S v Voigt

• Jurisdiction: South Africa
• Judge: Caney J and Harcourt J
• Judgment Date: 05 April 1965
• Citation: 1965 (2) SA 749 (N)
• Hearing Date: 05 April 1965
• Court: Natal Provincial Division

C Harcourt, J.:

This is a review matter which was forwarded to this Court by the magistrate for a decision upon the question as to whether the driver's licence of the accused should have been more extensively suspended or cancelled. The accused was charged with a contravention of sec. 110 (1) (a) of the Road Traffic Ordinance, 26 of 1956 (N), it being D alleged that he drove a motor car upon a public road whilst under the influence of intoxicating liquor.

The accused pleaded guilty and, after adequate evidence aliunde was led to establish the commission of the crime, he was found guilty and sentenced to pay a fine of R80 or to undergo 80 days' imprisonment in E default of payment, linked with a further sentence of 100 days' imprisonment suspended for 3 years on appropriate conditions relating to driving a vehicle under the influence of liquor. The court also ordered that the driver's licence of the accused should be suspended for six months, and that it should be endorsed in terms of sec. 116 of the Ordinance.

F In submitting the matter for review the magistrate indicated that he had overlooked the decision in the case of S v Hughes, 1964 (2) SA 124 (T), in regard to the order of suspension of the licence. This decision was of relevance since the accused had two previous convictions for driving a motor vehicle whilst under the influence of liquor. These G were, however, imposed more than ten years before the commission of the offence now in question, namely in 1951 and 1953. For these offences the accused had respectively been sentenced to pay a fine of £25 or to undergo imprisonment for one month, and to pay a fine of £25 or to undergo imprisonment for three months. In each such case the driver's licence of the accused was suspended, in the first instance for one year H and, in the second instance, for six months. If these two previous convictions were to have been taken into account by the magistrate then the provisions of sec. 115 (1), proviso (iii), of the Ordinance, required that the driver's licence of the accused should have been cancelled and the accused should have been declared to be disqualified for ever from holding, or obtaining, a driver's licence.

The magistrate pointed out that there was no decision in this Division covering the problem and further indicated that he respectfully did not agree with the decision in S v Hughes, supra, and that he preferred

Harcourt J

the reported argument of counsel for the convicted person in that case.

The matter was referred to the Acting Attorney-General for his view and, at his suggestion, it was argued before a full Court. Mr. van Heerden appeared for the State in such argument and Mr. Boshoff appeared, as A amicus curiae, to present argument on behalf of the accused. We are indebted to counsel for their argument. The matter was also referred to the attorneys for the accused who have indicated that they are not in a position to brief counsel to represent the accused but that, in any event, he advances no contentions relating to the matters dealt with in this judgment.

The crisp question which arises is: do the provisions of sec. 303 ter B of the Criminal Code and of the Fifth Schedule thereto apply in regard to the suspension of drivers' licences authorised or required by sec. 115 (1) of the Ordinance?

Sec. 303 ter of the Code provides that:

'The rules contained in the Fifth Schedule shall be observed by a court C when taking previous convictions into account in imposing any sentence on a person convicted by it of any offence.'

The relevant portion of Rule 1 (a) of the Fifth Schedule reads:

'If a period of ten years has elapsed between any date on which a convicted person has previously been convicted . . . and a date on which he is for the first time thereafter again convicted, then such prior conviction and every conviction before the date of that prior conviction D shall not be taken into account in imposing any sentence on that convicted person, unless he be proved to have committed an offence during such period of ten years.'

It will be seen that the crucial phrase in issue in both the section and the Rule is 'in imposing any sentence'. Before considering the precise meaning to be ascribed to these words it should be noted that it has been authoritatively decided that, although there is a distinction E between previous conviction and previous sentence,

'it is also clear that the expression 'previous conviction' is sometimes used in a wider or looser sense to cover, not merely the fact of having in the past been found guilty of a particular offence, but also the associated fact of having had a particular sentence imposed for that offence'.

per SCHREINER, J.A., in R v Nqulunga, 1960 (4) SA 609 (AD) at p. 613. Furthermore, the same case, at p. 614, is authority for the F proposition that the provisions of Rule 1 are mitigatory.

It has also been held that:

'the Rule was intended to ensure that any criminal who managed to keep out of trouble for a continuous period of ten years or longer would be considered (for purposes of sentence on any subsequent conviction at any time thereafter) as having turned over a new leaf in his personal G history book of which he was to have permanent advantage'.

See S v van der Poel, 1962 (2) SA 19 (C), followed in this regard in this Division in S v Mgudlula and Another, 1963 (1) SA 567 (N). The comprehensive nature of the application of the provisions of the Code and Rules in question is furthermore emphasised by the decision, and H particularly the approach, of the Appellate Division in the case of S v Derek, 1964 (2) SA 481 (AD) at p. 485, where it was said that:

'Volgens art. 303 ter van die Strafkode moet, in elke geval waar vorige skuldigbevindings in aanmerking geneem word, die Reëls in die Vyfde Bylae nagekom word. Daar is nog in art. 335 nog elders in die Strafkode 'n aanduiding dat hierdie algemene opdrag nie nagekom moet word by die toepassing van art. 335 (2) (c) nie.'

The wording of this extract is of the widest signification and expressly includes every instance...