S v Mulaudzi

• Jurisdiction: South Africa
• Judge: Van Rhyn CJ
• Judgment Date: 17 June 1985
• Citation: 1985 (4) SA 226 (V)
• Hearing Date: 17 June 1985
• Court: Venda Supreme Court

Van Rhyn CJ:

The magistrate convicted the accused on a charge of contravention of the provisions of s 139 (2) of the Venda Traffic Act 7 of 1975 and sentenced him to "R100 or 100 days' imprisonment".

According to the charge sheet the accused contravened the F section by driving a motor vehicle with a percentage of alcohol in his blood, expressed in grams per 100 millilitres, in excess of 0,08 per cent.

According to the certificate handed in as exh C "(was) die konsentrasie alkohol 0,29 gram per 100 milliliter".

The accused was convicted and sentenced on 6 May 1985.

On 20 May the magistrate wrote a letter to the Registrar of G this Court in which the magistrate inter alia stated:

"2.

The court erred in not suspending the accused's driver's licence for a period of at least six months whereas this is peremptory in terms of s 146 of the Act. The Court was holding a view that it had a discretion either to suspend the driver's licence or not to suspend."

H It appears that, at the time of conviction, the accused had a previous conviction for driving under the influence of liquor. In November 1968 he was convicted in the magistrate's court at Louis Trichardt. His driver's licence was then suspended for six months.

Section 146 (6) of the Venda Traffic Act 7 of 1975 provides as follows:

"(6)

I For the purposes of this section a previous conviction means a conviction, whether in Venda or elsewhere of:

(a)

any offence referred to in para (a), (b), or (c) of ss (1); or

(b)

any offence under any other law whether repealed or unrepealed, which in the opinion of the court is similar to any offence referred to in para (a), (b) or (c) of ss (1)."

It is therefore clear that any previous conviction for a J similar offence should have been taken into account by the trial magistrate.

Van Rhyn CJ

I have read the record, the magistrate's letter, and a A memorandum submitted to me by the Attorney-General, Mr Du Plessis, at my request.

In reviewing the matter (vide s 304 (4) of the Criminal Procedure Act 51 of 1977) I conclude as follows:

The provisions of s 146 (2) of Act 7 of 1975 are peremptory.

For a second conviction on a charge of contravention of the B provisions of s 139 of the Venda Traffic Act it was the duty of the magistrate either to suspend the licence of the accused for a period of not less than 12 months or cancel such licence. (Vide s 146 (2) (a) and (b).) (The italics are mine.) The magistrate had no...