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[2011] ZAFSHC 80
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S v Khumalo (138/2011) [2011] ZAFSHC 80 (26 May 2011)
FREE STATE HIGH COURT,
BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No: 138/2011
In
matter between:
THE STATE
VS
MTHETHO JOSEPH
KHUMALO
…............................................
Accused
CORAM:
KRUGER et C.J. MUSI, JJ
JUDGMENT BY:
C.J
.
MUSI, J
_____________________________________________________
DELIVERED ON:
26 MAY 2011
[1] This matter came
before me by way of special review. The magistrate requests that his
orders pertaining to the endorsement of
the accused’s driver’s
licence and the declaration of the accused as being unfit to possess
a firearm be set aside.
[2] The accused was
charged with contravening section 65 (1) of the National Road Traffic
Act 93 of 1996 (the NRTA)
viz
driving a motor vehicle while
under the influence of alcohol.
[3] The accused, who was
legally represented, pleaded guilty and was properly convicted. He
was sentenced as follows:
“
24 Months
imprisonment or R8000.00 8 months to be suspended or R2000.00 to be
suspended for 3 years on condition that accused is
not convicted of
contravention of section 63 (2) of Act 93 of 1996 to be committed
during a period of suspension.
Accused driver’s licence is
endorsed for 5 years. In terms of section 103 (1) (a) accused is
declared unfit to possess a firearm
Act 60 of 2000.”
Quoted
without emendation
.
[4] According to the
magistrate, it was brought to his attention that the endorsement of
the accused driver’s licence for
five years is not permissible
for a first offender and that section 103 of the Firearms Control Act
60 of 2000 (FCA) should not
have been applied.
[5] Sections 34 and 35 of
the NRTA govern the suspension, cancellation, disqualification and
endorsement of licences and/or permits.
[6] Sections 34 and 35
read as follows:
“
(1) Subject
to section 35, a court convicting a person of an offence in terms of
this Act, or of an offence at common law, relating
to the driving of
a motor vehicle may, in addition to imposing a sentence, issue an
order, if the person convicted is –
the holder of a licence, or of a
licence and permit, that such licence or licence and permit be
suspended for such period as the
court may deem fit or that such
licence or licence and permit to be cancelled, and any such licence
shall be dealt with as provided
in subsection (3);
the holder of a licence, or of a
licence and permit, such licence or licence and permit be cancelled,
and that the person convicted
be disqualified from obtaining a
licence, or licence and permit, for any class of motor vehicle for
such period as the court
may deem fit, and any such licence shall be
dealt with as provided in subsection (3); or
Not the holder of a licence, or of a
licence and permit, declaring him or her to be disqualified from
obtaining a licence, or
a licence and permit, either indefinitely or
for such period as the court may deem fit.
The making of an endorsement in
terms of subsection (3) may be postponed by the court issuing the
order until any appeal against
the conviction or sentence or both
has been disposed of.
Where a court has issued an order
under subsection (1) (a) or (b) the registrar or clerk of the court
shall, subject to subsection
(2), in the case where the licence –
is contained in an identity document,
endorse such licence accordingly and return the identity document to
the holder thereof;
or
is not contained in an identity
document, retain such licence and deal with it in the prescribed
manner.
35. (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 61 (1) (a), (b) or (c), in
the case of the death of or serious injury to a person;
(b) section 63 (1), if the court finds
that the offence was committed by driving recklessly;
(c) section 65 (1), (2) or (5),
where such person is the holder of a
driving licence or a licence permit, shall be suspended in the case
of –
a first offence, for a period of at
least six months;
a second offence, for a period of at
least five years; or
a third or subsequent offence, for a
period of at least ten tears,
calculated from the date of sentence”
[7] It is clear from
section 34 (1) (a) and (b) read with section 35 (1) that the court
may – after convicting a person of
contravening section 65 (1)
of the NRTA (drunken driving) and that person is a first offender –
suspend such person’s
licence for a period of at least six
months or order that the licence be cancelled. If the court orders
cancellation it may also
order that the convicted person be
disqualified from obtaining a licence for such period as the court
deems fit.
