S v Juta

• Jurisdiction: South Africa
• Judge: Van Reenen CJand Davies J
• Judgment Date: 13 March 1986
• Hearing Date: 13 March 1986
• Court: Transkei Supreme Court

Van Reenen CJ:

The accused was found guilty of driving a motor vehicle whilst under the influence of liquor.

C The conviction is in order.

He was sentenced to a fine of R350 or to undergo five (5) months' imprisonment.

The following query was put to the magistrate on review:

'The magistrate is asked to consider whether, having decided that a fine of R350 was an adequate sentence, the alternative of five months' D imprisonment is not out of proportion.'

The magistrate's views are interesting and, at first sight, apparently convincing, but they do not pass close scrutiny.

It is true that sentence is pre-eminently a matter for the trial court, and that it is, within the limits of statutory provisions, in the E discretion of the presiding officer.

But that discretion is not an ordinary discretion - it is a judicial discretion which means that the discretion cannot be exercised arbitrarily nor whimsically. It is a discretion which is bound by judicial precedent and judicial authority.

As an English Judge has put it - judicial officers are like the F centurion of Capernaum: he is one with authority, but is himself under authority. The authority of precedent and decisions of Superior Courts; whether the presiding officer likes it or not, or whether he agrees with such superior precedents or not is irrelevant. He stands under that authority and must bow to it.

G It would appear from the magistrate's reasons that he has adopted an indefensible approach to the question of sentence, and particularly to the alternative sentence, should the fine not be paid.

When deciding on sentence, the court should first consider whether the case is one which calls for a prison sentence or not. Should it decide that the accused should have the option of a fine, he must then H determine what the magnitude of the fine must be, having regard to the usual factors which apply.

Having decided on the amount of the fine, the court has to consider what should happen if it appears that the accused is unable or unwilling to pay the fine. The court has two options: firstly, he can abide by the I fine, in which case the fine can be recovered, if needs be, by civil execution against the accused, or, and this is the usual course, he can decide to impose a prison sentence which is to be enforced if the fine is not paid.

But, and this is where magistrates often go wrong, in the deciding on the term of imprisonment, the court is now not concerned with a...