S v Maya (CA&R No 300/2012) [2012] ZAECGHC 76 (17 September 2012)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE – GRAHAMSTOWN)

Review No.: 2012000212 CA&R No.: 300/2012 Date delivered: 17 September 2012 In the matter between:

THE

STATE and

SIPHOKAZI

VIVIANNE MAYA

R E V I E W J U D G M E N T

DAMBUZA, J:

This matter comes before me on special review from the magistrate, Grahamstown. The magistrate suggests that the sentence imposed for a conviction of reckless driving be set aside.

The accused was, on being convicted of reckless driving, sentenced to:

“... a fine of R6000.00 or 4 months imprisonment. In addition: accused is sentenced to 6 months imprisonment which is wholly suspended for 5 years on condition accused is not convicted of contravening section 63 (1) Act 93 of 1996 committed during the period of suspension.”

An order was made that the accused pay the fine imposed in 6 instalments of R1,000.00 each.

The magistrate states, correctly in my view, that the sentence imposed in respect of the conviction of the accused is incompetent as the “offences and penalties” (section 89 of Act 93 of 1996 (“the Act”)), in terms of which the accused was sentenced, makes no provision for imposition of sentence of both a fine and imprisonment.

Section 89 (5) of the Act provides that:

“Any person convicted of an offence in terms of subsection (1) read with section 63 (1) shall be liable─

in the case where the court finds that the offence was committed by driving recklessly, to a fine or to imprisonment for a period not exceeding six years.”1

The courts have, in many instances, had to set aside sentences in terms of which offenders, convicted of offences similar to the one under consideration in this matter, were sentenced to both fines and imprisonment.2 In S v George, the following was held:

“The effect of the dictum in the above cases and others is that where the punishment prescribed for a statutory offence is a maximum fine or a maximum period of imprisonment, the more usual words “or both, such fine and [such] imprisonment” being omitted, it is impermissible for the court sentencing the accused for having contravened the provisions of such statute to impose a fine and a suspended sentence of imprisonment. However, if the court decides to impose a fine rather than imprisonment, it can impose a sentence of imprisonment in default of payment of such fine (see S v S 1979 (1) SA 250 (R) at 251).”

I therefore agree that the additional portion of the sentence imposed herein falls to be set aside.

Regarding the sentence to be imposed I am satisfied that the sentence of R6,000.00 or 4 months imprisonment remains appropriate. The relevant factors are that: firstly, the offending conduct is that the accused overtook a line of three vehicles when she was prohibited from overtaking by a barrier line on the road. She then overtook the complainant’s vehicle, once more, ignoring the barrier line. At the time of sentence she was 36 years old; she was married and had two minor children, 15 and 8 years old. She was unemployed but assisted her father as a driver in his taxi business. I can only assume that the magistrate considered her to be a first offender as the only previous conviction proved against her by the public prosecutor is one of theft committed in 1999.

The additional portion of the sentence imposed by the magistrate is therefore set aside.

_____

N. DAMBUZA

JUDGE OF THE HIGH COURT

TSHIKI J

I agree.

P.W. TSHIKI

1 The subsection (1) referred to provides that: “(1) Any person who contravenes or fails to comply with any provision of this Act or with any direction, condition, demand, determination, requirement, term or request thereunder, shall be guilty of an offence.”

1 The subsection (1) referred to provides that:

“(1) Any person who contravenes or fails to comply with any provision of this Act or with any direction, condition, demand, determination, requirement, term or request thereunder, shall be guilty of an offence.”

2 See S v Jason [2011] JOL 26902 (ECG) to which the magistrate has referred, and S v George [2010] JOL 26380 (ECP) cited therein.