[8] It is only after the
court has made an order of suspension, cancellation or cancellation
and disqualification that the licence
of the convicted person may be
endorsed. It is not necessary for the court to order such
endorsement. It happens
ex lege
. The endorsement is triggered
by an order of suspension or cancellation and when such order is made
the clerk of the court or registrar
must automatically endorse the
licence. Endorsement cannot stand alone. In this matter no order
triggering the endorsement of the
accused’s driver’s
licence was made. The magistrate could therefore not order the
endorsement of the driver’s
licence.
[9] I initially thought
that the magistrate intended ordering the suspension of the accused’s
driver’s licence. The
record however puts the matter beyond
doubt. After the magistrate had imposed sentence the following
exchange between him and Mr
Bruintjies, on behalf of the accused, is
recorded:
“
The court is
mindful that both parties had addressed the court in terms of the
endorsement of the licence of the accused. However,
before the court
makes such a finding, is the defence going to call the accused into
the witness-stand to testify regarding his
driver’s licence?
Mr Bruintjies: The defence is not
going to call the …. (indistinct) your worship.
Court: Thank you sir. An order in
respect of the driver’s licence of the accused is as follows.
After careful consideration
of the accused on the date in question,
the harm caused, the risk imposed or posed by the accused to the
general public the consequence
thereof the court finds no reason why
the accused’s driver’s licence should not be endorsed.
And the court, accordingly,
endorses the driver’s licence of
the accused
…”
[10]
Under previous legislation endorsement was a substantive sanction
which a court had the power to order irrespective of whether
suspension or cancellation was ordered.
1
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. After the repeal of
the Ordinance, section 55(1)(a) of the Road
Traffic Act 29 of 1989
stipulated that
“
a
court convicting a person of an offence under this Act, or of an
offence at common law, relating to the driving of a motor vehicle
or
a failure to stop after or report an accident, may, in addition to
imposing a sentence, issue an order, if the person is the
holder of a
licence, that particulars of the conviction, sentence and any other
order of the court consequent thereupon be endorsed
on such licence,
and the registrar or clerk of such court concerned shall endorse such
licence accordingly;”
[11] It is clear that the
magistrate thought that he could order the endorsement of the licence
with the particulars of the conviction
and sentence. He did not
intend to order the suspension of the licence. In his letter which
accompanied the record on review he
does not state that he mistakenly
ordered endorsement instead of suspension. He just requests that the
order of endorsement be
set aside. The accused will in any event be
prejudiced if the order of endorsement is set aside and replaced by
an order of suspension
without him being heard. The order of
endorsement ought to be set aside.
[12] The request that the
order in terms of section 103 of the FCA be set aside is problematic.
The magistrate does not give any
reasons why the order should be set
aside other than that it was brought to his attention that the
section is not applicable in
this case.
[13] Section 103 (1) (j)
reads as follows:
“
Unless the
court determines otherwise, a person becomes unfit to possess a
firearm if convicted of the offence involving the abuse
of alcohol or
drugs.”
[14] In
S v Lukwe
Borchers J said:
“
It is clear
from the wide reach of section 103 (1) that the legislation intended
that unfitness to possess a firearm should automatically
follow on a
conviction of most serious offences. However, section 103 (1) also
encompasses offences which may not be serious. A
petty theft which is
sentenced by imprisonment without the option of a fine springs to
mind, so, too a minor contravention of the
laws relating to the
driving of a vehicle whilst under the influence of alcohol (section
103 (1) (j)).”
2
[15] I
agree. Moreover all contraventions of subsection (1) or (2) of
section 1 of Act 1 of 1988, where alcohol was consumed, will
involve
the abuse of alcohol.
3
Such
conviction can follow after the convicted person has committed a
relatively minor act (trespassing) or a serious act (murder).
Those
convictions will all fall within the scope of section 103(1) (j).
There is nothing in the FCA or section 103 that indicates
that
section 103(1) (j) should be interpreted restrictively to exclude
driving while under the influence of alcohol.
[16]
Abuse is defined in the New Shorter Oxford English Dictionary 4
th
Edition,
1993, as
“
An
improper usage; a corrupt practice, improper use;…misuse; make
bad use of; wrongfully take advantage of. Take (a drug)
for a purpose
other than therapeutic one…”
[17]
The consumption of alcohol (moderate or excessive) is not an offence.
