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[2013] ZAWCHC 128
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Greeff v S (A134/2013) [2013] ZAWCHC 128; 2014 (1) SACR 74 (WCC) (10 September 2013)
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT)
Case No: A134/2013
In the matter between: Reportable
REAGAN GREEFF
APPELLANT
And
THE STATE
RESPONDENT
Coram
: SALDHANA & ROGERS JJ
Heard: 6 SEPTEMBER 2013
Delivered: 10 SEPTEMBER 2013
______________________________________________________________
JUDGMENT
______________________________________________________________
ROGERS J:
The appellant was charged in the court a quo with a
contravention of s 65(2)(a) of the National Road Traffic Act 93
of 1996
(‘the Act’) in that on Saturday 30 July 2011 in
Church Street Vanrhynsdorp he drove a vehicle at a time when the
concentration of alcohol in his blood was 0,19 grams per 100
millilitres, in other words in excess of the limit of nought, 05
grams per 100 millilitres stated in s 65(2)(a).
The matter came before the court
a quo
on 15
November 2012. The appellant was legally represented by Ms S Human.
He pleaded guilty. A statement in terms of
s 112(2)
of the
Criminal Procedure Act 51 of 1977
was read into the record, handed
up as an exhibit and confirmed by the appellant. The prosecutor
accepted the plea. No previous
convictions were proved. Ms Human
made submissions regarding the appellant’s circumstances and
called the appellant to
give evidence in which he confirmed what his
attorney had said and provided further information. In her
concluding submission
Ms Human gave an indication of the sort of
fine the appellant could afford to pay and asked in particular for
an order in terms
of s 35(3) of the Act that the automatic
suspension of the appellant’s driving licence for six months
as specified
in s 35(1)(c)(i) should not take effect. The
prosecutor proposed a partially suspended fine but contended that
there were
no circumstances which justified an order that the
driving licence not be suspended.
The magistrate proceeded to impose the following
sentence: [a] a fine of R3 000 or six months’
imprisonment; [b] a
further fine of R3 000 or six months’
imprisonment, suspended for five years on appropriate conditions;
[c] that in
terms of s 35(1)(c)(i) the appellant’s
driving licence be suspended for six months.
The appellant applied in the court
a quo
for
leave to appeal only against the suspension of his driving licence.
The application for leave was refused by the magistrate
but on 11
March 2013 this court on petition granted leave to appeal on that
aspect. In terms of
s 309(4)(b)
of the
Criminal Procedure Act
read
with
s 307
of that Act the execution of a sentence imposed by a
lower court is not suspended by the noting of an appeal. There is
authority
that this does not apply to ancillary orders such as the
suspending of a driving license and that in relation to such
ancillary
orders the common law that an appeal suspends execution
prevails (see
S v Abraham
1964 (2) SA 336
(T) and cases there
cited;
S v Kelder
1967 (2) SA 644
(T) at 648H-649B;
Hiemstra’s Criminal Procedure
p 30-53; Du Toit
et
al Commentary on the
Criminal Procedure Act
p
30-48C).
Strictly speaking, the suspension of a driving license in terms of
s 35(1)
occurs
ex lege
unless a contrary order is made
in terms of
s 35(3)
and the suspension is thus not pursuant to
an order (cf
S v Wilson
2001 (1) SACR 253
(T) at 259h). Since
we were not addressed fully on the subject, I shall assume that the
suspension of the appellant’s license
was itself suspended
pending the outcome of this appeal, which is what the legal
representatives on both sides seem to have believed.
On this
assumption the appeal has not been rendered academic by the passing
of time. In any event, it is desirable that we should
state our view
on the substance of the appeal.
Section 35 of the Act was among various provisions of
the Act amended, with effect from 20 November 2010, by Act 64 of
2008. Prior
to the amendments, sub-sections (1) and (3) read as
follows:
‘
(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 a person is the holder of
a driving licence or a licence and permit, shall be suspended in the
case of –
(i) a first offence, for a
period of at least six months;
(ii) a second offence, for a
period of at least five years; or
(iii) a third or subsequent
offence, for a period of at least ten years.
calculated from the date of
sentence.
