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[2013] ZAFSHC 93
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S v Swartz (86/2013) [2013] ZAFSHC 93 (13 June 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Special Review No. :
86/2013
In
the review between:
THE
STATE
versus
SIMON
SWARTZ
_____________________________________________________
CORAM:
KRUGER, J
et
LEKALE, J
_____________________________________________________
JUDGMENT BY:
LEKALE, J
DELIVERED ON:
13 JUNE 2013
_____________________________________________________
[1] On 10 March 2011 the
accused appeared before the Hennenman Magistrates’ Court on the
charge of contravening the provisions
of section 59(4) of the
National Road Traffic Act 93 of 1996 (the Act) in that he exceeded
the prescribed speed limit on a public
road by travelling at 150 km
per hour in a 100 km per hour zone. He, thereupon, paid the R2 000,00
fixed by the prosecutor as an
admission of guilt fine. The presiding
magistrate, thereafter, confirmed the admission of guilt fine and, as
such, did not hold
an enquiry in terms of section 35(3) of the Act to
determine whether or not there existed cause, in law, for not
suspending the
accused’s driving licence as directed by section
35(1) (aA) (ii) of the Act insofar as the accused exceeded the
applicable
speed limit by more than 40km per hour.
[2] The learned
magistrate has since realised that, in terms of the practice
obtaining in his district, an admission of guilt should
not have been
fixed in the instant matter because the accused exceeded the speed
limit by more than 40 km per hour and, further,
that an enquiry in
terms of section 35 of the Act should, in the circumstances, have
been held. He, therefore, invokes the provisions
of
section 304(4)
of
the
Criminal Procedure Act 51 of 1977
as amended (the CPA) and
requests that:
“
The
admission of guilt payment be set aside to enable the court to
attempt to trace Mr Swartz and hold the enquiry.
”
[3] The learned
magistrate, further, opines that:
“
The other
option I have is to trace Mr Swartz and request him to present
himself here at court for the enquiry to be held. (This
could be done
without having the admission of guilt set aside.)
”
[4]
Section 304(4)
of the
CPA is a vehicle through which matters which are not reviewable in
the ordinary course may be brought to the attention of
the reviewing
court if the proceedings, in which sentences were imposed, were not
in accordance with justice. (See
Hiemstra’s Criminal
Procedure
at 30-24.)
[5] Where suspension of a
licence or permit is mandatory, a court convicting a person of the
relevant contravention is obliged,
as of law, to comply with the
prescripts of the law without any prompting from the prosecution,
unless there exists cause, in the
form of evidence under oath, for
deviating therefrom. Failure to comply amounts to a failure of
justice warranting special review
in terms of
section 304(4)
of the
CPA. (See
S v Botha
2013 (1) SACR 353
(ECP) and
S
v Tshabalala
2011 (2) SACR 505
(KZN).
[6] An enquiry is,
therefore, indicated in the instant matter insofar as, upon
conviction, suspension of a driving licence or permit
follows as a
matter of law in the absence of sworn evidence to the effect that it
is not justified. The option of requiring the
accused to appear for
an enquiry in terms of section 35(3) of the Act without confirmation
of the admission of guilt fine first
having been set aside is not
available in the instant case, because the learned magistrate is
rendered
functus officio
thereby. (See
S v Van Wyk
2000 (1) SACR 590
(T) at 591d.)
[7] Such an option is,
further, not indicated in the present matter because an enquiry
should precede the imposition of the sentence
insofar as section
35(4) of the Act provides that:
“
(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 subsection (3) to the
notice of such a person.
”
[8] The question arises
what factors the court takes into account in deciding that the
prescribed suspension or disqualification
shall not take effect as
contemplated in section 35(3) of Act 93 of 1996:
“
(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.”
Only persuasive facts
which are adduced by way of evidence under oath may influence a court
to order that the suspension prescribed
in section 35(1) and (2)
should not be imposed (
S v Botha
,
supra
, at par
[5]); (
S v Van Rooyen
2012 (2) SACR 141
(ECG) par [6]).
The words “after the presentation of evidence under oath”
were inserted in section 35(3) by section
12(b) of Act 64 of 2008.
[9] Points of departure:
The cancellation or
suspension of a licence is not simply an administrative adjunct to
the sentence. Its aim is to advance the
public good. It is regarded
as a significant part of the sentence (
S v Van Rooyen
,
supra
, at par [29]).
Although suspension of
the licence is in the nature of punishment (S S Terblanche,
Sentencing in South Africa
, 2
nd
Ed 401) its prime
objective is to protect the public (
S v Maloney
1968
(2) SA 281
(O) at 282 F – G;
R v Retief
1960 (3)
SA 258
(O) at 262 D – E).
