Van Rensburg v S (CA&R290/2015) [2016] ZAECGHC 9 (10 March 2016)

IN

THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVSION GRAHAMSTOWN)

CASE NO: CA&R290/2015

In the matter between:

RUDI

VAN

RENSBURG

Appellant

vs

THE

STATE

Respondent

JUDGEMENT

MBENENGE J:

[1] This appeal serves before this court with the leave of the magistrate for the district of Humansdorp, after that court convicted the appellant of driving on a public road at a speed of 145 km per hour, higher than the general speed limit of 100 km per hour as applicable to a “deurpad” (a freeway), in contravention of section 59 (4)(a) of the National Road Traffic Act 93 of 1996 (the Act), as read with sections 59(1)(c), 69(2), 73, 89(1) and 89(3) of the Act, and regulation 292 (a) and 332 A of the National Road Traffic Regulations, 2000 (as amended)(the Regulations). He was thereupon sentenced to pay a fine of R3000.00 or in default thereof to undergo 100 days imprisonment. The court a quo further suspended the appellant’s driving licence for three (3) months.

[2] The appellant had pleaded guilty to the charge. In his plea explanation statement handed up to court in terms of section 112(1) of the Criminal Procedure Act 51 of 1977 the appellant admitted having driven his vehicle, a Toyota Hilux LDV (the motor vehicle) on the N2 road, Kleinbos, a public road in the district of Humansdorp, on the date in question, and having driven at 145 km per hour, faster than the prescribed speed limit (100 km per hour) on that portion of the road. The statement further reads:

“I was on my way to Port Elizabeth to fetch parts for my panelbeating business. I was in no particular hurry. As far as I knew

the speed limit was 120 km/h. The vehicle I drove was brand new and I had different tyres to it. This will obviously have influenced the reading on the speedo- meter as it was not re-calibrated. When I was pulled over by the traffic official

it came to a shock to me that the limit was 100 km/h, as I had not seen it indicated and the previous sign indicated 120 km/h.

I accept that I drove fast when I was advised of the limit and plead guilty.”

[3] The court a quo became satisfied, on the strength of the statement, that the appellant correctly pleaded to the charge and admitted all the elements of the offence, hence he was found guilty as charged.

[4] When called to testify in mitigation of sentence, the appellant stated that he was 45 years old at the time, having

obtained his driving licence at the age of 18 years. He is married with two dependant offspring. He had been on his way to Port Elizabeth to fetch car parts for his business, and had been under the impression that the speed limit was 120 km per hour, not having observed the 100 km per hour sign board. He further stated that his business hired 18 employees none of whom was licenced to drive. He travelled frequently to Port Elizabeth to fetch car parts. Suspending his licence, he said, would have disastrous consequences for his business, and his employees ran the risk of losing their jobs.

[5] The court a quo was of the view that it was, on a proper reading of section (35)(1)(i) of the Act, precluded from making any order other than one suspending his driving licence for a period of three months.

[6] The impugned sentence was predicated on the notion that the road on which the appellant travelled had no general speed limit of 120 km per hour and that the general speed limit was the prescribed limit of 100 km per hour. The court a quo was furthermore of the view that even if it were to be found that the general speed limit had been 100 km per hour there were not enough and compelling reasons furnished by the appellant as to why his licence should not be suspended.

[7] Section 59(4)(a)and (b) of the Act makes it an offence for one to drive a vehicle on a public road at a speed in excess of the general speed limit which in terms of section 59(1) applies in respect of that road or the speed limit indicated in terms of section 59(2) by an appropriate road traffic sign in respect of that road.

[8] Section 59 (1) and (2) makes provisions for speed limit, and reads:

“59(1) The general speed limit in respect of-

(a) every public road or section thereof, other than a freeway, situated within an urban area;

(b) every public road or section thereof, other than a freeway, situated outside an urban area; and

(c) every freeway, shall be as prescribed.

(2) An appropriate road traffic sign may be displayed on any public road

in accordance with section 57, indicating a speed limit other than the general speed limit which applies in respect of that road in terms of subsection (1): Provided that such other speed limit shall not be higher than the speed limit prescribed in terms of subsection (1)(c).”

