S v Serame (35/01) [2001] ZANWHC 28 (8 June 2001)

CA NO : 35/01

IN THE

HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

THE

STATE

vs

BEN

SERAME

R E V I

E W J U D G M E N T

LEEUW J:

1. The accused was convicted of (1) contravening Section 15 of the Road Traffic Act No 29 of 1989 (the Act) i.e. Driving a motor vehicle without a valid driver’s licence and (2) contravening of Section 120 of the Act - Reckless Driving.

The sentence reads as follows:

“For the purpose of sentence both counts treated or taken as one. Four Thousand Rand (R4000-00) or Twenty Four (24) months imprisonment of which half of each is suspended for a period of Five (5) years on condition accused is not again convicted of c/sec 15, 120 or 120 (1) Act 29/89.”

3. The conviction is in order but the sentence is not in accordance with justice, especially the suspended part thereof.

4. Although it is not irregular to take convictions of different counts together for the purpose of sentence, it is undesirable to do so, and should only be done in exceptional cases. See S v Keulder 1994 (1) SACR 91 (A); S v Swart 2000 (2) SACR 566 (SCA).

5. The remarks of Corbett JA in S v Immelman 1978 (3) SA 726 (A) at 728 H are apposite: “In my view, difficulty can also be caused on appeal by the imposition of a globular sentence in respect of dissimilar offences of disparate gravity. The problem that may then confront the Court of Appeal is to determine how the Trial Court assessed the seriousness of each offence and what moved it to impose the sentence which it did. The globular sentence tends to obscure this. “See also S v M 1994 (2) SACR 24 (A) at 31 a - d.

6. Furthermore, this kind of sentence is usually resorted to when counts are closely connected in time, place and circumstances. Compare S v Mofokeng 1977 (2) 447 (O) at 448 - 449 H.

7. Turning to the present merits of this review, the fact that the accused drove his motor vehicle without a valid driver’s licence, whilst being fully aware of the mechanical fault which resulted in a collision with another vehicle, would perhaps justify taking both counts together for the purpose of sentence. It would, however, create a problem if one of the convictions were to be set aside on review.

4. Although it is not irregular to take convictions of different counts together for the purpose of sentence, it is undesirable to do so, and should only be done in exceptional cases. See S v Keulder 1994 (1) SACR 91 (A); S v Swart 2000 (2) SACR 566 (SCA).

5. The remarks of Corbett JA in S v Immelman 1978 (3) SA 726 (A) at 728 H are apposite: “In my view, difficulty can also be caused on appeal by the imposition of a globular sentence in respect of dissimilar offences of disparate gravity. The problem that may then confront the Court of Appeal is to determine how the Trial Court assessed the seriousness of each offence and what moved it to impose the sentence which it did. The globular sentence tends to obscure this. “See also S v M 1994 (2) SACR 24 (A) at 31 a - d.

6. Furthermore, this kind of sentence is usually resorted to when counts are closely connected in time, place and circumstances. Compare S v Mofokeng 1977 (2) 447 (O) at 448 - 449 H.

7. Turning to the present merits of this review, the fact that the accused drove his motor vehicle without a valid driver’s licence, whilst being fully aware of the mechanical fault which resulted in a collision with another vehicle, would perhaps justify taking both counts together for the purpose of sentence. It would, however, create a problem if one of the convictions were to be set aside on review.

8. Disregard of the rule against globular sentences does not on its own amount to a misdirection which would justify intervention with the sentence. See S v Keulder supra. I nevertheless, am of the view that the sentence imposed is not in accordance with justice, because of the following reasons: 9. (i) If one were to compare the two offences for which the accused is sentenced, Reckless Driving is more serious than driving a motor vehicle without a valid driver’s licence. That is why it is possible to fix an admission of guilt fine for driving a vehicle without a valid driver’s licence, which is not the position with Reckless or Negligent Driving. See Section 341 of the Criminal Procedure Act read with Schedule 3 thereof. (Compare S v Hayman 1988 (1) SA 831 (NC). (ii) A fine of Four Thousand (R4 000-00) therefore is too excessive for an offence of driving a vehicle without a valid driver’s licence under the circumstances.

