S v Van Rooyen

• Jurisdiction: South Africa
• Citation: 2012 (2) SACR 141 (ECG)

S v Van Rooyen
2012 (2) SACR 141 (ECG)

2012 (2) SACR p141

Citation	2012 (2) SACR 141 (ECG)
Case No	CA&R 58/2011; [2011] ZAECGHC 80
Court	Eastern Cape High Court, Grahamstown
Judge	D Van Zyl J and Mjali J
Heard	November 30, 2011
Judgment	December 15, 2011
Counsel	A Hattingh for the appellant.; HL Obermeyer for the respondent.

Flynote : Sleutelwoorde

Traffic offences — Driving with an excessive concentration of alcohol in E blood — Contravention of s 65(2) of National Road Traffic Act 93 of 1996 — Sentence — Suspension of driver's licence — 'Second contravention' in terms of s 35(1) — Previous contravention of s 65(1) — Contravention of s 65(2) not second contravention for purposes of s 35(1). F

Headnote : Kopnota

The appellant was charged in a magistrates' court with a contravention of s 65(2)(a) read with s 89(1) of the National Road Traffic Act 93 of 1996 by driving a motor vehicle on a public road when his blood alcohol was in excess of the statutory limit. In a written plea of guilty the appellant G admitted that the concentration of alcohol in his blood sample was 0,21 gram per 100 ml, in excess of the legal limit of 0,05 gram per 100 ml. The appellant was duly convicted as charged. The state proved a previous conviction (five months prior to the present conviction) of having contravened the provisions of s 65(1)(a) of the Act (ie for impaired driving). The magistrate thereupon sentenced the appellant to a fine of R10 000 or 10 months' imprisonment and confirmed the suspension of the applicant's H driving licence for a period of five years in accordance with the provisions of s 35(1)(c)(ii) of the Act after having conducted an enquiry as envisaged in ss (3) of that section. The appellant raised two grounds of appeal, firstly that the magistrate had erred in treating his conviction in the present proceedings as a second contravention for purposes of s 35(1) of the Act. The second ground of appeal was that the failure of the magistrate to order I that the compulsory suspension of the appellant's driving licence should not take effect, as authorised in ss (3), resulted in the imposition of an unjustly severe and inappropriate sentence, to the extent that no reasonable court would impose it. The contention is that the cumulative effect of the sentence and the five-year suspension of the appellant's driving licence resulted in a severe sentence which warrants interference on appeal. The magistrate acknowledged that the appellant's present conviction was for a J

2012 (2) SACR p142

A different offence to the one he was convicted of in 2008, but was of the view that it constituted a second offence as contemplated in para (ii) of s 35(1), as they both related to driving a motor vehicle while under the influence of alcohol.

Held, that it was the conviction of an offence mentioned in ss (1) that constituted the 'first', 'second' or 'third or subsequent offence'. That this was so was B also evident from the wording of ss (2). It did not provide that a previous conviction for any of the offences referred to in ss (1) constituted a 'second' or 'third or subsequent offence'. If it was the intention of the legislature to provide that a previous conviction for any of the offences in ss (1), or, for that matter, in any particular paragraph thereof, was to be deemed to be a C second or subsequent offence, or alternatively, as in essence contended by the state, that the compulsory suspension of an offender's driving licence would take effect if the offender had a previous conviction for any one or more of those offences, it could easily have said so. [Paragraph [20] at 152e.]

Held, further, rejecting a contention by the state that such an interpretation would lead to a glaring absurdity in imposing sentence on repeat offenders, D that s 35 did not do away with the authority of the court, in the exercise of its discretionary power in terms of s 34, to suspend the driving licence of a repeat offender of any of the offences under the Act, for a time period in excess of that mandated by s 35(1). [Paragraph [23] at 153f.]

Held, accordingly, that the appellant's conviction in the present matter was for purposes of s 35(1) a first offence and the magistrate's order confirming the E suspension for a period of five years had to be set aside. [Paragraph [28] at 155c.]

Held, further, as to an appropriate period of suspension the court took into account that the appellant was 29 years of age; he was unmarried and in gainful employment; he was employed as a foreman at a construction firm F and there was nothing to indicate that he would lose his employment if his licence were suspended. With regard to the gravity of the offence, although a contravention of s 65(2) was regarded as less serious than a contravention of s 65(1) and should be treated as such, it went without saying that as an alcohol-related driving offence it was a serious offence. The number of accidents and loss of life and damage to property which annually resulted G from drivers driving after having consumed alcohol emphasised that. An aggravating factor that had to be given weight was the fact that the appellant had a previous conviction and that he committed the offence in the present matter barely five months after his earlier conviction. Taking these factors into account, as well as the cumulative effect of the sentence imposed by the magistrate and the suspension of the appellant's licence, suspension for a period of 12 months would be appropriate. [Paragraphs [31] and [32] at 156g–157c.] H

Cases cited

Southern Africa I

Administrator, Transvaal, and Another v J van Streepen (Kempton Park) (Pty) Ltd 1990 (4) SA 644 (A): dictum at 657C applied

Birch v Klein Karoo Agricultural Co-Operative Ltd 1993 (3) SA 403 (A): dictum at 411E – H applied

