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[2011] ZAWCHC 541
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Magwaxaza v S (A207/11, A398/11) [2011] ZAWCHC 541 (21 October 2011)
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IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE HIGH
COURT, CAPE TOWN)
CASE
NO
: A207/11 &
A398/11
DATE:
21 October 2011
In
the matter between:
MICHAEL
MAGWAXAZA
Appellant
and
THE
STATE
Respondent
JUDGMENT
SALDANHA, J
The appellant, Mr Michael
Magwaxaza, was convicted in the magistrate's court of Cape Town on
the 25th of November 2010 on a charge
of reckless driving in terms of
Section 61(1) read with sections 1, 69(1), 89(1) and 93 of the
National Road Traffic Act number
93 of 1996 (the Act). The appellant
was sentenced on the 21st of April 2011 to a term of
imprisonment of three years and his
license was permanently revoked.
The appellant sought
leave to appeal against the sentence but the application was refused
by the magistrate. Leave to appeal was
subsequently granted on
petition to this division of the High Court. The charge arose out of
an incident on the 7th May in
which the appellant was alleged to
have negligently or in a reckless manner to have driven a vehicle, a
white Toyota Quantum with
registration number CA655364 on a public
road, being Lower Church Street, Woodstock, Cape Town. The appellant
was legally represented
throughout his trial. He initially pleaded
not guilty to the charge and chose not to disclose the basis of his
defence.
At
the subsequent hearing the appellant made various admissions in terms
of Section 220 of the Criminal Procedure Act (as amended)
which
obviated the need for the State to tender any evidence on the charge.
The appellant submitted that on 7 May 2010 he was the
driver of the
Toyota Quantum with registration number CA655364, which he used as a
taxi. He claimed that while on his way from
Melkbosstrand to Cape
Town he had taken the off ramp from the N1 freeway into Lower Church
Street. While driving over a bridge
he saw a stationary motorcycle in
front of him at a yield sign. He admitted that he overtook the
motorcycle on the right side and
collided head on with the Toyota
motor vehicle with registration number CFR12005. He admitted that
when he did so he drove with
wilful disregard for the safety of other
road users. He admitted also that the driver of the Toyota vehicle
had suffered injuries
as well as the passenger in the vehicle, a Ms
Lyndell Amon, the complainant, who was 31
weeks
(approximately eight and a half
months) pregnant at the time. He claimed that his speed at the time
of the collision was between
60 and 80 kilometres an hour.
Thereafter both the State
and the defence closed their case. The appellant was duly convicted
of reckless driving by the magistrate.
The State proved no
previous convictions against the appellant, and his legal
representative requested that a report be obtained
in terms of
Section 276(A)(1)(A) of the Criminal Procedure Act (as amended) for
the assessment and consideration of correctional
supervision as an
appropriate sentence.
In
mitigation of sentence the appellant testified and set out his
personal circumstances. At the time of the collision he was 39
years
old, was married, had two sons aged 12 and 7, and a daughter of 11
months. His wife was unemployed and he was solely responsible
as the
bread winner for the payment of the two elder children's school fees.
He earned R500 per week. His own mother was a pensioner.
The
appellant had a valid driver's license and claimed that it was the
first motor collision that he had been involved in. In respect
of the
incident itself and as to why he admitted his guilt, he explained
that he felt
"very bad about that day
and I still have a picture of that and I am very sorry for that."
He was not injured although
his passenger, a friend, was also
injured. He also explained that he felt "very bad about all of
the other people" who
had been injured in the accident. He
claimed that in the event of him being sentenced to correctional
supervision it would affect
his ability to find another job, and
although taxi driving was all that he knew how to do, he would have
to find alternative employment.
Although he had been driving since
1996 he claimed that he had only driven as a taxi driver since 2003.
In cross-examination he
acknowledged that there was a lot of carnage on the road as a result
of the reckless driving of taxi drivers.
He reiterated his remorse
for the complainant who had lost her baby and the trauma that he had
caused to her.
