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[2015] ZAFSHC 65
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S v Patula (33/2015) [2015] ZAFSHC 65 (26 March 2015)
FREE STATE HIGH COURT,
BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 33/2015
DATE: 26 MARCH 2015
In the review between:-
STATE
And
LATSHISILE
PATULA
...................................................................................
Accused
CORAM: G.J.M. WRIGHT et S.J.
REINDERS, AJJ
JUDGMENT: G.J.M. WRIGHT, AJ
DELIVERED ON: 26 MARCH 2015
REVIEW JUDGMENT
[1] The Accused stood trial in the
Kroonstad District Court on one count of negligent driving (in
contravention of the provisions
of section 63(1) of the National Road
Traffic Act, Act 93 of 1996). The Accused was represented by an
attorney throughout the
proceedings in the trial court. He pleaded
guilty. Magistrate T.T. Monaledi imposed the following sentence on
the Accused:
A fine of R 1 500,00 or 12 months
imprisonment “which [sic] R 1 000,00 is suspended” for a
period of five years on the
condition that the accused is not
convicted of a contravention of section 63(1) of Act 93 of 1996
committed during the period of
suspension.
[2] The matter was sent to the High
Court for Special Review by the Senior Magistrate at the Kroonstad
Magistrate’s Court,
A. Mnguni. Mnguni expressed concern that
the sentence imposed may not be in accordance with justice by stating
that:
“The sentence imposed is a fine
alternatively imprisonment, a portion of the fine was suspended for
five (5) years on a condition,
the sentence does not make provision
for the suspension of the imprisonment alternative. I am of the mind
that the suspended fine
should have the imprisonment as the
alternative.”
[3] The trial magistrate gave short
reasons for the sentence he or she imposed. The sentencing judgment
mostly deals with the nature
of the Accused’s conduct (thus the
nature and seriousness of his crime). Towards the end of the
judgment, the magistrate
posed a question to the Accused’s
legal representative in the following manner: “I am not sure Mr
Ndasuka you said
your client is not in a position to pay a fine?”
This interruption creates the impression that the sentence was not
properly
considered before the judgment started and that the
magistrate was making it up as he or she goes.
[4] The magistrate fortunately did
realize that a sentence of a fine might be appropriate as a
sentencing option. Unfortunately,
this option was not properly
considered during the proceedings preceding the judgment on sentence.
It would however in the circumstances
appear to be appropriate to
impose a fine.
[5] In deciding on an appropriate
sentence, a presiding officer has to make a value judgment in an
objective manner so that it explains
the sentence. See: S v Vries
1996 (2) SACR 638
(Nm) at 640 g – h. The judicial officer
imposing the sentence should therefore provide an explanation for the
sentence that
he or she decides upon.
[6] The magistrate failed to adhere to
this most basic principle of his or her function as judicial officer.
This in itself was
unfair to the Accused in that no reasons were
provided as to why the specific sentence was imposed and why it was
worded in that
specific manner.
[7] For some inexplicable reason, the
magistrate thought it prudent to only suspend a portion of the
imposed fine, and not also
a portion of the alternative imprisonment.
In S v Moyi
1994 (2) SACR 408
(T) the principle was enunciated that
when a portion of imprisonment is suspended, a portion of the fine
must also be suspended
(at 409 b – c). Logic dictates that the
reverse should follow, namely that when a portion of a fine is
suspended, a portion
of the alternative imprisonment must also be
suspended.
[8] The reason for imposing a term of
imprisonment as an alternative to a fine can firstly be found in the
purpose of imposing a
term of imprisonment in the alternative to a
fine. In S v Tsatsinyana
1986 (2) SA 504
(T) the court held that the
alternative sentence of imprisonment has a dual purpose, namely to
ensure payment of the fine and,
in the event of failure to pay, to
serve as punishment for such failure.
[9] In S v Bokbaard
1991 (2) SACR 622
(C) it was decided that if a fine is imposed to keep an offender out
of prison, the alternative imprisonment is primarily a method
of
compulsion and thus only has to be sufficient to make non-payment of
the fine problematic. If, however, the fine is imposed
to give the
culprit a chance to stay out of prison even though imprisonment is
warranted, the alternative imprisonment becomes
primarily a means of
punishment, and the term of imprisonment must be determined as if it
were the only punishment imposed.
[10] As the magistrate failed to
provide detailed reasons for the nature of the sentence imposed, it
is unclear what objective the
specific sentence has to achieve. From
the question posed during the judgment, read with the comments made
in the judgment regarding
the Accused’s conduct, the inference
can be made that the magistrate preferred not to have the Accused
serve a term of imprisonment.
If this is the correct inference, the
alternative imprisonment was merely a method to compel the Accused to
pay the fine. Imprisonment
was then not in itself considered to be
the appropriate sentence.
[11] The implications of the judgment
in the manner it has been worded should be considered. Should the
Accused not pay the R 500,00
that has not been suspended, the result
of the present wording of the sentence might lead to him having to
serve the full period
of 12 months alternative imprisonment. In the
circumstances of the present case this will be an injustice to the
Accused as 12
months imprisonment in the circumstances of the present
matter appears harsh. In the premises, a portion of the term of
alternative
imprisonment should also be suspended so as to ensure
that the sentence as a whole is appropriate in the circumstances.
[12] The possibility also exists that
the Accused may offend again, inviting a situation where the portion
of the sentence which
had not been suspended will come into
operation. Should that occur, the suspended portion of the fine (R 1
000,00) and/or the
period of alternative imprisonment may become a
reality. It may well be that the Accused may then be unable to pay
the fine and
he will then have to serve the 12 months imprisonment.
[13] In considering the appropriateness
of the 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 portion of
the sentence. See: S v Rooi
2007 (1) SACR
668
(CPD) at 671 a – b. It is the whole of the sentence that
should be appropriate in the circumstances of the matter.
[14] Whichever way one view the matter,
the 12 months imprisonment is problematic and inappropriate in the
circumstances.
[15] The period of suspension ordered
by the magistrate is 5 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 dictum 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.
[16] 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 3 years would be
more appropriate.
ORDER
The following orders are made:
1. The conviction is confirmed.
2. The sentence is set aside and
substituted with the following:
“A fine of R 1 500,00 or 12
months imprisonment of which R 1 000,00 or 8 months is suspended for
a period of 3 years on condition
that the Accused is not convicted of
negligent driving in contravention of section 63(1) of Act 93 of 1996
committed during the
period of suspension.”
2. No order is made in terms of section
34 of Act 93 of 1996.
G.J.M. WRIGHT, AJ
I agree.
S.J. REINDERS, AJ