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[2015] ZAFSHC 66
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S v Mahomed (26/2015) [2015] ZAFSHC 66 (19 March 2015)
FREE STATE HIGH COURT,
BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 26/2015
DATE: 19 MARCH 2015
In the review between:-
STATE
And
IBRAHIM JUMANE
MAHOMED
............................................................
Accused
CORAM: G.J.M. WRIGHT et S.J.
REINDERS AJJ
JUDGMENT: G.J.M. WRIGHT, AJ
DELIVERED ON: 19 MARCH 2015
REVIEW JUDGMENT
[1] The Accused was found guilty of
contravening the National Road Traffic Act, Act 93 of 1996 (“the
Act”) in that he
exceeded the general speed limit. Although
the charge sheet refers to various applicable sections of the Act,
the Accused’s
conduct falls specifically within the provisions
of section 59(4)(a).
[2] The Accused pleaded guilty and the
magistrate proceeded to question him in terms of section 112 of the
Criminal Procedure Act.
Thereafter the magistrate found the Accused
guilty as charged and sentenced him to a fine of R 10 000,00 or 12
months imprisonment,
of which half is suspended for a period of five
years on condition that the Accused is not convicted of contravention
of section
89(1) of the Act during the period of suspension.
[3] It might have been more appropriate
for the magistrate to convict the Accused of contravention of the
specific section of the
Act that the Accused is found to have
contravened (59(4)(a)). However, the conviction in itself is not the
cause of concern in
this matter. As will be shown later, the
reference to section 89(1) does create practical problems for
sentencing purposes.
[4] The Accused not only pleaded guilty
but expressed remorse for his actions. It is not evident from the
sentencing judgment that
this was in any way considered as
mitigating. The Accused explained that he speeded because he
desperately needed to find a bathroom
where he could relieve his
upset stomach. The plea was accepted by the State. This explanation
by the Accused of the reasons
for his conduct further mitigates his
blameworthiness. It is not clear from the judgment that the
magistrate took this into account.
[5] In the circumstances of this case
it is the nature and (especially) wording of the imposed sentence
that causes the most concern.
[6] The magistrate clearly foresaw the
imposition of a fine as being an appropriate sentence. He went as
far as enquiring from
the Accused as to how much the Accused would be
able to afford. The Accused’s response of “R 700,00”
is so far
removed from the amount that the magistrate had in mind,
that the magistrate should have further investigated the Accused’s
ability to pay a substantial fine. The ability of an accused to pay
a particular fine must be enquired into properly. See: S
v Sithole
1979 (2) SA 67
(A) at 69 H.
[7] The magistrate also failed to
consider the possibility of deferment of payment of the fine. In S v
Maluleke
2002 (1) SACR 260
(T) it was decided that, whenever a court
has imposed a fine, it is obliged to consider the provisions of
section 297(5). As the
Accused was undefended, the magistrate was
under a particular obligation to assist him and to hold, mero motu,
an enquiry into
his capacity to pay over a period of time. See: S v
Dandiso
1995 (2) SACR 573
(W) at 577 f; S v Zwane
1997 (1) SACR 326
(W) at 329 d. Deferment may have softened the effect of the amount
of the fine.
[8] In considering the appropriateness
of a suspended sentence, regard should be had to the whole sentence,
including the part that
is suspended. The reason being that a
situation may arise where the Accused may eventually have to serve
the suspended part of
the sentence. See: S v Rooi
2007 (1) SACR 668
(CPD) at 671 a – b. It is thus the whole of the sentence that
should be appropriate in the circumstances of the matter.
Against
the background of these general principles the sentence seems unduly
harsh and inappropriate.
[9] One condition of suspension has
been imposed, namely non-contravention of section 89(1) of the Act.
Section 89(1) is a general
provision that reads as follows:
“Any person who contravenes or
fails to comply with any provision of this Act or with any direction,
condition, demand, determination,
requirement, term or request
thereunder, shall be guilty of an offence.”
[own emphasis]
[10] Suspension of part of the sentence
subject to such a generalized condition is overly broad and unfair to
the Accused. It creates
the possibility of a situation where a
contravention of one of the less serious provisions of the Act may
result in the suspended
sentence being put into operation. As a
result the Accused are punished more severely than appropriate for
the specific crime
that he has now be found guilty of.
[11] The primary aim of a suspensive
sentence with negative conditions is to deter the offender from
committing similar offences.
Courts have insisted in a large number
of judgments that the offences mentioned in the suspensive condition
must be connected
to the offence for which the sentence was imposed.
See for example: S v Mjaware
1990 (1) SACR 388
(N) at 389 g.
[12] The case of S v Van Rooyen; S v
Jantjies en ‘n Ander
1974 (3) SA 319
(NC) provide general
guidelines when imposing conditions for suspension. The following
are useful in the circumstances of the
present matter:
(i) The conditions must refer to one or
more specific offences, not to a group of offences;
(ii) Only offences which are
substantially related to the nature and the circumstances of the
offence of which the Accused has been
convicted should be referred
to.
[13] The condition must be clear and an
accused should know exactly what conduct may lead to his having to
serve the sentence.
See: S v Valashia
1973 (1) SA 934
(O); S v
Makgetha
1980 (1) SA 130
(O). By not properly defining and limiting
the conditions of suspension, the Accused was dealt with unjustly.
[14] The period of suspension ordered
by the magistrate is five years which is the maximum period allowed
for suspension. In S
v Nabote
1978 (1) SA 648
(O) at 650 H the view
was expressed that, unless special circumstances are present, a
sentence should not be suspended for the
maximum period. This
viewpoint differs from that in S v Van Rensburg
1978 (4) SA 481
(T)
at 483 G – H. The sentiments expressed in the Nabote matter
seem appropriate in the circumstances of the present matter
and are
worth following.
[15] In the circumstances of the case,
it appears unfair and inappropriate to suspend the sentence for the
maximum period of time.
Suspension for a period of three years would
be more appropriate.
ORDER
1. The sentence imposed on the Accused
on 28 January 2015 is set aside and replaced with the following:
“A fine of R 7 500,00 or six (6)
months imprisonment, half of which is suspended for a period of three
(3) years on condition
that the Accused is not convicted of the
contravention of section 59(4)(a) of the National Road Traffic Act,
Act 93 of 1996 committed
during the period of suspension.”
G.J.M WRIGHT, AJ
I agree.
S.J. REINDERS, AJ