S v Brink

• Jurisdiction: South Africa
• Judge: Allie J and Davis AJ
• Judgment Date: 13 March 2018
• Citation: 2018 (2) SACR 6 (WCC)
• Docket Number: A 320/2017
• Hearing Date: 13 March 2018
• Counsel: Adv Jansen for the appellant.
• Court: Western Cape Division, Cape Town

Davis AJ (Allie J concurring):

[1] This appeal concerns the interpretation and application of s 35 of the National Road Traffic Act 93 of 1996 (the Act), which deals with the J

Davis AJ (Allie J concurring)

mandatory A suspension of driving licences for prescribed minimum periods in cases of conviction for specified traffic offences.

[2] Section 35(1) of the Act lists various offences under the Act which attract a mandatory minimum sentence of six months in the case of a first offence, five years in the case of a second offence, and 10 years in the case B of a third or subsequent offence. The question in this appeal is whether a subsequent conviction under a different subsection of the same section of the Act qualifies as a second offence, more particularly, whether a conviction under s 65(2) of the Act which is preceded by a conviction under s 65(1) of the Act counts as two offences. [1]

[3] C The appellant was charged in the Hermanus Magistrates' Court with contravening s 65(2)(a) of the Act on 21 July 2016 by driving a vehicle on a public road while the concentration of alcohol in his blood was not less than 0,05 grams per 100 millilitres, to whit 0,21 gram per 100 millilitres.

[4] D The appellant's attorney negotiated a plea bargain on his behalf in terms of s 105A of the Criminal Procedure Act 51 of 1977 (the CPA), it being agreed that the appellant would plead guilty to the charge and be sentenced to a fine of R10 000 or 10 months' direct imprisonment of which half is suspended for a period of five years (the plea agreement). The plea agreement set out the circumstances pertaining to the commission E of the offence, as well as factors relevant to the sentence, both mitigating and aggravating. The appellant disclosed in the plea agreement that he had a previous conviction under a 2008 case number for 'the same offence'.

[5] At the hearing on 3 May 2017 the magistrate duly convicted the F appellant in accordance with the provisions of the plea agreement. Prior to sentencing the state handed in a record of the appellant's previous convictions, which he admitted. The SAP69 recorded that the appellant had been convicted in 2009 on one count of driving under the influence of liquor under s 65(1)(a) of the Act and one count of reckless and/or G negligent driving under s 63 of the Act (the 2009 conviction), for which he had been sentenced to a fine of R5000 or 10 months' imprisonment, plus a further R5000 or 18 months' imprisonment conditionally suspended for five years.

[6] The magistrate sentenced the appellant in accordance with the plea H agreement, subjecting him to a fine of R10 000 or 10 months imprisonment of which half is suspended for a period of five years.

[7] Thereafter the magistrate went on to deal with the question of the mandatory suspension of the appellant's driving licence in terms of s 35(1). He did not before doing so — or at any stage — notify the I appellant of the provisions of ss 35(1) or (3). Nor did he enquire whether the appellant's attorney had informed the appellant of these provisions.

Davis AJ (Allie J concurring)

[8] The magistrate therefore failed to comply with the peremptory A provisions of s 35(4) of the Act, which oblige the court convicting any person of an offence referred to in s 35(1) to inform the person of the provisions of ss 35(1), (2) and (3) before imposing sentence. The procedural rights afforded to an accused in terms of s 35(4) are an important aspect of the right to a fair trial, and due care must therefore B be taken to comply strictly with the requirements of the section. I agree with the observations by Tshiki J in S v Botha 2013 (1) SACR 353 (ECP) that:

'(T)he wording of s 35(3) of the Act envisages a hearing in compliance with the constitutional provisions, before the convicted person's right to C keep or obtain his or her licence can be taken away by operation of law. It is for this reason that the court, in terms of s 35(4) of the Act, has to advise the convicted person of the provisions of ss 35(1) – (3) of the Act before the imposition of sentence. Sentencing, in the sense used in s 35(4) of the Act, includes the suspension of a licence or disqualification to obtain one, as the case may be.' [2] D

[9] In this case the appellant was legally represented at the trial, and no point was taken on appeal regarding the magistrate's failure to comply with the provisions of s 35(4) of the Act. Furthermore, the appellant, duly assisted by his attorney, did in fact testify in the s 35(3) enquiry. It can therefore safely be inferred that appellant's attorney had informed E him of the provisions of ss 35(1) and (3), and I am satisfied that the appellant could not have been prejudiced by the magistrate's failure to comply with the requirements of s 35(4).

[10] Although the magistrate did not articulate the purpose therefor, he proceeded to conduct an enquiry as envisaged in s 35(3) in order to F ascertain whether there were circumstances which warranted deviating from the prescribed minimum suspension period.

