About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2004
>>
[2004] ZAWCHC 40
|
|
S v Rooi (24/127/2004) [2004] ZAWCHC 40; 2007 (1) SACR 668 (C) (21 September 2004)
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)
High Court Reference Number:
0402509
Case Number:
24/127/2004
Magistrate’s Series Number:
241/2004
In the matter between:
THE STATE
and
GREG PAUL ROOI
REVIEW
JUDGMENT
:
21 SEPTEMBER 2004
_____________________________________________________________
BOZALEK
J
:
This
matter comes before us by way of review from the Magistrates
’
Court, Cape Town, where the accused was found guilty of contravening
section 65(2)(a) read with section 89(1) and 89(2)
of the National
Road Traffic Act, 93 of 1996 (‘the Act’). The accused
was found to have driven a motor-vehicle on
a public road whilst the
concentration of alcohol in his blood was 0.22 grams per 100
millilitres.
The
accused was sentenced to a fine of R20 000 or twelve months
imprisonment suspended for five years on condition that he was not
convicted during that period of contravening section
65(1)(2)(1)(b)(sic),(2)(a) or (2)(b) of the Act.
The
accused’s driver’s licence was not suspended but he was
also sentenced to undergo 240 hours of periodical imprisonment
at
Pollsmoor Prison over a series of five weekends. I raised as a query
with the magistrate the extremely heavy fine imposed which,
albeit
suspended, appeared disproportionate both to the accused’s
income and to the general “tariff” of fines
imposed in
such matters.
In his
reply the magistrate relied on the fact that the accused had a
previous conviction for a similar offence in 1999 when he
was
sentenced to a fine of R4 000 or eight
months imprisonment, half of which was suspended. The magistrate also
stated that in sentencing
he had proceeded from the premise that the
accused could be fined R1 500, 00 “for each gram (sic) in
excess of 0.05 grams
per 100 millilitres”. Apart from the fact
that the magistrate did not follow his own sentencing prescription
(this would
have produced a fine of R25 500, 00), it goes almost
without saying that any such mechanistic sentencing formulation is
completely
inappropriate. A sentence based on such an approach, where
the sentencing officer in effect fetters his or her discretion, would
be irregular and liable to be set aside. Finally, the magistrate also
placed reliance on the
Adjustment of Fines
Act, 101 of 1991, as authorising him to
impose a fine of up to R60 000 or three years imprisonment and
expressed the view that the
fine of R20 000,00 was “in perfect
harmony” with that act. In my view, for the following reasons,
the magistrate was
incorrect not only in the view which he expressed,
but also in his understanding of the jurisdiction which he enjoyed.
Section
89(2)
of the
National Road Traffic Act provides
for a penalt
y
of a fine, in an indeterminate amount, or imprisonment for a period
not exceeding six years for contravention of,
inter
alia
, section 65(2)(a) of the Act,
namely, driving with a motor vehicle with an excessive concentration
of alcohol in one’s blood.
In terms of section 89(7) of the Act
a Magistrate’s Court is competent to impose the aforesaid
sentence of imprisonment notwithstanding
any other jurisdictional
limitation it may be subject to. In terms of section 92(1)(a) and (b)
of the Magistrate’s Court
Act, 32 of 1944, read with the
relevant government notice,
viz
Government Notice R1411 (Government Gazette 19435 of 30 October
1998), a District Magistrate’s Court may presently impose
a
fine not exceeding R60 000 and imprisonment not exceeding three
years.
The
Adjustment of Fines Act makes provision for the calculation of the
am
ount of the fine which may be imposed by
a court where the empowering legislation does not stipulate the
amount thereof. Section
1(1)(a) of the Adjustment of Fines Act, read
with the aforementioned provisions of the Magistrate’s Court
Act and the relevant
gazette, establishes the rate between the
sentence of imprisonment and the permitted fine. As the permitted
sentence of imprisonment
is six years, it follows that a District
Court may impose a fine of up to R120 000 for a contravention of
section 65(2)(a)
of the
National Road Traffic Act.
1
Accordingly
, the District Court’s
jurisdiction in respect of sentence for such a contravention provides
for a maximum fine of up to R120
000 and not R60 000 as the
magistrate considered.
T
he
fact that the fine imposed by the magistrate in the present matter
falls within the limits of a district court’s jurisdiction,
is
by no means the end of the matter. The maximum fine is not itself a
bench mark, as the magistrate appears to have reasoned.
Any fine
imposed must bear a relation to the convicted person’s means
and must fall, all things being equal, within the parameters
established by sentences imposed in similar matters where guidelines
have evolved. See in this regard
S v
Serabo and five similar cases
2002 (1)
SACR 391
(E) where it was held that the “norm” for such
sentences is a fine of R4 000 to R6 000 with an alternative of
imprisonment
for a period of between six and eighteen months. While
the suspension of the sentence does soften the punishment, the fact
remains
that the sentence may at a later stage be carried into
effect, and it must therefore be appropriate having all regard to the
circumstances
of the case, regardless of the fact that it is
suspended.” See
S v Boks
2003 (1) SACR 176
(C) at 184f-h.
In the
present case the evidence was that the accused earned R4 000 per
month. Although the alcohol content in the accused’s
blood
sample was significant, being 0,22 grams per millilitre, and he had a
previous conviction, there were no further circumstances
which
justified the imposition of such an extraordinarily high fine. In the
normal course I would have considered that a fine of
R6 000, with a
portion suspended, together with some non-custodial punishment, as an
appropriate sentence. The magistrate, however,
sentenced the accused
to periodical imprisonment which he has now served. In the
circumstances it would be inappropriate and in
fact impermissible for
the sentence to be altered in such a way that the accused is required
to pay a fine, any part of which is
not suspended, since this would
have the effect of rendering the sentence more severe.
In the
result I consider that an appropriate sentence in these circumstances
is a fine of R6 000 or twelve months imprisonment totally
suspended
for a period of five years together with the periodical imprisonment
imposed. The sentence imposed in this matter is
set aside and
replaced by the following:
A
fine of R
6 000 or twelve (12)
months imprisonment suspended for five (5) years on condition that
the accused is not convicted of contravening
sections 65(1)(a)
or
(b) or
65
(2)(a) or (b) of Act 93 of 1996 which is committed during
the period of suspension.
The
accused is sentenced to undergo 240 hours of periodical imprisonment
at Pollsmoor Prison, commencing Friday:
18/06/2004
on 18:00
25/06/2004
on 18:00
02/07/2004
on 18:00
09/07/2004
on 18:00
and
16/07/2004
on 18:00.
3. The
accused’s drivers licence shall not be suspended
.
…………………………
…...
L BOZALEK
BUDLENDER
AJ
:
I
agree.
……………………………...
G M
BUDLENDER
1
See
Terblanche
Guide
to Sentencing in South Africa
,
1999 Butterworths pp 50 and 51 and
S
v Viljoen
1999 (1) SACR 128
(W). Terblanche makes the following apt remark
regarding the wording of s1(1)(a) “Reading through it, though,
leaves one
with the district impression of an abstract painting –
the colour and shapes of the words may impress, but the true meaning
is singularly obscure” (page 51 fn 69).