(2) …
(3) If a court convicting any
person of an offence referred to in subsection (1), is satisfied that
circumstances exist which do
not justify the suspension or
disqualification referred to in subsection (1) or (2), respectively,
the court may, notwithstanding
the provisions of those subsections,
order that the suspension or disqualification shall not take effect,
or shall be for such
shorter period as the court may deem fit.’
By way of Act 64 of 2008 and with effect from 20
November 2010 the following amendments were made to these
provisions. Firstly,
a new paragraph (aA) was inserted into s 35(1)
so as to incorporate, among the offences giving rise to the
suspension of
driving licences, certain speeding offences in
contravention of s 59(4). That amendment is not relevant to the
present appeal.
Second, s 35(3) was amended to read as follows
(for convenience, the new wording is underlined):
‘
(3) If
a court convicting any person of an offence referred to in subsection
(1), is satisfied,
after
the presentation of evidence under oath
,
that circumstances
relating
to the offence
exist which do not justify the suspension or disqualification
referred to in subsection (1) or (2), respectively, the court may,
notwithstanding the provisions of those subsections, order that the
suspension or disqualification shall not take effect, or shall
be for
such shorter period as the court may
consider
fit.’
The substitution of the word ‘consider’ for
‘deem’ in s 35(3) appears to be purely semantic.
The
other two alterations to the language of sub-section (3) are of
greater moment. The requirement that non-suspension should not
be
ordered without the presentation of evidence under oath shows that
the lawmaker was no longer content for non-suspension to
be ordered
on grounds which had not been properly established and tested under
cross-examination. It should be emphasised, furthermore,
that not
only an accused person but the prosecution is entitled to lead
evidence on the question whether non-suspension should
be ordered.
In several cases decided subsequent to the coming into effect of the
amendments, non-suspension orders in lower courts
have been set
aside as irregular where they were made without the hearing of
evidence (see, for example,
S v Ngqabuko
2013 (1) SACR 275
(ECG);
S v Botha
2013 (1) SACR 353
(ECP)).
The other important alteration is that whereas
previously there was no limit on the circumstances to which a court
could have
regard in determining whether a non-suspension order was
justified, the lawmaker has now limited the circumstances which may
be taken into account to ‘circumstances
relating to the
offence
’ (my emphasis). Since the suspension of a driving
licence in terms of s 35(1) serves not only to protect the
public
but to punish the offender (see
S v Van Rensburg
1967
(2) SA 291
(C) at 296E-F), the circumstances which – prior to
the amendment – could properly be taken into account would
have
included all the circumstances relevant to the imposition of a
sanction of that kind: not only the circumstances of the crime would
have been relevant but also the personal circumstances of the
accused and the interests of the community. That is why one will
find, in cases decided prior to the amendment, weight being
attached, for example, to the importance to the accused person of
having a driving licence for purposes of his work or family
commitments, the fact that the accused was a first offender and so
forth. It is perfectly clear that the lawmaker, by now confining the
relevant circumstances to those ‘relating to the offence’,
has deliberately narrowed the circumstances to which regard may be
had. Unless a particular circumstance can properly and rationally
be
said to relate to the offence, it must be left out of account.
In my view, the fact that the holding of a driving
licence is of particular importance to an accused person for work or
family
reasons is not a circumstance that can properly be said to
relate to the offence. The same is true of the fact that the accused
might be a first offender. Indeed, s 35(1), in setting out the
periods of automatic suspension, expressly takes into account
whether the accused is a first, second or multiple offender. The
fact that the accused is a first offender is recognised by limiting
the automatic period of suspension of such a person’s licence
to a period of six months – if he were a second offender,
the
automatic suspension would be five years.
I must emphasise that I am talking only about the
automatic suspensions for which s 35(1) provides read with
s 35(3).
In terms of s 34(1) the court has discretionary
powers which include an order suspending a person’s driving
licence
for such period as the court deems fit. It is notionally
possible that a first offender whose licence would be automatically
suspended for six months in terms of s 35(1) might have his
licence suspended for a longer period in terms of s 34(1).
