S v Maroro (1393/2000) [2002] ZANCHC 1 (1 January 2002)

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[2002] ZANCHC 1
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S v Maroro (1393/2000) [2002] ZANCHC 1 (1 January 2002)

Reportable: Yes /
No
Circulate to
Judges: Yes / No
Circulate
to Magistrates: Yes / No
IN THE HIGH
COURT OF SOUTH AFRICA
(Northern Cape
Division)
High Court Review Case
No: 593/2002
Case
No: 1393/2000
Date
delivered
:
In
the review matter of
:
THE
STATE
versus
GEORGE
MARORO ACCUSED
Coram:
MAJIEDT
J
et
SONN
AJ
JUDGEMENT
ON SPECIAL REVIEW
MAJIEDT
J:
This
matter was placed before me on special review by the Magistrate with
a request that both the conviction and sentence be corrected.
The
accused was charged with reckless or negligent driving in terms of
the relevant provisions of the Road Traffic Act. After
evidence was
adduced, the Magistrate noted in his judgement that “
the
accused is guilty as charged”
.
The conviction is quite obviously not in order, since the accused
had to be convicted either of reckless or of negligent driving.

Reckless driving entails
dolus
,
whereas
culpa
forms
the basis of negligent driving. This mistake was identified by the
Magistrate in the course of an inspection which had occurred
at his
office. It is accordingly clear that the conviction ought to be set
aside and substituted with one of guilty of negligent
driving, as
the evidence had quite clearly and beyond reasonable doubt
established this offence. In any event, the accused had
under
cross-examination admitted that he had driven negligently.
The
problem with the sentence is that the Magistrate, in addition to
imposing a fine of R1000.00 and an alternative of suspended
imprisonment, had also issued an order for compensation in terms of
the provisions contained in sec 300 of the Criminal Procedure
Act of 1977 (”
the
Act”
).
The said compensatory order reads as follows: “
Accused
is ordered to compensate the complainant for his damages of
repairing the vehicle by paying him a sum of one thousand three
hundred rands to the clerk of the court, Kathu on the 29
th
of June 2001 in terms of section 300 of Act 51 of 1977”
.
The Magistrate has correctly pointed out that that part of the
order which reads: “
to
the clerk of the court Kathu on the 29
th
June 2001”
is incorrect.
A
court may not lay down a date before which compensation should take
place unless it is a condition of suspension;
See:
S
v Nyati 1978(4) SA 26 (T).
In
this matter the magistrate had indeed suspended the alternative term
of imprisonment for a period of three years and the usual
remedy to
cure the deficiency in the sentence would be to amend his order to
read “
within
three years of date of sentence.
”
The magistrate’s proposal therefore that the date be deleted in
its entirety is not correct. Furthermore, it is not correct
to order
that the compensation should be paid to the clerk of the court at
Kathu. A compensatory order in terms of sec 300
of the Act has
the effect of a civil judgement (see sec 300(3)). The
compensation is payable directly to the complainant and
in default of
such payment the remedies relating to a civil judgement would follow
ex
lege.
The
correct course to follow would be to delete the words “
to
the clerk of the court Kathu”
from
the Magistrate’s order and to substitute the words “
on
the 29 June 2001
”
with the words “
within
three years of the date of sentence (19/6/2001)”.
I
have noted the Magistrate’s comment that the accused has in the
meantime paid the compensation as ordered. It is, however,
imperative that the order be corrected for future reference and
proper recordal on the SAP 69.
In
the premises the conviction is set aside and the accused is
convicted of negligent driving in terms of the provisions contained
in section 63 of Act 93 of 1996. The sentence is set aside and
substituted with the following: The accused is sentenced to a
fine
of R1000.00 (one thousand Rand) and in default of payment the
accused is to undergo 3 (three) months imprisonment which is
wholly
suspended for 3 (three) years on condition that the accused is not
convicted of contravening section 63 of Act 93 of 1996
(reckless or
negligent driving) committed during the period of suspension and on
further condition that accused pays to the complainant
compensation
of R1300.00 (one thousand three hundred Rand) as ordered hereafter.
The accused is ordered to compensate the complainant
for his damages
of repairing his vehicle in the sum of R1300.00 (one thousand three
hundred Rand) within 3 (three) years from the
date of the imposition
of the sentence (19/6/2001) in terms of the provisions contained in
section 300 of Act 51 of 1977.
___________
SA
MAJIEDT
JUDGE
I
concur:
____________
PHF
SONN
ACTING
JUDGE