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[2021] ZAKZPHC 82
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S v Singh (R19/21) [2021] ZAKZPHC 82 (1 April 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Not
Reportable
Case
no: R19/21
In
the matter between:
THE
STATE
and
RITESH
BHEAM SINGH
ORDER
On
review from
the Bergville Magistrate’s Court (sitting as
the court a quo):
1. The
conviction and sentence is set aside.
2. The
matter is remitted back to the Bergville Magistrate’s Court to
commence de novo before
a different presiding officer.
REVIEW
JUDGMENT
MOSSOP
AJ:
[1] This
matter is before me on automatic review from the Bergville
Magistrate’s Court
in accordance with the provisions of section 302 of the Criminal
Procedure Act 51 of 1977 (the CPA).
[2] The
accused was charged with contravening section 65(1)
(a)
of the
National Road Traffic Act 93 of 1996 (the Act) in that he allegedly
drove a motor vehicle on a public road whilst under
the influence of
alcohol. He was not legally represented and pleaded guilty to the
charge.
[3] The
learned magistrate, presiding in the matter, proceeded to question
the accused in terms of the provisions
of section 112(1)
(b)
of
the CPA to ascertain whether he correctly admitted all the essential
allegations of the charge.
[4] The
accused admitted that whilst driving his car on the evening in
question on a public road that he was involved
in a motor vehicle
collision. On the question of what he had consumed, the following was
said:
‘
COURT
Tell me, sir, had you been
consuming alcohol during the day?
ACCUSED
No, ma’am, it was just in the evening after work.
COURT
Okay, so you went for after dinner drinks?
ACCUSED
Yes.
COURT
How many drinks did you have, sir?
ACCUSED
I had four beers, ma’am.
COURT
Four beers?
ACCUSED
Yes.
COURT
And were you aware of the fact that consuming beers could influence
your ability
to drive properly and react to the necessary absence of
other drivers?
ACCUSED
Yes, ma’am.
COURT
Were you taking any medication or anything at that stage or was it
just the
beers?
ACCUSED
During lunch time I did have a few pain tablets that was for my
knees.
COURT
What type of pain tablets?
ACCUSED
I am not sure now. That was a while ago.
COURT
Is it something like a Panado or a Myprodol?
ACCUSED
It is a specific tablet that I got from my pharmacy just for my knee
pains.
COURT
Over the counter medication?
ACCUSED
Yes
COURT
Not prescription?
ACCUSED
No.’
[5] That
constituted all the questioning by the learned magistrate of the
accused on this issue. In questioning
the accused, the learned
magistrate failed to ascertain from him the circumstances under which
he consumed the alcohol, including:
(a) what
type of beer he had been drinking and what the alcoholic content of
the beer was, it being
common knowledge beer with varying
concentrations of alcohol is sold these days, including beer with
zero alcohol;
(b) what
effect the beer actually had on him and his ability to drive;
(c) the
period over which he had consumed the four beers;
(d) when
the collision that he was involved in occurred relative to his
drinking of the beers; and
(e) precisely
what medication he had taken and what its possible effects were.
[6] Regarding
the collision itself, the accused said the following:
‘
I was on my home
[sic] and due to being in the evening and the bright lights and
possibly
the alcohol that I had consumed I turned into the
other vehicle.’ [Emphasis added]
[7] In
my view, this did not constitute an unequivocal admission by the
accused that his ability to drive his motor
vehicle was impaired by
the intake of an excessive amount of alcohol. No questions were asked
of the accused by the court regarding
his ability to drive his motor
vehicle on the evening in question. Whilst the learned magistrate did
ask the accused whether he
appreciated that the consumption of the
beers could have impaired his ability to drive his motor vehicle, the
questioning, in my
view, needed to go further. The learned magistrate
ought to have ascertained that the accused admitted that the
consumption of
alcohol did impair his ability to drive his motor
vehicle, not merely that it could have impaired his ability. The
effect of the
medication consumed by the accused also should have
been explored further.
[8] In
my view, based on the aforegoing, the learned magistrate ought not to
have been satisfied that the accused
admitted that he was under the
influence of alcohol when he drove his motor vehicle.
