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[2015] ZAGPPHC 572
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S v Lepuru and Others (A394/15) [2015] ZAGPPHC 572 (11 June 2015)
1
I
N
THE
HIGH
COURT OF
SOUTH
AFRICA
(NORTH GAUTENG
HIGH COURT
I
N
PRETORIA)
11/6/2015
DATE:
10 JUNE 20
15
NOT REPORTABLE
NOT OF INTEREST TO TOHER
JUDGES
I
n
the matter
between
STATE
vs
Case
no:
Special
Review
no:
RONALD
LEPURU
C1
1
75/2014
2/2015
ASH
I
M
C108/2015
3/2015
RAMNAYAN
JACOBUS
C106/2015
4/2015
ERASMUS
NORMAN
JANSE
C31/2015
5/2015
VAN
RENSBURG
MBHEKENI
MASEKO
C1720/2015
6/2015
CYNTHIA
ZANELE
C1651/2014
7/2015
SHABANGU
MAKOPOTSA
TEBELE
C105/2015
1
0/2015
JOSEPH
MASHA
C33/2015
1
1
/2015
MUZETHU
DUZE
C1719/2014
1
2/2015
MAHALTSI
C1530/2014
13/2015
MOEKETSI
REVIEW JUDGMENT
JORDAAN, J:
These 10 matters were sent on "Special Review''. The accused
persons were convicted in terms of
section 112(1)(a)
of the
Criminal
Procedure Act 51 of 1977
for contravening
section 59(4)(b)
read with
section 59(1)(a)
,
35
,
69
(3),
89
(1) and
89
(3) and regulation 292(c) of
The National Road Traffic Act 93 of 1996 (as amended) that is
exceeding allowed speed limit.
They were sentenced to a fine to be paid within thirty (30) days. The
Presiding Acting Magistrate made no order regarding the drivers'
license.
In the matter of Norman Janse van Rensburg; Cynthia Zanele Shabangu;
Muzethu Duze and Mahlatsi Moeketsi the accused persons'
constitutional
rights to legal representation in terms of section
35(3) (g) of The Constitution of the Republic of South Africa, Act
108 of 1996
read with 73 of the
Criminal Procedure Act 51 of 1977
, as
amended were not explained on their first appearances before the
Court. Their rights were only explained on the date their
pleas were
recorded.
Section 112
reads as follows:
(1).
Where an accused
at
a
summary
trial in any court pleads
guilty to the offence charged, or
to
an
offence of which he
may be convicted on
the
charge and prosecutor
accepts
that
plea-
(a)
The
presiding
judge,
regional magistrate, or magistrate may,
if he or she is of the opinion that the offence does not merit
punishment
in any form of detention without the option
of
a
fine
or
a
fine
exceeding the amount determined by the Minister from
time to time by notice in the Gazette, convict the accused in
respect of the offence to
which he or she has pleaded guilty on his or her plea only and-
(i)
impose any
competent
sentence,
other
than imprisonment
or any
other
form
of detention
without the option of
a
fine or
a
fine exceeding
the amount determine
by the Minister from time to time by notice in the Gazette; or
(ii)
deal with
the accused
otherwise in accordance with the
law;
The sentence imposed after accused persons pleaded guilty in terms of
section 112(1)(a)
of Act 51 of 1977 is not in accordance with justice
because the Presiding Magistrate did not impose an alternative
periodical sentence
(imprisonment) in terms of section 276 (1)(c) of
Act 51 of 1977.
Section 35
of the
National Road Traffic Act 93 of 1996
reads as follows:
On
conviction of
certain
offences
licence
and
permit
shall
be
suspended for
a
minimum period and learner's or driving licence may
not be obtained:- (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 59(4)
, in 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.
(3).
If
a
court
convicted
any
person
of
an
offence
referred
to
in
subsection
(1) is satisfied,
after the
presentation
of
evidence
under
o
ath,
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 a shorter period as the court may consider fit.
(4). 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.
The Presiding Acting Magistrate's order was supposed to read as
"suspension or disqualification of driver's licence shall
not
take effect" and not as "no order regarding driver's
licence".
The Presiding Acting Magistrate has failed to bring to the accused
persons' attention the provisions of
section 35(4)
as well as to
satisfy himself after the presentation of evidence under oath that
circumstances relating to the offence exist which
justify him to
grant an order that the suspension or disqualification of the
driver's licence shall not take effect.
Some of the cases came to the attention of the Acting Senior
Magistrate during the quality assurance inspection. Upon discussing
the matter with the Presiding Acting Magistrate he brought to his
attention that there are several cases he dealt with in
that
matter
hence
all the
mentioned cases
were
brought forward
on special
review at
the same time.
The Acting
Senior
Magistrate suggests that
the sentences
are
not in accordance with
justice
and
request
the Reviewing
judge to remit
the
cases back
to
the Presiding
Acting
Magistrate for sentence
and for the
inquiry to be held in
terms
of
section
35(3)
of the
National
Road Traffic Act
93 of
1996.
I agree with the suggestion
of the Acting
Senior
Magistrate.
The
matters
are
remitted
to
the
magistrate
for
sentence
and
for
the
inquiry
to
be
held in terms of section
35(3)
of the
National
Road Traffic Act
93
of
1996
.
_________________________
E JORDAAN
JUDGE
OF THE
HIGH COURT
I
AGREE:
___________________________
A J
BAM
JUDGE OF THE HIGH COURT