
the above mentioned aspects in imposing sentence.
4.
In
respect of accused of accused ability lawfully raise the fine:
I
humbly refer the Honorable Judge to page 8
,
paragraph
20-25
F
of the record
".
5.
In respect of
a
possible
suspended sentence that would have been imposed to keep the accused
on the line
.
I
humbly refer the Honorable Judge to page 13 paragraph
25
of the
record, the court adopted
a
different
approach
,
an
approach of clearly reminding the accused that an offence of which he
was convicted carries
a
fine of up
to R100
000
or
2
years
imprisonment
,
however,
the court had leniency by not imposing the full sentence
,
thereby
keeping him in
a
straight
line that should he commit
a
similar
offence Honorable court still has room to increase the sentence.
6.
in
respect of the provisions
of s87
of Act
5
of
2009
.
I concede
that
,
they
were not
referred
to in
the charge itself.
Further
,
I
hereby humbly refer to the Honorable Judge to annexure F of the
record
,
page
16
.
I do
concede that the question of
a
deferred
fine was not fully addressed on
record
and
that oversight will never happen again
.
[16]
A court
conducting a criminal trial wherein the accused is not legally
represented need to be cautious.
In this
matter, the following is noted:
1.
The accused before he
pleaded the magistrate told him that if he did not plead guilty and
admit all the elements of the crime, it
will cause a delay in
finalizing the case
,
and his motor
vehicle impounded with impounding fees accumulating shall
remain impounded until the
case is finalized
.
The learned
magistrate did not tell the accused that if he is found not guilty he
shall not be required to pay the impounding fees
or that court,
whether convicted or not
,
had a
discretion to waive all
or part of the
impounding
fees
.
The result is
that the court put on undue pressure on the accused to plead guilty
.
2.
The court
before the accused pleaded made no indication relating to what
sentence could be imposed.
The record of
the previous convictions shows that previously on 03 January 2014 and
31 March 2016 for similar contraventions the
accused was sentenced to
R5 000.00 or 90 days imprisonment and R6 000 or 2 months imprisonment
respectively.
This explains
that in mitigation of sentence
,
the accused
asked to be fined R5 000.00.
3.
The learned
magistrate failed to explain to the accused how he could present his
case for sentence.
4.
The learned
magistrate after both the accused and the state had addressed the
court on sentence embarked on questioning the accused
without
explaining to the accused the reason for his questions and that the
accused had a right not to answer those questions.
5.
The learned
magistrate questioned the accused relating to the extent of the
accused
'
s
operation without a license or permit.
This is
despite the fact that
the
accused
pleaded
,
admitted
all
the
elements
of
the
crime
,
the
plea
was accepted
by the state and the accused was found guilty on the basis of his
plea.
[17]
The
learned
magistrate
in
his
judgment
on
sentence
relied
on
aggravating
factors
not based on
any evidence.
[18]
The passing
of
sentence
is
primarily
in
the discretion
of the trial
court.
The
appeal court can only interfere with the sentence imposed by the
trial court on limited grounds
,
namely
;
where the
sentence is disturbingly inappropriate, or it is vitiated by a
material misdirection or it is so severe that it induces
a sense of
shock
.
[19]
The court in
S
v Dlamini
(R52/21)
[2021) ZAKPHC10 12 December 2021 set out the correct approach in
determining an appropriate sentence in similar crimes
.
[20]
In my
view
,
the
sentence
imposed
by the learned
magistrate
is vitiated
by material
misdirection
,
which justify
that it be interfered with.
It failed to
take into account the personal circumstances
of the
accused
,
the
fact that he was a small scale operator and he played open cards with
the court.
The
aggravating factor is that he had two previous convictions for a
similar offence.
However, the
accused had applied for a permit to regularize his operation
.
[21]
I
am
of the opinion that an appropriate, proportionate, fair and just
sentence is a fine of R10 000.00 or 6 months imprisonment
,
half suspended
for a period of 3 years on
condition
that the accused is not convicted of contravening
s50(1) read
with s90 (1) (a)
(b)
of
-
the
National
Land
Transportation
Act
No
5
of
2009
within
a period
of
three
(3) years.
I
propose the following order.
1.
The conviction
is confirmed.
2.
The sentence
is reviewed and it is set aside.
It is replaced
with the following:
"
The
accused is sentenced to pay a fine of R10
.
000.00,
failing which to undergo eight (8) months imprisonment.
Half of the
sentence is suspended for a period of three(3)
years on
condition the accused is not convicted of contravening
s50(1) read
with
s90
(1)
(a)
(b)
of
the
National
Land
Transportation
Act
No
5 of
2009 within
the period of suspension
.
The
accused in terms of
s103
(2) of the
Firearms Control Act No 60 of
2000
is not declared unfit to possess a firearm.
Mngadi
J
I
agree, it is so ordered.
Bezuidenhout,
J