S v Mgabhi (DR 220/08) [2008] ZAKZHC 20; 2008 (2) SACR 377 (D) (1 March 2008)

IN

THE HIGH COURT OF SOUTH AFRICA

DURBAN

AND COAST LOCAL DIVISION

DR 220/08

In the matter between:

THE

STATE

vs

XOLANI

PERCIVAL MGABHI

REVIEW JUDGMENT

Delivered on:

WALLIS AJ

[1] The accused was rightly convicted of the offences of driving a motor vehicle without a driver’s licence and of negligent driving. These convictions arose out of an incident that occurred on the 19th October 2007 whilst the accused was driving a minibus belonging to his father in the town of Nongoma. In the incident the minibus came into collision with Mrs Nomthandazo Nxumalo. She was seriously injured in the collision.

[2] After the accused was convicted the case was postponed to the 30th January 2008 for sentence. At the hearing on sentence Mrs Nxumalo’s husband indicated that he would like to apply for compensation to be awarded in terms of the provisions of section 300 of the Criminal Procedure Act 51 of 1977, as amended. In terms of that section where a person is convicted of an offence which has caused damage to some other person the Court in question may upon the application of the injured person forthwith award the injured person compensation for such damage.

[3] After Mr Nxumalo had indicated that he wished to apply for compensation his wife was called to give evidence. The basis of the claim for a compensatory award was simple. She and her husband had incurred medical expenses in an amount of R60 821,00 arising from her hospitalisation at the Garden Clinic, Empangeni. Their medical aid scheme had only paid R30 000,00 of this amount leaving them with a balance owing of R30 821,00. Not surprisingly Mrs Nxumalo said that she was worried about this debt.

[4] Thereafter the accused gave evidence and pointed out that he was still at school, unemployed and not in possession of any resources. His father also gave evidence and indicated that he was willing to assist his son by paying a fine. There followed the following exchange between him and the public prosecutor under cross-examination:

“Q Do you ask for direct imprisonment or payment for compensation?

A I request for payment of compensation piecemeal

Q Previously you agreed to pay compensation in the amount of -R15000-00

A Yes at court but we had not discussed payment at home.

Q How much compensation are you prepare (sic) to pay.

A I can’t say

Q For piecemeal payments, how much did you have in mind?

A R5000-00 on which we agreed and it was going to be + or – R700 per month

Q How much in advance can you pay followed by instalments?

A At present I have no money but during the accident I paid R5000 to complainant wife”

After this exchange the public prosecutor is recorded as suggesting that a compensatory order of R30 821, 00 should be made.

[5] The sentence that the Magistrate then imposed reads as follows:

“To pay a fine of R2000.00 (Two Thousand Rand,) or in default of payment to undergo a term of 6 (six) months imprisonment. Both counts treated as one for the purpose of sentence. Plus a further 3 (three) years imprisonment wholly suspended on condition the accused compensates the complainant in an amount of R30 000-00 (Thirty Thousand Rand) at R1000-00 per month as from the end of February 2008 and thereafter on or before the 7th day of each succeeding month. Father of accused to pay the compensatory award. Fine to be paid on 31/10/08”

[6] There is no difficulty with the Magistrate having treated the two counts as one for the purposes of sentence. Nor is there a problem with the sentence of a fine of R2 000,00 or in default of payment a term of six months’ imprisonment. I also agree with the Magistrate that it was sensible to impose a further suspended sentence of imprisonment to operate as a deterrent to the accused repeating his unlawful conduct. However, the period of three years imprisonment seems disproportionate and in my view should be replaced by a period of one year’s imprisonment.

[7] The difficulty arises with the terms upon which the Magistrate suspended that further period of imprisonment, namely the condition that the accused compensate the complainant in the amount of R30 000,00 at a rate of R1 000,00 per month from the end of February 2008. In my view there are two fundamental flaws in this portion of the Magistrate’s sentence.