Section 34
(discretionary suspension) and section 35 (mandatory suspension) are
to be read together and are not mutually exclusive
(
Van
Rooyen
,
supra
, par [10] – [12]).
The point of departure
is that the licence should be suspended for the prescribed period.
Courts should be reluctant to order
non-suspension (
S v Wilson
2001 (1) SACR 253
(T) at 259 g – h).
[10] In the United States
of America it has been held that the following factors are considered
in determining discretionary suspension
of a driver’s licence:
the nature and
circumstances of the accused’s conduct, including whether the
conduct posed a high risk of danger to the
public or caused physical
harm or damage to property;
the accused’s
driving record, including age and duration of time as a licensed
driver, and the number, seriousness, and
frequency of previous
infractions;
whether the accused did
not commit any driving offences for a substantial period before the
most recent violation or whether the
nature and extent of the
driving record indicates that there is a substantial risk that he or
she will commit another violation;
whether the character
and attitude of the accused indicate that he or she is likely or
unlikely to commit another violation;
whether the accused’s
conduct was the result of circumstances unlikely to recur;
whether a licence
suspension would cause excessive hardship to the accused and/or
dependants; and the need for personal deterrence;
any other relevant
factor clearly identified by the court may be considered as well.
(
State of New
Jersey v Laura Moran
202 N.J. 311; 997 A. 2
nd.
210; 2010 NJ Lexis 588.)
[11] The Supreme Court of
New Jersey adds that what is important is not necessarily the number
of factors that apply, but the weight
to be attributed to a factor or
factors.
[12] Other factors are:
the traffic conditions
at the time of the offence;
whether or not an
accident occurred;
whether the life of a
road user was placed in danger;
speed of travel;
the number and ages of
passengers in the accused’s vehicle;
driving ability of the
accused (
S v Mofokeng
1964 (1) SA 242
(O) at 243 H).
[13] Two aspects of South
African road traffic legislation point to the fact that at the
consideration of suspension of drivers’
licences, the offence
is central, and little, if any, weight is given to the personal
circumstances of the accused. The first aspect
relates to the
endorsement of a licence which existed under former legislation, and
the other to the new points-system, which is
only partially in
operation. I refer briefly to both:
The points demerit
system is provided for in the
Administrative Adjudication of Road
Traffic Offences Act 46 of 1998
, chapter IV, which is in operation
in Pretoria and Johannesburg only. The points are subtracted from a
driver’s licence
taking into account only the offence.
Under previous
legislation endorsement was a substantive sanction which a court had
the power to order irrespective of whether
suspension or
cancellation was ordered
(Section 146(a)
of Ordinance 21 of 1966 of
the four provinces which existed at the time. See W.E. Cooper,
Motor
Law
(1982) volume 1, p 30 – 32, 614). Suspension and
cancellation of licences were dealt with in section 146(b) of
Ordinance
21 of 1966 which provided that the order of suspension or
cancellation had to be endorsed on the licence.
[14] The prime
consideration at section 35 is the offence and the aspects thereof
highlighted above. However, the suspension is
part of the sentence
and the question whether or not to suspend and the duration of the
suspension, must be considered together
with the sentence. The court
suspending a licence must take into account the effect such
suspension will have on the daily life
of the accused (
S v
Phago
1996 (2) SACR 631
(T) at 635 d – e). Patel J, in
S v Tshabalala
2011 (2) SACR 505
(KZP) par [10]
referred only to “circumstances”. He did not limit them.
[15] Courts often decide
to order non-suspension because the accused needs the licence for
work purposes (
S v Wilson
2001 (1) SACR 253
(T) at 259
f – g). In view of the fact that section 35 refers expressly to
“circumstances relating to the offence”,
personal
factors, if relevant at all, play a minor role.
[16] To summarise:
The starting point is
that courts should be reluctant to order non-suspension under
section 35.
The suspension is a
significant part of the punishment and exists to protect the public.
The fact that the
accused needs the licence for work purposes, is a minor
consideration and by itself not sufficient to justify
non-suspension.
In the enquiry, using
evidence under oath, the court must enquire into the circumstances
listed above and, on a consideration
of all relevant circumstances,
decide whether to suspend or not.
[17] In the circumstances
of the present case, where no enquiry has been conducted, we are in
respectful agreement with the learned
magistrate that confirmation of
the admission of guilt fine is not in accordance with justice and, as
such, falls to be set aside.
ORDER
[18] The magistrate’s
confirmation of the admission of guilt fine is set aside.
[19] The matter is
remitted to the magistrate to deal with it as provided by
section
57(7)
of the
Criminal Procedure Act 51 of 1977
.
_____________
L.J. LEKALE, J
I concur.
____________
A. KRUGER, J
/spieterse