Brief Summary

Criminal Law — Driving under the influence — Appellant convicted of driving while under the influence of alcohol — Sentence of 18 months' imprisonment, 9 months suspended — Appellant's appeal against sentence on grounds of severity — Court held that the magistrate failed to consider periodical imprisonment as an appropriate sentencing option — Sentence substituted with periodical imprisonment of 1,200 hours, allowing appellant to maintain employment and support family.

Comprehensive Summary

Summary of Judgment

1. Introduction

The matter was a criminal sentence appeal to the Appellate Division (now the Supreme Court of Appeal) concerning the appropriateness of the sentence imposed for driving under the influence of intoxicating liquor.

The appellant was Daniel Johannes Jacobs, and the respondent was the State. The appellant had been convicted in the Middelburg Magistrates’ Court (Transvaal) of contravening section 140(1)(a) of Ordinance 21 of 1966 (Transvaal), namely driving a motor vehicle on a public road while under the influence of “strong drink”.

Procedurally, the appellant was sentenced in the magistrates’ court to 18 months’ imprisonment, with 9 months suspended for five years on conditions, and he was also subjected to a licence-related disqualification order under the Ordinance. He appealed to the Transvaal Provincial Division against sentence only, but that appeal was dismissed. Leave was thereafter granted for a further appeal to the Appellate Division, again confined to sentence. The conviction itself was not in dispute.

The general subject-matter of the dispute was whether, in light of the offender’s circumstances and the sentencing options available, the magistrate had imposed a sentence that was excessively severe, and whether the court should have considered periodical imprisonment as a more appropriate form of custodial punishment.

2. Material Facts

The facts relevant to sentence were largely straightforward and, as presented in the appellate decision, were not materially disputed for purposes of the appeal.

During the early hours of 25 February 1983 at approximately 01h30, a police constable (Constable Botha) was disturbed by noise emanating from a hotel opposite his residence in Middelburg. On approaching the hotel, he observed people fighting outside. At that moment, he noticed a motor vehicle leaving the parking area, turning into the road, and stopping roughly ten paces later at a red traffic light.

The driver shouted a remark toward the constable. The constable approached the vehicle and found the appellant to be the driver. The appellant appeared intoxicated and was described as unsteady, with bloodshot eyes and slurred speech. The constable switched off the vehicle, removed the appellant, and took him to the charge office where a blood sample was taken.

Approximately an hour later the appellant was examined by a district surgeon, Dr Marcel Myburgh, who confirmed that the appellant was under the influence of alcohol and not in a condition to drive with the necessary care and skill. The blood analysis reflected an alcohol concentration of 0.20 grams per 100 millilitres. The appellant did not testify on the merits at trial. The sentencing court accepted that the appellant had consumed a substantial quantity of alcohol and had driven while under the influence.

After conviction it emerged that the appellant had two prior convictions for related driving misconduct, both for negligent driving. The first, on 13 January 1977 at Estcourt, resulted in a fine or imprisonment. The second, on 30 April 1982, resulted in a fine and a further term of imprisonment that was suspended on condition (including a condition relating to driving on a public road for a period of 12 months).

On sentence, the appellant testified to personal circumstances that the courts treated as material. He was 24 years old, married, with three children (including an adopted child), and his spouse was unemployed. He had stable employment with a construction company earning approximately R1 000 per month, and imprisonment would affect his capacity to maintain his family.

The magistrate treated the offence as serious, emphasised the public danger of intoxicated driving, and took into account that the offence was regarded as prevalent in the district. At the same time, the magistrate noted that the appellant’s driving in this instance had not progressed to the point of creating substantial danger before he was stopped, although the magistrate regarded this as of limited mitigating force given what might have occurred had he not been intercepted.

3. Legal Issues

The central question before the Appellate Division was whether the sentence imposed by the magistrate was excessively severe in the circumstances and whether the appellate court was justified in interfering with it.

Although the appeal arose in a sentencing context, the dispute principally concerned the application of sentencing principles to the established facts, together with an evaluative assessment of whether the sentencing court had adopted a proper approach to the available sentencing options. A key subsidiary issue was whether the magistrate’s apparent failure to consider periodical imprisonment constituted a material deficiency in approach warranting substitution of sentence.

The judgment also touched on (without deciding) the implications of possible activation of an earlier suspended sentence under section 297(9) and how that might affect the practical efficacy of imposing periodical imprisonment, as well as noting concerns expressed in the court below about the validity or breadth of the earlier suspension condition.

4. Court’s Reasoning

The Appellate Division accepted the seriousness of intoxicated driving and endorsed the magistrate’s general emphasis on its dangers and prevalence. The court agreed that the appellant’s conduct revealed irresponsible driving, and it further accepted that a sentence of direct imprisonment without the option of a fine could not be regarded as inappropriate on these facts, especially given the appellant’s prior convictions for related driving conduct and the high blood alcohol reading.