A report in terms of
Section 276 (A)(1)(A) was formally tendered into evidence by the
defence. The report had also set out in detail
the personal
circumstances of the appellant and recorded that he had verbalised
remorse and had taken responsibility for his actions.
The report also
indicated that the appellant had used alcohol socially but did not
use drugs. The correctional officer was of the
view that the
appellant was a suitable candidate for correctional supervision, and
recommended a sentence in terms of Section 276(1)(h)
of the
Criminal Procedure Act.
The appellant had an address at which he could be monitored. It was
also recommended that besides house
detention the appellant should
also be ordered to do community service.
In aggravation of
sentence the State tendered the evidence of the complainant, Ms Amon.
She confirmed that her pregnancy had been
at an advanced stage and as
a result of the accident the umbilical cord to the baby was severed.
The birth had to be induced and
the baby was stillborn. She also
suffered whiplash and still had marks impressed upon her chest as a
result of the seatbelt. She
had been hospitalised for approximately
five days. She explained to the Court the trauma that she suffered as
a result of the loss
of her baby, and it appeared that she was still
very emotional while testifying. She, however, had reconciled herself
to forgiving
the appellant for his conduct and in what appeared to
have been an emotive plea addressed him directly in court to remember
the
pain and trauma that he had caused to her and to her family.
In considering an
appropriate sentence the magistrate took into account the need to
balance the personal circumstances of the appellant,
the interest of
the community and the nature and severity of the offence.
The magistrate noted that the sentence was
also to be tempered with
an element of mercy. The magistrate repeatedly stated through his
handing down the sentence that she did
not wish to make an example of
the appellant but that the sentence had to fit the crime and was to
act as a deterrent. She emphasized
that the sentence was to send a
strong message about the conduct of the appellant, and in particular
taxi drivers in general. She
made reference to the appellant's
acknowledgement of the problem of reckless driving by taxi drivers
and those who drove without
licenses and under the influence of
alcohol. She made reference to other cases of reckless driving and
the public outcry to a particular
incident where a number of children
had died because a taxi driver had disregarded the warning signs at a
level crossing. She remarked
that the appellant had smirked during
his testimony in response to a question from the prosecutor as to
what "he should do
about changing his ways". The magistrate
noted however that the appellant appeared to be remorseful. She found
that the only
mitigating factor was that the appellant had played
open cards with the Court and that he was a first offender. She
considered
that a suspended sentence would be wholly inappropriate
and although she regarded correctional supervision as a hard sentence
it
would not be appropriate given the seriousness of the offence.
Both
counsel for the appellant and
the State
correctly submitted that a court of
appeal will not lightly interfere with the sentence of a lower court
unless there was a serious
misdirection on the part of the
magistrate. In this regard the remarks of
Smalberger, JA
in
paragraph 8 of
Moosajee v S
1999(2) All SA 353 (A) remains
instructive:
"It is trite law
that sentencing is pre-eminently a matter for the discretion of the
trial court. Interference with the sentence
on appeal is not
justified in the absence of a material misdirection or irregularity
or the sentence imposed is so startlingly
inappropriate as to create
a sense of shock."
It would appear from the
magistrate's consideration of the sentence that she regarded the
conduct of the appellant as aggravated
by the fact that he was a taxi
driver, and took into account the general perception of reckless
driving by taxi drivers. This was
compounded by the unfortunate fact
that the complainant had lost her baby as a result of the collision.
The appellant for his
part had admitted his guilt and appropriately acknowledged the role
of reckless driving by taxi drivers and
the carnage on the road. He
remorsefully expressed his sympathy for those injured in the
collision and in particular the loss to
the complainant. The
complainant, for her part, magnanimously expressed her forgiveness
for the appellant.
In
Naicker v S
1997(1) All SA 5 (A) Grosskopf, JA in dealing with the negligent
driving of an appellant and the fatal consequences thereof remarked:
"The magistrate was
fully justified in considering the tragic consequences of the
appellant's negligence and to take it into
account for the purposes
of sentence. See
S v Nqcobo
1962(2) SA 333 (N) at 337A-B.
