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[2007] ZANCHC 10
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Bosman and Others Van Wyk and Others (1124/06) [2007] ZANCHC 10 (9 February 2007)
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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case
Nr: 89/2007
Magistrateâs
Case Nr: 10/07
Case
Nr: M980/07
Date
delivered: 14/09/2007
In
the matter between:
The
State PLAINTIFF
and
Piet
van Wyk RESPONDENT
Coram:
Olivier J et Mokgohloa AJ
JUDGMENT
Olivier J:
The accused was convicted in the
magistrateâs court of having driven a motor vehicle with
â
defective
â
lights on a public road in contravention of the provisions of the
Road Traffic Act, 93 of 1996, read with regulation 157 (1)
(a) of
the regulations promulgated in terms of section 75 of the Road
Traffic Act.
He was sentenced to a fine of
R500,00 or, in default of payment, two years imprisonment, wholly
suspended for three years â
on
condition accused will not be convicted of driving a vehicle with
defective lights during the period of suspension
â.
The acting magistrate who had
imposed the sentence submitted the matter for special review and
remarked that the intention had been
â
to
impose alternative imprisonment of two months, but inadvertently
wrote/said two
years
â.
Apart from the fact that the
magistrate had not intended to impose imprisonment for a period of
two years (even if suspended), such
a sentence would in any event
have been grossly disproportionate to the offence, assuming that the
accused was a first offender.
It would also appear as though
imprisonment for a period exceeding one year for this type of
offence would in any event not have
been competent (see section 89
(6), read with section 89 (1) and the definition of the phrase â
this
Act
â in section 1, of
the Road Traffic Act, as well as section 75 (5) (b) and the
regulations). It is therefore clear that the sentence
has to be set
aside.
It is not clear when the magistrate
discovered the error, but it is assumed that it would not have been
possible for the magistrate
to correct the sentence in terms of the
provisions of
section 298
of the
Criminal Procedure Act, 51 of 1977
.
The condition of suspension is also
not in accordance with the provisions of
regulation 157
(1) (a), in
terms whereof the offence would only be committed if the vehicle is
driven on a public road. The word â
defective
â
also does not appear in
regulation 157
(1) (a).
In the circumstance
the following order is made:
The sentence is set
aside and substituted with the following sentence:
â
R500,00 or two months
imprisonment, wholly suspended for a period of three years on
condition that the accused is not convicted of
the offence of a
contravention of
regulation 157
(1) (a) of the regulations
promulgated in terms of section 75 of the Road Traffic
Act, 93 of 1996, committed within the period of suspensionâ
.
________________________
C
J OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
I
agree:
________________________
F
E MOKGOHLOA
ACTING
JUDGE
NORTHERN
CAPE DIVISION