The critical point in the court’s reasoning was that sentencing entails the selection of an appropriate sentence from the lawful options available, and that in cases of this kind the courts have repeatedly encouraged the use of periodical imprisonment where suitable. Relying particularly on S v Erwee 1982(3) SA 1057 (A) and the authorities cited there, the court highlighted that periodical imprisonment is a real form of punishment which can regularly impress upon an offender the seriousness of the offence while allowing the offender to retain employment and thereby continue supporting dependants. The court treated this form of sentence as often appropriate in cases of driving under the influence.

On the record, the court found no indication that the magistrate had considered periodical imprisonment at all. The magistrate had delivered extensive reasons and cited numerous decisions about severe punishment for drunk driving, yet none dealing with periodical imprisonment. From this omission, the Appellate Division inferred that the magistrate did not consider that sentencing option. The court regarded this as a deficiency in the sentencing approach that should be corrected on appeal.

Having identified the gap, the court proceeded to determine an appropriate substituted sentence by weighing the relevant factors it considered established. It treated the following as significant in favour of a periodical imprisonment sentence: the appellant’s ability to maintain employment and support his family; that this was his first conviction specifically for drunk driving (even though he had prior negligent driving convictions); and that he did not in fact create substantial danger to others before being stopped, although the court did not treat that as eliminating the inherent seriousness of the offence. The high blood alcohol content remained an aggravating consideration, but it did not outweigh the suitability of a structured custodial sentence that would punish while limiting collateral harm to dependants.

The court also addressed, by way of cautionary observation, the magistrate’s suggestion that the State would “certainly” seek activation of the earlier suspended imprisonment. The Appellate Division stressed that activation under section 297(9) is a matter of judicial discretion, not an automatic consequence, and must be assessed in light of all relevant circumstances. It noted that, if activation were ordered and not postponed under section 297(4), section 285(5) could undermine the intended operation of periodical imprisonment. The court regarded such an outcome as undesirable, while making clear that the issue of activation was not before it for decision.

In applying these principles, the court concluded that a relatively long period of periodical imprisonment would meet the purposes of punishment in the circumstances, including deterrence and the reinforcement of responsibility, while remaining proportionate and practically appropriate. It determined that 1 200 hours of periodical imprisonment was suitable.

5. Outcome and Relief

The appeal against sentence succeeded. The Appellate Division set aside the sentence of 18 months’ imprisonment (9 months suspended) and substituted it with an order that the appellant undergo 1 200 hours of periodical imprisonment under section 285. The matter was remitted to the magistrate with directions to take the steps necessary to cause a written notice to be served on the appellant in terms of section 285(2).

In addition, the court ordered licence-related consequences under section 146 of Ordinance 21 of 1966 (Transvaal). If the appellant held a driver’s licence, it was to be suspended for 12 months from the date of the Appellate Division’s sentence; if he did not hold such a licence, he was declared disqualified from obtaining a learner’s or driver’s licence for the same period.

No costs order was made (as is typical in criminal appeals, and none was mentioned in the judgment).

Cases Cited

S v Erwee 1982(3) SA 1057 (A)

S v Bhadloo 1971(1) SA 53 (N)

S v Bothma en Andere 1963(1) SA 265 (T)

S v Nagel 1970(2) SA 483 (T)

S v Botha 1970(3) SA 407 (T)

S v Van Dyk 1970(4) SA 508 (N)

S v Rabbets 1974(1) SA 320 (K)

Legislation Cited

Ordonnance 21 van 1966 (Transvaal), section 140(1)(a)

Ordonnance 21 van 1966 (Transvaal), section 146

Criminal Procedure Act 51 of 1977, section 285

Criminal Procedure Act 51 of 1977, section 297(4)

Criminal Procedure Act 51 of 1977, section 297(9)

Criminal Procedure Act 51 of 1977, section 285(2)

Criminal Procedure Act 51 of 1977, section 285(5)

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that, while imprisonment was not inappropriate for the offence of driving under the influence in the circumstances of the case, the sentencing court’s approach was deficient because it did not appear to have considered periodical imprisonment, a recognised and often suitable custodial option in such matters.

The court substituted the sentence with 1 200 hours of periodical imprisonment and confirmed a 12-month licence suspension or disqualification under the applicable provincial ordinance, calculated from the date of the appellate sentence. The court further directed that the procedural requirements for implementing periodical imprisonment be carried out by the magistrate in terms of the relevant statutory notice provisions.

LEGAL PRINCIPLES

The judgment applied the principle that sentencing must be determined with reference to all lawful sentencing options and that an appellate court may intervene where the sentencing court’s approach reflects a material deficiency, including an apparent failure to consider a relevant sentencing alternative.

It reaffirmed the established approach that periodical imprisonment can be a substantial and appropriate punitive measure, particularly in cases of driving under the influence, because it combines real deprivation of liberty with the practical advantage that an offender may retain employment and continue supporting dependants, while repeatedly confronting the consequences of the offence over time.

The judgment also applied the principle that the activation of a suspended sentence under section 297(9) is discretionary and not automatic, and that any activation must be evaluated in light of all relevant circumstances. The court further highlighted that procedural and statutory interactions (including those affecting the operation of periodical imprisonment) may bear on how sentencing outcomes function in practice, even where those issues are not directly decided on appeal.

S v Jacobs (443/84) [1986] ZASCA 61; [1986] 2 All SA 477 (A) (28 May 1986)