S v Nemukula (R 63/2021) [2021] ZAFSHC 237; 2022 (1) SACR 549 (FB) (8 October 2021)

IN

THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Review No.: R 63/2021

District Court Review No.: 05/2021

In the matter between:

THE

STATE

and

TENDU

NEMUKULA

CORAM:

Opperman, J et Page,

AJ

DELIVERED ON: 8 October 2021

JUDGMENT BY: Page, AJ

[1] This matter was referred to this court on special review as provided for in section 304(4) of the Criminal Procedure Act 51 of 1977.

[2] The accused was convicted of the contravention of the provision of section 59 (4)(a) of the National Road Traffic Act, Act 93 of 1996 (“the Act”) on 24 June 2021.

[3] The sentence imposed on the same date by the presiding magistrate reads as follows: R3000 fine or Six months imprisonment which is half suspended for a period of 3 years, on condition that accused does not contravene NRTA 93 of 1996 or part thereof during period of suspension. The driver’s licences of the accused’s suspension, shall not take effect

[4] The sentence imposed is incompetent for the following reasons:

1. Reading of the sentence as a whole makes no sense in law; it is vague and ambiguous.

2. The words “half suspended” are not clear and precise and does not clearly refer to the amount fined and the period of imprisonment imposed.

3. The abbreviation of the National Road Traffic Act used in the wording of the sentence is unprofessional and unclear. A sentence should refer to the Act as it is promulgated to render it competent.

4. The condition imposed is illegal. It is excessively wide and grossly irregular.

[5] The case of S v Guzu and two similar matters 2017 (2) SACR 575 (ECM) states the conundrum fittingly:

[2] It is distressing to encounter errors in the manner in which sentences are expressed. Not only is it impossible for an unrepresented accused person to understand a sentence which is ill-expressed, but the record of that sentence cannot be altered simply by clerical amendment.

[3] The imposition of sentence is a crucial part of court proceedings. It must be attended to with a level of care and attention to detail which is commensurate with the utmost level of diligence expected of a judicial officer in the performance of his or her official duties. Sloppiness in the manner in which a sentence finds expression not only leads to an undesirable state of uncertainty at the end of court proceedings; it also reflects badly on the judicial officer concerned and, indeed, upon the judiciary as a whole

[6] The presiding officer is an acting magistrate that should at all times be vigilant and careful not to impose sentences that might bring the administration of justice in disrepute. It is clear that he/she is inexperienced and that the oversight may be overlooked for this reason. The accused will not suffer any prejudice should the judgment be properly worded. It will not alter the substance of the sentence but will contribute to legal certainty and fairness for the accused.

[7] As far as the application of section 35(3) of the Act is concerned, it is clear from the record that the court heard evidence on the issue and the order made in this regard is correct.

[8] I have read the record and am satisfied that, but for the unacceptable confusion arising from the mistakes made in the formulation of the sentence imposed by the magistrate, the proceedings are in accordance with justice.

ORDER

[9] Consequently, it is ordered that:

1. The sentence imposed on 24 June 2021 is set aside.

2. The sentence is replaced with the following:

R 3000.00 (Three Thousand Rands) or 6 (Six) months imprisonment of which R 1500.00 (One Thousand Five Hundred Rands) or 3 (three) months imprisonment is suspended for a period of 3 (three) years on condition that the accused is not again convicted of the contravention of

section 59(4)(a) of the National Road Traffic Act, Act 93 of 1996 and which was committed within the period of suspension.

3. The order in terms of section 35(3) of the National Road Traffic Act, Act 93 of 1996 that the suspension and disqualification of the accused’s driver’s licence shall not take effect is confirmed.

4. The sentence is antedated to 24 June 2021.

C PAGE, AJ

I concur

M OPPERMAN, J