S v Motake (R25/2018) [2018] ZAFSHC 37 (15 March 2018)

S v Motake (R25/2018) [2018] ZAFSHC 37 (15 March 2018)

The Magistrate's sentence was ambiguous and legally flawed, as it suspended only half of the alternative imprisonment term and not the fine, which is illogical. Furthermore, the suspension was incorrectly linked to Section 59(1) of Act 93/1996, which merely prescribes the speed limit, whereas Section 59(4) creates the offence. The High Court set aside the sentence and substituted it with a clear order suspending half of both the fine and the alternative imprisonment for three years, conditional on the accused not being convicted of contravening Section 59(4) during the suspension period.

Citation
[2018] ZAFSHC 37
Parties
Applicant: The State; Respondent: Boithatelo Ben Motake
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
15 March 2018
Case Number
R25/2018
Procedural Posture
Special Review / Review of Magistrate's Sentence
Outcome
Sentence set aside and substituted with a corrected sentence suspending half of both the fine and imprisonment term.
Judges
P. J. Loubser, C. Reinders
Legal Topics
Sentencing Review, Traffic Offences, Suspension of Sentence, Criminal Procedure Act
Criminal Law Sentencing Review Traffic Offences Suspension of Sentence Criminal Procedure Act

Case Brief

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Parties

The State

Applicant

Boithatelo Ben Motake

Respondent

Procedural Posture

Special Review / Review of Magistrate's Sentence

Legal Issues

  1. 1 Whether the sentence imposed by the Magistrate was properly structured and legally sound.
  2. 2 Whether the suspension of only half of the alternative imprisonment term, and not the fine, was correct.
  3. 3 Whether the reference to Section 59(1) instead of Section 59(4) of Act 93/1996 was appropriate.

Ratio Decidendi

The Magistrate's sentence was ambiguous and legally flawed, as it suspended only half of the alternative imprisonment term and not the fine, which is illogical. Furthermore, the suspension was incorrectly linked to Section 59(1) of Act 93/1996, which merely prescribes the speed limit, whereas Section 59(4) creates the offence. The High Court set aside the sentence and substituted it with a clear order suspending half of both the fine and the alternative imprisonment for three years, conditional on the accused not being convicted of contravening Section 59(4) during the suspension period.

Court Disposition

Sentence set aside and substituted with a corrected sentence suspending half of both the fine and imprisonment term.

Orders

  • The sentence imposed by the Magistrate is set aside.
  • The accused is sentenced to a fine of R4000.00 or 12 months imprisonment, half of which fine and term of imprisonment is suspended for a period of 3 years on condition that the accused is not convicted of contravening Section 59(4) of Act 93/1996 committed during the period of suspension.