Driving a motor vehicle after consuming alcohol is also
not an
offence. It is only when a person, other than a professional driver,
drives a vehicle or occupies the driver’s seat
thereof whilst
the engine is running and the concentration of alcohol in any
specimen of blood taken from any part of that person’s
body is
not less than 0, 05 grams per 100 millilitres or when the driver’s
faculties are impaired by the consumption of alcohol
that an offence
is committed.
4
[18]
In both instances the offence involves the use of alcohol and driving
of a motor vehicle after such use. It has been said that
a driver who
moderately consumes alcohol and thereafter drives a motor vehicle
while the alcohol concentration in his or her blood
is more than 0,
05 grams per 100 millilitres can not be said to have abused alcohol.
See
S
v Moeketsi Se Josing.
5
For a
contrary view see
S
v Agrippa Lucas Ngema.
6
I
disagree with the conclusion in the
Se
Josing
-matter,
that contravening section 65 (5) of the NRTA does
“
not involve
the abuse [or even the use] of alcohol.”
This
conclusion is at variance with the learned judge’s own
observation in the same matter to the effect that
“
The
offence of which a person is convicted in terms of
section 65
(5) of
the
National Road Traffic Act 93 of 1996
is dependent on an accused
having consumed alcohol at some stage prior to the driving of the
motor vehicle concerned and possibly
a number of hours before.”
The
crime is explicitly linked to alcohol use. In my view it does at the
very least involve the use of alcohol.
[19] I don’t have
to decide whether a conviction of contravening
section 65
(5) of the
NRTA is an offence that involves the abuse of alcohol.
[20] Driving a motor
vehicle while under the influence of alcohol is a different kettle of
fish. It entails driving a motor vehicle
while a person’s
faculties are impaired by the consumption of alcohol. The person’s
judgment and skill are affected
because he or she consumed too much
alcohol. It is clear from the definition of abuse that there need not
be a pattern of alcohol
abuse for it to constitute an abuse. A person
does not have to be an alcoholic in order to commit an offence
involving the abuse
of alcohol. One incident of excessive drinking
which impairs the driver’s judgment and skill and thereafter
driving a motor
vehicle is sufficient.
[21] This offence
involves the abuse of alcohol because the person engages in excessive
drinking of alcohol to the extent that his
or her faculties are
impaired and then takes the dangerous risk of driving a motor vehicle
whilst in such state. When a person
drives a vehicle while in such a
state, that person is in my view abusing alcohol.
[22]
My view is fortified by what Nicholas AJA said in
S
v Schwegmann,
albeit
in an obiter dictum, that
“
for
offences involving abuse of alcohol (e.g. driving under the influence
of liquor) the courts have often been encouraged to make
use of
periodical imprisonment.”
7
In
S
v Marius Stemmet
Cleaver
J, correctly in my view, found that drunken driving is an offence
involving the abuse of alcohol
8
.
I find that driving a motor vehicle while under the influence of
alcohol is an offence which involves the abuse of alcohol. That
being
the case the provisions of
section 103
(1) (j) of the FCA had to be
applied.
[23] The magistrate gave
the accused’s legal representative an opportunity to address
him on this issue whereafter he made
the following order:
“
In terms of
section 103
(2) of Act 60 of 2000 the accused is declared unfit to
possess a firearm.”
[24]
This order is clearly wrong. The magistrate was not supposed to
declare the accused unfit to possess a firearm. He should have
made
no order of determination in terms of section 103 (1) of the FCA and
the accused would therefore automatically become unfit
to possess a
firearm. The reference to section 103 (2) of the FCA is also wrong
9
.
The magistrate’s order should be corrected.
[25] The magistrate’s
sentence is not a model of clarity. It is difficult to comprehend and
should be clarified. The alternative
imprisonment is
disproportionately long in relation to the fine. It should also be
adjusted downward.
[26] Although the accused
was convicted of contravening section 65 (1) of the NRTA the sentence
was suspended on condition that
he is not convicted of contravening
section 63 (2) of the NRTA committed during the period of suspension.
Section 63 (2) of the
NRTA does not create an offence, It reads as
follows:
“
Without
restricting the ordinary meaning of the word “reckless”
any person who drives a vehicle in wilful or wanton
disregard for the
safety of persons or property shall be deemed to drive that vehicle
recklessly.”