[11] The appellant testified in the s 35(3) enquiry. During the course of his evidence-in-chief he volunteered that he was currently without a driving licene because his licence had been 'revoked during a previous incident'. G

[12] During cross-examination he testified that his licence had been suspended for six months in 2008, and that his licence was currently suspended for five years until 2020 for ''n vorige dronkbestuur'. He admitted that he had been driving without a licence when he H committed the offence for which he was being tried.

[13] The conviction which gave rise to the current five-year suspension did not appear on the SAP69. Nor was it referred to in the plea agreement.

[14] The magistrate then questioned the appellant as follows regarding the 2015 conviction: I

'Court: Mnr Brink, as die Hof nou so mooi kyk na die tydperk van opskorting wat eers verstrek in 2020, blyk dit dat u in 2015 moes

Davis AJ (Allie J concurring)

skuldig A bevind gewees het op 'n klagte as ek dit reg verstaan sê u dit is ook 'n dronkbestuur klagte?

Appellant: Ja.

Court: Die hoofklagte of was dit die alternatiewe klagte beteken dat te veel alkohol in u bloed of was dit die hoofklage waarop u skuldig B bevind is?

Appellant: Die klagte was vir alkohol ja, maar ek het voordat hulle enige bloedtoetse gedoen het, het ek gesê ek wil net skuldig pleit.

Court: Ek verstaan dit, maar die Hof wil vasstel is u skuldig bevind op die hoofklagte, beteken die hoofklagte van dronkbestuur beteken u C het geen vermoëns gehad om daardie voertuig to bestuur nie of was dit die alternatiewe klagte wat beteken u het die vermoëns gehad om 'n voertuig to bestuur, u het net te veel alkohol in u bloedsisteem gehad?

Appellant: Ek het die vermoë gehad om te bestuur, maar . . . (tussenbeide)

Court: D Dit is nou die ene van 2015. Ek praat van hierdie ene.

Appellant: Ja

Court: Is dit die alternatiewe klagte waarop u skulding bevind is?

Appellant: Ja.

Court: E Die rede hoekom — die Hof sou in elk geval vir u gevra het wat was die rede vir die opskorting aangesien dit nie aangewys word op hierdie vorige veroordelings, die enigste vorige veroordeling aangewys hierop is die een van 2009, is dit korrek so?

Appellant: 2008.

Court: F Ja, 2009 is u skuldig bevind.

Appellant: Ja, dis korrek.

Court: Ek wil net vasstel eers laastens voor ek afsluit, waar was u skuldig bevind in 2015?

Appellant: Pretoria.

Court: G Pretoria se hof [ge]se wees. Kan u die datum onthou?

Appellant: Nee.

Court: So as die Hof dit reg het is dit u derde ooortreding, derde soortgelyke oortreding waarop u vandag skulding bevind is?

Appellant: H Soortgelyk.

Court: Is dit korrek so?

Appellant: . . . (no audible answer).'

[15] On the strength of the appellant's answers the magistrate accepted I that the appellant had been convicted for an alcohol-related offence in 2015, despite the absence of any record thereof on the SAP69. He therefore considered that the appellant had three relevant convictions, all alcohol related, being the 2009 conviction in terms of s 65(1), the 2015 conviction in terms of s 65(2) (apparently), and the current J conviction in 2017 under s 65(2).

Davis AJ (Allie J concurring)

[16] The magistrate further found that there were no circumstances A relating to the offence which warranted a departure from the prescribed minimum period of suspension, and he accordingly ordered that the appellant's licence be suspended for a period of 10 years in accordance with s 35(1)(iii) of the Act.

The questions which arise in this appeal B

[17] Three questions arise in this appeal, namely:

[17.1]

Whether it is only convictions under an identical provision of the Act which constitute previous convictions for the purposes of ss 35(1)(ii) and (iii), or whether successive convictions for any C of the similar offences grouped together under ss 35(1)(a), (aA), (b) or (c) are relevant for purposes of determining whether one is dealing with a second or third offence for purposes of ss 35(1)(ii) and (iii);

[17.2]

whether or not the magistrate ought to have taken into account the 2015 conviction which was not reflected on the SAP 69; and D

[17.3]

whether or not there are circumstances which warrant a deviation from the prescribed minimum period of suspension in this case.

The interpretation of s 35(1) of the Act E

[18] Section 35 reads as follows:

'(1) Subject to subsection (3), every driving licence or every licence and permit of any person convicted of an offence referred to in —

(a)

section 61(1) (a), (b) or (c), in the case of the death of or serious injury to a person; F

(aA)

section 59(4), in the 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...