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[2021] ZAKZPHC 10
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S v Dlamini (R52/21) [2021] ZAKZPHC 10 (12 December 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
REVIEW
CASE NO.: R52/21
MAGISTRATES
COURT CASE NO.: R581/20
In
the matter between:
THE
STATE
and
XOLANI
GODFREY DLAMINI
REVIEW
JUDGMENT
Delivered
on ………………
Mngadi,
J
[1]
This is an automatic review in terms of s 302(1)(a)(ii) of the
Criminal Procedure
Act, Act 51 of 1977 (the Act) emanating from
Madadeni Magistrate’s court(Mr. G E Godden). 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 for 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 12 May 2021, I received the record of the proceedings from
Madadeni 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 (1) read with ss1,64,74,
76, 90(1)(a), 90(2)(a) and 90(3) of the National Land Transport Act
No. 5 of 2009 (the NTLA).
It alleged that upon or about 16
December 2020 the accused did wrongfully and unlawfully operate a
road-based public transport
service by conveying for reward fare
paying passengers by means of a Toyota Minibus Hiace motor vehicle
having a licence number
NN42518 on or upon an unnamed road which is a
public road in the magisterial district of Madadeni without being a
holder of a permit
or operating licence issued in respect of the
vehicle or in the case of a temporary replacement of the vehicle; the
necessary written
authorisation in terms of s74 of the NLTA.
[4]
The accused elected to conduct his own defence. The charge was
put to him. He
pleaded guilty to the charge. The
magistrate advised the accused that he would put certain questions to
the accused
in order to ascertain whether he admitted all the
allegations in the charge and whether he is guilty in law of the
offence.
Further, the learned magistrate explained to the
accused that if the court is not so satisfied, a plea of not guilty
shall be entered
and thereafter the State shall be afforded a chance
to lead evidence against him. The learned magistrate omitted to
advise
the accused that he had a right to elect not to answer any
question put to him.
[5]
The learned magistrate proceeded to question the accused as
follows:
‘
Court:
Do you know why you are before this Court today, sir ?
Accused:
Yes.
Court:
Why are you here, sir?
Accused:
The motor vehicle was found operating without the permit.
Court:
Are you the owner of this vehicle?
Accused:
Yes.
Court:
When was it found?
Accused:
16 December 2020.
Court:
Were you driving this vehicle on the day in question?
Accused:
No, I was not the driver.
Court:
But the vehicle belongs to you?
Accused:
Yes.
Court:
What is the registration number of this vehicle?
Accused:
NN 42518.
Court:
And where was this vehicle apprehended, sir?
Accused:
Section 1 by the robot.
Court:
Is that at Madadeni ?
Accused:
Yes.
Court:
And it is within the jurisdiction of this Court?
Accused:
Yes.
Court:
What was this vehicle doing, sir?
Accused:
It was operating loading passengers.
Court:
Why was it loading passengers?
Accused:
I was desperate; I am still trying to fix up the necessary documents
for this motor vehicle. I was desperate
so, I needed money to
continue fixing the necessary documentation for the motor vehicle.
Court:
So, you are operating a taxi ?
Accused:
Yes.
Court:
That was for reward?
Accused:
Yes.
Court:
And you knew your conduct was unlawful ?
Accused:
Yes. I knew.
Court:
It is punishable by law?
Accused:
Yes I knew that it is punishable by law.’
[6]
The learned magistrate after the prosecutor indicated
that the facts were in accord with the facts in possession
of the
State, indicated that he was satisfied that the accused admits all
the elements of the offence, and found the accused guilty
as charged.
[7]
The State proved against the accused two previous
convictions, namely; a previous conviction of reckless or
negligent
driving committed on 12 May 2006 and one for driving a vehicle whilst
concentration alcohol in blood was more than the
prescribed maximum
allowed which was committed on 19 December 2009. The accused in
mitigation of sentence addressed the court
and placed on record his
personal circumstances. The learned magistrate asked the
accused how many vehicles he had; whether
they operated as taxis, how
long he had the vehicle in question and where did he get it from, and
whether he has been operating
the vehicle in question as a taxi since
he got it two years ago without a licence. In my view, since
the accused addressed
the court, it was uncalled for and irregular
for the learned magistrate to ask the accused the questions about
other vehicles and
for how long he had been operating the vehicle in
question without a permit.