Caroluskraal Farms (Edms) Bpk v Eerste Nasionale Bank van Suider-Afrika Bpk; J Red Head Boer Goat (Edms) Bpk v Eerste Nasionale Bank van

2012 (2) SACR p143

Suider-Afrika Bpk; Sleutelfontein (Edms) Bpk v Eerste Nasionale Bank van Suider-Afrika Bpk A 1994 (3) SA 407 (A): applied

Dadoo Ltd and Others v Krugersdorp Municipal Council 1920 AD 530: referred to

Du Plessis v Joubert 1968 (1) SA 585 (A): dictum at 595A – B applied

Hatch v Koopoomal 1936 AD 190: dictum at 212 applied

Jaga v Dönges NO and Another; Bhana v Dönges NO and Another B 1950 (4) SA 653 (A): dictum at 664B – C applied

Kloppers v Ko-operatieve Wijnbouwers van Zuid-Afrika, Bpk 1947 (3) SA 408 (C): dictum at 425 applied

Poswa v Member of the Executive Council for Economic Affairs, Environment and Tourism, Eastern Cape 2001 (3) SA 582 (SCA) (2001 (6) BCLR 545): dictum at 587D applied C

R v Aboud 1940 (2) PH O34 (O): applied

R v Arries 1939 CPD 112: applied

R v Eloff 1952 (2) PH O21 (C): applied

R v Georgiou 1969 (3) SA 159 (RA): referred to

R v Griessel 1938 OPD 92: applied D

R v Harmer 1928 EDL 146: applied

R v Hickman 1961 (4) SA 457 (SR): referred to

R v Jackson 1937 (1) PH O10 (T): applied

R v Kamunjoma 1967 (3) SA 623 (R): applied

R v Klein 1967 (3) SA 69 (R): referred to

R v Le Roux 1959 (4) SA 342 (C): dictum at 351 applied E

R v Masiza 1949 (3) SA 974 (E): applied

R v Michaelis 1950 (2) SA 353 (SR): applied

R v Milne and Erleigh 1951 (1) SA 791 (A): referred to

R v Old 1969 (3) SA 333 (R): referred to

R v Oosthuizen 1952 (3) SA 541 (T): dictum at 545 applied

R v Perrins 1942 CPD 189: applied F

S v De Nobrega 1970 (3) SA 232 (SWA): applied

S v Hughes 1964 (2) SA 124 (T): referred to

S v Klopper 1975 (4) SA 773 (A): dictum at 780 applied

S v Luies; S v Koekemoer 1995 (2) SACR 195 (T): referred to

S v Manzira 1972 (4) SA 418 (RA): applied

S v Markman 1972 (3) SA 650 (A): referred to G

S v Maseko; S v Nqwenya; S v Skosana 1972 (3) SA 348 (T): dictum at 351C – D applied

S v Mhlungu and Others 1995 (2) SACR 277 (CC) (1995 (3) SA 867; 1995 (7) BCLR 793): dictum at 886 applied

S v Mlumbi 1962 (1) PH O3 (E): applied

S v Mofokeng 1964 (1) SA 242 (O): referred to H

S v Mpongoshe [2002] 2 All SA 88 (E): dictum at 91g applied

S v Muringi 1974 (4) SA 161 (R): applied

S v Phago 1996 (2) SACR 631 (T): referred to

S v Roux 1976 (2) PH H140 (C): referred to

S v Russell 1968 (3) SA 273 (N): referred to

S v Serabo and Five Similar Cases 2002 (1) SACR 391 (E): applied I

S v Ticharwa 1975 (3) SA 878 (R): referred to

S v Van Rensburg 1967 (2) SA 291 (C): applied

S v Voigt 1965 (2) SA 749 (N): referred to

Savage v Commissioner for Inland Revenue 1951 (4) SA 400 (A): referred to

Schenker v The Master and Another 1936 AD 136: dictum at 142 applied

Venter v R 1907 TS 910: dictum at 915 applied. J

2012 (2) SACR p144

Canada A

R v Jack (1958) 30 CR 77, 122 CCC 241 (BCCA): followed

R v Negridge (1980) 6 MVR 255 ((1980) 54 CCC (2d) 304; 17 CR (3d) 14): followed

R v Ross (1956) 24 CR 271, 115 CCC 31: followed.

England B

British Doughnut Company Ltd v Dale [1944] KB 228 (DC): followed

R v The Licensing Justices for the County Borough of South Shields [1911] KB 1 (DC): followed.

Legislation cited

Statutes

C The National Road Traffic Act 93 of 1996, ss 34, 35(1), 35(1)(c)(ii), 35(2), 35(3), 65(1), 65(1)(a), 65(2), 65(2)(a) and 89(1): see Juta's Statutes of South Africa 2010/11 vol 4 at 2-246, 2-253 and 2-259.

Case Information

Appeal from an order of a magistrate confirming the suspension of the appellant's driver's licence. The facts appear from the reasons for D judgment.

A Hattingh for the appellant.

HL Obermeyer for the respondent.

Cur adv vult. E

Postea (December 15).

Judgment

D Van Zyl J (Mjali J concurring):

Background F

[1] This is an appeal, with leave granted by this court, against an order made by the magistrate for the district Uitenhage, confirming the suspension of the appellant's driving licence for a period of five...