[8] The first flaw is that it was plain on the evidence before the Magistrate that the accused was in no position to pay such a compensatory amount. In order to overcome the difficulty the Magistrate provided that his father was to pay the compensatory award. In my opinion he had no power to do that. The relevant portions of section 300 read as follows:

“(1) Where a person is convicted by a . . . Magistrate’s Court of an offence which has caused damage to or loss of property (including money) belonging to some other person, the court in question may, upon the application of the injured person or of the prosecutor acting on the instructions of the injured person, forthwith award the injured person compensation for such damage or loss . . .

(2) For the purposes of determining the amount of the compensation or the liability of the convicted person therefor, the court may refer to the evidence and the proceedings at the trial or hear further evidence either upon affidavit or orally.

(3)(a) An award made under this section –

(i) by a magistrate’s court, shall have the effect of a civil judgment of that court;

(ii) . . .

(b) . . .

(4) Where money of the person convicted is taken from him upon his arrest, the court may order that payment be made forthwith from such money in satisfaction or on account of the award.”

[9] In my view it is plain from the provisions I have quoted that the only person against whom an award of compensation can be made in terms of the provisions of section 300 is the accused. That seems to be clear from the reference in subsection (2) to “the liability of the convicted person therefor”. That is reinforced by the provisions of subsection (4) which refers to money taken from the convicted person being used in satisfaction of the award.

[10] That conclusion is in accordance with principle. The jurisdiction of the Magistrate is statutory. In any criminal case the Magistrate only has jurisdiction over the accused person who has been brought before the Court. The Court has no basis for exercising jurisdiction over any other person. The mere fact that the accused’s father was present and indicated a willingness to assist his son in making payment by way of compensation to Mrs Nxumalo is neither here nor there. I can find nothing in the Criminal Procedure Act that indicates that this would afford the Court jurisdiction over the accused’s father.

[11] The ramifications of such an extended jurisdiction would be considerable. To take but one example, in a case where the accused had been charged and convicted of negligent driving, that would mean that the Court would be entitled to hale before it the owner of the motor vehicle or the accused’s employer or any other person in regard to whom it might be said that they were vicariously liable for the accused’s conduct and hence liable in law to compensate the injured party for the consequences of the accused’s act. Those issues are quintessentially matters that fall within the jurisdiction of civil courts. In those courts and in accordance with the requirements of section 34 of the Constitution a person who is sought to be held liable to compensate another for damages is entitled to invoke the full panoply of procedural rights that the statutes applying to those courts and other relevant legislation and the rules of court afford to a litigant. Not least amongst those would be the right to contend in a case of negligent driving that the driver of the vehicle had not in fact been negligent or that the negligence had not caused the claimant loss. That is in addition to the right to contend that they are not vicariously liable for the conduct of the accused and to invoke the provisions of the Apportionment of Damages Act 34 of 1956.

[12] I find it impossible to see how in the context of a hearing on sentence after the conclusion of a criminal trial to which they were not a party, a third party would be able to exercise those rights in resisting a claim for compensation. In my view all of this points inexorably to the conclusion that on a proper construction of section 300 of the Criminal Procedure Act it is only the accused person himself or herself who can be ordered to pay compensation. That cannot be avoided by adding to a compensatory order against an accused an order that a third party pay the compensation.

[13] That is the major reason why the Magistrate could not in my view make the order that he did. There is, however, a further reason relating specifically to the order against the accused. . It is that the sentence imposed made the payment of compensation the condition upon which the suspension of the further period of imprisonment depended. In doing that the Magistrate appears to have overlooked cases such as S v Luthuli 1972 (4) SA 463 (N); S v Msiza 1979 (4) SA 473 (T) at 474 – 5 and S v N & Others 1980 (3) SA 529 (Tk) in which it had been held that it was impermissible under the predecessor of section 300 and under section 300 itself, to make an award of compensation subject in the alternative to a sentence of imprisonment. In substance, if not in form, that is precisely what the Magistrate did in regard to the suspended sentence of three years imprisonment. He was not entitled to do so.