[8]
The accused stated that he earned R1 000 per
month from repairing vehicles for other persons.
The Prosecutor
did not lead any evidence in aggravation of sentence and he did not
address the court opting to leave the matter
in the hands of the
court. The learned magistrate in the judgement on sentence as
aggravating factors stated the following:
1.
The crime was prevalent in the district. There are two or three
matters on the roll daily in each of the three courts
sitting.
2.
The offence contributes in creating wars between taxi associations
resulting in civilians and taxi owners hurt or killed.
The taxi
associations are partaking in the commission of the crime in that
they place vehicles on the routes without permits.
3. There
is resistance to the type of crime in that they are usually repeat
offenders. Perpetrators plead guilty for
their vehicles to be
released to them. They resume operating and they used the
income to pay off the fine. It is a
lucrative business for
them.
4.
The court is concerned to bring the issue under control but there is
strong resistance from the taxi associations and the
taxi owners.
5.
The court has to create a deterrence and hand down sentences to gain
trust of the community before the community takes
the law into their
own hands.
[9]
The learned magistrate did not in the judgment on
sentence indicate any factors he found to be mitigating
factors. The
fact that the accused could be regarded as a first offender and that
he pleaded guilty and played open cards with
the court were not
mentioned. The learned magistrate imposed on the accused the
following sentence: ‘Ordered
to pay a fine of ten
thousand rand (R10 000) or twelve months imprisonment and a
further two years imprisonment, which is
wholly suspended for a
period of five (5) years on condition that you are not again found
guilty of contravening section 50 of
the National Road
Transport Act 5 of 2009 or competent offence during the period of
suspension.’
[10]
The learned magistrate when I enquired whether the
sentence was appropriate stated in his statement the factors
he
mentioned in the judgement on sentence as aggravating factors.
He added that he took judicial notice of the inherent problems
caused
by taxis operating without permits. He said he was a product of
the taxi industry in that his parents were in the
taxi industry.
He was raised in and exposed to the taxi industry. He added that to
mitigate the severity of the sentence
for the accused he waived the
payment of impounding fee.
[11]
In my query to the magistrate dated 19 May
2021, I requested the Deputy Director of Public Prosecutions
in the
province to furnish a memo whether the sentence imposed by the
learned magistrate was appropriate or not after considering
the
statement of the learned magistrate. I had not, as on 11
November 2021, received any memo. The magistrate’s
response was received on 25 October 2021 and the delay was attributed
to systematic matters. The courts repeatedly implore
that
delays in dealing with automatic reviews should be avoided. It
follows that those in charge with the administration
of justice must
enforce consequence management measures to ensure that there are no
delays.
[12]
The sentence in the transcript of the record
of the proceedings differs from the sentence recorded
in the J4 (the
review case covering sheet). The transcript indicates a fine in
the sum of R10 000 whereas J4 indicates
a fine of R8 000.
In the transcript, nothing is recorded relating to impound fees.
J4 indicates that impound fees
were not waivered. In the
statement in response to the query the learned magistrate stated that
impound fee was waived.
As one of the condition for the
suspended portion of the sentence reference is made to a competent
offence. There is no explanation
of what is meant as a
competent offence.
[13]
The learned magistrate in his statement
concedes that the sentence imposed is incompetent in
that it exceeds
the maximum penalty prescribed in the NLTA. In addition, the learned
magistrate concedes he had no basis to declare
the accused in terms
of s103 of the Firearms Control Act 60 of 2 000 unfit to possess
a firearm licence.
[14]
In
S v Mhlongo
2016(2) SACR 611(SCA) at [9], the court held that a sentencing court
has a duty to impose sentence in accordance with the principles
of
punishment and judicial discretion. In
S
v Zinn
1969(2) SA 537(A) the court held
that court in determining an appropriate sentence considers a triad
consisting of the crime, the
offender and the interests of the
society. The purposes of punishment are deterrence, prevention,
retribution and rehabilitation.
