S v Tlhasi (62/07) [2008] ZANWHC 10 (5 June 2008)

IN THE HIGH COURT OF

SOUTH AFRICA

BOPHUTHATSWANA PROVINCIAL

DIVISION

CA NO.: 62/07

In the matter between:

RANKGOJANE LEVY

TLHASI APPELLANT

and

THE

STATE RESPONDENT

CRIMINAL APPEAL

MMABATHO

HENDRICKS J, GURA J

DATE OF HEARING : 30 MAY 2008

DATE OF JUDGMENT : 05 JUNE 2008

FOR THE APPELLANT : ADV. S.J. SENATLE

FOR THE RESPONDENT : ADV. M JOHNY

JUDGMENT

GURA J:

Introduction

[1] The appellant was convicted of a contravention of Section 65(1) (a) of the National Road Traffic Act, No. 93 of 1996 (driving under the influence of intoxicating liquor). He was sentenced to eighteen (18) months imprisonment half of which was suspended on appropriate conditions. With leave of the trial court, he appealed against the sentence only.

The trial court’s reasoning

[2] In meting out sentence the magistrate took into account the triad as laid down in S v Zinn 1969 (2) SA 537 (A), being the personal circumstances of the appellant, the nature and seriousness of the offence as well as the dictates of society.

[3] The following factors weighed as “strong points” in favour of the appellant:-

He was a yound man of 26 years;

He had no previous convictions; and

He was convicted on a plea of guilty

[4] Conversely, the following factors were taken into account as aggravating the sentence:-

The prevalence of the offence;

Many people loose lives in road accident due to the conduct of intoxicated drivers; and

Appellant, therefore, posed a potential danger to other road users.

The powers of the Court of appeal

[5] The duty to impose sentence is entirely the province of the trial court which has to exercise a judicial discretion. A court of appeal (such as this one), should not usurp the function of the trial court which, as I have already stated, is endowed with a discretion to impose an appropriate sentence. A court of appeal will, however, interfere with the sentence of the trial court, where there is a material misdirection on the part of the trial court or where the disparity between the sentence of the trial court and the sentence which the court of appeal would have imposed, had it been the trial court, is so marked that it can properly be described as shocking, startling or disturbingly inappropriate (S v Malgas 2001 2 SA 1222 (SCA) at 1232 A-E).

The past trend in similar cases

[6] Both counsels have agreed that the sentence is heavy, more so because no option of a fine was considered. The general tendency of our courts is not to visit first offenders with imprisonment without an option of a fine in similar cases. The factors which are relevant to the determination of an appropriate sentence are the following:-

the degree of intoxication of the offender;

the manner of driving;

the nature of the public road on which he drove;

the density and nature of the traffic at the time;

whether there was any accident which is causally connected to his/her intoxication;

if yes, whether such accident, caused damage or personal injury to others and the extent of such damage or injury;

the age of the offender; and

whether or not he/she is a first offender.

See S v Langeveldt 1970 (3) SA 439 (SWA); S v Roux 1975 (3) SA 190 (AD) and S v Mackriel 1985 2 SA 622 (CPD).

Conclusion

[7] In sentencing the appellant to an effective term of nine months imprisonment without an option of fine, I am of the view that a sledgehammer was used. The magistrate seems to have overlooked or paid little attention to the guidelines and the past trend in similar cases, he failed, particularly, to pay due regard to the following:- there was no evidence as to the nature of the road in question, the density of the traffic or the extent of the appellant’s intoxication, He was not involved in any accident and, as a result, there were no injuries or damage to property. Above that, there is no evidence to the effect that his manner of controlling the vehicle manifestly constituted a potential hazard to road users.

[8] It is the finding of this Court therefore, that had it been the trial court, it would not have considered a sentence of direct imprisonment without an option of a fine. It should be emphasised however, that the rate of road accidents in South Africa is alarming. Most of these accidents occur because drivers lack sobriety behind the steering wheel. An entirely suspended sentence may convey a wrong message to the community. Despite that the appellant is not employed, some form of a stiff fine will usher sobriety in him whenever he takes to public roads.

[9] In the result, the following order is made:-

“The conviction is confirmed but the sentence is set aside and replaced with the following:-

“A fine of one thousand rand (R1000-00) or in default of payment, imprisonment for six (6) months and a further six (6) months imprisonment which is suspended for three years on condition that the accused is not convicted of contravention of Section 65(1) (a) of the National Road Traffic Act, No. 93 of 1966 committed during the period of suspension.”

SAMKELO GURA

JUDGE OF THE HIGH

COURT

I agree

R.D. HENDRICKS