We
are not concerned in the present appeal with the circumstances which
might be relevant to the exercise of the power under
s 34(1).
In
S v Van Rooyen
2012 (2) SACR 141
(ECG), which was cited to
us in argument, the appellant’s counsel conceded that there
were no circumstances relating to
the offence which justified an
order that the automatic six-month suspension in s 35(1) not
take effect (at 155e). What
the court on appeal proceeded to
consider was whether a longer suspension was justified in terms of
s 34(1). It was in that
context that the court referred
inter
alia
to the personal circumstances of the appellant, the
hardship which the suspension of his driving licence might cause him
and his
previous conviction (a driving-related conviction which was
nevertheless found not to be a first offence for purposes of
s 35(1))
and the interests of the community. (I mention, in
passing, that the unamended version of s 35(3) is incorrectly
quoted
in para 5 of the
Van Rooyen
judgment: the words
‘relating to the offence’, which have been included in
the text of the old s 35(3) as quoted,
did
not
appear in
the unamended version.)
There was evidence in the present matter that the
appellant required his driving licence for work purposes and might
lose his
job if the licence was suspended. He had a four-year-old
child in respect of whom he paid maintenance of R500 per month. He
also
testified that he drank only on weekends and that subsequent to
the incident he has given up alcohol altogether. He was,
furthermore,
a first offender. Whatever the relevance of these
circumstances might be if a court were considering a suspension in
terms of
s 34(1), they cannot in my view be regarded as
circumstances ‘relating to the offence’ as contemplated
in the
amended s 35(3), ie circumstances relating to the fact
that on 30 July 2011 the appellant drove a vehicle in Church Street
Vanrhynsdorp at a time when the alcohol in his blood exceeded the
limit specified in s 65(2)(a).
There are nevertheless certain circumstances which do
relate to the offence and which might be thought to justify the
non-suspension
of the appellant’s licence or the shortening of
the period of suspension. The circumstances are the following:
[a] The accused drank a case of beer on the evening
of Friday 29 July 2011 and testified that on the morning of Saturday
30
July 2011 he drank a three ‘dumpies’ of beer. It was
past 18h00 on the evening of 30 July 2011 that he got into his
friend’s car to drive to the supermarket in order to buy
chicken for his girlfriend. It would thus appear that he had had
nothing to drink for about five to six hours before driving.
[b] He testified that when he got into the car he did
not feel that he was under the influence of alcohol and did not know
that
the alcohol would still be in his blood. He felt normal.
[c] He admitted that the blood specimen as analysed
showed that the alcohol level was 0.19 grams per 100 millilitres –
that
is just under four times the legal limit. There was no expert
evidence as to whether a person with the appellant’s build and
metabolism was likely to suffer significant effects from that level
of alcohol in his blood. His evidence that he did not feel
himself to
be under the influence was, however, not challenged by the prosecutor
in cross-examination. One also knows that one
often encounters cases
where the level of alcohol in an accused person’s blood is
significantly higher than in the appellant’s
case.
[d] The appellant was driving the car for a relatively
short distance in a country town. There was nothing to indicate that
the
roads on which he travelled were particularly busy. It was not
put to him in cross-examination that he had driven fast or recklessly
or had been zigzagging around.
[e] The appellant testified that a minor collision
occurred at a stop street while he was driving the car. There was
some damage
to the car he was driving (the car belonged to a friend)
but no damage to the other vehicle. The appellant testified that he
stopped
at the intersection and then pulled slowly away but that the
other car entered the intersection without stopping. The other driver
was under the influence of alcohol. The incident as he described it
was not one which showed negligent or reckless driving on his
part.
This court would be reluctant to send out a message to
drivers that light and flimsy circumstances can be relied upon to
escape
the automatic suspensions laid down in s 35(1). Drunk
driving is an enormous problem in South Africa. The deaths and
injuries
which are caused by the scourge have a huge personal and
economic toll on the country. This is no doubt why s 35 has
recently
been made even stricter. In the present case the accused’s
evidence was dealt with in cross-examination somewhat perfunctorily
and the prosecutor did not adduce any evidence on behalf of the
State to counteract that evidence. For example, medical evidence
may
have established that the appellant could not have had the blood
alcohol level he did if he had last had a drink six hours
before
driving. I venture to suggest that prosecutors should test evidence
adduced on behalf of accused persons under s 35(3)
with
appropriate vigour and should also consider whether evidence should
be adduced on behalf of the State to show why an order
of
non-suspension is not justified.
