S v Russell

• Jurisdiction: South Africa
• Judge: James J and Van Heerden J
• Judgment Date: 16 May 1968
• Citation: 1968 (3) SA 273 (N)
• Hearing Date: 30 April 1968
• Court: Natal Provincial Division

B James, J.:

The appellant, a European male of 32 years of age, was charged before a magistrate upon a number of counts.

The first count alleged that the accused had, in Durban on 2nd October, 1967 stolen a motor car belonging to a man named Mudde; and there were C two alternatives to this count, the first alleging a contravention of sec. 141 (2) of Ord. 21 of 1966, it being alleged that he had driven the said motor car without the lawful consent of the said Mudde, and the second alleging a contravention of sec. 141 (1) of the said Ordinance, it being alleged that he wrongfully and unlawfully and without reasonable cause and without the consent of the said Mudde, entered the D said vehicle and placed it in gear and set it in motion. The second count alleged that, at the same time and place, he drove the said vehicle on a public road in Durban whilst under the influence of intoxicating liquor or a drug having a narcotic effect; and there were two alternatives to this count, one alleging that the appellant drove E recklessly or negligently and thereby contravened the provisions of sec. 138 (1) of the Ordinance, and the second, that the drove without reasonable consideration for any other person using that road and thereby contravened the provisions. He pleaded not guilty to count 1 but guilty to the main charge in count 2. After hearing evidence the magistrate found the appellant not guilty of theft but guilty of the alternative count of driving the motor car without the owner's consent, F and on count 2, of driving under the influence of liquor. The appellant had a previous conviction for drving under the influence of liquor. This conviction had taken place on 1st February, 1967 and the appellant was on that occasion sentenced to a fine of R60 or 30 days' imprisonment and G to a further 60 days' imprisonment suspended until 31st January, 1970 on condition that he was not convicted of driving under the influence of liquor, reckless driving or driving without a driving licence, committed during the period of suspension. The magistrate also suspended the appellant's driver's licence for six months.

H In the present case the magistrate sentenced the appellant on the alternative charge on the main count to a fine of R50 or 50 days' imprisonment, suspended for one year on condition that the appellant was not convicted of driving or riding in a person's vehicle without such person's knowledge or consent; and on the second count he sentenced him to six months' imprisonment and ordered that the appellant's drivers' licence be suspended for 12 months.

The appellant has now appealed solely against the sentence of six months' imprisonment passed on the second count. The grounds of appeal were as follows:

James J

(1)

The said sentence created a sense of shock having regard to the fact that the accused is

(a)

an alcoholic; and

(b)

that his driving did not result in any damage to persons or property; and

(c)

A that the offence of which the accused was convicted involved mere foolish irresponsibility and negligence rather than criminality.

(2)

The magistrate erred in not considering the imposition of periodical imprisonment in terms of sec. 334 bis of the Code or B to the suspension of portion of the said sentence or the option of a substantial fine plus a suspended sentence of imprisonment.

(3)

The said magistrate misdirected himself in that he relied too heavily on the fact that the accused had a previous conviction.

(4)

Furthermore the magistrate erred in finding that the fact that C the accused caused no damage to persons or property does not constitute a mitigating...