Attorney-General, Venda v Maraga

• Jurisdiction: South Africa
• Judgment Date: 06 October 1992
• Citation: 1992 (2) SACR 594 (V)

Attorney-General, Venda v Maraga
1992 (2) SACR 594 (V)

1992 (2) SACR p594

Citation	1992 (2) SACR 594 (V)
Court	Venda Supreme Court
Judge	Etienne du Toit AJ
Heard	August 3, 1992
Judgment	October 6, 1992
Counsel	S Ramaite for the appellant; P N V Ndou for the respondent

Flynote : Sleutelwoorde B

Appeal — Against sentence — By Attorney-General in terms of s 310A of Criminal Procedure Act 51 of 1977 — Application for leave to appeal out of time — Application for condonation — Principles applicable to such application set out and discussed.

Appeal — Against sentence — By Attorney-General in terms of s 310A of C Criminal Procedure Act 51 of 1977 — Attorney-General's right to appeal against sentence should be exercised as sparingly as possible and should be confined to those cases where sentence is so disturbingly inappropriate or glaringly inadequate that trial court could not have exercised its discretion reasonably.

Appeal — Against sentence — By Attorney-General in terms of s 310A of D Criminal Procedure Act 51 of 1977 — Principles applicable to such appeal set out and discussed.

Traffic offences — Negligent or reckless driving in contravention of s 137(1) of Road Traffic Act 7 of 1975 (V) — Section creates two separate offences, namely negligent driving and reckless driving.

Traffic offences — Negligent or reckless driving in contravention of s E 137(1) of Road Traffic Act 7 of 1975 (V) — Sentence — Appellant convicted of negligent driving, having driven on wrong side of road and collided with an oncoming car — Appellant had recent previous conviction of culpable homicide involving a car accident — Magistrate's sentence of fine of R400 or four months' imprisonment suspended for five years set aside on appeal by Attorney-General and replaced by sentence of fine of F R400 or four months' imprisonment and a further four months' imprisonment fully suspended for five years on certain conditions — Driver's licence suspended for three months.

Headnote : Kopnota

The right of the Attorney-General under s 310A of the Criminal Procedure Act 51 of 1977 to appeal against a sentence imposed on an accused should G be exercised as sparingly as possible and should be confined to those cases where the sentence is so disturbingly inappropriate or glaringly inadequate that in the opinion of the Attorney-General the trial court could not have exercised its discretion reasonably.

The principles applicable to an application by the Attorney-General for the condonation of a late application in terms of s 310A of the Criminal H Procedure Act 51 of 1977 for leave to appeal against a sentence imposed on an accused in a lower court set out and discussed.

The principles applicable to the application of s 310A of the Act set out and discussed.

Section 137(1) of the Road Traffic Act 7 of 1975 (V) clearly creates two separate offences, namely negligent driving and reckless driving.

I The respondent had been convicted in a magistrate's court of negligent driving in contravention of s 137(1) of the Road Traffic Act 7 of 1975 (V) and sentenced to a fine of R400 or four months' imprisonment suspended in its entirety for a period of five years. The Attorney-General, making use of his powers under s 310A of the Criminal Procedure Act, applied for and was given leave to appeal against the sentence. It appeared that the J respondent had driven his vehicle in an extremely negligent manner in that

1992 (2) SACR p595

A he had driven on the wrong side of the road, causing him to collide with a vehicle coming from the opposite direction. The respondent had a recent previous conviction for culpable homicide involving the driving of a motor vehicle.

Held, that the sentence was disturbingly inappropriate in the circumstances.

Held, further, that the sentence ought to be set aside and replaced with a B sentence of R400 or four months imprisonment plus an additional four months' imprisonment totally suspended for five years on various conditions and that the respondent's driver's licence be suspended for three months. Ordered accordingly.

Case Information

Appeal by the Attorney-General in terms of s 310A of the Criminal C Procedure Act 51 of 1977 against a sentence imposed in a magistrate's court. The facts appear from the reasons for judgment.

S Ramaite for the appellant.

P N V Ndou for the respondent.

Cur adv vult.

D Postea (6 October 1992).

Judgment

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.

1992 (2) SACR p596

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...