Nevertheless, on the facts of this particular case the
circumstances relating to the offence to which I have made reference
justify,
in my opinion, the making of an order in terms of s 35(3).
It is debatable whether, when such a question arises on appeal,
the
test for interference is the same as in cases of the exercise by a
trial court of its ordinary sentencing discretion –
it may be
that the appellate court is entitled to form its own view on the
merits as to whether relevant circumstances exist
and is not
confined to interference based on material misdirection and so forth
(see the majority judgment in
GK v S
[2013] ZAWCHC 76
paras
3-7, where a similar question was considered in relation to the
approach on appeal to a trial court’s find on whether
substantial and compelling circumstances exist under s 51(3)(a)
of Act 105 of 1997 to depart from a minimum sentence). On
the
assumption that on appeal a court is not entitled simply to form its
own view as to the existence or non-existence of relevant
circumstances, it is my opinion that the magistrate in this case
misdirected himself by failing to attach proper weight to the
circumstances I have mentioned and in particular the period which
elapsed from the time the appellant stopped drinking to the
time he
got into the car.
The magistrate also misdirected himself, in my
respectful view, by stating that the appellant’s version that
he was not
the cause of the collision at the intersection was merely
an allegation by him and that the other driver disputed the
appellant’s
version. The appellant did not merely make an
allegation; he gave evidence under oath as to the circumstances of
the collision
and his version was not challenged. The prosecutor did
not call the other driver as a witness. The magistrate seems to have
relied
in this regard on his knowledge of other civil proceedings
pending in the same court rather than on evidence adduced before him
in the appellant’s case.
The magistrate said that there was no necessity for the
appellant to drive the car. That is true but s 35(3) does not
go
as far as positing a test of necessity before an order under that
subsection can be made – if necessity were the test the
circumstances in which an non-effect order could be made would be
exceedingly rare.
The magistrate emphasised the seriousness of
drink-driving offences. While such offences are undoubtedly serious,
the fact is
that s 35(3) envisages that there may be
circumstances relating to such offences which nevertheless make
non-suspension
of the license justifiable. Furthermore, in the range
of offences specified in s 35(1) for which an automatic
six-month
suspension is decreed for first offenders, s 65(2)(a)
is generally by its nature less serious than, for example, driving
under the influence of alcohol in contravention of s 65(1) or
reckless driving in terms of s 63(1) or failing to stop
in
terms of s 61(1)(a) after an accident in which someone has been
killed or seriously injured.
The fact that an order is justified under s 35(3)
does not necessarily mean that there should be no suspension at all.
The
court may order a period of suspension shorter than six months.
In considering the shorter period, the court is obliged, in my
view,
to confine itself to the circumstances which make it justifiable to
depart from the automatic suspension, ie ‘circumstances
relating to the offence’. One cannot, when considering the
shorter period, bring in other considerations such as the personal
circumstances of the accused. That would defeat the manifest purpose
of the amended s 35 as a whole, which is that there
should be
an automatic suspension of the driving license for the specified
offences unless the circumstances relating to the
offence justify no
suspension or a shorter period of suspension. As it happens, in the
present case I consider on balance that
the circumstances relating
to the offence warranted a complete non-suspension of the
appellant’s driving licence.
SADANHANA J:
I concur. The appeal is upheld. The order of the court
a quo
in terms of section 35(1)(i) is set aside and replaced
with the following order: ‘In terms of s 35(3) the period
of
six months for which the accused’s driving licence would
otherwise be suspended in terms of s 35(1)(i) is ordered not
to
take effect.’
______________________
SALDHANA J
_____________________
ROGERS J
APPEARANCES
For Appellant: Adv JC Louw
Cape Town
For Respondent: Adv SFA Raphels
Office of the Director of Public Prosecutions
Cape Town