[15]
Section 90(2)(a) of the NLTA prescribes on conviction a penalty of a
term of imprisonment not exceeding two years, or
a fine not exceeding
one hundred thousand rand. Therefore, the sentence
imposed by the learned magistrate is irregular
on two fronts.
Firstly, it exceeds the maximum penalty of a term of imprisonment not
exceeding two years. Secondly,
it combines imprisonment and a
fine. The court in the excise of its judicial discretion,
(within the terms of the penalty
clause), can either impose a fine,
or impose imprisonment with no option of a fine, or impose
imprisonment with an option of a
fine. It cannot impose both a fine
and a period of imprisonment. See
S
v Arends
1988(4) SA 792e AT 794-5.
[16]
Sentencing is a difficult task. It requires
from the sentencing court an objective balanced approach.
The learned
magistrate holds certain views regarding the problems in the taxi
industry. He because of the views he holds
is in a crusade to
impose certain penalties on those operating vehicles without
prescribed permits. This results in over-emphasis
of
deterrence. The offender is sacrificed in the altar of
deterrence. The fact that the taxi associations are complicit
in operating without permits indicates that the approach of the
learned magistrate is misdirected. The causes of conflict
in
the taxi industry are multiple-faced and complex. The learned
magistrate must disabuse himself of what is his knowledge
of the
causes of the conflicts in the taxi industry and he must avoid taking
into consideration for sentences purposes issues not
properly raised
and debated before him. It may result in treating accused
persons as means to an end. In
S v
Dodo
2001 (1) SACR 549
(CC) at [38] it
was held that accused persons ought to be treated as ends in
themselves whereas a sentence solely focused in eliminating
a
particular evil or perceived evil treats the offender as a means to
an end which infringes his constitutional right to human
dignity.
[17]
The accused was convicted of a single
incident of operating a vehicle without a permit.
There was no
evidence of any harm caused by his particular conduct. He
pleaded guilty and he played open cards with the court.
He had
no relevant previous conviction. It is illogical to impose on
him the most severe sentence of imprisonment prescribed.
The
sentence imposed must focus on dealing with the offender before the
court not to address general ills found in the taxi industry.
[18]
The accused was in the fringes of those
operating vehicles without operating permits. He was
a small
player. In determining an appropriate fine his particular
circumstances must be considered. Individualisation
is a
recognised sentencing principle. In his situation, it must be
determined what would be an appropriate fine. The
NLTA equates
a R100 000 fine to two years imprisonment. Therefore, it
is illogical to impose two years imprisonment
in the circumstances
where a fine of R10 000 would be appropriate. There must
be some correlation between the fine and
the period of imprisonment.
[19]
The purposes of punishment includes reformation. Reformation
entails teaching the offender to mend
his ways and giving him an
opportunity to do so. One starts with the less severe sentence
not with the most severe sentence.
The approach affords the
court the opportunity to gradually increase the sentence if the
behaviour of the offender does not improve.
[20]
In the result. I am satisfied that the sentence
imposed by the learned magistrate is not in accordance with
justice
and it falls to be set aside. It is so severe that it induces a
sense of shock. Further, it is disturbingly
inappropriate and
it is founded on a misdirection.
[21]
I propose the following order:
1. The
conviction is confirmed.
2.
The sentence imposed by the learned magistrate is set aside and it is
replaced with the following sentence; ‘The
accused is sentenced
to a fine of four thousand rand (R4 000) or eight (8) months
imprisonment. Half of the sentence
is suspended for a period of
three (3) years on condition that the accused is not convicted of
contravening the provisions of
s50(1)
of the
National Land Transport
Act No. 5 of 2009
committed during the period of suspension.
The
accused in terms of
section 103(2)
of the
Firearms Control Act No. 60
of 2000
is not declared unfit to possess a firearm.
Mngadi
, J
I agree,
and it is so ordered.
Chili,
J