S v Cox

• Jurisdiction: South Africa
• Court: Eastern Cape Division
• Judge: van der Riet AJP and Graham AJ
• Judgment Date: 30 September 1963
• Citation: 1963 (4) SA 731 (E)
• Hearing Date: 09 September 1963

D Van der Riet, A.J.P.:

The appellant was charged with a contravention of sec. 107 (1) (b) of Ord. 19 of 1955, that is to say driving a motor car whilst under the influence of intoxicating liquor. He pleaded guilty and was sentenced to 600 hours periodical imprisonment, and his licence was suspended for 3 years.

E The grounds of appeal noted against the sentence covered the whole issue usually canvassed, referring to the facts that the appellant was a first offender, was only moderately under the influence of liquor, was involved in no collision, and to the severity of the sentence and its resultant undue hardship upon the appellant.

F The appellant gave evidence in mitigation of sentence in which he explained that he was a foreman of a firm constructing steel windows at a salary of R34 per week, and that he was a married man with four young children. He had spent the day in question in the country repairing steel windows. He was using his firm's car the driving of which is essential to his work, and in all probability his conviction would mean the loss of his employment.

G Before dealing with the circumstances under which the appellant drove the car, it is interesting to note the magistrate's reaction to this plea in mitigation. He accepted that owing to the nature of the appellant's work a driving licence was essential to his employment, but H nevertheless said that he could not overlook the fact that the accused drove in a grossly negligent manner and that it was necessary to protect the public against such dangers. He considered that periodical imprisonment was the most appropriate punishment for, while being a deterrent to the appellant it ought not to affect his employment and would therefore not affect his family, while on the contrary a fine would possibly effect greater hardship upon them. Finally the magistrate accepted that the appellant's clean record was strongly in his favour, but nevertheless in all the circumstances he regarded the sentence he imposed as not unreasonable.

Van der Riet AJP

It is a little difficult to reconcile this reasoning. On the one hand there is merit in the idea of the personal inconvenience to the appellant being set off against the protection of his family; but nothing could be surer to prejudice the whole family than the suspension of his licence for three years. A short suspension might have retained A for the appellant the benefit of his employment to his family, but...