Attorney-General, Venda v Maraga

• Jurisdiction: South Africa
• Judge: Etienne du Toit AJ
• Judgment Date: 06 October 1992
• Citation: 1992 (2) SACR 594 (V)
• Hearing Date: 03 August 1992
• Counsel: S Ramaite for the appellant P N V Ndou for the respondent
• Court: Venda Supreme Court

Etienne du Toit AJ:

The respondent was charged in the magistrate's court of Venda and in the district of Vuwani with the offence of contravening s 137(1) of the Road Traffic Act 7 of 1975 (V) in that upon or about 13 October 1990 and at or near the Tshakhuma-Sibasa road, a public road E within the district of Vuwani, he wrongfully and unlawfully drove a motor vehicle, to wit V10450D, recklessly or negligently and knocked against another vehicle, to wit V836D (sic). In the alternative, the respondent was charged with having contravened s 138 of Act 7 of 1975 in that upon or about the date and place mentioned in the main count, he wrongfully and unlawfully drove the vehicle mentioned therein without reasonable consideration for other persons using the said road. F

On 20 November 1991, respondent pleaded not guilty to the main and alternative counts but was found guilty of negligent driving in contravention of s 137(1) of the Act. He was sentenced as follows:

'R400 or four months' imprisonment, which is wholly suspended for five years on condition that the accused is not convicted of contravening ss 137(1) and 138 of Act 7 of 1975 committed during the period of suspension.' G

The Attorney-General now appeals against the sentence.

The history

In the normal course of matters, the matter was sent on review and Van der Walt J (as he then was) indicated in his query to the magistrate that, although the evidence amply supported the guilt of the respondent, the H sentence might have been too lenient in view of the facts of the case and especially the respondent's recent and relevant previous conviction (of culpable homicide involving a car accident). The Attorney-General's opinion was also requested by my Brother Van der Walt, and after the magistrate's reasons were furnished, as well as the Attorney-General's opinion, the review Court held that the respondent's sentence could not be increased on review. The Attorney-General intimated in his opinion that he I intended applying for leave to appeal against the sentence in terms of the provisions of the new s 310A of the Criminal Procedure Act 51 of 1977. Under the circumstances, Van der Walt J and Le Roux CJ did not consider it proper to express any further views on the matter but to leave it to be dealt with in accordance with the Attorney-General's intended action. For the sake of formality, the respondent's conviction and sentence were J confirmed on review.

Etienne Du Toit AJ

Increase of sentence on review A

It is firstly necessary to deal briefly with the lack of competence of the review Court to increase a sentence on review. It has been held frequently that a competent, but inadequate or too lenient, sentence cannot be increased on review in South Africa. Where a sentence falls squarely within the penal provisions and is therefore regular, the review B Court is powerless to interfere, even where it was inadequate. On the face of things, South African review Courts, and the Venda review Court, could be argued to possess the power to increase an improperly light sentence on review. I am referring to the following indicators:

(i)

Section 304(2)(c)(ii), which empowers the review Court to confirm, reduce, alter or set aside the sentence or any order C of the magistrate's court; the word 'alter' on the face of it would include 'increase'.

(ii)

Section 304(2)(c)(iv), which affords review Courts the discretion generally to give such judgment or impose such sentence as the magistrate's court ought to have given and, again, on the face of it the review Court is afforded the power D to impose, generally speaking, the sentence which the trial court should have imposed.

(iii)

The principles applicable to review are the same as against the respondent and the State (see S v Smit 1967 (2) SA 235 (C) at 237H; S v Zulu 1967 (4) SA 499 (T) at 501F-G S v Du Toit 1966 (4) SA 627 (A); S v Mokoena 1975 (4) SA 295 (O); S v Mbayi 1976 (4) SA 638 (Tk); S v Ngobo 1980 (1) SA 579 (B)); it is also the E task of the review Court to see to it that justice is done as against both the parties to the criminal matter.

(iv)

The inherent review powers of the Supreme Court would, at first blush, include the increase of sentence where justice demands it, but in S v Haasbroek; S v November 1969 (1) SA 356 (E) at 359D-E it was correctly decided that the increase of sentence is not included in such powers. F

It is clear that s 304 does not entitle the review Court to increase a sentence and that such action is only legally possible on appeal. This fact appears clearly from the relevant provisions of the Criminal Procedure Act 51 of 1977, namely s 309(3), s 322(6) and especially s 309(3) wherein the power to increase a sentence on appeal is specifically and expressly added to the powers which the review Court would have G enjoyed. See also S v Haasbroek (supra at 358-9).

