South Africa: Eastern Cape High Court, Grahamstown

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[2009] ZAECGHC 37
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Rweqana v S (CA&R 154/07) [2009] ZAECGHC 37 (22 June 2009)
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FORM A
FILING SHEET FOR EASTERN CAPE HIGH COURT, GRAHAMSTOWN JUDGMENT
ECJ:
PARTIES: SIMPHIWE GIVE RWEQANA
And
THE STATE
Registrar: CA&R 154/07
Magistrate:
High Court: EASTERN CAPE HIGH COURT, GRAHAMSTOWN
DATE HEARD: 15/06/09
DATE DELIVERED: 22/06/09
JUDGE(S): JONES J, DAMBUZA J
LEGAL REPRESENTATIVES –
Appearances:
for the Applicant(s): ADV: T.N. Price
for the Respondent(s): ADV: N. Turner
Instructing attorneys:
for the Applicant(s): NOGCANTSI ATTORNEYS
for the Respondent(s): DIRECTOR OF PUBLIC PROSECUTION (GHT)
CASE INFORMATION -
Nature of proceedings : APPLICATION FOR LEAVE TO APPEAL
Not reportable
THE HIGH COURT OF SOUTH AFRICA
In the Eastern Cape High Court
Grahamstown CA&R 154/07
In the matter between
SIMPHIWE GIVEN RWEQANA Applicant
and
THE STATE Respondent
Coram JONES and DAMBUZA JJ
Summary Application for leave to appeal – sentence – driving while under the influence of intoxicating liquor in contravention of s 65(1)(a) of Act No 93 of 1996 – sentenced to 3 years’ imprisonment, 1 year suspended on certain conditions – 4 previous convictions for similar offences – possibility of applicant being addicted to liquor – no reasonable prospect that another court may find that the magistrate misdirected himself by not investigating the effect of possible addiction on the sentence.
JUDGMENT on LEAVE TO APPEAL
JONES J
[1] On 15 May 2007 the applicant was sentenced to 3 years’ imprisonment, 1 year suspended for 5 years on certain conditions, for driving while under the influence of liquor. He was also convicted and sentenced in respect of two other counts which have no bearing on this judgment. One of the aggravating features on sentence was the applicant’s four previous convictions for similar offences. He applied for leave to appeal against the conviction and the sentence. Leave was refused in respect of the conviction but he was granted leave to appeal on sentence. The appeal was unsuccessful. He now seeks special leave to appeal to the Supreme Court of Appeal.
[2] The notice of appeal raised a number of grounds of appeal. Only one was pursued in argument – whether the magistrate erred in not mero motu calling for a further probationer’s report in order to consider whether, by reason of the applicant’s possible addiction to liquor, the trial court should conduct an inquiry into the applicant‘s possible committal for treatment in a rehabilitation centre in terms of section 296 of the Criminal Procedure Act No 51 of 1977, in lieu of a sentence of imprisonment. That is also the only ground of appeal advanced in this application.
[3] I do not believe that there is a reasonable prospect of the Supreme Court of Appeal accepting the applicant’s contention. The application is based on the proposition that a modern and enlightened approach to restorative criminal punishment permits and, indeed, requires the courts to give consideration to using the machinery of enforced rehabilitation where the offender has solid potential as a human being but where his addiction to alcohol prevents insight into his disease and brings about ruination to himself and family. The suggestion is that the Supreme Court of Appeal may break new ground in this context by requiring the courts to take proactive steps to enquire into the possibility of turning to this kind of sentencing even where there is but scant information before the court to justify such an enquiry and even where it appears to have been resisted by the offender.
[4] This argument may appear attractive. But we cannot to lose sight of basic principles. It is necessary for the applicant to show that he has reasonable prospects of satisfying the Supreme Court of Appeal that the magistrate did not exercise his discretion on sentence in a proper judicial manner. There must be a proper factual basis – not merely a guess or a whim – to justify a reasonably possible conclusion that the magistrate did not apply his mind properly to the question of sentence. In this case there was body of information before the court to give rise to the inference that although the applicant may have had a liquor problem he was able to cope with it (a) professionally in the performance of his work as a public prosecutor, and (b) personally in his family and daily life, and that he did not qualify for committal to a treatment centre under the relevant legislation. The only evidential basis for a possible finding of addiction to alcohol was the applicant’s statement that he had a liquor problem, to which may be added a comment by the probation officer that the applicant said he had difficulty in stopping drinking altogether but that he had cut down. In any event, even if the applicant is an alcoholic this does not justify interference with the magistrate’s sentence. This is because there was no direct connection between the applicant’s possible alcoholism and the commission of the offence of driving under the influence of alcohol. In the circumstances of this case alcoholism is an aggravating circumstance rather than one which calls for restorative punishment: as a public prosecutor, the applicant should know better than to drink before driving home. I am not able to point to any single circumstance in the case which might conceivably give rise to the conclusion that the magistrate’s approach to sentence was judicially improper or inappropriate. In my opinion, there are no prospects of a further appeal succeeding.
[5] The application for leave to appeal to the Supreme Court of Appeal is dismissed.
RJW JONES
Judge of the High Court
17 June 2009
DAMBUZA J I agree
N DAMBUZA
Judge of the High Court