[9] In
sentencing the accused, the learned magistrate found that
circumstances existed which did not justify the
suspension of his
driver’s license. How this was ascertained is not clear.
[10] Section
34(1)
(a)
of the Act provides as follows:
‘
(1)
Subject to section 35, a court convicting a person of an offence in
terms of this Act, or of an offence at common
law, relating to the
driving of a motor vehicle may, in addition to imposing a sentence,
issue an order, if the person convicted
is-
(a)
the holder of a licence, or of a licence and permit, that such
licence or licence and permit be suspended for such
period as the
court may deem fit or that such licence or licence and permit be
cancelled, and any such licence shall be dealt with
as provided in
subsection (3) . . .’
[11] Section
35 of the Act provides 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; or
(iii) a
third or subsequent offence, for a period of at least ten years,
calculated from the date of sentence.
(2) . .
.
(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), 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.’
[12]
Of
these two sections, section 34 is the dominant section. By the use of
the words, ‘(s)ubject to section 35’ in section
34, the
legislature sought to qualify the unlimited discretion of a court to
order the suspension of an offender’s driving
licence ‘for
such period as the court may deem fit’. The limitation is that
in the case of an offender who has contravened
any of the provisions
of the Act specified in section 35(1), the court may not, subject to
sub section (3), suspend the offender’s
driving licence for any
time period shorter than the periods specified in sub sections (i) to
(iii) of section 35(1).
[1]
[13]
The
accused was convicted of contravening section 65(1)
(a)
of the Act, an offence that falls within the provisions of section
35(1)
(c)
of the Act. Being a first offender insofar as the offence
contemplated by the provisions of section 65(1) of the Act is
concerned,
[2]
the accused was faced with the compulsory suspension of his driving
licence for a minimum period of at least six months in terms
of the
provisions of section 35(1)(i) of the Act. The only way that
consequence could be avoided was if the accused placed evidence
under
oath before the learned magistrate that was sufficiently compelling
to justify not suspending his driving licence, alternatively
shortening the period of suspension.
[14] After
conviction, the court addressed the accused as follows:
COURT
Sir, you may now address me in mitigation of sentence. What that
means is
that you must place personal circumstances before me which
will enable me to arrive at an appropriate sentence. You may do so by
giving evidence under oath and/or calling witnesses.
ACCUSED
Yes, ma’am.
COURT
If you do so you will be cross-examined by the State. You may also
address
me from where you stand. Do you understand, sir?
ACCUSED
Yes, ma’am.
COURT
How old are you, sir?’
[15]
It
is evident that after explaining to the accused that he had two
alternatives, the court did not ask the accused what his election
was, but assumed that he chose to address the court from the dock and
not give evidence under oath. Significantly, the court did
not inform
the accused of the mandatory suspension of his driving licence and
that to convince the court not to suspend his licence,
it was
necessary that he place evidence before the court under oath. The
accused did not advance any reasons why his licence should
not be
suspended nor was he asked any questions, whether under oath or not,
regarding whether his driving licence should be suspended
or not. It
is important to bear in mind that the suspension of a driving licence
is not simply an administrative act but it is
an integral part of the
punishment meted out to an accused person.
[3]
How the learned magistrate arrived at the conclusion that she did is
accordingly not clear.
[16] From
the transcript of proceedings it appears that the accused was ‘in
a bit of a hurry to fetch children
from school’ and the matter
appears, generally, to have been approached with some degree of haste
by the court. Magistrates
are enjoined to take their time in dealing
with matters to ensure that there is no failure of justice. Whilst
the convenience of
the accused is a valid consideration amongst other
issues, the proper administration of justice must not be sacrificed
at the altar
of such convenience.
[17] I
am accordingly not satisfied that the proceedings were in accordance
with justice. In the result, the following
order is made:
1. The
conviction and sentence is set aside.
2. The
matter is remitted back to the Bergville Magistrate’s Court to
commence de novo
before a different presiding officer.
MOSSOP
AJ
I
agree:
SEEGOBIN
J
[1]
S
v Van Rooyen
2012
(2) SACR 141
(ECG), para 12.
[2]
S
v Van Rooyen
,
supra, para 27.
[3]
S
v Mpongoshe
[2002]
2 All SA 88
(E).