S v Sefara (55/05) [2005] ZANWHC 42 (2 June 2005)

CA NO: 55\05

IN THE HIGH COURT OF

SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

THE

STATE

vs

CHRISTOPHER

MOKGOSI SEFARA

_____________

REVIEW JUDGMENT

MOKGOATLHENG AJ:

[1] This case was submitted for purposes of a review in terms of section 304 A of the Criminal Procedure Act No 51 of 1977.

The accused was charged with Reckless or Negligent driving in that upon or about the 9th December 2003 and on Mabele-a-Podi a public road in the district of Mankwe, the accused did wrongfully drive a motor vehicle to wit a Toyota Hilux with registration number CBD 058 NW recklessly or negligently in contravention of the provisions of section 1,63 (1) read with section 63 (2), 63 (3), 69, 73, 89 and 89 (5) of the National Road Traffic Act 93 of 1996, and an alternative charge of driving a motor vehicle under the influence of liquor or drugs under the said Act.

[2] On the 16th August 2004 the accused was found guilty of reckless driving and sentenced to six years imprisonment. Three years thereof was suspended, the accused’s licence was suspended for a period of five years.

[3] The facts are that the accused drove this motor vehicle at high speed through a four way intersection governed by a stop street without stopping thereat. The accused thereafter executed a U-turn and again negotiated the same intersection without stopping. The intersection the accused traversed without stopping is normally busy, although on this day there was no significant traffic thereon. There was no collision, although there was another motor vehicle in the intersection which had stopped, thereat.

[4] The accused who was under the influence of alcohol, was arrested by a traffic officer who was on the scene. The accused was taken to a hospital to enable the district surgeon to take a blood sample, the accused did not cooperate, as a result no blood sample was taken.

[5] The accused is 36 years old, and was serving a sentence of three years after being earlier convicted of stock theft, and unlawful possession of a firearm. The accused stated that he had been promised a job as a heavy duty motor vehicle driver after serving three years sentence. The accused has one minor child and is presently involved in divorce proceedings against his wife.

[6] It is trite that sentence is a matter in the discretion of the trial court. A court of review will not interfere with the sentence imposed unless the trial court in imposing such sentence exercises its discretion unjudicially, or that the sentence the trial court has imposed is disproportionate to the offence.

[7] In this matter the Learned Magistrate exercised his discretion unjudicially in that he misdirected himself by finding that society dictates that a severe penalty should be imposed because the accused is not just a potential danger, but a danger to society. The Learned Magistrate found that direct imprisonment was the only appropriate sentence.

[8] The sentence imposed by the Learned Magistrate having regard to all the circumstances of this matter is highly disproportionate to the offence committed. The Learned Magistrate overemphasized the seriousness of the offence and failed to adequately consider the personal circumstances of the accused and the peculiar circumstances attendant on the offence.

[9] In suspending the accused’s licence for a period of five years the Learned Magistrate misdirected himself.

[10] Section 35 of the National Road Traffic Act 93 of 1996 provides:

“On conviction of certain offences licence and permit shall be suspended for minimum period and learner’s or driving licence may not be obtained.

Subject to subsection (3) every driving licence or every licence and permit of any person convicted of an offence referred to in –

section 61 (1)(a), (b) or (c), in the case of death of or serious injury to a person;

section 63 (1), if the court finds that the offence was committed by driving recklessly;

section 65 (1), (2) or (5), where such person is the holder of a driving licence or a licence and permit, shall be suspended in the case of –

a first offence, for period of at least six months;

a second offence, for a period of at least five years; or

a third or subsequent offence, for a period of at least ten years, calculated from the date of sentence.

Subject to subsection (3), any person who is not the holder of a driving licence or of a licence and permit, shall, on conviction of an offence referred to in subsection (1), be disqualified for the periods mentioned in paragraphs (i) to (iii), inclusive, of subsection (1) calculated from the date of sentence, from obtaining a learner’s or driving licence or a licence and permit.

If a court convicting any person of an offence referred to in subsection (1), is satisfied that circumstances exist which do not justify the suspension or disqualification referred to in subsection (1) or (2), respectively, the court may, notwithstanding the provisions of those subsections, order that the suspension or disqualification shall not take effect, or shall be for such shorter period as the court may deem fit.

A court convicting any person of an offence referred to in subsection (1) shall, before imposing sentence, bring the provisions of subsection (1) or (2), as the case may be, and of subsection (3) to the notice of such person.

The provisions of section 36 shall with the necessary changes apply to the suspension of a driving licence or a licence and permit in terms of this section.”

[11] The Learned Magistrate did not in terms of section 4 of the Act bring the provisions of subsections (1), (2) or (3) to the notice of the accused as he is obliged to. The Learned Magistrate is obliged to conduct an enquiry to enable the accused to place facts before the court, and make representations if the accused so desires advancing reasons why his drivers licence should not be suspended.

[12] The irregularity by the Learned Magistrate not to invoke subsection 4 of the Act, does not however vitiate these proceedings. The accused was not prejudiced by such an irregularity, in that the accused in his plea in mitigation of sentence, stated that after serving his sentence he will need his drivers licence to earn a living as he drives heavy duty motor vehicles. This is a factor, the Learned Magistrate should have considered before suspending accused’s licence, including the fact that there was no collision with another motor vehicle, there was no substantial volume of traffic and there was no loss of life or loss of property.

[13] It is patent that the Learned Magistrate misdirected himself pertaining to the suspension of accused’s licence for a period of five years.

[14] In the premises the sentence of six years imprisonment and the suspension of accused’s license for five years are set aside, and are substituted by the following:

“The accused is sentenced to two years and six months imprisonment, six months whereof is suspended for a period of five years on condition that the accused is not found guilty of contravening sections 63 (1), 64, 65 (1), of the National Road Traffic Act 93 of 1996 that is, Reckless or Negligent Driving, inconsiderate driving and driving under the influence of liquor committed during the period of suspension or drugs. The licence of the accused is suspended for a period of twelve months”

______

R

D MOKGOATLHENG

ACTING

JUDGE OF THE HIGH COURT

I agree.

_____

A A LANDMAN

JUDGE OF THE HIGH

COURT

DATED : 02 JUNE 2005

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