S v Muller

• Jurisdiction: South Africa
• Judge: Cloete J and Parker J
• Judgment Date: 16 November 2018
• Citation: 2019 (1) SACR 242 (WCC)
• Docket Number: A 241/2018
• Hearing Date: 16 November 2018
• Counsel: M Filton for the appellant. M Koti for the state.
• Court: Western Cape Division, Cape Town

S v Muller
2019 (1) SACR 242 (WCC)

2019 (1) SACR p242

Citation	2019 (1) SACR 242 (WCC)
Case No	A 241/2018
Court	Western Cape Division, Cape Town
Judge	Cloete J and Parker J
Heard	November 16, 2018
Judgment	November 16, 2018
Counsel	M Filton for the appellant.; M Koti for the state.

Flynote : Sleutelwoorde

Plea B — Plea-and-sentence agreement — Contents of — Agreement containing provision for suspension of accused's driver's licence — Inquiry under s 35 of National Road Traffic Act 93 of 1996 forming integral part of determination of appropriate sentence and therefore could be included in such agreement.

Plea C — Plea-and-sentence agreement — Procedure — Where presiding officer not considering that sentence just, was duty-bound to follow peremptory provisions of s 105A(9) of Criminal Procedure Act 51 of 1977.

Traffic offences — Driving with excessive concentration of alcohol in blood — D Sentence — Suspension of driver's licence — Circumstances to be taken into account — Conflicting decisions in Western Cape Division on number of circumstances that could be taken into account, and lower courts left in dark.

Headnote : Kopnota

The E appellant entered into a plea-and-sentence agreement in terms of s 105A of the Criminal Procedure Act 51 of 1977 in terms of which he pleaded guilty to a charge of having driven a motor vehicle while the concentration of alcohol in his blood exceeded 0,05 grams per 100 millilitres in contravention of s 65(2)(a) of the National Road Traffic Act 93 of 1996 (the NRTA).

The agreed sentence was a fine of R16 000 or 12 months' imprisonment of F which R12 000 was suspended for five years. He would also do 60 hours of community service and his driver's licence would be suspended for six months. Without any warning, the magistrate proceeded to hold an inquiry in terms of s 35 of the NRTA and held that the appellant's licence was automatically suspended for five years.

On appeal, the appellant contended that the magistrate had misdirected himself in unilaterally altering the terms of the plea-and-sentence agreement in G relation to the period of suspension of his driver's licence without informing the parties beforehand.

Held, that the s 35 inquiry formed an integral part of the determination of an appropriate sentence and it was therefore open to the parties to include an agreed specific period of suspension of the accused's driver's licence in the H s 105A agreement. The magistrate had erred in concluding that the inquiry was merely a post sentence procedure. Further, in circumstances where the magistrate did not consider the sentence agreed upon in the agreement to be just, he was duty-bound to follow the peremptory provisions of s 105A(9). His failure to do so meant that the conviction and sentence had to be set aside. (See [15].) The matter was remitted to the magistrates' court to commence de novo before another magistrate.

Semble: I there were two lines of conflicting decisions within the Western Cape Division on the amendments to s 35 of the NRTA that took effect from 20 November 2010 and whether there was a limit on the circumstances to be taken into account in respect of the suspension of a driver's licence. This had led to a most unsatisfactory result where lower courts were left in the J dark as to which authority they were bound by. (See [18] – [21].)

2019 (1) SACR p243

Cases cited

S v Brink 2018 (2) SACR 6 (WCC): referred to A

S v De Bruin WCC 141270: referred to

S v DJ 2016 (1) SACR 377 (SCA): applied

S v Greeff 2014 (1) SACR 74 (WCC): dictum in para [4] not followed

S v Jaftha 2010 (1) SACR 136 (SCA) ([2010] 1 All SA 403): dictum in para [11] applied B

S v Lourens 2016 (2) SACR 624 (WCC): dictum in para [7] followed

S v Stockenstroom WCC A 24/2018: referred to.

Legislation cited

Statutes

The Criminal Procedure Act 51 of 1977, s 105A: see Juta's Statutes of South Africa 2017/18 vol 1 at 2-300 – 2-301 C

The National Road Traffic Act 93 of 1996, ss 35 and 65(2)(a): see Juta's Statutes of South Africa 2017/18 vol 4 at 2-225 and 2-231.

Case Information

M Filton for the appellant.

M Koti for the state. D

An appeal from a conviction and sentence in a magistrates' court for an alcohol-related driving offence.

Order

1.

The appeal is upheld. E

2.

The conviction and sentence are set aside.

3.

The matter is remitted to the District Court, Mitchells Plain, for the trial to commence de novo before another magistrate.

4.

The registrar is directed to forward a copy of this judgment to the Director of Public Prosecutions, Western Cape. F

Judgment

Cloete J (Parker J concurring):

[1] The issues in this appeal against conviction and sentence, which is with leave of the trial court, are:

[1.1]

Whether a plea-and-sentence agreement concluded in terms of G s 105A of the Criminal Procedure Act (the CPA) [1] may include an agreement that an accused's driver's licence is suspended for a particular period, without it being incumbent upon the court to hold an enquiry in terms of s 35 of the National Road Traffic Act 93 of 1996 (the NRTA); [2] H

[1.2]

if an agreed period of suspension cannot form part of a s 105A agreement, whether a subsequent conviction under a different subsection of s 65 of the NRTA qualifies as a second offence for purposes of imposition of a mandatory period of suspension, absent circumstances warranting a deviation; and I

[1.3]

what circumstances should be taken into account in considering whether a deviation is warranted.

2019 (1) SACR p244

Cloete J (Parker J concurring)

[2] A The appellant was charged with contravening s 65(2)(a) read with s 89(1) and (2) of the NRTA, it being alleged in the charge-sheet that on 4 September 2016 and at Spine Road, Mitchells Plain, he wrongfully drove a motor vehicle while the concentration of alcohol in his blood exceeded 0,05 grams per 100 millilitres, namely 0,13 grams per 100 millilitres. B The appellant has a previous conviction in 2010 for contravening s 65(1)(a) of the NRTA for driving a vehicle on a public road while under the influence of intoxicating liquor, for which he was sentenced to a fine of R2500 or 60 days' imprisonment, plus a further R5000 or four months' imprisonment, suspended for a period of four years on condition C that he was not again found guilty of a contravention of s 65(1)(a) of the NRTA during the period of suspension.

[3] In terms of para 7 of the s 105A agreement concluded on 17 November 2017 the appellant 'admits guilt in respect of the charge, as mentioned above, and pleads guilty thereto on the basis set out below'. D The sentence portion of the agreement, from para 19 onwards, recorded that 'the nature of the offence, the interests of the community and the personal circumstances of the accused have been duly considered and taken into account...