[14] It follows that this portion of the sentence imposed by the Magistrate falls to be set aside. I have considered whether the matter should be remitted to the Magistrate for the purpose of passing sentence afresh and considering whether to make a compensatory award as requested by Mr and Mrs Nxumalo. In my view, however, that would not be appropriate because I do not think that this was an appropriate case in which to make a compensatory award, notwithstanding the sympathy I have for Mr and Mrs Nxumalo in being faced with substantial medical bills in consequence of the negligence of the accused.

[15] My difficulty with the making of a compensatory award lies in the fact that its source is the personal injuries suffered by Mrs Nxumalo arising out of the negligent driving of a motor vehicle. In terms of section 17(1) of the Road Accident Fund Act 56 of 1996 the Road Accident Fund is obliged to compensate Mr and Mrs Nxumalo for the loss and damage they have suffered in consequence of Mrs Nxumalo’s bodily injuries arising from the accused’s negligent driving of his father’s motor vehicle. That liability is not limited under section 18 of the Road Accident Fund Act nor is it excluded under section 19 of that Act. In those circumstances and in terms of section 21 of the Road Accident Fund Act, Mr and Mrs Nxumalo were not entitled to claim compensation in respect of their loss or damage from either Mr Mgabhi senior as the owner of the vehicle or from the accused as the driver of that vehicle.

[16] It seems to me wrong in principle that section 300 of the Criminal Procedure Act can be used to circumvent that restriction and impose upon either the accused or his father a liability which the law applicable to personal injuries in this situation explicitly excludes. Even were to be wrong in thinking that the liability of the accused and his father is excluded by law it seems to desirable that this be determined in ordinary civil proceedings and should not be pre-empted by a compensatory order

[17] I have not found any authority dealing with this point. However, I point out that in S v Du Plessis 1969 (1) SA 72 (N) and S v Dunywa 1973 (3) SA 869 (E) the Courts held that it was undesirable in principle to order compensation in cases arising out of the negligent driving of motor vehicles where damage was caused to other motor vehicles. In part the reason for the Court adopting this approach in those cases was the difficulty if not impossibility, in those circumstances of the criminal court dealing with questions of the apportionment of damages under the 1956 statute. By parity of reasoning it seems to me not only undesirable but impermissible for the Court to make an award of compensation in circumstances where in law no right to claim such compensation lies against the accused person.

[18] As I have indicated I am sympathetic to the plight of Mr and Mrs Nxumalo in now having to turn to the Road Accident Fund to secure compensation for the medical expenses they have incurred and for Mrs Nxumalo’s injuries. It is a regrettable fact well known to the judges of this Division that the Road Accident Fund appears to process claims against it, even claims as clearly well founded as the present one, extremely slowly. However, that does not justify my endorsing a compensatory award under the Criminal Procedure Act that should not in my view have been made. I can only express the hope that in this instance the Road Accident Fund reacts promptly to any claim submitted by Mr and Mrs Nxumalo.

[19] It follows therefore that the compensatory award made by the Magistrate must be set aside. I have already indicated that the period of suspended imprisonment should be reduced. Appropriate conditions of suspension will also need to be added to it. Accordingly the conviction of the accused on both counts is upheld but the sentence imposed upon him is altered to read as follows:

“The accused is ordered to pay a fine of R2 000-00 (two thousand rand) or in default of payment to undergo a term of 6 (six) months imprisonment. The accused is sentenced to a further period of 1 (one) year’s imprisonment which is wholly suspended for a period of 3 (three) years on condition that he is not during the period of suspension convicted of any of the following offences:-

driving a motor vehicle without being in possession of an appropriate driver’s licence;

reckless or negligent driving of a motor vehicle;

driving a motor vehicle whilst under the influence of alcohol or whilst his blood alcohol content is in excess of the statutory maximum;

any other offence involving the driving of a motor vehicle for which he is sentenced to a period of imprisonment of 6 (six) months or more without the option of a fine.

_____

I agree

SWAIN J