S v Van Rensburg

• Jurisdiction: South Africa
• Judge: van Winsen J, Diemont J and Corbett J
• Judgment Date: 15 February 1967
• Citation: 1967 (2) SA 291 (C)
• Court: Cape Provincial Division

C Van Winsen, J.:

Appellant was convicted of the negligent driving of a motor vehicle on the National Road between Beaufort West and Richmond on the night of 24th April, 1966. He was sentenced to a fine of R75 or 120 days' imprisonment, and his driver's licence was suspended for six months and ordered to be endorsed.

D It appears that he was in charge of a convoy of six new motor vehicles proceeding from Cape Town to Johannesburg. At 4.30 a.m. on the morning of 24th April the convoy was proceeding at a speed of 55 - 60 miles per hour from Beaufort West in the direction of Richmond on its way to Johannesburg. Appellant was driving a Plymouth motor car T.O. 811, and brought up the rear of the convoy. The third car from the rear in the E convoy drew up, and the two cars behind it followed suit. The leading three cars in the convoy proceeded on. Appellant, having ascertained that the driver of the car that stopped in the first instance wished to rest as he was tired and sleepy, he, the appellant, drove on in the direction in which the convoy was proceeding with the object of F overtaking and stopping the three leading cars in the convoy. When he was in the process of catching up on the second car from the front of the convoy he noticed it was weaving from side to side on the road and that the driver had adopted a relaxed position behind the driving wheel with his head resting against the front right-hand window of the car. Appellant continued to drive behind this car for a while, flicking his G headlights and sounding his hooter in order to attract the attention of the driver. He then started to overtake him, again sounding his hooter. While so doing his whole attention was concentrated on the driver of the second car in the convoy. Meanwhile a car driven by Miss Bressler was proceeding on its correct side of the road in the opposite direction, H with its headlights on. Miss Bressler had seen the lights of the three leading cars in the convoy some distance ahead of her as they appeared and disappeared in the dips in the road. She states that when she was on a bend in the road - which by common consent was a gentle and not an acute bend - she saw appellant's car alongside of and in the act of overtaking a car travelling in the direction opposite to that in which she was proceeding. In so doing the appellant, she says, drove his car on to the incorrect side of the road, which compelled Miss Bressler, in an effort to avoid him, to swerve further to her left. Despite this manoeuvre she was unable to avoid appellant's car, which collided

Van Winsen J

with her car at a point on the southern verge of the tarmac of the road, that is, on the extreme edge of Miss Bressler's correct side of the road. It is clear from appellant's own admissions that he did not see Miss Bressler's car until just before the collision. He says he tried to A avoid her by accelerating in an endeavour to regain his correct side of the road in order to pass ahead of the second car in the convoy. He admits that he was unsuccessful in carrying out this manoeuvre, and the rear of his car skidded to the right and collided with Miss Bressler's car. Appellant ascribes his failure to see the lights of the latter's car to a dip in the road, but admitted that had he not been B concentrating on trying to awaken the driver of the second car in the convoy he would have seen Miss Bressler's car approaching in time to avoid it. On these facts the magistrate quite correctly found the accused guilty of negligent driving.

The attack on the sentence was directed solely to the suspension of C appellant's driving licence for six months. Mr. Hodes on his behalf argued that there was, in the light of certain factors to which he alluded, such a striking disparity between this portion of the court's order and an order which a court, viewing the matter correctly, would have made that this Court must of necessity be filled with a sense of shock, and would therefore set aside the sentence and impose what to it D appeared an appropriate one. He argued further that in any event the magistrate had been guilty of a misdirection in relation to the imposition of the sentence, since it was clear from his reasons for sentence that he had intended the suspension of appellant's licence to be in the nature of punishment, whereas, upon a proper construction of the terms of Ord. 19 of 1955, the legislature had intended that an order E suspending or cancelling an offender's licence was to be used exclusively for the protection of the public. By reason of such misdirection this Court was at large in the imposition of an appropriate sentence.

I propose to deal first with the latter contention. This appeal initially came before a Court consisting of two Judges. In view, F however, of the conflicting decisions on the question of the purpose intended to be served by the court's power of suspension or cancellation of a licence - a matter upon which a two-Judge...