10. The other problem is with the suspended portion of the sentence: (i) The condition of the suspended sentence is that half of the sentence “is suspended for a period of five (5) years on condition accused is not convicted of c/sec 15, 120 or 120 (1) of Act 29/89 committed during the period of suspension” (ii) I find this kind of a condition to be too wide and unduly onerous on the accused person. The effect thereof is that if he can be convicted of driving a motor vehicle without a valid licence again, then the suspended sentence of twelve (12) months or Two Thousand Rand (R2000-00) is likely to be put into operation. Strictly speaking, there is no nexus between the offences of driving without a licence and reckless or negligent driving. See Section 270 of the Criminal Procedure Act. It would not be fair on the accused for the suspended sentence to be put into operation for breaching a less serious offence of driving without a licence, because of the fact that the sentence then imposed was coupled with the offence of Reckless Driving. See S v Allart 1984 (2) SA 731 (T).

8. Disregard of the rule against globular sentences does not on its own amount to a misdirection which would justify intervention with the sentence. See S v Keulder supra. I nevertheless, am of the view that the sentence imposed is not in accordance with justice, because of the following reasons:

9. (i) If one were to compare the two offences for which the accused is sentenced, Reckless Driving is more serious than driving a motor vehicle without a valid driver’s licence. That is why it is possible to fix an admission of guilt fine for driving a vehicle without a valid driver’s licence, which is not the position with Reckless or Negligent Driving. See Section 341 of the Criminal Procedure Act read with Schedule 3 thereof. (Compare S v Hayman 1988 (1) SA 831 (NC).

(ii) A fine of Four Thousand (R4 000-00) therefore is too excessive for an offence of driving a vehicle without a valid driver’s licence under the circumstances.

10. The other problem is with the suspended portion of the sentence:

(i) The condition of the suspended sentence is that half of the sentence “is suspended for a period of five (5) years on condition accused is not convicted of c/sec 15, 120 or 120 (1) of Act 29/89 committed during the period of suspension”

(ii) I find this kind of a condition to be too wide and unduly onerous on the accused person. The effect thereof is that if he can be convicted of driving a motor vehicle without a valid licence again, then the suspended sentence of twelve (12) months or Two Thousand Rand (R2000-00) is likely to be put into operation. Strictly speaking, there is no nexus between the offences of driving without a licence and reckless or negligent driving. See Section 270 of the Criminal Procedure Act. It would not be fair on the accused for the suspended sentence to be put into operation for breaching a less serious offence of driving without a licence, because of the fact that the sentence then imposed was coupled with the offence of Reckless Driving. See S v Allart 1984 (2) SA 731 (T).

The learned Magistrate misdirected himself in considering sentence.

11. I am of the view therefore that the sentence imposed is not in accordance with justice and taking into account the fact that the accused has already served a considerable part of his sentence since he was incarcerated on the 2nd February 2001, I therefore substitute the sentence and order as follows: “The conviction is in order. SENTENCE: Count 1: Five Hundred Rand (R500-00) or 3 months imprisonment; Count 2 : One Thousand Five Hundred Rand (R1 500-00) or nine (9) months imprisonment. Both sentences are to run concurrently. The sentence is antedated from the 2nd February 2001.”

M

M LEEUW

JUDGE

OF THE HIGH COURT I agree.

M

T R MOGOENG

JUDGE

OF THE HIGH COURT 08 JUNE 2001

The learned Magistrate misdirected himself in considering sentence.

11. I am of the view therefore that the sentence imposed is not in accordance with justice and taking into account the fact that the accused has already served a considerable part of his sentence since he was incarcerated on the 2nd February 2001, I therefore substitute the sentence and order as follows:

“The conviction is in order.

SENTENCE:

Count 1: Five Hundred Rand (R500-00) or 3 months imprisonment;

Count 2 : One Thousand Five Hundred Rand (R1 500-00) or nine (9) months imprisonment.

Both sentences are to run concurrently. The sentence is antedated from the 2nd February 2001.”

M

M LEEUW

JUDGE

OF THE HIGH COURT

I agree.

M

T R MOGOENG

08 JUNE 2001