S v De Vos (DR710/07) [2007] ZAKZHC 29; 2008 (1) SACR 175 (N) (25 October 2007)

REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

NATAL

PROVINCIAL DIVISION

REVIEW CASE NO.: DR710/07

In the matter between :

THE

STATE

versus

JAN

HENDRICK DE VOS ACCUSED

REVIEW

JUDGMENT

delivered on 25 October 2007

PATEL J

The accused, Mr Jan Hendrick de Vos, was charged with three counts in terms of the Road Traffic Act No. 93 of 1996 (“the Act”). I might in passing mention that the convictions and sentences on Count 2 and 3 are in accordance with justice and nothing further need be said apropos these two counts.

This matter serves before me as a special review in order to determine whether the Learned Magistrate exceeded his jurisdictional limits with regards to the sentence he imposed on Count 1. On Count 1 the accused pleaded not guilty to contravening Section 59 (4) read with Sections 1; 69; 73; 74 and 89 of the Act and further read with Regulations 292 and 293 of the National Road Traffic Regulation 2000 in that he drove his motorcycle on the N2 south bound at a speed of 295kph which was in excess of the speed limit of 120kph.

On this count the accused was sentenced to a fine of R100 000,00 or three years imprisonment of which half was suspended for a period of 5 years on condition the accused was not convicted of contravening Section 59 of the Act committed during the period of suspension.

The Magistrate was also uncertain as to whether the matter should have proceeded by way of a review or an appeal since the accused was legally represented and the matter was defended.

I have had the benefit of reading the record and the well reasoned judgment of the learned Magistrate on Count 1. I am satisfied that the conviction of the accused on Count 1 is in accordance with justice.

The sentencing provisions governing his conviction on Count 1 is found in Section 89 (3) of the Act. In terms of this section an accused may be sentenced to a fine or to imprisonment for a period not exceeding 3 years.

This provision must be read with Section 92 (1) (a) of the Magistrates’ Courts Act 32 of 1944 which provides that a magistrates’ court, which is not a regional division, may upon conviction impose a sentence of imprisonment for a period not exceeding three years or may impose a fine not exceeding the amount determined by the Minister of Justice from time to time by notice in the Gazette. In terms of GN R1411 of 30 October 1998, a magistrate’s court other than a regional court cannot impose a fine exceeding R60 000,00 (Sixty Thousand Rand).

However, Section 92 (2) of the Magistrates’ Courts Act provides as follows:

“(a) The Magistrates Court shall have jurisdiction to impose any punishment prescribed in respect of an offence under any law which relates to vehicles and the regulation of traffic on public roads, notwithstanding that such punishment exceeds the jurisdiction referred to in sub-section (1).”

As stated earlier in terms of Section 89 (3) of the Act, an accused may be sentenced to a fine or to imprisonment for a period not exceeding three years. This section however does not prescribe the maximum fine which a court may impose.

The failure by the legislature to prescribe the maximum must be interpreted to mean that the limit specified by the Magistrates’ Courts Act must apply. To interpret the provision otherwise would lead to unwarranted anomalies.

In my view the Court a quo exceeded its punitive jurisdictional limits and the sentence therefore falls to be set aside. I am, however, in agreement with the learned Magistrate that the speed at which the accused drove his ‘super-bike’ was excessive and dangerous to road users especially since the volume of traffic is high on the road on which the accused was travelling. Further the area of the road on which the accused was caught speeding separates homes in the rural area. The road is used not only by pedestrians but also by animals. These animals are often found wandering on the roads. Under these circumstances the conduct of the accused in driving the vehicle at the speed at which he did can only be described as being reckless in the extreme. The Magistrate was therefore correct in imposing a heavy fine. I am, however, of the view that in light of the misdirection apropos the jurisdictional limit of the court, the interest of justice will be best served if the accused be sentenced to a fine of R60 000,00 and R20 000,00 of it be suspended together with an appropriate alternate custodial sentence in the event of his default in payment.

I advert briefly to whether this matter, because it was defended should come before this court by way of special review or on appeal.

Having read the record, I am of the view that the proceedings are not in accordance with justice as far as the sentence imposed on Count 1 and rather than allow for the matter to proceed to by way of an appeal, I have decided to exercise my review jurisdiction in terms of Section 304 (4) of Act No. 51 of 1977, in order to dispose of the matter expeditiously.

In the premises, I make the following order :

(1) The conviction on Count 1 is confirmed.

(2) The sentence imposed on Count 1 is set aside and replaced with the following sentence :

“The accused is fined R60 000,00 or 3 years imprisonment, one-third of which is suspended for a period of 5 years on condition that the accused is not convicted of contravening Section 59 of Act 93/1996 committed during the period of suspension.

I agree :

SWAIN J