[9] In terms of regulation 292 (a) of the Regulations, 100 km per hour shall apply in respect of a road or section thereof other than a free way, situated outside an urban area. 120 km is the limit prescribed in respect of every free way.

[10] Section 35 of the Act, which is at the heart of these proceedings, in so far as relevant hereto, reads:

“35 (1) Subject to subsection (3), every driving licence or every licence and permit of any person convicted of an offence

referred to in-

(a) . . .;

aA) section 59(4), in case of a conviction for an offence, where-

(i) a speed in excess of 30 kilometres per hour over the prescribed general speed limit in an urban area was recorded; or

(ii) a speed in excess of 40 kilometres per hour over the prescribed general speed limit outside an urban area or on a freeway was recorded”.

[11] A question that is, in my view, dispositive of this appeal is whether the appellant had been driving the motor vehicle in an urban area or on a free way when the offence that is the subject of the appeal was committed. This is so because of the different scenarios postulated in regulation 292 of the Regulations, referred to in paragraph [9] above.

[12] The appellant was charged and convicted on the basis that he had been driving on a freeway (deurpad). In terms of section 69 (2) of the Act where in a prosecution in terms of the Act it is alleged that an offence was committed on a public road, the road concerned shall, in the absence of evidence to the contrary, be deemed to be a free way. Apart from what had been alleged in the charge sheet, there was no evidence presented other than that the appellant had been driving on a free way.

[13] On the facts of this matter the inescapable conclusion must therefore be that the appellant drove the motor vehicle on a free way in respect of which the prescribed speed limit is 120 km per hour, at 145 kilometres per hour which is not more than 40 km over the applicable general limit within the meaning and contemplation of section 35(aA)(ii) of the Act.

[14] In my view, therefore, a jurisdictional factor precedent to the invocation of section 35 (1)(aA) is lacking. The court a quo thus erred in invoking the section and consequently suspending the appellant’s driving licence.

[15] Somewhat tentatively, Mr Zantsi, who appeared for the respondent, submitted that it could never have been the intention of the legislature in a situation such as the instant one (where, in a freeway, there is an appropriate road sign on part of the freeway

reducing the general speed limit) to legislate for two categories of offenders i.e., those who exceed the general speed limit and those who exceed the limit placed on a piece of road indicated by an appropriate road sign. He further submitted that such a situation would result in an absurdity never contemplated by the legislature.

[16] The respondent’s contention loses sight of the maxim judicis est jus dicere sed non dare. On the strength of the maxim, in Harris v Law Society of the Cape of Good Hope,[1] Kotze J way back then, held:

“If the law in any particular provision of the a statute appears, under the circumstances of a given case, to work a hardship, the proper course is for the Legislature to remedy the evil by amending the statute, and not for the court to commit the greater evil by seeking to repeal the clear letter of the Act”[2].

[17] The absurdity is hard to find. In New Clicks it was held “in accordance with the principle in Venter v R which allows a court to depart from the clear language of a statute where that would otherwise lead: “to absurdity so glaring that it could never have been contemplated by the Legislature, or where it would lead to a result contrary to the intention of the Legislature, as shown by the context or by such other considerations as the Court is justified in taking into account”.

[18] Moreover and in any event, the legislature must be presumed to have been aware of the scenarios which concern the respondent when it legislated as it did.

[19] The appeal therefore succeeds, with result that the portion of the sentence imposed by the Magistrate, Humsansdorp on 11 September 2015, suspending the appellant’s driving licence for a period of 3 months, is hereby set aside.

________

S

M MBENENGE

JUDGE

OF THE HIGH COURT

I agree

_______

CTS

COSSIE

ACTING

JUDGE OF THE HIGH COURT

For the Appellant

: Mr E Brand

Instructed by

: Cilliers Odendaal Attorneys

126 Cradock Street

GEORGE

For the Respondent

: Mr P Zantsi

Instructed by

: The DPP’s Office

GRAHAMSTOWN

Date heard

: 09 March 2016

Judgment delivered

: 10 March 2016

[1]

1917 CPD 449.

[2]

Ibid at 451.