In several decisions, other Courts pointed at this anomaly in the law of criminal procedure and expressed the view that the review Court should possess such power. See, for example, S v Msindo 1980 (4) SA 263 (B); S v Haasbroek; S v November (supra). In the latter judgment, Addleson J stated as follows at 361C:

H 'The conclusion to which the Court is forced, namely that it cannot redress the injustice which is so strikingly revealed in the judgment of my Brother Eksteen, underlines in my view the necessity for legislation to remedy this unsatisfactory state of affairs. It is not uncommon for a reviewing Judge, because he has no power to interfere with a patently inadequate sentence, to be obliged to put his signature to an equivocal I statement that the proceedings in question appear to him "to be in accordance with justice".'

White J, in S v Mzingeli and Another; S v Renge and Others 1992 (1) SACR 615 (Tk) at 617g also complains of a gap in the Court's powers in this respect:

'When one considers the purpose of automatic review, it is not surprising that from time to time the cry has gone up for amending legislation to fill the gap in the Court's powers in this respect. Automatic review, which is unique to South African law, was introduced J into our law during 1856 to enable

Etienne Du Toit AJ

A Judges to satisfy themselves that certain criminal cases had been conducted in "accordance with real and substantial justice". . . . It seems to me that, although it is trite that our law, as it presently exists, does not empower a Court to increase a sentence on automatic review, much can be said for granting a reviewing Court, especially in Transkei, this power. Although I am impressed by the general high standard of the judicial duties performed by magistrates in Transkei, B there are undoubtedly occasions when sentences imposed are unreasonably excessive or unreasonably lenient. Many magistrates in the rural areas of Transkei have no contact with other qualified members of the legal profession and rely heavily on the guidance they receive from the judgments given by this Court on, inter alia, automatic review. This is a further reason why Judges of this Court should be empowered to correct C both excessive and inadequate sentences.'

After expressing the clear view that amendment of legislation was necessary, White J referred to s 310A of Act 51 of 1977 in which South African Attorneys-General were given the right to apply for leave to appeal against sentences imposed by lower courts. After quoting s 310A of Act 51 of 1977, White J indicated that if a similar section were enacted D in the Transkei Criminal Procedure Act the miscarriages of justice occasioned by inadequate sentences which come to the notice of Judges on automatic review could be remedied.

At 620a White J finds as follows:

'Although the envisaged amendment will not empower a Court to increase a sentence on automatic review, it will authorise it to bring the inadequate sentence to the notice of the Attorney-General, in whose E decision the Court will generally abide. The Attorney-General will undoubtedly then proceed in terms of a section similar to the South African s 310A, with a view to remedying grossly inadequate sentences. The amendments will, therefore, not only provide a procedure whereby such miscarriages of justice, which have come to the Court's notice on automatic review, can be remedied, but will also meet all the problems raised in argument before us. An accused will be entitled to address the F Court and the Attorney-General will be able, if he deems it necessary, to also proceed against any accused whose case was not sent on automatic review.'

Section 310A of Act 51 of 1977 was inserted into the Act in Venda by Proc 16 of 1991 on 6 May 1991. Identical to the South African version of s 310A, it reads as follows:

'(1)

G The Attorney-General may appeal against a sentence imposed upon an accused in a lower court, to the Supreme Court, having jurisdiction, provided that an application for leave to appeal has been granted by a Judge in Chambers.

(2) (a)

A written notice of such an application shall be lodged with the Registrar of the Supreme Court concerned by the H Attorney-General, within a period of 30 days of the passing of sentence or within such extended period as may on application on good cause be allowed.

(b)

The notice shall state briefly the grounds for the application.

(3)

The Attorney-General shall, at least 14 days before the day appointed for the hearing of the application, cause to be served by the deputy sheriff upon the accused in person a copy of the I notice, together with a written statement of the rights of the accused in terms of ss (4): Provided that if the deputy sheriff is not able so to serve a copy of the notice, it may be served in any other manner that may on application be allowed.

(4)

An accused may, within a period of 10 days of the serving of such a notice upon him, lodge a...