The offence is created by
section 63 (1) of the NRTA which reads as follows:
“
No person
shall drive a vehicle on a public road recklessly or negligently.”
[27] The magistrate
indicates that he made a
bona fide
mistake. He intended to
state that the accused should not be convicted of contravening
section 65 (1) of the NRTA committed during
the period of suspension.
The magistrate requests that this part of this sentence be corrected.
The sentence was suspended on condition
that the accused does not
contravene a section that does not create an offence. In my view the
sentence should be corrected as
requested by the magistrate.
[28] The sentencing stage
is a very important part of a criminal trial. The sentence should be
clear and understandable. The accused
should know exactly what
his/her sentence is. Where a suspended sentence is imposed it is of
extreme importance that the accused
knows exactly what the conditions
of such suspension are.
[29] Orders pertaining to
the suspension and cancellation of the accused’s driver’s
licence and orders in terms of section
103 of the FCA should not be
made glibly. The magistrate must apply his/her mind before making
such orders. He/she must exercise
his/her discretion judicially after
considering all the facts and circumstances of the case including the
relevant prescripts of
the NRTA and the FCA. Had the magistrate
applied his mind in this matter and if he took some time to look at
the relevant provisions
of the NRTA and the FCA he would in all
probability not have made the orders that he did.
[30] The accused does not
know on which conditions his sentence was suspended. This judgment
must be brought to his attention.
[31] I accordingly make
the following order:
a) The conviction is
confirmed.
b) The sentence and
orders are set aside and replaced by the following:
(i) R8000-00 or six (6)
months imprisonment of which R2000-00 or two (2) months imprisonment
is suspended for three (3) years on
condition that the accused is not
convicted of contravening section 65 (1) of Act 93 of 1996 committed
during the period of suspension.
(ii) No order of
determination in terms of
section 103 (1) of Act 60
of 2000 is made.
(iii) The clerk of the
court must ensure that this judgment is brought to the accused’s
attention.
__________________
C. J. MUSI, J
I agree.
_________________
KRUGER,
J
/ar
1
Section
146 (a) of Ordinance 21 of 1966 of the four provinces which existed
at the time.
See
W.E. Cooper, Law (1982) volume one, p 30-32, 614.
2
2005
(2)
SACR
578 (WLD) at 580 f-g
3
Subsections
(1) and (2) of section 1 read as follows:
“
1. Acts committed under
influence of certain substances to be punishable. - (1) Any person
who consumes or uses any substance
which impairs his or her
faculties to appreciate the wrongfulness of his or her acts or to
act in accordance with that appreciation,
while knowing that such
substance has that effect, and who while such faculties are thus
impaired commits any act prohibited
by law under any penalty, but is
not criminally liable because his or her faculties were impaired as
aforesaid, shall be guilty
of an offence and shall be liable on
conviction to the penalty which may be imposed in respect of the
commission of that Act.
(2)
If in any prosecution for any offence it is found that the accused
is not criminally liable for the offence charged on account
of the
fact that his faculties referred to in subsection (1) were impaired
by the consumption or use of any substance, such accused
may be
found guilty of a contravention of subsection (1), if the evidence
proves the commission of such contravention.”
4
For
professional drivers the concentration of alcohol in the blood limit
is not less than 0,02grams per 100 millilitres.
In
the case of breath specimens a person may not drive a vehicle or
occupy the driver’s seat thereof whilst the engine is
running,
the concentration of alcohol in any specimen of breath exhaled by
such person is not less than 0, 24 milligrams per
1000 millilitres,
or in the case of professional driver, not less than 0, 10
milligrams per 1000 millilitres.
5
Case
number R719/09 KwaZulu-Natal High Court, Pietermaritzburg delivered
on 21 May 2009.
6
Case
number DR 29/09 KwaZulu-Natal High Court, Durban delivered during
June 2009 (precise date not indicated).
7
(1989)
ZA SCA 116
case number 117/89 delivered on 26 September 1989.
8
Case
number A503/2008 Western Cape High Court delivered on 13 February
2009
9
Section
103(2) reads as follows: “A court which convicts a person of a
crime or offence referred to in Schedule 2 and which
is not a crime
or offence contemplated in subsection (1), must enquire and
determine whether that person is unfit to possess
a firearm.”