Miller, J
however pointed out at 336H that the magnitude of
the tragedy resulting from negligence should never be allowed to
obscure the
true nature of the accused's crime or culpability. The
learned judge concluded, at 336H to 337A:
"Whatever the result
of the negligent act or omission the fact remains that what the
accused person in such a case is guilty
of is negligence - failure to
take reasonable and proper care in given circumstances. His
negligence may be slight, and yet may
have the most calamitous
consequences, or it may be gross and yet be almost providentially
harmless in result. I venture to suggest
that the basic measure for
determining fit punishment for a negligent motorist must be the
degree of culpability or blameworthiness."
The recklessness of the
appellant's driving (which he admitted) was apparent. In consequence
thereof three people were injured,
one of whom lost a baby.
Grosskopf, JA in
Naicker
(above) remarked further:
"In
R v Bredell
1960(3) SA 558 (A) at 560 G-H (and see also
R v Bernardo
1960(3) SA 552 (A) at 557 D-E) this court warned that it may be that
the time has come when it is the duty of judicial officers
to
exercise greatest severity in passing sentences in cases of the
negligent use of motor vehicles. It should however be pointed
out
that in both those cases the court found that the conduct of a
particular accused amounted to gross negligence or wilful disregard
of the rights of other road users and it was on the strength of those
findings that the Court in both instances sanctioned a sentence
of
unsuspended imprisonment. Correctional supervision did not exist as a
sentencing option in 1960 and what was done in cases decided
in the
pre correctional supervision era should be treated with caution when
looking to them for guidance in regard to sentence.
In reaching the
conclusion that the appellant's conduct did not warrant a sentence of
imprisonment I have not overlooked the fact
that a death and serious
injury resulted in the appellant's negligence. The appellant is a
first offender who was 30 years of age
and in regular employment at
the time of the commission of the offence, he is not married but his
parents are dependant on him
for support."
The advantages of
correctional supervision over imprisonment has been considered in a
number of decisions, see in this regard
S v R
1993(1) SA 476
(A) at 488G-I,
S v Kruqer
1995(1) SACR 27 (A) at 31 b-f and
again in
S v Volkwyn
1995
(1) SACR 286
(A) at 288i-289d. On the
other hand a note of caution was sounded in
S v Schutte
1995(1) SACR 344 (C) at 350c-e against the indiscriminate use of
correctional supervision.
In consideration of all
the factors and without derogating from the seriousness of the
offence and the trauma suffered by the complainant
and other
passengers I am of the view that the magistrate erred in finding that
direct imprisonment was the only option as an appropriate
sentence.
In this regard the appellant was assessed and considered to be an
appropriate candidate for correctional supervision.
Mindful that the
appellant has already served six months of his sentence I am of the
view that an appropriate sentence should be
that of correctional
supervision in terms of Section 276(1)(h) of the Criminal Procedure
Act. I am also of the view that the cancellation
of the appellant's
driver's license is unduly harsh and that it would have been more
appropriate to suspend it for a period of
five years in terms of
Section 34 of the National Road Traffic Act.
In the result I propose
to set aside the sentence imposed by the magistrate and to impose a
sentence of correctional supervision
in terms of sections 276(1)(h)
of the CPA. Further I am also of the view that it would be more
appropriate for the matter to be
remitted to the magistrate to
consider and to provide the details of the components of the
correctional supervision such as community
service and/or attendance
at courses (but excluding compensation).
In the result I propose
the following order:
i) A sentence of three
years imprisonment and the order of the permanent revocation of the
appellant's license is set aside;
ii)
The appellant is sentenced to 36 months community service in terms of
Section 276(1)(h) of the Criminal
Procedure Act;
iii) The matter is
remitted to the magistrate to consider and to impose the terms of the
community service and any other conditions
appropriate to the
sentence;
iv) The appellant's
driver's license is suspended for a period of five years in terms of
Section 34 of the National Road Traffic
Act.
SALDANHA,
J
I agree, and it is so
ordered.
BOZALEK, J