Muller v S (A241/2018) [2018] ZAWCHC 155; 2019 (1) SACR 242 (WCC) (16 November 2018)

Muller v S (A241/2018) [2018] ZAWCHC 155; 2019 (1) SACR 242 (WCC) (16 November 2018)

The court held that the section 35 enquiry regarding driver’s licence suspension is an integral part of sentencing and may be included in a section 105A plea and sentence agreement. The magistrate erred by treating the enquiry as a post-sentence procedure and by failing to comply with the peremptory provisions of section 105A(9) of the Criminal Procedure Act. Because the magistrate did not inform the parties of his intention to impose a different period of suspension, both the conviction and sentence must be set aside. The matter is remitted for trial de novo before another magistrate. The judgment also highlights conflicting decisions within the division regarding the scope of...

Citation
[2018] ZAWCHC 155
Parties
Appellant: Micheal Muller; Respondent: The State
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
16 November 2018
Case Number
A241/2018
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Appeal upheld; conviction and sentence set aside; matter remitted for trial de novo before another magistrate.
Judges
J I Cloete, M K Parker
Legal Topics
Plea and Sentence Agreement, Driver Licence Suspension, National Road Traffic Act, Mandatory Sentencing, Judicial Discretion
Criminal Law Plea and Sentence Agreement Driver Licence Suspension National Road Traffic Act Mandatory Sentencing Judicial Discretion

Case Brief

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Parties

Micheal Muller

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether a plea and sentence agreement under section 105A of the Criminal Procedure Act may include an agreed period of driver’s licence suspension without a section 35 enquiry under the National Road Traffic Act.
  2. 2 If an agreed period of suspension cannot form part of a section 105A agreement, whether a subsequent conviction under a different subsection of section 65 of the NRTA qualifies as a second offence for mandatory suspension.
  3. 3 What circumstances should be considered in determining whether deviation from the prescribed period of suspension is warranted.

Ratio Decidendi

The court held that the section 35 enquiry regarding driver’s licence suspension is an integral part of sentencing and may be included in a section 105A plea and sentence agreement. The magistrate erred by treating the enquiry as a post-sentence procedure and by failing to comply with the peremptory provisions of section 105A(9) of the Criminal Procedure Act. Because the magistrate did not inform the parties of his intention to impose a different period of suspension, both the conviction and sentence must be set aside. The matter is remitted for trial de novo before another magistrate. The judgment also highlights conflicting decisions within the division regarding the scope of...

Court Disposition

Appeal upheld; conviction and sentence set aside; matter remitted for trial de novo before another magistrate.

Orders

  • The appeal is upheld.
  • The conviction and sentence are set aside.